[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31668-31730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14597]




[[Page 31667]]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 68



Accidental Release Prevention Requirements: Risk Management Programs 
Under the Clean Air Act, Section 112(r)(7); List of Regulated 
Substances and Thresholds for Accidental Release Prevention, Stay of 
Effectiveness; and Accidental Release Prevention Requirements: Risk 
Management Programs Under Section 112(r)(7) of the Clean Air Act as 
Amended, Guidelines; Final Rules and Notice

Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules 
and Regulations

[[Page 31668]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-5516-5]
RIN 2050-AD26


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Clean Air Act requires EPA to promulgate regulations to 
prevent accidental releases of regulated substances and reduce the 
severity of those releases that do occur. EPA is promulgating rules 
that apply to all stationary sources with processes that contain more 
than a threshold quantity of a regulated substance. Processes will be 
divided into three categories based on: the potential for offsite 
consequences associated with a worst-case accidental release; accident 
history; or compliance with the prevention requirements under OSHA's 
Process Safety Management Standard. Processes that have no potential 
impact on the public in the case of an accidental release will have 
minimal requirements. For other processes, sources will implement a 
risk management program that includes more detailed requirements for 
hazard assessment, prevention, and emergency response. Processes in 
industry categories with a history of accidental releases and processes 
already complying with OSHA's Process Safety Management Standard will 
be subject to a prevention program that is identical to parallel 
elements of the OSHA Standard. All other processes will be subject to 
streamlined prevention requirements. All sources must prepare a risk 
management plan based on the risk management programs established at 
the source. The source must submit the plan to a central point 
specified by EPA; the plan will be available to state and local 
governments and the public. These regulations will encourage sources to 
reduce the probability of accidental releases of substances that have 
the potential to cause immediate harm to public health and the 
environment and will stimulate the dialogue between industry and the 
public to improve accident prevention and emergency response practices.

DATES: The rule is effective August 19, 1996.

ADDRESSES: Supporting material used in developing the proposed rule, 
supplemental notice, and final rule is contained in Docket No. A-91-73. 
The 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 Room 1500, 401 M St. SW, Washington, DC 20460. A reasonable fee may 
charged for copying.

FOR FURTHER INFORMATION CONTACT: Craig Matthiessen at (202) 260-8600, 
Chemical Emergency Preparedness and Prevention Office, U.S. 
Environmental Protection Agency, 401 M St. SW, Washington, DC 20460, or 
the Emergency Planning and Community Right-to-Know Hotline at 1-800-
424-9346 (in the Washington, DC, metropolitan area, (703) 412-9810).

SUPPLEMENTARY INFORMATION: Judicial Review. Accidental Release 
Prevention Requirements: Risk Management Programs Under Clean Air Act 
Section 112(r)(7) were proposed in the Federal Register on October 20, 
1993 (58 FR 54190). A supplemental notice was issued on March 13, 1995 
(60 FR 13526). This Federal Register action announces the EPA's final 
decisions on the rule. Under section 307(b)(1) of the Act, judicial 
review of the Accidental Release Prevention Requirements: Risk 
Management Programs is available only by the petition for review in the 
U.S. Court of Appeals for the District of Columbia Circuit within 60 
days of today's publication of this final rule. Under section 307(b)(2) 
of the Act, the requirements that are the subject of today's notice may 
not be challenged later in civil or criminal proceedings brought by the 
EPA to enforce these requirements.

Regulated Entities

    Entities potentially regulated by this action are those stationary 
sources that have more than a threshold quantity of a regulated 
substance in a process. Regulated categories and entities include:

------------------------------------------------------------------------
             Category                  Examples of regulated entities   
------------------------------------------------------------------------
Chemical Manufacturers............  Industrial organics & inorganics,   
                                     paints, pharmaceuticals, adhesives,
                                     sealants, fibers                   
Petrochemical.....................  Refineries, industrial gases,       
                                     plastics & resins, synthetic rubber
Other Manufacturing...............  Electronics, semiconductors, paper, 
                                     fabricated metals, industrial      
                                     machinery, furniture, textiles     
Agriculture.......................  Fertilzers, pesticides              
Public Sources....................  Drinking and waste water treatment  
                                     works                              
Utilities.........................  Electric and Gas Utilities          
Others............................  Food and cold storage, propane      
                                     retail, warehousing and wholesalers
Federal Sources...................  Military and energy installations   
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether a 
stationary source is regulated by this action, carefully examine the 
provisions associated with the list of substances and thresholds under 
Sec. 68.130 (59 FR 4478), the proposed modifications (61 FR 16598, 
April 15, 1996) and the stay of implementation of the affected 
provisions until the proposed modifications are final published 
elsewhere in today's Federal Register, and the applicability criteria 
in Sec. 68.10 of today's rule. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
    The following outline is provided to aid in reading this preamble:

I. Introduction and Background
    A. Statutory Authority
    B. Background
II. Discussion of Final Rule
    A. Applicability
    B. Program Criteria and Requirements
    C. Hazard Assessment
    D. Prevention Programs
    E. Emergency Response
    F. Risk Management Plan (RMP)
    G. Air Permitting
    H. Other Issues
III. Discussion of Comments
    A. Tiering
    1. Rationale
    2. Program 1 vs. Program 2 and Program 3 Criteria

[[Page 31669]]

    a. Potential for Offsite Impact
    b. Accident History
    c. Other
    3. Program 2 vs. Program 3 Criteria
    a. Number of Employees
    b. SIC Code
    c. Site-specific, Risk-based Criteria
    d. Accident History
    e. Other
    4. Program 1 Requirements
    a. Certification of No Environmental Impact
    b. Signs
    c. Emergency Response Program
    d. Other
    5. Program 2 Requirements
    a. Streamlined Program
    b. Other Regulations
    c. Emergency Response Program
    B. Offsite Consequence Analysis
    1. Worst-Case Release Scenario
    2. Mitigation Systems
    a. Worst-Case Release Scenario
    b. Alternative Scenarios
    3. Populations Affected
    4. Number of Scenarios
    5. Technical Guidance
    6. Modeling Parameters
    a. Endpoints
    b. Meteorology
    C. Consideration of Environmental Impact
    1. Inclusion of Environmental Impacts
    2. Environments to be Considered
    3. Level of Analysis Required
    D. Program 3 Consistency with OSHA PSM Standard
    1. Prevention Program
    2. Enforcement
    3. Exemptions
    E. Relationship to Air Permits
    1. General Relationship between the Part 68 and Part 70 programs
    2. Impact of EPA's Proposal on Air Permitting Programs
    3. Part 68 as an ``Applicable Requirement'' under Part 70
    4. Role of the Air Permitting Authority
    5. Air Permit Application Contents
    6. Air Permit Contents
    7. Completeness Review
    8. Interaction of the Implementing Agency and the Permitting 
Authority
    9. Designated Agency
    10. Reopening Air Permits to Incorporate Section 112(r) 
Requirements
    11. Use of Air Funds
    12. Other Issues
    F. General Definitions
    1. Significant Accidental Release
    2. Stationary Source
    3. Process
    4. Offsite
    5. Other Definitions
    G. Risk Management Plan (RMP)
    1. Level of Detail
    2. RMP Content
    3. Submission
    4. Other Issues
    H. Prevention Program
    I. Accident History
    J. Emergency Response Program
    K. Registration
    L. Model Risk Management Programs
    M. Implementing Agency Audits
    N. Public Participation
    O. Inherently Safer Technologies
    P. Coverage by Other Regulations
    1. General Issues
    2. DOT Transportation Regulations
    3. Other EPA Regulations
    4. Other Federal Regulations
    5. State and Local Regulations
    Q. Industry-Specific Issues
    1. Oil and Gas Facilities
    2. Retail Facilities
    a. Propane Retailers
    b. Ammonia Retailers
    3. Refrigeration Systems
    4. Other Operations
    R. Implementing Agency Delegation
    S. Accident Reporting
    T. Other Issues
    1. OSHA VPP
    2. Qualified Third Party
    3. Documentation
IV. Section-by-Section Analysis of the Rule
V. Required Analyses
    A. E.O. 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandate Reform Act
    D. Paperwork Reduction Act
    E. Submission to Congress and the General Accounting Office

I. Introduction and Background

A. Statutory Authority

    This rule is promulgated under sections 112(r), 301(a)(1), Title V 
of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r), 7601(a)(1), 
7661-7661f).

B. Background

    The CAA Amendments of 1990 amend section 112 and add paragraph (r). 
The intent of section 112(r) is to prevent accidental releases to the 
air and mitigate the consequences of such releases by focusing 
prevention measures on chemicals that pose the greatest risk to the 
public and the environment. Section 112(r)(3) mandates that EPA 
promulgate a list of regulated substances, with threshold quantities; 
this list defines the stationary sources that will be subject to 
accident prevention regulations mandated by section 112(r)(7). EPA 
promulgated its list of substances on January 31, 1994 (59 FR 4478) 
(``List Rule'').
    As noted elsewhere in today's Federal Register, EPA has stayed 
certain provisions of part 68 that were promulgated as part of the List 
Rule. The stayed provisions are being addressed in amendments to the 
List Rule, which were proposed in 61 FR 16598 (April 15, 1996). 
Therefore, EPA has not taken final action on provisions of the Risk 
Management Program rule that apply to regulated substances, mixtures, 
and stationary sources addressed by the stayed provisions. Final action 
will be deferred until EPA takes final action on the proposed 
amendments to the List Rule.
    Section 112(r)(7) mandates that EPA promulgate regulations and 
develop guidance to prevent, detect, and respond to accidental 
releases. Stationary sources covered by these regulations must develop 
and implement a risk management program that includes a hazard 
assessment, a prevention program, and an emergency response program. 
The risk management program must be described in a risk management plan 
(RMP) that must be registered with EPA, submitted to state and local 
authorities, and made available to the public. On October 20, 1993, EPA 
published a Notice of Proposed Rulemaking (NPRM) for the section 
112(r)(7) regulations (58 FR 54190). (For a summary of the statutory 
requirements of section 112(r) and related statutory provisions, see 
the October 20, 1993, NPRM).
    Following publication of the proposed rule, EPA held four public 
hearings and received approximately 770 written comments. Because of 
these comments, EPA issued a supplemental notice of proposed rulemaking 
(SNPRM) on March 13, 1995 (60 FR 13526) for comment on: approaches for 
setting different requirements for sources that pose different levels 
of hazard (tiering); worst-case releases and other hazard assessment 
issues; accident information reporting; public participation; 
inherently safer approaches; and implementation and integration of 
section 112(r) with state programs, particularly state air permitting 
programs. EPA held a public hearing on March 31, 1995, in Washington, 
DC, and received more than 280 written comments. Today's rule reflects 
EPA's consideration of all comments; major issues raised by commenters 
and EPA's response are briefly discussed in Section III of this 
preamble. A summary of all comments submitted and EPA's response to 
them is available in the Docket (see ADDRESSES).
    EPA has proposed to delist explosives from Sec. 68.130. 
Consequently, explosives are not addressed in this rule. EPA had also 
requested at the time of the final List Rule comments on whether 
flammable substances, when used as fuel, posed a lesser intrinsic 
hazard than the same substance handled otherwise (59 FR 4500, January 
31, 1994). The comments submitted lacked data that would justify a 
lesser level of hazard consideration for flammable fuels; hence, the 
Agency will not adopt a fuel use exemption for purposes of threshold 
quantity determination.
    With today's rule, EPA continues the philosophy that the Agency 
embraced in implementing the Emergency Planning and Community Right-to-
Know Act of

[[Page 31670]]

1986 (EPCRA). Specifically, EPA recognizes that regulatory 
requirements, by themselves, will not guarantee safety. Instead, EPA 
believes that information about hazards in a community can and should 
lead public officials and the general public to work with industry to 
prevent accidents. For example, today's rule requires covered sources 
to provide information about possible worst-case scenarios. EPA intends 
that officials and the public use this information to understand the 
chemical hazards in the community and then engage in a dialogue with 
industry to reduce risk. In this way, accident prevention is focused 
primarily at the local level where the risk is found. Further, today's 
rule builds on existing programs and standards. For example, EPA has 
coordinated with Occupational Safety and Health Administration (OSHA) 
and the Department of Transportation (DOT) in developing this 
regulation. To the extent possible, covered sources will not face 
inconsistent requirements under these agencies' rules. EPA is 
encouraging sources to use existing emergency response programs, rather 
than develop a separate and duplicative program under this rule. In 
addition, today's rule scales requirements based on the potential risk 
posed by a source and the steps needed to address the risk, rather than 
imposing identical requirements on all sources.
    To accommodate the concerns of small businesses, EPA is providing 
guidance with reference tables that covered sources can use to model 
the offsite consequences of a release. EPA is providing a model RMP 
guidance for the ammonia refrigeration industry, and will develop 
similar guidance for propane handlers and drinking water systems. As 
today's rule is implemented, EPA hopes that other industry sectors will 
work with EPA to develop model RMPs for other processes, thereby 
reducing costs for individual sources. Finally, today's rule requires 
industry to submit RMPs centrally in a format and method to be 
determined by EPA. Working with stakeholders, EPA will develop 
mechanisms to allow industry to use appropriate electronic technology 
to register with EPA and submit RMPs. In turn, all interested parties 
will be able to access electronically the data in RMPs. This method of 
submission and access avoids a potentially significant amount of 
paperwork for all involved parties and promotes uniformity. Users will 
be able to develop databases for specific purposes and compare RMPs for 
various sites across the country. In turn, industries' use of the data 
will promote continuous improvement, for example, through new safety 
technologies. As the method for submitting RMPs is developed, EPA 
invites the participation of all stakeholders, including industry, 
state and local governments, local emergency planning committees, 
environmental groups, and the general public.

II. Discussion of Final Rule

A. Applicability

    The owner or operator of a stationary source that has more than a 
threshold quantity of a regulated substance in a process must comply 
with these requirements no later than June 21, 1999; three years after 
the date on which a regulated substance is first listed under 
Sec. 68.130; or the date on which a regulated substance is first 
present in more than a threshold quantity in a process, whichever is 
later.

B. Program Criteria and Requirements

    Under today's rule, processes subject to these requirements are 
divided into three tiers, labeled Programs 1, 2, and 3. EPA has adopted 
the term ``Program'' to replace the term ``Tier'' found in the SNPRM to 
avoid confusion with Tier I and Tier II forms submitted under EPCRA, 
also known as Title III of the Superfund Amendments and Reauthorization 
Act of 1986 (SARA Title III). Eligibility for any given Program is 
based on process criteria so that classification of one process in a 
Program does not influence the classification of other processes at the 
source. For example, if a process meets Program 1 criteria, the source 
need only satisfy Program 1 requirements for that process, even if 
other processes at the source are subject to Program 2 or Program 3. A 
source, therefore, could have processes in one or more of the three 
Programs.
    Program 1 is available to any process that has not had an 
accidental release with offsite consequences in the five years prior to 
the submission date of the RMP and has no public receptors within the 
distance to a specified toxic or flammable endpoint associated with a 
worst-case release scenario. Program 3 applies to processes in Standard 
Industrial Classification (SIC) codes 2611 (pulp mills), 2812 (chlor-
alkali), 2819 (industrial inorganics), 2821 (plastics and resins), 2865 
(cyclic crudes), 2869 (industrial organics), 2873 (nitrogen 
fertilizers), 2879 (agricultural chemicals), and 2911 (petroleum 
refineries). Program 3 also applies to all processes subject to the 
OSHA Process Safety Management (PSM) standard (29 CFR 1910.119), unless 
the process is eligible for Program 1. Owners or operators will need to 
determine individual SIC codes for each covered process to determine 
whether Program 3 applies. All other covered processes must satisfy 
Program 2 requirements. Program requirements and differences are 
illustrated on Tables 1 and 2:

                  Table 1--Program Eligibility Criteria                 
------------------------------------------------------------------------
          Program 1                 Program 2             Program 3     
------------------------------------------------------------------------
No offsite accident history.    ..................  Process is subject  
                                                     to OSHA PSM.       
No public receptors in worst- The process is not    Process is in SIC   
 case circle.                  eligible for          code 2611, 2812,   
                               Program 1 or 3.       2819, 2821, 2865,  
                                                     2869, 2873, 2879,  
                                                     or 2911.           
Emergency response              ..................                      
 coordinated with local                                                 
 responders.                                                            
------------------------------------------------------------------------


               Table 2--Comparison of Program Requirements              
------------------------------------------------------------------------
          Program 1                 Program 2             Program 3     
------------------------------------------------------------------------
Hazard Assessment:                                                      
Worst-case analysis.........  Worst-case analysis.  Worst-case analysis.
                              Alternative releases  Alternative         
                                                     releases.          
5-year accident history.....  5-year accident       5-year accident     
                               history.              history.           
Management Program:                                                     
                              Document management   Document management 
                               system.               system.            

[[Page 31671]]

                                                                        
Prevention Program:                                                     
Certify no additional steps   Safety Information..  Process Safety      
 needed.                                             Information.       
                              Hazard Review.......  Process Hazard      
                                                     Analysis.          
                              Operating Procedures  Operating           
                                                     Procedures.        
                              Training............  Training.           
                              Maintenance.........  Mechanical          
                                                     Integrity.         
                              Incident              Incident            
                               Investigation.        Investigation.     
                              Compliance Audit....  Compliance Audit.   
                                ..................  Management of       
                                                     Change.            
                                ..................  Pre-startup Review. 
                                ..................  Contractors.        
                                ..................  Employee            
                                                     Participation.     
                                ..................  Hot Work Permits.   
Emergency Response Program:                                             
Coordinate with local         Develop plan and      Develop plan and    
 responders.                   program.              program.           
Risk Management Plan                                                    
 Contents:                                                              
Executive Summary...........  Executive Summary...  Executive Summary   
Registration................  Registration........  Registration.       
Worst-case data.............  Worst-case data.....  Worst-case data.    
5-year accident history.....  Alternative release   Alternative release 
                               data.                 data.              
Certification...............  5-year accident       5-year accident     
                               history.              history.           
                              Prevention program    Prevention program  
                               data.                 data.              
                              Emergency response    Emergency response  
                               data.                 data.              
                              Certification.......  Certification.      
------------------------------------------------------------------------


    The owner or operator of a covered process must: (1) prepare and 
submit a single risk management plan (RMP), including registration that 
covers all affected processes and chemicals; (2) conduct a worst-case 
release scenario analysis, review accident history, ensure emergency 
response procedures are coordinated with community response 
organizations to determine eligibility for Program 1 and, if eligible, 
document the worst case and complete a Program 1 certification for the 
RMP; (3) conduct a hazard assessment, document a management system, 
implement a more extensive, but still streamlined prevention program, 
and implement an emergency response program for Program 2 processes; 
and (4) conduct a hazard assessment, document a management system, 
implement a prevention program that is fundamentally identical to the 
OSHA PSM Standard, and implement an emergency response program for 
Program 3 processes.
    Measures taken by sources to comply with OSHA PSM for any process 
that meets OSHA's PSM standard are sufficient to comply with the 
prevention program requirements of all three Programs. EPA will retain 
its authority to enforce the prevention program requirements and the 
general duty requirements of CAA Section 112(r)(1). EPA and OSHA are 
working closely to coordinate interpretation and enforcement of PSM and 
accident prevention programs. EPA will also work with state and local 
agencies to coordinate oversight of worker and public safety and 
environmental protection programs.

C. Hazard Assessment

    EPA has adopted the worst-case definition proposed in the SNPRM. 
For all substances, the worst-case release scenario will be defined as 
the release of the largest quantity of a regulated substance from a 
vessel or process line failure, including administrative controls and 
passive mitigation that limit the total quantity involved or the 
release rate. For most gases, the worst-case release scenario assumes 
that the quantity is released in 10 minutes. For liquids, the scenario 
assumes an instantaneous spill; the release rate to the air is the 
volatilization rate from a pool 1 cm deep unless passive mitigation 
systems contain the substance in a smaller area. For flammables, the 
worst case assumes an instantaneous release and a vapor cloud 
explosion.
    For the final rule, EPA has adopted the term ``alternative release 
scenarios'' to replace the term ``other more likely scenarios'' found 
in the NPRM and SNPRM. The non-worst-case accidental releases for the 
hazard assessment portion of the risk management plan were presumed 
``more likely to occur'' and ``more realistic'' than the worst case. 
EPA believes sources should have flexibility to select non-worst-case 
scenarios that are the most useful for communication with the public 
and first responders and for emergency response preparedness and 
planning. Catastrophic accidental releases are typically rare events; 
the words ``more likely'' suggests certainty of occurrence. 
Consequently, the scenarios other than worst case provided in the 
hazard assessment are called alternative release scenarios. For 
alternative scenarios, sources may consider the effects of both passive 
and active mitigation systems.
    One worst-case release scenario will be defined to represent all 
toxics, and one worst-case release scenario will be defined to 
represent all flammables held above the threshold at the source. 
Additional worst-case release scenario(s) must be analyzed and reported 
if such a release from another covered process at the source 
potentially affects public receptors that would not be potentially 
affected by the first scenario. EPA recognizes that this approach may 
be problematic for some sources such as batch processors and warehouses 
where use of listed substances or inventory may vary considerably 
within an RMP reporting period. EPA suggests that owners or operators 
of such processes develop a worst-case scenario for future chemical use 
and inventory based on past practices to minimize the need for frequent 
revision of their worst-case scenario. For alternative release 
scenarios, one scenario is required for each toxic substance and one to 
represent all flammable substances held in covered processes at the 
source.
    An endpoint is needed for the offsite consequence analysis. 
Appendix A of today's rule lists the endpoints for toxic substances 
that must be used in worst-

[[Page 31672]]

case and alternative scenario assessment. The endpoint for a toxic 
substance is its Emergency Response Planning Guideline level 2 (ERPG-2) 
developed by the American Industrial Hygiene Association (AIHA). If a 
substance has no ERPG-2, then the endpoint is the level of concern 
(LOC) from the Technical Guidance for Hazards Analysis, updated where 
necessary to reflect new toxicity data. EPA recognizes the limitations 
associated with ERPG-2 and LOC values and is working with other 
agencies to develop Acute Exposure Guideline Limits (AEGLs). When these 
values have been developed and peer-reviewed, EPA intends to adopt them 
through rulemaking as the toxic endpoints for this rule. For 
flammables, vapor cloud explosion distances will be based on an 
overpressure of 1 psi; for alternative flammable releases, radiant heat 
distances will be based on an exposure of 5 kW/m\2\ for 40 seconds. For 
vapor cloud fires and jet fires, the lower flammability limit provided 
by the National Fire Protection Association (NFPA) or other sources 
shall be used.
    EPA selected 1.5 meter per second (m/s) wind speed and F 
atmospheric stability class as the default worst-case scenario 
meteorological conditions. If the owner or operator has meteorological 
data that show that higher minimum wind speeds or less stable 
atmospheric class conditions existed at the source at all times in the 
previous three years, then the higher wind speed and different 
stability class may be used. Alternative release analyses may use site-
specific, typical meteorological conditions. If the owner or operator 
has no data on typical meteorological conditions, then conditions used 
in the RMP Offsite Consequence Analysis Guidance (3 m/s and D 
stability), may be used. Although EPA is providing technical guidance 
and reference tables for worst-case and alternative release scenario 
assessments, owners or operators may use any generally recognized, 
commercially or publicly available air dispersion modeling techniques, 
provided the modeling parameters specified in the rule are used.
    For the hazard assessment and the RMP, populations potentially 
affected are defined as those within a circle that has as its center 
the point of release and its radius the distance to the toxic or 
flammable endpoint. Owners or operators may use Census data to define 
this population, and may update those data if they are inaccurate. EPA 
suggests that owners or operators use LandView, an electronic 
publication of environmental, geographic and demographic information 
published by EPA and the Bureau of Census. The presence of schools, 
hospitals, other institutions, public arenas, recreational areas, and 
large commercial and industrial developments that can be identified on 
street maps within this circle must be noted in the RMP, but the number 
of people occupying them need not be enumerated. The presence of 
environmental receptors within this circle must also be listed. EPA has 
defined environmental receptors as natural areas such as national or 
state parks, forests, or monuments; officially designated wildlife 
sanctuaries, preserves, refuges, or areas; and Federal wilderness 
areas, that can be exposed to an accidental release. All of these can 
be identified on local U.S. Geological Survey maps or maps based on 
USGS data.
    The five-year accident history will cover all accidents involving 
regulated substances, but only from covered processes at the source 
that resulted in serious on site or certain known offsite impacts in 
the five years prior to the submission of each RMP. EPA has replaced 
the definition of significant accidental release with specific 
definitions of the types of releases to be covered under each of the 
specific requirements previously associated with this definition.

D. Prevention Programs

    EPA has retained the management system requirement proposed in the 
NPRM, but only for Program 2 and 3 processes. EPA has moved the 
management system requirement from the prevention program section to 
the general requirements section because it should be designed to 
oversee the implementation of all elements of the risk management 
program. The owner or operator must designate a qualified person or 
position with overall responsibility for the program and specify the 
lines of authority if responsibility for implementing individual 
requirements is assigned to other persons or positions.
    In the SNPRM, EPA proposed a Program 2 prevention program that 
covered training, maintenance, safety precautions, and monitoring, but 
did not specify any particular actions. EPA solicited comment on 
whether specific prevention activities should be required for Program 2 
sources, such as any of the specific activities initially proposed in 
the NPRM. For today's rule, EPA has developed seven specific elements 
for the Program 2 prevention program: safety information (Sec. 68.48), 
hazard review (Sec. 68.50), operating procedures (Sec. 68.52), training 
(Sec. 68.54), maintenance (Sec. 68.56), compliance audits (Sec. 68.58), 
and incident investigation (Sec. 68.60). Most Program 2 processes are 
likely to be relatively simple and located at smaller businesses. EPA 
believes owners or operators of Program 2 processes can successfully 
prevent accidents without a program as detailed as the OSHA PSM, which 
was primarily designed for the chemical industry. EPA combined and 
tailored elements common to OSHA's PSM and EPA's NPRM to generate 
Program 2 requirements and applied them to non-petrochemical industry 
processes. EPA is also developing model risk management programs (and 
RMPs) for several industry sectors that will have Program 2 processes. 
These model guidances will help sources comply by providing standard 
elements that can be adopted to a specific source. EPA expects that 
many Program 2 processes will already be in compliance with most of the 
requirements through compliance with other Federal regulations, state 
laws, industry standards and codes, and good engineering practices.
    The Program 3 prevention program includes the requirements of the 
OSHA PSM standard, 29 CFR 1910.119 (c) through (m) and (o), with minor 
wording changes to address statutory differences. This makes it clear 
that one accident prevention program to protect workers, the general 
public, and the environment will satisfy both OSHA and EPA. For 
elements that are in both the EPA and OSHA rules, EPA has used OSHA's 
language verbatim, with the following changes: the replacement of the 
terms ``highly hazardous substance,'' ``employer,'' ``standard'' and 
``facility'' with ``regulated substance,'' ``owner or operator,'' 
``part or rule,'' and ``stationary source''; the deletion of specific 
references to workplace impacts or to ``safety and health;'' changes to 
specific schedule dates; and changes to references within the standard. 
The ``safety and health'' and ``workplace impacts'' references occur in 
OSHA's PSM standard in process safety information (29 CFR 1910.119 
(d)(2)(E)), process hazards analysis (29 CFR 1910.119(e)(3)(vii)), and 
incident investigation (29 CFR 1910.119(m)(1)). These changes are 
designed to ensure that OSHA retains its oversight of actions designed 
to protect workers while EPA retains its oversight of actions to 
protect public health and the environment and to remove possible 
interpretations that certain elements of process safety management fail 
to account for offsite impacts. Commenters were particularly concerned 
about the phase-in of process hazard analyses

[[Page 31673]]

(PHAs). Under the final rule, PHAs conducted for OSHA are considered 
adequate to meet EPA's requirements. They will be updated on the OSHA 
schedule (i.e., by the fifth anniversary of their initial completion). 
This approach will eliminate any need for duplicative analyses. 
Documentation for the PHA developed for OSHA will be sufficient to meet 
EPA's purposes.
    EPA anticipates that sources whose processes are already in 
compliance with OSHA PSM will not need to take any additional steps or 
create any new documentation to comply with EPA's Program 3 prevention 
program. Any PSM modifications necessary to account for protection of 
public health and the environment along with protection of workers can 
be made when PSM elements are updated under the OSHA requirements. EPA 
has modified the OSHA definition of catastrophic release, which serves 
as the trigger for an incident investigation, to include events ``that 
present imminent and substantial endangerment to public health and the 
environment.'' As a result, this rule requires investigation of 
accidental releases that pose a risk to the public or the environment, 
whereas the OSHA rule does not. EPA recognizes that catastrophic 
accidental releases primarily affect the workplace and that this change 
will have little effect on incident investigation programs already 
established. However, EPA needs to ensure that deviations that could 
have had only an offsite impact are also addressed.

E. Emergency Response

    EPA has adopted the emergency response requirements found in the 
statute, without additional specific planning requirements beyond those 
necessary to implement the statute. This action is consistent with the 
Agency's effort to develop a single Federal approach for emergency 
response planning. The Presidential Review of Federal release 
prevention, mitigation, and response authorities (required under 
section 112(r)(10) of the Clean Air Act) found that there is seldom 
harmony in the required formats or elements of response plans prepared 
to meet various Federal regulations. Accordingly, EPA has committed not 
to specify new plan elements and/or a specific plan format in today's 
rule beyond those that are statutorily required. EPA believes that 
plans developed to comply with other EPA contingency planning 
requirements and the OSHA Hazardous Waste and Emergency Operations 
(HAZWOPER) rule (29 CFR 1910.120) will meet most of the requirements 
for the emergency response program. In addition, EPA and other National 
Response Team agencies have prepared Integrated Contingency Plan 
Guidance (``one plan'') (NRT, May 1996). The NRT and the agencies 
responsible for reviewing and approving federal response plans to which 
the one plan option applies agree that integrated response plans 
prepared in the format provided in this guidance will be acceptable and 
be the federally preferred method of response planning. An emergency 
response plan that includes the elements specified in this guidance can 
be used to meet the requirements in today's rule. The final rule also 
provides relief for sources that are too small to respond to releases 
with their own employees; these sources will not be required to develop 
emergency response plans provided that procedures for notifying non-
employee emergency responders have been adopted and that appropriate 
responses to their hazards have been addressed in the community 
emergency response plan developed under EPCRA (42 U.S.C. 11003) for 
toxics or coordinated with the local fire department for flammables.

F. Risk Management Plan (RMP)

    Owners or operators must submit their first RMP by the date 
specified in Sec. 68.10. After the RMP is submitted, changes at the 
source may require updates to the RMP other than the standard update 
every five years. If a new substance or new process is added, the RMP 
will need to be revised and submitted by the date the substance is 
first in the process above the threshold quantity. If changes to 
processes require revised hazard assessments or PHAs, or if a process 
changes Program level, the source must submit a revised RMP within six 
months.
    EPA intends that the RMP will be submitted in a method and format 
to a central point as specified by EPA. States, local entities 
including local emergency planning committees (LEPCs), and the public 
will be able to access all RMPs electronically. This process will 
relieve states and local entities of the burden of filing documents and 
providing public access to them without limiting these agencies' or the 
public's access to the information.
    The RMP is a multi-purpose document. The CAA requires that the RMP 
indicate compliance with the regulations and also include the hazard 
assessment, prevention program, and emergency response program. EPA is 
mandated to develop a program for auditing RMPs and requiring 
revisions, where appropriate. The RMP, therefore, must include enough 
data to allow the implementing agency to determine, through review of 
the RMP, whether the source is in compliance with the rule. EPA, 
however, believes that the RMP must serve another function; to provide 
information to the public in a form that will be understandable and 
will encourage the public to use the information to improve the 
dialogue with sources on issues related to prevention and preparedness.
    To meet both of these purposes, the RMP will consist of the 
source's registration; an executive summary that will provide a brief 
description of the source's activities as they relate to covered 
processes and program elements; and data elements that address 
compliance with each of the rule elements. While the public and 
implementing agencies could make use of all sections of the RMP, the 
executive summary will provide text descriptions and give the source a 
chance to explain its programs in a format that will be easy for 
communities to read and understand. The data elements will provide the 
implementing agency with the basic data it needs to assess compliance 
without asking for detailed documentation. The Agency is considering 
development of an RMP form where the data elements of the form would 
provide the implementing agency with the basic data it needs to assess 
compliance without asking for detailed documentation. All data elements 
would be checkoff boxes, yes/no answers, or numerical entries.
    This approach will provide data that anyone can download or search. 
States, communities, trade associations, or public interest groups may 
want to use the data or a subset of the data to create databases that 
allow them to compare sources in the same industry or same area. For 
example, a local entity will be able to download data from all 
reporting sources that are similar to ones in its community to 
determine whether the quantities stored and process controls used are 
typical. The information will provide the public with data that will 
enhance their dialogue with sources. It will also help sources and 
trade associations to understand practices in their industries and 
identify practices that could be used to reduce risks. The risk 
management program documentation will remain at the source and will be 
available for review by EPA and the implementing agency.

G. Air Permitting

    The SNPRM discussed the relationship between section 112(r) and CAA 
air permitting requirements for sources subject to both provisions. 
Under the CAA, air permitting authorities must ensure that sources are

[[Page 31674]]

in compliance with applicable requirements to issue a permit. Because 
section 112(r) is an applicable requirement, EPA has identified in the 
final rule the permit conditions and the actions owners or operators 
and air permitting authorities must take to ensure compliance. The 
permit must identify part 68 as an applicable requirement and establish 
conditions that require the owner or operator of the source to submit 
either a compliance schedule for meeting the requirements of part 68 by 
the date specified in Sec. 68.10(a) or, as part of the compliance 
certification submitted under 40 CFR 70.6(c)(5), a certification 
statement that, to the best of the owner or operator's knowledge, the 
source is in compliance with all requirements of this part, including 
the registration and submission of the RMP. The owner or operator must 
also submit any additional relevant information requested by the air 
permitting authority or designated agency to ensure compliance with the 
requirements of this section. If a permit is already issued that does 
not contain the provisions described above, then, the owner or operator 
or air permitting authority shall initiate permit revision or reopening 
according to the procedures in 40 CFR 70.7 or 71.7 to incorporate the 
terms and conditions as described above. EPA also allows the state to 
assign the authority to implement and enforce these requirements to 
another agency or agencies (the ``designated agency'') to take 
advantage of resources or accident prevention expertise that might be 
available in these other agencies. Finally, the air permitting 
authority or designated agency must: (1) Verify that the source owner 
or operator has registered and submitted an RMP or a revised plan when 
required; (2) verify that the source owner or operator has submitted 
the proper certification or compliance schedule; (3) for some or all 
sources, use one or more mechanisms such as, but not limited to, a 
completeness check, source audits, record reviews or facility 
inspections to ensure that permitted sources are in compliance; and (4) 
initiate enforcement action, based on the requirements of this section, 
as appropriate.

H. Other Issues

    In the SNPRM, EPA discussed three other issues raised by 
commenters: accident information reporting, public participation, and 
inherently safer technologies. EPA has decided not to develop any 
requirements related to these issues at this time. Although EPA 
continues to believe that accident reports that provide more detail on 
the causes and impacts of accidents could be useful, the Agency has 
decided to limit such reporting required under this rule to the five-
year accident history mandated by the CAA. When necessary, EPA will use 
its authority to investigate individual accidents and to seek 
additional information to the extent authorized by CAA section 114 
(i.e., to determine compliance with this rule and CAA section 
112(r)(1), to support further rule development, and to assist research 
on hazard assessment).
    Secondly, the Agency encourages sources, the public, and local 
entities to work together on accident prevention issues, but believes 
that the wide variety and large number of sources subject to this rule 
make any single mandatory approach to public participation 
inappropriate. RMP information should be used as the basis for dialogue 
between the community and sources on accidental release prevention, 
risk reduction and preparedness for emergency response. Industry and 
the public should continue to use the LEPC as a mechanism for this 
dialogue.
    Finally, EPA does not believe that a requirement that owners or 
operators conduct searches or analyses of alternative process 
technologies for new or existing processes will produce significant 
additional benefits. Many commenters, including those who support these 
analyses, indicated that an assessment of inherently safer design 
alternatives has the most benefit in the development of new processes. 
Industry generally examines new process alternatives to avoid the 
addition of more costly administrative or engineering controls 
associated with a design that may be more hazardous in nature. Although 
some existing processes may be judged to be inherently less safe than 
others, EPA believes most of these processes can be safely operated 
through management and control of the hazards without spending 
resources searching for unavailable or unaffordable new process 
technologies. Application of good PHA techniques often reveals 
opportunities for continuous improvement of existing processes and 
operations without a separate analysis of alternatives. EPA encourages 
owners or operators to continue to examine and adopt viable alternative 
processing technologies, system safeguards, or process modifications to 
make new and existing processes and operations inherently safer. 
Through the process and prevention program information in the RMP, 
sources can demonstrate, and users of the RMP information can observe 
and promote, progress toward safer processes and operations.
    EPA is considering the development of incentives and awards to 
stimulate inherently safer alternative research and development, public 
outreach and education, and risk communication efforts. The Agency 
welcomes ideas and participation in this effort.

III. Discussion of Comments

    EPA received 1220 comments, including 180 relevant comments 
submitted for the List Rule, 757 comments on the NPRM, and 283 comments 
on the SNPRM. The commenters represented 92 chemical manufacturers, 81 
other chemical users, 111 petroleum industry companies, 174 industry 
trade associations, 40 other trade associations, 58 agricultural supply 
retailers, 102 propane retailers, 132 explosives users, 29 water 
treatment facilities, 26 utilities, 66 state agencies, 63 local 
governments, 8 other Federal agencies, 52 academics and consultants, 61 
environmental groups, 6 labor unions, and 31 private citizens. The 
remaining 88 letters were requests for extensions of the comment 
period, interim or duplicate sets of comments, or had been sent to the 
incorrect docket. The major issues raised by the commenters are briefly 
addressed below; a complete presentation of the Agency's response to 
the comments received on this rulemaking is available in the Risk 
Management Program Rule: Summary and Response to Comments in the docket 
(see ADDRESSES).
    Many commenters requested that EPA's list be identical to OSHA's 
list of highly hazardous substances and no thresholds should be less 
than OSHA's. These comments were addressed in the final list rule (59 
FR 4478; January 21, 1994) and background material related to these 
issues is available in docket number A-91-74 (see ADDRESSES).

A. Tiering

    Commenters on the NPRM suggested that EPA create different levels 
of requirements for sources that pose different risks. In the SNPRM, 
EPA proposed three tiers: a low hazard tier for sources whose worst-
case release would not affect any public or environmental receptors of 
concern; a medium hazard tier for sources that were not eligible or 
covered by the low or high hazard tiers; and a high hazard tier based 
on either industry sector accident history and number of employees or 
simply based on the number of employees. Generally, commenters were 
concerned that all processes at a source would need to be eligible for 
Program 1 before any process could be. EPA has revised the rule to 
clarify that eligibility for any tier

[[Page 31675]]

(Program) is based on process criteria, not source. If a process meets 
Program 1 criteria, the owners or operators need only meet Program 1 
requirements for that process even if other processes at the source are 
subject to Program 2 or Program 3.
    1. Rationale. Only 2 of the 57 commenters opposed tiering arguing 
that the CAA mandates that all covered sources be required to complete 
a full prevention program and that Congress had considered and rejected 
exemptions. One commenter argued that EPA had already accounted for 
``differences in size, operations, processes, class and categories of 
sources'' in developing the list and thresholds. Most commenters 
supported tiering as an appropriate way to recognize different levels 
of risks and to allow sources and emergency responders to focus on the 
highest risk processes.
    EPA disagrees that the CAA requires all covered processes to comply 
with the same detailed risk management program. EPA listed regulated 
substances because of their inherent hazards, such as toxicity and 
volatility. EPA did not consider, nor does the CAA indicate that it may 
consider, ``differences in size, operations, processes, class and 
categories of sources'' in selecting chemicals or setting thresholds. 
In establishing section 112(r)(7) requirements, however, Congress 
clearly recognized that a ``one-size-fits-all'' approach may not be 
appropriate for these regulations and directed EPA to consider these 
factors in the development of the accident prevention regulations. 
Furthermore, EPA strongly disputes the assertion that it has exempted 
any source from regulation by creating different programs for different 
sources. As noted below, all covered processes will be addressed in 
RMPs that contain hazard assessment, prevention, and response 
information, as required by statute.
    2. Program 1 vs. Program 2 and Program 3 Criteria. Commenters 
generally supported Program 1 for low-risk sources, but argued that 
few, if any, sources would qualify because the requirements were too 
stringent.
    a. Potential for Offsite Impact. Commenters generally agreed that 
sources that can demonstrate no offsite impact should be eligible for 
Program 1, but only public health should be considered, not 
environmental impacts. Others stated that only sources posing a threat 
of ``considerable'' impacts should not be eligible for Program 1. One 
commenter stated that EPA's worst-case scenario is unrealistic and its 
use as a Program 1 trigger is unreasonable. Other commenters want EPA 
to allow site-specific modeling for the offsite consequence analysis, 
rather than look-up tables.
    In today's rule, EPA specifically allows owners or operators to use 
site-specific air dispersion modeling for their offsite consequence 
analyses. EPA disagrees that offsite impacts should be limited to 
``considerable'' impacts. When offsite impacts are possible, it may be 
reasonable to implement some additional measures to reduce accidental 
releases, especially when the burden of measures such as additional 
training or safety precautions is low. Programs 2 and 3 provide 
flexibility to allow source-specific consideration of the appropriate 
level of effort. Program 1 requires no additional prevention measures, 
which is only categorically justifiable if such measures would not 
reduce offsite impact. It is reasonable to couple a no impact criterion 
with a conservative worst-case scenario to conclude categorically the 
public would not benefit from additional prevention measures. If no 
impact can be demonstrated for a conservative worst-case release, then 
no impact is likely to occur for any other release event, and the 
process could be judged to pose a low threat to the surrounding area.
    EPA has decided that potential impact on environmental receptors 
resulting from a worst-case scenario will not be a criterion to 
determine eligibility for Program 1. EPA agrees that very little, if 
any, data exist on the potential acute environmental impacts or 
environmental endpoints associated with listed chemicals upon 
accidental release. In addition, the offsite consequence distances 
estimated using human acute toxicity or overpressure effects may not be 
directly relevant to environmental effects. However, owners or 
operators will be required to document in the RMP the presence of such 
receptors within the distance determined for the worst case. EPA 
believes that natural resource agencies and the public will be able to 
benefit from the environmental receptors information in the RMP in 
discussions with the source.
    b. Accident History for Program 1. Many commenters objected to 
accident history as a Program 1 criterion, arguing that a process that 
had a significant accidental release in the previous five years may 
have been changed to reduce or eliminate future events and public 
impact. Several commenters suggested that such processes that otherwise 
meet Program 1 criteria should remain eligible, but be required to 
justify and document the changes. Some commenters also objected to 
EPA's proposed definition of significant accidental release, arguing 
that many companies and emergency responders conservatively evacuate or 
shelter-in-place during minor incidents. Under the proposed definition, 
these actions disqualify a process from Program 1 even if there were no 
offsite impacts. Some commenters stated that the accident history 
provision was unnecessary because, by definition, a Program 1 process 
is not capable of an accidental release that could affect public 
receptors.
    EPA has decided to retain the accident history criterion for 
Program 1 processes, excluding events with evacuations and shelterings 
in place, and to drop the definition of significant accidental release. 
Program 1 eligibility is not a one-time exercise; owners or operators 
must certify in each RMP that no qualifying releases have occurred 
since the previous RMP submission and provide current worst-case 
release data indicating no offsite impacts are anticipated in the 
future. Program 1 criteria and accident history provide owners or 
operators an opportunity to demonstrate to the community ongoing 
excellence in accident prevention and an incentive to search for and 
implement ways, such as inventory reduction, to reduce the potential 
for offsite impacts associated with large scale accidental releases. 
Further, the unique circumstances surrounding past accidents can 
provide a reality check on the theoretical modeling and worst-case 
scenario claims used for the offsite consequence assessment and serve 
to verify that administrative controls and passive mitigation measures 
work as intended. EPA decided to delete public evacuations or 
shelterings-in-place as criteria for Program 1 eligibility. EPA is that 
inclusion of these criteria in Program 1 eligibility may create a 
perverse incentive not to report releases and it may encourage sources 
and local emergency officials to take more chances during an event when 
there may be potential exposures that do not rise to the endpoint 
specified in this rule but would otherwise be worthy of precautionary 
actions by the source or by local officials. If the evacuation or 
sheltering takes place because of a concern for public exposure to an 
endpoint as specified in this rule, then public receptors necessarily 
would be under the worst case distance and the process would not be 
eligible for Program 1 under the criteria of the rule. Owners or 
operators of processes that meet Program 1 eligibility requirements are 
required to report a 5 year accident history for that process. If local

[[Page 31676]]

emergency planners, first responders or the public have concerns about 
processes in Program 1 because of a past evacuation or sheltering-in-
place event, then mechanisms under EPCRA could be used to gather more 
information from the source about its prevention program (such as EPCRA 
sections 302(b)(2) [designation of a facility if it does not already 
handle extremely hazardous substances listed under section 302] and 
303(d)(3) [provision of information to the emergency planning 
committee]) and involve the source in emergency planning. Sources and 
local first responders should be discussing evacuation and sheltering-
in-place criteria and decisions as part of emergency response planning.
    c. Other. Many commenters asked that specific industries such as 
ammonia refrigeration, retail fertilizer outlets, all flammables, and 
all non-PSM sources be assigned to Program 1. EPA disagrees because 
each source has unique surroundings that must be considered in the 
worst-case assessment and each source must demonstrate favorable 
accident history. All ammonia refrigeration units covered by this rule 
are already subject to OSHA PSM; many of these have had accidents that 
affected the community and should be required to complete the 
requirements of the hazard assessment and emergency response program 
and provide the community with full RMP information. According to the 
industry, a typical ammonia fertilizer retailer handles 200 tons of 
ammonia. Some retailers may be very geographically isolated and can 
qualify for Program 1, but EPA expects that most will be subject to 
Program 2. Given the large quantity of ammonia involved, EPA considers 
it important that the community have information on offsite 
consequences from these sources and that the owner or operator takes 
the necessary steps to address accidental release prevention and 
emergency response.
    EPA expects that some sources handling flammables will qualify for 
Program 1 because the distance to a 1 psi overpressure is generally 
less than distances to toxic endpoints. Nonetheless, those sources 
handling flammables in sufficient quantity to generate a potential 
offsite impact should provide the community with information on hazards 
and address prevention and response steps. Many sources handling 
flammables are already subject to PSM; the only additional steps 
required under this rule are completion of the hazard assessment and 
emergency response programs and submission of an RMP.
    EPA does not agree that non-PSM sources should be assigned to 
Program 1. Many of these sources could have an accidental release that 
can affect the community. OSHA exempted retailers because they are 
covered by other OSHA or state regulations that address workplace 
safety, not because they are incapable of having offsite impacts. All 
retailers are in Program 2 unless they can meet Program 1 criteria; 
thus, they should be taking prevention steps and will be providing the 
community with information. Compliance with other existing Federal and 
state programs may satisfy many Program 2 prevention requirements, 
thereby limiting the burden. In addition, EPA expects to develop model 
risk management programs for these sectors. Public sources in states 
without delegated OSHA programs are not covered by OSHA PSM because 
OSHA is barred by law from regulating them. Nonetheless, these sources 
may pose a threat to the community. Today's rule places these sources 
in Program 2.
    3. Program 2 vs. Program 3 Criteria. In the SNPRM, EPA's preferred 
approach assigned sources to Program 3 based on SIC code and number of 
employees; sources in specified SIC codes with 100 or more full-time 
employees (FTE) would have been subject to the full program in 3 years; 
sources in a subset of these SIC codes with 20 to 99 FTEs would have 
been subject to the full program in 8 years. The alternative was to 
impose the full program on all sources with more than 100 FTEs. Most 
SNPRM commenters submitted suggestions and arguments about this 
approach.
    a. Number of Employees. Only two commenters supported using the 
number of employees as the sole criterion, arguing it would be the 
easiest approach to implement with the greatest amount of industry 
participation. Commenters opposed it because the number of employees 
proposed does not reliably correlate with risk, hazard, or quantity on 
site, and because it could act as an incentive to reduce employment. In 
addition, some commenters stated that smaller sources may have fewer 
resources to manage hazards and, therefore, may pose a greater risk to 
the public.
    EPA agrees and has deleted the number of employees as a Program 3 
criterion. Although size of a source in the manufacturing sectors may 
be related to the quantities on site and complexity of the processes, 
many other sources may have similar characteristics with fewer 
employees. Complexity is more directly associated with the type of 
industry (i.e., SIC code) than with number of employees; a highly 
automated process may involve fewer employees and be more complex than 
a more labor intensive process. Quantity, if relevant, can be directly 
measured rather than indirectly by number of employees. In addition, 
EPA was concerned that the data on which the Agency based its proposed 
approach may not be representative of all accidental releases. These 
data, drawn from reports to the National Response Center and EPA 
regions, appear to indicate that larger sources have more and larger 
accidental releases than do smaller sources. This finding, however, may 
in part reflect different levels of reporting, rather than different 
levels of accidents. Both Federal and state officials report that the 
number of releases has risen in recent years as more sources learn 
about their reporting obligations. EPA has decided that, because the 
processes within the SIC codes basically handle the same chemicals in 
the same way, smaller sources should not be moved to a different 
Program based on the number of employees.
    b. SIC Code. Fifty-seven commenters, particularly those in the oil 
industry, utilities, and public systems, supported the use of SIC codes 
based on accident history; 28 commenters opposed it. Supporters argued 
that industry accident records represented a reasonable criterion for 
identifying high-risk sources. If an entire industry has a long history 
without accidental release, it may indicate that the materials handled 
and handling conditions generate a smaller potential for serious 
releases or that the industry is effectively controlled by government 
or industry standards. Some commenters argued that industry accident 
histories reflect underlying risk better than individual source 
accident histories because accidents are rare events; a source with no 
accidental releases over the previous five years is not necessarily 
safe.
    Commenters opposing the use of SIC codes stated that the approach 
is arbitrary, that accidents with only onsite effects should not be 
used, that sources in other industry sectors handle similar quantities 
and pose similar risks, and that sources within an industry that have 
successful risk management practices are penalized by a few isolated 
sources within the industry.
    EPA has decided to retain the use of SIC codes, adding SIC 2865 
based on further review of accident histories, and to add coverage by 
the OSHA PSM standard as a separate criterion for Program 3. EPA 
selected the SIC codes by analyzing accident data filed by

[[Page 31677]]

sources in response to EPA's request for information in the Accidental 
Release Information Program (ARIP). ARIP collects data from certain 
sources that report releases under CERCLA section 103. EPA selected the 
SIC codes that showed a high frequency of the most serious accidents 
across a significant percentage of all sources within the SIC code to 
avoid mischaracterizing an industry based on isolated, problematic 
sources. Data on the selection criteria were summarized in the SNPRM 
and the docket at the time of the SNPRM. The accident history of the 
cyclic crudes industry (SIC code 2865) is similar to that of the 
categories selected. EPA disagrees that only offsite impacts should be 
considered; accidental releases that caused death, hospitalizations, or 
injuries on site are also of concern because they indicate significant 
safety problems that could lead to releases that cause impacts offsite. 
The SIC codes selected by EPA are basically the same ones OSHA selected 
for its PSM program inspection focus. EPA disagrees that sources are 
``penalized'' by this approach because owners or operators of processes 
in these SIC codes have an opportunity to present their safety record, 
demonstrate the success of their accident prevention programs, and 
communicate with the local community the basis for their risk 
management practices. Sources that receive Merit or Star status in the 
OSHA Voluntary Protection Program will be favorably distinguished from 
others in the same industry when implementing agencies are selecting 
sources for audits (see section III.T.1 below).
    EPA agrees that serious accidents occur infrequently even at 
sources with poor safety practices and that industry-wide accident 
records provide a better mechanism than the accident history at a 
single source for identifying those sectors whose chemicals and 
processes may lead to serious releases. A high proportion of the 
sources in some SIC codes reported releases; EPA's analysis 
specifically took into account the number of reports from individual 
sources to avoid selecting an SIC code because of a small number of 
sources with serious safety problems.
    The OSHA PSM already applies to most covered processes in the 
selected SIC codes. EPA expects that there will be fewer than 400 
additional processes assigned to Program 3 that are not already subject 
to the OSHA PSM standard at the approximately 1,400 sources in these 
SIC codes and that all of these sources will already have other 
processes covered by OSHA PSM. Consequently, fulfilling the RMP 
requirements imposes little additional burden.
    EPA decided to include all covered processes currently subject to 
the OSHA PSM standard in Program 3 to eliminate any confusion and 
inconsistency between the prevention requirements that the owners or 
operators of such processes must meet. EPA's Program 3 prevention 
program is identical to the OSHA PSM standard. Including OSHA PSM 
processes in Program 3, therefore, imposes no additional burden on 
these processes; the only new requirements for such processes are the 
hazard assessment, emergency response program, and the RMP, which are 
the same under Programs 2 and 3.
    c. Site-Specific, Risk-based Criteria. Many commenters stated that 
Program assignment should be based on site-specific risk-based 
criteria. Accident history is one such criterion and is discussed 
separately in Section III.A.3.d. Other criteria suggested include 
population density or proximity, quantity on site, number of substances 
held above the threshold, process conditions, toxicity, volatility, 
alternative release scenario results, or combinations of these factors 
as a risk index.
    EPA agrees with commenters that Program assignments should be risk-
based to the extent possible; however, as the variety of suggestions 
indicates, a considerable number of variables would need to be 
considered. EPA knows of no standard approach or equation that is used 
and generally accepted. The variety of suggestions indicate the 
likelihood that any proposed formula would meet opposition. No 
commenter provided a method to comprehensively address these factors on 
a nation-wide basis.
    An important consideration for EPA in developing the rule 
provisions for Program assignment was to avoid undue complexity, 
confusion, and resource expenditure by sources and implementing 
agencies implementing the rule's criteria. To some extent, EPA has 
incorporated risk factors, including site-specific factors, in 
determining which sources are eligible for which Program. For example, 
Program 1 eligibility already considers the potential for offsite 
impacts; any process for which there are no public receptors within the 
distance to an endpoint from a worst-case release may be eligible for 
Program 1, provided there have been no releases with certain offsite 
consequences within the previous five years. Today's rule allows 
sources to consider passive mitigation and administrative controls in 
conducting the worst-case release analysis. Such site-specific 
considerations affect the extent of potential exposure to a worst-case 
release, and thus are reflected in the Program 1 eligibility criteria. 
Elements of risk such as process complexity and accident history are 
also reflected the design of Program 2 and Program 3 requirements and 
the assignment of processes to these Programs. Program 2 sources 
generally handle and store regulated substances, but do not react or 
manufacture them. EPA believes Program 2 sources can take prevention 
steps that are less detailed than those in the OSHA PSM standard and 
still accomplish accident prevention that is protective of any 
population nearby. Program 3 is reserved for processes already subject 
to the OSHA PSM standard and processes with high accidental release 
histories. The SIC codes with an accident history selected by EPA for 
Program 3 are typically complex processes. The PSM standard was 
designed for, and is particularly appropriate for, these processes.
    EPA takes issue with the appropriateness of some of the suggested 
factors. Meteorological conditions vary too much to be considered in 
determining a risk level. Chemical quantity alone does not accurately 
relate to risk because the location and handling conditions can 
dramatically change the potential for exposures.
    In addition, EPA has implementation concerns about a detailed, 
national, multi-factor, risk-based approach, were it to be feasible. 
States such as Delaware have used a simple version of a risk-based 
approach and found that it created serious problems for the state and 
the sources. Smaller sources and those without technical staff have had 
great difficulty in implementing the approach and have had to rely on 
state officials to determine applicability for them. Delaware 
specifically recommended that EPA not attempt implementing a similar 
approach on a national basis because of the burden it imposes on the 
state and the confusion and uncertainty it creates for sources. 
Delaware has fewer than 100 sources; nationally, EPA estimates that 
66,000 sources will be subject to the rule, approximately 62,000 of 
which are outside of the chemical and refining sectors. If implementing 
agencies had to help most of these sources determine the index score 
and Program for each process, not only would the burden on the agencies 
be extreme, but implementation would also be delayed. Furthermore, were 
EPA to simply identify risk factors without an index and leave the 
determination of Program

[[Page 31678]]

level to sources or implementing agencies, the process for such site-
specific determinations would be even more complex and resource 
intensive for sources and implementing agencies; it would create 
disincentives for a state to become involved and to take on the role of 
an implementing agency. EPA believes it is better to have sources and 
agencies focus their resources on prevention activities.
    EPA considered, but decided against, a less comprehensive risk-
based approach using proximity or population density as criteria for 
distinguishing between Program 2 and 3. EPA recognizes that accidental 
releases from sources near or in densely populated areas may harm more 
individuals and be perceived to pose a greater risk than other sources. 
However, as stated above, EPA believes that the type of process, its 
complexity and accident history should be considered for Program 2 or 3 
assignment, regardless of the number of people potentially exposed. In 
other words, EPA does not believe the streamlined Program 2 prevention 
elements should apply to a complex Program 3 process just because fewer 
persons could be potentially exposed or that the Program 3 prevention 
elements should apply to a Program 2 process because more people could 
be potentially exposed. EPA believes that populations offsite should be 
protected from harm based on the type of process; the Program 2 
prevention elements, properly applied to the expected types of Program 
2 processes, serves to protect off-site populations, just as the 
Program 3 prevention elements for complex processes serves to protect 
offsite populations.
    If Program assignments were based on the alternative release 
scenario results, sources would not have the flexibility and latitude 
in today's rule for these scenarios because more definite criteria 
would need to be considered to ensure the proper scenarios and results 
are assessed. This places more emphasis and burden for sources on the 
offsite consequence assessment rather than on accident prevention and 
communication with the public and first responders. Furthermore, 
because active mitigation includes process and control equipment that 
may fail, considering such equipment in evaluating risk would not be 
appropriate without detailed review by the source and oversight by the 
implementing agency.
    Some commenters suggested yet another variation of a less 
comprehensive, ``risk''-based approach that would have EPA use a site-
specific analysis of likelihood of release to assign Program levels. 
Many of the same difficulties in developing a ``risk index'' for 
determining Program assignments would apply to an attempt to 
incorporate likelihood in a more sophisticated manner than EPA was able 
to do in its analysis of accident history by SIC code. In addition to 
the substance-specific properties considered as part of the chemical 
listing criteria, the site-specific likelihood of a release depends on 
a number of factors, including the appropriateness of the equipment in 
use, the maintenance of that equipment, operator performance, and 
safety systems and their performance. Evaluating site-specific 
likelihood of release requires data on each of these items; such data 
rarely exist especially for complex processes where a variety of 
equipment must be evaluated along with the performance of multiple 
operators and maintenance workers. Using surrogate data (e.g., 
manufacturer's failure rate data) introduces error of an unknown 
magnitude to the analysis. Such analyses are very costly and produce 
results that are, at best, questionable.
    EPA also believes that assessing the likelihood of a release at 
most sites for site-specific individualized Program-level 
determinations is neither technically feasible nor cost-effective. In 
most cases, the data do not exist to conduct a meaningful analysis; 
where they do exist, the cost of developing a defensible analysis and 
overseeing it could well exceed the cost of compliance with the rule. 
Such an approach would resemble a permit program, which would be 
resource-intensive for sources and implementing agencies. EPA 
determined that the simpler approach for assigning sources to Program 1 
would provide regulatory relief for those sources that could not affect 
the public while allowing other sources to devote their resources to 
prevention activities rather than to analyses that would be subject to 
legal challenges.
    EPA notes that sources have the flexibility to implement 
appropriate accident prevention measures based on the hazards and risks 
discovered in the hazard review or process hazard analysis. The 
structure of Programs 2 and 3, therefore, reflect site-specific risk 
criteria. Further, the purpose of the risk management program and RMP 
effort is to prevent accidents and facilitate local level dialogue 
about the risks, prevention measures, and emergency response effort in 
place at the source. The local community and first responders may have 
far different concerns that should, and can be addressed better through 
today's approach than those reflected by a risk index approach.
    d. Accident History. Some commenters argued that EPA should assign 
sources to Program 3 based on the accident history of the source. One 
commenter suggested that any source with no accidental release that 
exceeded a reportable quantity (as defined in CERCLA) for the previous 
five years should be in Program 2. Others argued that a source should 
be in Program 2 if it had no significant accidental release in the 
previous five years. Some commenters said that a one-release standard 
was too stringent and that two or more significant accidental releases 
should be allowed before a source was assigned to Program 3. Another 
commenter suggested that a source with no significant accidental 
releases in the past five years and with few potentially impacted 
neighbors should be placed in Program 2.
    Other commenters opposed this approach, arguing that, in many 
cases, sources take steps to prevent recurrences following a serious 
release. In some cases, the offsite impacts from releases are minor and 
would not justify assigning a source to a particular Program. Other 
commenters stated that the absence of an accidental release can be 
indicative of lower risk, but it can also simply mean that a release 
has not yet occurred. Several commenters noted that a five-year time 
period is statistically insignificant because accidental releases are 
infrequent events.
    EPA agrees that source-specific accident history is not a 
reasonable basis for assigning processes to Programs 2 and 3. Given the 
relative infrequency of serious accidents, a five- or even ten-year 
period without an accident may not be indicative of safe operations. In 
addition, the criteria necessary to define the types of past accidental 
release for the purposes of program classification would need to be 
based on a wide variety of variables and site-specific factors, which 
would lead to confusion and unnecessary complexity. Factors such as 
weather conditions at the time of the release, rather than the size of 
a source or its management practices, often determine whether a release 
has offsite consequences. EPA believes that accident history is 
appropriately used on an industry-wide basis as described above for 
selection of Program 3 sources. If accidental releases with 
consequences appear to occur at a large proportion of sources within an 
SIC code, where similar processes, equipment and chemicals are used, 
then it is reasonable to conclude that

[[Page 31679]]

processes in that SIC code pose a greater likelihood of a high hazard 
release than others. This approach removes the need for at least one 
accident to occur at every source that EPA believes ought to be 
assigned to a particular Program, especially when such accidents are 
rare events. EPA is also concerned that using source-specific accident 
history as a criterion would create an incentive for sources to fail to 
report releases. Finally, as EPA has stated, assignments to Program 2 
and 3 also consider the appropriateness of the prevention steps for the 
types of sources. EPA believes that both Programs move sources to 
greater accident prevention.
    e. Other. Some commenters asked that the implementing agency be 
given discretion to move a source into a different Program based on 
local concerns and knowledge. EPA notes that states have the authority, 
under the CAA, to impose more, but not less, stringent standards than 
EPA (see CAA section 112(r)(11)).
    A few commenters suggested that Program 2 be limited to sources for 
which a model risk management program had been developed. The models 
would be designed to reflect risks associated with categories of 
sources that all use the same type of equipment and handle the 
substances in the same way (e.g., propane retailers and users, ammonia 
retailers). EPA considered this approach and decided that the Program 2 
prevention program provides a better, generic prevention approach for 
processes for which the more detailed PSM program would be 
inappropriate. Limiting Program 2 to those industrial sectors where 
industry-specific models are feasible would place some manufacturing 
sources at a disadvantage simply because their chemical uses, 
processes, and equipment were too varied to allow development of a 
model or because there are too few sources to justify use of EPA or 
industry resources to develop a model. In addition, if EPA were to 
limit Program 2 to sources with model programs, Program 2 regulations 
would need sufficient specificity to enforce the use of these models; 
otherwise, sources would be able to ignore both PSM and the models. EPA 
is also concerned that codifying the model plans could stifle 
innovation in safety practices. If industry codes or other Federal 
regulations on which parts of the models may be based were updated, EPA 
would have to revise its models; given the time needed to propose and 
adopt regulations, sources might have to delay implementation of new 
systems and, in some cases, might be caught between complying with a 
revised EPA or OSHA regulation or state law or complying with the 
model. Consequently, EPA decided it was better to have models available 
as guidance, but not require compliance with them. Further, EPA 
believes that the key elements of good accident prevention practices 
are captured within the requirements of the Program 2 prevention 
program. Model programs and plans are likely to build on these 
approaches, making it easier for sources in Program 2 to use models 
that are later developed by others.
    EPA is working with industry to develop model risk management 
programs and RMPs for ammonia refrigeration systems, propane 
distributors and users, and water treatment systems. EPA also expects 
to develop models for ammonia retailers and wastewater treatment 
systems. EPA encourages other industrial sectors to work together on 
additional model development.
    4. Program 1 Requirements. Commenters were generally opposed to 
posting signs, and certification of no environmental impact.
    a. Certification of No Environmental Impact. Many commenters stated 
that it would be ``virtually impossible'' to certify ``no potential for 
environmental impacts,'' as required by the SNPRM. Commenters said that 
the definition of environmental impact was too vague, that the list of 
environments suggested in the SNPRM was too broad, and that the 
language seemed to require a full environmental consequence assessment, 
making the requirement impossible. One commenter noted that companies 
would find it difficult to assert that there could be ``no 
environmental impacts'' even after an environmental consequence 
assessment reveals insignificant impacts. Two commenters suggested that 
EPA substitute ``low potential for environmental impact'' or ``no 
potential for long-term, adverse environmental impact.'' Other 
commenters requested that environmental impact be dropped or that the 
requirement be changed to mirror the Program 1 eligibility criteria 
with an indication in the RMP that no environmental receptors of 
concern were within the worst-case distance to an endpoint.
    As described above in section III.A.2.a. Potential for Offsite 
Impact, EPA has decided not to make the presence of environmental 
receptors a part of the eligibility criteria for Program 1 and has 
deleted the certification requirement. Instead, owners or operators of 
all covered processes will have to identify in the RMP any 
environmental receptors that are within the distance potentially 
affected by the worst case.
    b. Signs. Commenters generally opposed the SNPRM requirement that 
sources with Program 1 processes post signs warning of the hazards on 
site if the only regulated substances present at the site above the 
threshold quantity were listed for flammability. Commenters stated that 
local and state fire and safety codes often already require such signs. 
In addition, sources are already required under EPCRA section 312 to 
file annual inventories with the LEPC and fire department that identify 
hazards on site. Signs would have fulfilled the emergency response 
program requirements for a source. Because Program 1 eligibility will 
now be determined on a by-process basis rather than by source-wide 
criteria and because EPA has revised the emergency response program 
provisions as noted below, EPA has dropped the requirement for signs.
    c. Emergency Response Program. In the SNPRM, EPA asked whether 
additional emergency response planning and coordination should be 
required for Program 1 processes. Some commenters supported this 
requirement, while others stated that most sources are already covered 
by EPCRA and participate in community response planning. Commenters 
stated that because the worst-case release could not reach public 
receptors, such efforts were not necessary.
    In the final rule, EPA is requiring the owner or operator of a 
Program 1 process to ensure that any necessary response actions have 
been coordinated with local response agencies. EPA believes that local 
responders may become involved in an incident, even if the public is 
not threatened. No additional CAA-related planning activities are 
required, however.
    d. Other. Many commenters stated that, since Program 1 processes 
generate no offsite impact, they should be exempt from this rule. One 
commenter objected to Program 1 because members of the public, 
particularly first responders and business visitors, could still be 
hurt by a release. Other commenters suggested that the annual EPCRA 
section 312 form could be amended to indicate that a source was covered 
by the rule, replacing the RMP registration form.
    The CAA requires that all sources with more than a threshold 
quantity of a listed substance register an RMP, perform a hazard 
assessment, and develop accidental release prevention and emergency 
response programs. Therefore, total exemption of processes that meet 
Program 1 criteria is not

[[Page 31680]]

possible. See S. Rep. No. 228, 101st Cong., 1st session, at 208 
(``Senate Report'') (precursor of RMP provision mandating hazard 
assessments for sources that exceed threshold for listed substance); 
136 Congressional Record S16927 (daily ed. October 27, 1990) (remarks 
of Sen. Durenburger, sources with more than a threshold quantity are 
subject to regulations); 136 Cong. Rec. H12879 (daily ed. Oct. 26, 
1990)(remarks of Rep. Barton)(all users of hazardous chemicals are 
required to plan for accidents). Moreover, even if an exemption for 
processes that exceed a threshold were permissible, the owner or 
operator would need to take steps that are equivalent to the hazard 
assessment to establish eligibility for the exemption. The offsite 
consequence analysis is the most significant burden for a Program 1 
process under this rule. The minimal additional actions required in 
today's rule for Program 1 simply establish a record of eligibility and 
a response coordination mechanism.
    EPA recognizes that emergency responders and site visitors could be 
hurt by an accidental release from any process, but notes that 
responder safety is covered by OSHA and EPA under the HAZWOPER 
regulations. It is the owners' or operators' responsibility to inform 
visitors about the hazards and the appropriate steps to take in the 
event of an accidental release from any process subject to today's 
rule.
    Finally, EPA has based the registration information requirements in 
today's rule on the EPCRA section 312 Tier II form. The CAA requires 
that the RMP be registered with EPA. Because the EPCRA form is not 
submitted to EPA, it would not substitute for registration with EPA 
either in its present or amended form. Completion of the registration 
portion of the RMP should impose little additional burden on owners or 
operators. However, EPA recognizes the information overlap between the 
Tier II form and the RMP registration and is considering use of the RMP 
registration for the Tier II reporting requirement.
    5. Program 2 Requirements. Commenters were generally concerned 
about the lack of specific requirements for the Program 2 streamlined 
prevention program and emergency response requirements, and how 
compliance with other regulations would be incorporated.
    a. Streamlined Program. Commenters stated that the Program 2 
prevention program does not provide much, if any, regulatory relief 
because sources would need to address most of the ten elements of the 
Program 3 prevention program. Others said that the majority of the 
sources affected by the rule are already covered by OSHA PSM and 
chemical industry standards, the Program 2 requirements do not satisfy 
the CAA mandate, and that only a full process hazard analysis would 
meet the hazard assessment requirements under section 112(r). Another 
commenter argued that EPA's statement that sources must comply with the 
CAA's general duty clause was inadequate because EPA has not used, and 
has no policy about, the clause.
    EPA agrees that the preferred approach in the SNPRM did not provide 
sufficient detail on Program 2 prevention requirements to distinguish 
it from Program 3. EPA solicited comments on whether Program 2 should 
require additional, specific prevention steps. Today's rule provides 
specific requirements as discussed in section I.D above and in Section 
IV below. In the RMP, the owner or operator will be required to report 
on other Federal or state regulations, industry codes, and standards 
used to comply with prevention elements as well as any major hazards, 
process controls, mitigation systems, monitoring and detection systems 
examined in the hazard review. This streamlined prevention program 
addresses many of the PSM elements as the basis for sound prevention 
practices, but is tailored to processes with less complex chemical 
uses; this program provides considerable regulatory relief by 
substantially reducing the documentation and recordkeeping burden of 
PSM. In addition, EPA will provide guidance and model risk management 
programs to further assist Program 2 processes in developing and 
maintaining good prevention program practices.
    EPA disagrees that only a full PHA would meet the requirements of 
the Act. Section 112(r) does not contain detailed requirements for the 
hazard assessment, beyond the key components of accidental release 
scenarios and a five-year accident history. EPA believes that a PHA is 
more appropriately considered an element of a prevention program, such 
as PSM. The statute does not mandate detailed PHA engineering analyses 
for all sources, whether as part of the hazard assessment or the 
prevention program. EPA believes PHAs involve a more detailed 
engineering analysis than is necessary to prevent accidents at Program 
2 sources. The ``hazard review'' provisions of Program 2 should be 
sufficient to detect process hazards at these simpler processes. EPA 
recognizes that although hazard assessments and PHAs or process hazard 
reviews are discreet elements that can be performed independently, 
hazard assessment results can enhance PHA or process hazards reviews 
and in turn, the results of the PHA or review can enhance the hazard 
assessment. EPA encourages owners or operators to make maximum use of 
the PHA or review and hazard assessment information to manage risks and 
prevent accidents.
    Finally, sources with Program 2 requirements, as well as sources 
with Program 1 or 3 requirements, must comply with the general duty 
clause of CAA Section 112(r)(1). The general duty clause provides that 
owners and operators have a general duty to identify hazards that may 
result from accidental releases, design and maintain a safe facility, 
and minimize the consequences of any releases that occur. The general 
duty clause is a self-executing statutory requirement: it requires no 
regulations or other EPA action to take effect. The clause provides a 
separate statutory mechanism that EPA will use in appropriate 
circumstances to ensure the protection of public health and the 
environment. To date, EPA has undertaken several inspections designed 
in part to determine compliance with Section 112(r)(1). As appropriate 
at a future date, EPA may issue policies or guidance on application of 
the general duty clause.
    b. Other Regulations. Commenters generally agree that OSHA PSM, 
HAZWOPER, the OSHA hazard communication standard (29 CFR 1910.1200), 
and NFPA-58 are examples of other regulations or voluntary industry 
standards that could be cited to meet the requirements of a Program 2 
prevention program. Commenters requested that EPA provide a matrix or 
crosswalk that indicates which other regulations, standards, and codes 
met specific requirements. One commenter opposed the use of other 
regulations or referencing of voluntary industry standards, stating 
that, other than OSHA PSM, no other OSHA standard addresses safety 
precautions or maintenance. Another commenter objected that this 
approach creates another documentation burden without any commensurate 
benefit.
    EPA agrees that the SNPRM preferred approach for Program 2 was not 
specific enough and has provided more detailed requirements in this 
rule as noted above. EPA continues to believe that many of the Program 
2 prevention requirements are already met through industry compliance 
with existing regulations and voluntary standards. For example, ammonia 
retailers whose processes are designed to meet the OSHA ammonia 
handling rule (29 CFR

[[Page 31681]]

1910.111) should be able to meet the Program 2 requirement that the 
process design meets good engineering practices. This effectively 
allows sources to cite compliance with these other regulations and 
standards instead of developing specific, duplicative elements solely 
to comply with Program 2. EPA will also use these existing regulations 
and standards as it develops model programs.
    c. Emergency Response Program. Commenters supported considering 
HAZWOPER programs as adequate to meet the Program 2 emergency response 
program. A few commenters said that HAZWOPER is inadequate because it 
does not consider offsite impacts or the environment. Some commenters 
also said that coverage of a source by an EPCRA community emergency 
response plan should be sufficient. Others said that any contingency 
plan developed under Federal or state law should be considered 
sufficient because the requirements under these programs are generally 
consistent with EPA's proposed emergency response program; one 
commenter noted that, for flammable processes, compliance with 29 CFR 
1910.38 should be adequate because the response is usually evacuation 
of employees. Five commenters opposed any requirement that sources with 
Program 2 processes conduct drills or exercises because they represent 
lower hazards.
    Consistent with its efforts to consolidate Federal emergency 
planning requirements, EPA has included language in the final rule that 
will allow any source in compliance with another Federal emergency 
response program that includes the elements specified in this rule to 
use that program to meet these requirements. In particular, this 
applies to response plans prepared in accordance with the National 
Response Team's Integrated Contingency Plan Guidance (``one plan'') 
(NRT, May 1996). EPA believes that sources should have a single 
response plan; creation of multiple response plans to meet slightly 
different Federal or state standards is counterproductive, diverting 
resources that could be used to develop better response capabilities.
    EPA recognizes that some sources will only evacuate their employees 
in the event of a release. For these sources, EPA will not require the 
development of emergency response plans, provided that appropriate 
responses to their hazards have been discussed in the community 
emergency response plan developed under 42 U.S.C. 11003 for toxics or 
coordinated with the local fire department for flammables.

B. Offsite Consequence Analysis

    1. Worst-Case Release Scenario. EPA proposed in the NPRM to define 
the worst-case release as the ``loss of all of the regulated substance 
from the process * * * that leads to the worst offsite consequences'' 
and that the scenario should assume ``instantaneous release.'' Hundreds 
of commenters stated that instantaneous loss of the total process 
contents is not technically feasible for complex systems and, 
therefore, represents a non-credible worst case that would provide no 
useful information to the public or the source for risk communication, 
accident prevention, and emergency preparedness. Many commenters also 
argued that this approach differed from the release modeling 
assumptions contained in EPA's Technical Guidance for Hazards Analysis, 
which has been the basis for community emergency planning activities 
under EPCRA. Although some commenters were generally opposed to the 
concept of worst case, most of the commenters were supportive of an 
approach similar to that taken in the Technical Guidance.
    In response to these comments, EPA proposed in the SNPRM to 
redefine a worst-case scenario as the release, over a 10-minute period, 
of the largest quantity of a regulated substance resulting from a 
vessel or process piping failure. The 10-minute release time is drawn 
from the Technical Guidance for Hazards Analysis. EPA believes this 
duration is reasonable and accounts for comments arguing that an 
``instantaneous'' release is unrealistic for large-scale releases.
    EPA has decided to adopt the SNPRM approach for worst-case toxic 
vapor releases in the final rule because most of the SNPRM comments 
agreed that the redefinition is generally more credible and that the 
10-minute time frame particularly applies to vapor releases. Although 
some commenters argued that this approach still does not account for 
all process-specific conditions, EPA believes it is reasonable and 
representative of accident history. EPA notes that owners or operators 
may use air dispersion modeling techniques that better account for 
site-specific conditions, provided modeling parameters as specified in 
the rule are applied. This release scenario will apply to substances 
that are gases at ambient conditions, including those liquefied under 
pressure. Gases liquefied by refrigeration only may be analyzed as 
liquids if the spill would be contained by passive mitigation systems 
to a depth greater than 1 cm.
    Under the SNPRM, worst-case liquid spills were assumed to form a 
pool in 10 minutes, with the release rate to the air determined by 
volatilization rate. EPA recognized that this approach differs from the 
use of an instantaneous release in the Technical Guidance, which EPA 
cited as an alternative to its favored approach. The few comments 
received were divided between support of this approach and arguments 
that the 10-minute time frame was unrealistic for liquid releases 
(particularly for pipelines and connected equipment) and thus did not 
properly account for process-specific conditions.
    EPA's approach for the liquid worst-case scenario in the final rule 
is similar to the Technical Guidance methodology, in which the total 
quantity of liquid in a vessel or pipeline is instantaneously spilled 
upon failure, considering administrative controls or passive mitigation 
discussed below. The rate of release to the air is not instantaneous; 
it is determined by the volatilization rate of the spilled liquid, 
which depends on the surface area of the pool formed after the spill. 
The pool surface area is determined by assuming the spilled liquid 
rapidly spreads out and forms a one-centimeter deep pool, unless 
passive mitigation systems contain the pool to a smaller area. EPA 
believes this approach is reasonable because total vessel or pipeline 
failure will generally lead to immediate and rapid spillage followed by 
pool volatilization. Further, if the liquid were assumed to spill over 
a particular time frame rather than instantaneously, owners or 
operators would need to calculate the amount of vapor emitted to the 
air as the liquid is spilled, in addition to the volatilization rate as 
the pool spreads out and reaches its maximum size. Computer-based 
models are available for such calculations, but they are complex and 
require considerable data input to use. EPA believes that liquid 
spillage from a worst-case scenario is likely to be extremely rapid 
such that the most significant portion of the release rate is given by 
pool volatilization; consequently, liquid release time is not 
necessary. Liquid spill rates and times could be reflected in 
alternative scenarios discussed below.
    As proposed, the worst-case for flammables assumes that the total 
quantity of the substance in the vessel or pipeline vaporizes, 
resulting in a vapor cloud explosion. If the vapor cloud explosion is 
modeled using a TNT-equivalent methodology, then a 10 percent yield 
factor must be used.
    EPA requested comment in the SNPRM on whether the worst-case 
scenario should include an additional

[[Page 31682]]

amount of substance that could potentially drain or flow from process 
equipment interconnected with the failed vessel or pipeline. Many 
commenters opposed this option, suggesting that it is technically 
uncertain and would have little value in terms of what they saw as 
EPA's intended purpose for the worst-case assessment. Other commenters 
requested that ``interconnected equipment'' be defined and clarified. 
Given the assumption of rapid release associated with initial equipment 
failure, EPA agrees that determination of the spill rate from connected 
piping and equipment is likely to be technically complex, very 
different from that of the quantity in the vessel or failed pipeline, 
and likely to extend the duration of volatilization rather than 
affecting the rate overall. Therefore, EPA has not included this 
requirement in the final rule.
    EPA also sought comment in the SNPRM on options for the 
determination of the relevant quantity of regulated substance in a 
vessel or process piping for a worst-case release scenario: the maximum 
possible vessel inventory (design capacity) at any time without regard 
for operational practices and administrative controls; the maximum 
possible vessel inventory unless there are internal administrative 
controls (written procedural restrictions) that limit inventories to 
less than the maximum; or historic or projected maximum operating 
inventories without regard to administrative controls. EPA preferred 
that the maximum vessel inventory including administrative controls 
that might limit or raise the vessel quantity to be used in the worst-
case assessment and reported in the worst-case release analysis section 
of the RMP. If the quantity used in the assessment were exceeded (e.g., 
an administrative control were ignored), then the source would be in 
violation of the rule (i.e., failure to perform a worst-case analysis) 
and RMP reporting unless the administrative control was revised, the 
worst-case analysis updated to reflect any changes in the analysis, and 
a revised RMP submitted. This approach acknowledges the efforts by 
sources to increase process safety by intentionally reducing the 
inventory of regulated substances (e.g., vessels kept at half capacity 
to allow for process upsets, emergency shutdowns, and deinventorying or 
maintenance turnarounds). EPA notes that at some sources, as a result 
of inventory reduction measures, the largest quantity may be held in a 
transportation container that is loaded or unloaded at the source (See 
section P.2).
    A few commenters supported the other options, noting that 
administrative controls may fail, potentially generating a larger 
scenario. However, the majority of commenters supported EPA's preferred 
approach based on the historical reliability of such controls at many 
sources and the role that such a provision could play in encouraging 
their use at additional locations. Other commenters asked whether 
mechanical controls, alone or in combination with administrative 
controls, should be incorporated into the proposal. Although mechanical 
controls may also serve to limit the quantity, EPA has decided not to 
include them in the quantity determination for the worst-case release 
scenario because the definition for administrative control as ``written 
procedural mechanisms used for hazard control'' provides a backup for 
possible failure of mechanical controls. For more discussion of 
mechanical controls, see section III(B)(2), mitigation systems, below.
    In the SNPRM, EPA considered 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. EPA 
noted in the SNPRM, and most of the few comments received on this issue 
agreed, that implementing agency discretion would result in increased 
administrative burden on the implementing agency and cross-
jurisdictional differences in the methodology used for the worst-case 
analyses. EPA has decided not to incorporate this approach in the final 
rule. States, however, may impose more stringent requirements, such as 
additional modeling, under state authority.
    In the NPRM worst-case definition, EPA did not specify what 
constitutes or how to determine the worst offsite consequences. Some 
commenters indicated that without clear direction, EPA's proposed worst 
case might not actually capture the scenario that leads to the most 
severe offsite impact. In the SNPRM, EPA indicated that the worst-case 
scenario should be the scenario that generates the greatest distance to 
a specified endpoint (i.e., the toxic vapor cloud or blast wave from a 
vapor cloud explosion that travels the farthest).
    EPA recognizes that there may be other release scenarios that could 
generate a greater distance than the release from the largest vessel or 
pipeline. Consequently, EPA has added paragraph (h) to Sec. 68.25 to 
require owners or operators to consider other scenarios if those 
scenarios generate greater distances to the endpoint than the distance 
generated by the largest vessel or pipeline scenario. Owners or 
operators need to consider releases from smaller vessels if those 
vessels contain the substance at higher temperature or pressures or if 
they are closer to public receptors. In some cases, the largest vessel 
will be a storage vessel where the substance is held at ambient 
conditions. A reactor vessel may hold a smaller quantity, but at high 
pressures and temperatures, generating a release that could travel 
farther offsite to an endpoint. Vessel location is important, 
especially at large sources. A smaller vessel located nearer to the 
stationary source boundary may generate a greater impact distance than 
a larger vessel farther away. This difference may be particularly 
important for flammables, because impact distances for flammables are 
generally shorter than those for toxic releases.
2. Mitigation Systems
    a. Worst-case scenario. In the NPRM worst-case scenario, EPA 
indicated that sources must assume that both active and passive systems 
fail to mitigate the release. Commenters were generally split between 
those who wanted passive (as well as certain redundant active) 
mitigation systems to be included and those who argued that historical 
evidence from catastrophic releases suggests that the worst case should 
assume the failure of all such systems. Those who supported mitigation 
argued that inclusion provides a more credible scenario for improved 
risk communication, accident prevention, and emergency planning.
    EPA proposed in the SNPRM to include passive mitigation systems in 
the worst-case release scenario as long as the system is capable of 
withstanding, and continuing to function as intended during and after a 
destructive event, such as an earthquake, storm, or explosion, which 
causes a vessel or pipeline to fail. Passive systems such as dikes, 
catch basins, and drains for liquids, and enclosures for both liquids 
and gases, could be assumed to mitigate the release. Some commenters 
opposed this approach, arguing again that the worst case should account 
for the possibility of passive mitigation failure. The majority 
supported this approach because the assumption that passive systems 
specifically designed and installed as protection against a potential 
catastrophe fail is unrealistic. Furthermore, the approach recognizes 
and encourages prevention through additional passive mitigation and 
supports more realistic emergency

[[Page 31683]]

planning. A few commenters also suggested that active mitigation 
measures that were unlikely to fail (e.g., redundant or backup systems) 
should be considered, for similar reasons. Historical data, however, 
indicate that certain events compromise active mitigation systems 
(e.g., explosions have destroyed fire water piping systems).
    For the final rule, EPA has decided to adopt the SNPRM approach. 
Passive mitigation systems would be defined as those systems that 
operate without human, mechanical, or other energy input and would 
include building enclosures, dikes, and containment walls. EPA also 
agrees that reservoirs or vessels sufficiently buried underground are 
passively mitigated or prevented from failing catastrophically. In this 
case, sources should evaluate the failure of piping connected to 
underground storage for the worst case or alternative case scenarios. 
In addition to the requirements outlined in Sec. 68.25, EPA provides 
guidance on how passive mitigation would affect release rate and 
distance to endpoints in its RMP Offsite Consequence Analysis Guidance.
    b. Alternative scenarios. EPA initially proposed that sources could 
include passive mitigation systems in their alternative scenario 
assessments, but that active mitigation systems (e.g., excess flow 
valves, fail-safe and automatic shutdown valves, scrubbers, flares, 
deluge systems, and water curtains) would be assumed to fail. Some 
commenters generally opposed inclusion of any mitigation systems in the 
hazard assessment, while other commenters noted that the alternative 
release scenario should recognize and encourage industry accident 
prevention efforts, specifically the installation of additional 
mitigation systems, and support more realistic emergency planning.
    EPA proposed in the SNPRM to allow sources to consider passive and 
active mitigation measures in the alternative release scenario 
assessment. Commenters supported this approach and EPA has decided to 
retain it in the final rule. EPA agrees that the assumption that both 
passive and active mitigation measures fail when such measures are 
specifically designed and installed to mitigate catastrophic releases 
is unrealistic for the alternative scenarios. Although not required, 
EPA notes that sources may choose to apply passive and active 
mitigation measures to a worst-case type scenario to illustrate the 
capabilities of such systems to reduce the potential impact of a worst-
case accidental release. In addition to the requirements outlined in 
Sec. 68.28, EPA provides guidance in its RMP Offsite Consequence 
Analysis Guidance on how passive and active mitigation would affect 
release rate and distance to endpoints.
    3. Populations Affected. EPA described in the NPRM preamble certain 
locations (e.g., schools and hospitals) where sensitive populations 
might be present and proposed in the rule that owners or operators 
identify potentially exposed populations as part of the offsite 
consequence assessment. Commenters generally opposed requirements for 
population surveys; several commenters suggested that Census data or 
other readily available population information should be sufficient, 
while other commenters indicated that the LEPC or other local planning 
entities were the appropriate entity to prepare these data.
    EPA believes owners or operators need to be aware of the magnitude 
of impact on populations associated with the worst-case and alternative 
scenarios. However, EPA learned that, although much of this information 
is readily available, identification of some sensitive populations 
could require considerable effort, especially if the distance to an 
endpoint generated in the offsite consequence assessment is large or 
crosses several jurisdictions. Consequently, EPA proposed in the SNPRM 
that offsite populations be defined using available Census data; 
information on the number of children and people over 65 could be 
considered a proxy for sensitive populations, thereby accomplishing the 
same objective as the proposed rule. EPA also indicated that it has 
developed a geographic information system, LandView, that will 
facilitate analysis of resident populations. (LandView can be ordered 
from the U.S. Bureau of the Census customer service at (301) 457-4100.) 
In general, commenters agreed with the SNPRM approach. However, some 
commenters questioned the accuracy of potentially ten-year-old Census 
data and requested additional flexibility, or a greater role for local 
government, in this analysis.
    EPA has decided to adopt the approach outlined in the SNPRM for the 
final rule. Sources will be allowed to use available Census data to 
estimate populations potentially affected. Sources may update these 
data if they believe the data are inaccurate, but are not required to 
do so. Populations shall be reported to two significant digits. Because 
Census data are limited to residential populations, sources will also 
have to note in the RMP whether other, non-residential populations, 
such as schools, hospitals, prisons, public recreational areas or 
arenas, and major commercial or industrial areas, are within the 
distance to an endpoint. These institutions and areas are those that 
can generally be found on local street maps. Sources will not be 
required to estimate the number of people who might be present at these 
locations. EPA provides further guidance on the identification of 
affected populations in its RMP Offsite Consequence Analysis Guidance.
    4. Number of Scenarios In the NPRM. EPA required a worst-case 
release scenario for each regulated substance. Commenters requested 
clarification, because one substance could be present in more than one 
process at the source and sources would need to select the ``worst'' 
worst case for substances in multiple processes. In addition, one 
process may have several, similar listed substances and multiple worst-
case analyses of similar substances (e.g., flammables) would not 
provide additional useful information to the public.
    EPA proposed in the SNPRM that sources report in the RMP one worst-
case release scenario representative of all toxic substances present at 
the source and one worst-case release scenario representative of all 
flammable substances present at the source. Even though additional 
screening analyses to determine the appropriate worst-case scenario 
might be necessary, this approach reduces to a maximum of two the 
number of worst-case analyses reported in the RMP by a source. In 
general, commenters favored this approach, particularly for flammables, 
which do not produce markedly different adverse effects. A few 
commenters argued that a single toxic substance should not be 
considered representative of all toxic substances at a source, since 
there are considerable differences in toxic endpoint and adverse 
affect.
    EPA has decided to adopt the approach outlined in the SNPRM for the 
final rule: report one worst-case release scenario for all flammables 
and one worst-case release scenario for all toxics at the source. EPA 
notes that the worst-case scenario is designed principally to support a 
dialogue between the source and the community on release prevention, 
and not to serve as the sole or primary basis for local emergency 
planning. The ``worst'' worst-case release scenario will inform the 
broadest range of individuals that they may be impacted by the source 
so that they may participate in dialogue with the source about 
prevention, preparedness, and emergency response actions. Lesser worst-
case release scenarios would not

[[Page 31684]]

inform any person not already within the range of the ``worst'' worst 
case even though the health effects may be different; consequently, EPA 
believes that only a single toxic worst case is necessary. However, 
sources must also analyze and report another worst-case release 
scenario (for flammables or toxics) if such a release from another 
location at the source potentially affects public receptors different 
from those potentially affected by the first scenario (e.g., if a 
large-sized source is located between two communities and has a covered 
process adjacent to each community).
    In the NPRM, EPA did not specify the number of alternative 
scenarios to be reported for each regulated substance. EPA noted in the 
preamble that this approach, while providing flexibility, may also 
create uncertainty about what EPA will consider to be an adequate 
number of scenarios. While a few commenters argued against scenarios 
beyond the worst case, many commenters supported a requirement for a 
maximum of two: the worst case plus one additional scenario; others 
supported a maximum of three. Many of the commenters noted that local 
entities could request further information under EPCRA section 
303(d)(3) authority if they desired. At the same time, a number of 
commenters suggested that this determination should be made by the 
source based on their scenario analysis, perhaps in coordination with a 
local agency.
    In the SNPRM, EPA proposed to require one alternative release 
scenario for all flammable substances at the source and one alternative 
scenario for each toxic substance at the source. As discussed above, 
the listed flammable substances behave similarly upon release and have 
the same endpoint, while each toxic substance has a different endpoint 
and different atmospheric behavior. EPA sought comment on whether one 
toxic substance alternative scenario could represent all toxic 
substances at a source or in a process. Although commenters generally 
agreed with the approach for flammables, only a few argued that a 
single alternative scenario for all toxics was also appropriate; most 
others supported EPA's proposal.
    Upon review of the comments, EPA has decided to adopt the approach 
outlined in the SNPRM: an alternative release scenario must be reported 
in the RMP for each toxic held above the threshold at the source, and 
one alternative scenario must be reported that represents all 
flammables held above the threshold. As EPA noted in the SNPRM preamble 
and commenters echoed, the differences in the hazards posed by 
individual toxic regulated substances are significant and should be 
reflected in the alternative scenarios. This information has 
significant value for emergency planning purposes and could increase 
public interest in prevention at the source.
    5. Technical Guidance The proposed rule required sources to 
evaluate the consequences (vapor cloud dispersion, blast wave, or 
radiant heat modeling calculations) associated with the worst-case and 
alternative release scenarios. EPA did not specify a methodology or 
models, expecting that sources would have, contract for, or find the 
expertise and modeling tools needed to perform potentially complex 
modeling calculations. Because of the potential burden associated with 
this approach, EPA began working on the development of a set of simple, 
generic tools that could provide useful results and become part of the 
technical guidance for the rule. Based on its experience in developing 
the Technical Guidance for Hazards Analysis and on advice from 
commenters, EPA understands that a generic methodology depends on 
approximations to capture a wide variety of situations, will likely 
ignore site-specific conditions, and potentially may generate overly 
conservative or less realistic estimates of offsite impacts. In spite 
of these limitations, EPA believes that generic modeling tools are 
capable of supporting greater understanding of the hazards posed by 
substances and emergency planning. Commenters agreed this approach 
would reduce the burden on smaller sources unfamiliar with such 
activities as long as use of the guidance was not mandatory, and the 
guidance addressed specific industry sectors or was used as part of a 
screening process to focus resources on significant problem areas. Many 
commenters recommended that sources be given the flexibility to use any 
appropriate modeling techniques for the offsite consequence analysis to 
take advantage of expertise and to apply site-specific considerations 
to the hazard assessment. Other commenters argued that EPA should 
establish mandatory guidelines or specify certain dispersion modeling 
tools to make release scenario results more comparable across sources. 
Some commenters were concerned about the development of modeling tools 
by EPA outside of the rulemaking process and requested the opportunity 
to participate in their development.
    In the SNPRM, EPA stated it would develop a generic methodology and 
reference tables in an offsite consequence assessment guidance to 
assist sources with the analyses required by the rule. EPA believed 
that the Technical Guidance could be revised, expanded, and updated to 
address the rule requirements. The methodologies and tables would be 
subject to public review prior to publication of the final rule; once 
finalized, the tables would replace the Technical Guidance. EPA added 
that sources that wish to conduct more sophisticated modeling could do 
so, provided the techniques used account for the modeling parameters 
described in the rule. Alternatively, EPA proposed that only Program 2 
sources use the guidance; Program 3 sources would be required to 
conduct their own dispersion modeling.
    Most commenters supported the SNPRM approach, especially if sources 
were given the option to use their own site-specific modeling. Some 
commenters argued that the generic methodology and reference tables and 
the option for site-specific modeling should be applied to processes in 
all three Programs, while others suggested that they be applied only to 
a specific Program. In recognition of these comments, EPA prepared 
draft modeling methodologies and reference tables, provided an 
opportunity for their review (see 61 FR 3031, January 30, 1996), and 
has published them as the RMP Offsite Consequence Analysis Guidance. 
EPA intends to conduct peer review of the RMP Offsite Consequence 
Analysis Guidance and will revise it as appropriate. For the final 
rule, EPA will allow sources in all Programs to use the guidance or 
conduct their own site-specific modeling, provided the modeling 
techniques used account for the parameters described in the rule. For 
example, EPA's Office of Air Quality Planning and Standards has 
prepared a publicly available modeling tool called TScreen that can 
assist owners and operators with consequence assessments. EPA also 
encourages local emergency planners, fire departments, and others who 
use tools such as CAMEO/ALOHA or other modeling techniques to assist 
businesses in their community who may need help in their modeling 
efforts. EPA believes the final rule approach takes advantage of the 
broad range of expertise and modeling tools already available and will 
provide more useful results at the local level for chemical emergency 
prevention, preparedness, and response. This approach will also 
stimulate accidental release modeling research, new and existing model 
development, and model validation to generate new tools for better 
understanding of hazards and the behavior of substances in accidental 
release situations.

[[Page 31685]]

    6. Modeling Parameters. a. Endpoints. In the NPRM, EPA did not 
specify toxic or flammable substance endpoints that must be used in the 
offsite consequence assessment modeling. Most commenters recommended 
that EPA specify endpoints to provide a consistent basis for modeling; 
many favored the use of existing standards or guidelines, primarily the 
emergency response planning guidelines (ERPGs) developed by the 
American Industrial Hygiene Association for toxic substances. For 
flammables, commenters suggested overpressure, heat radiation, and 
explosion or flammability limits. In addition to other specific 
standards, a few commenters recommended a hierarchy of values if 
certain levels for some chemicals were not available.
    In the SNPRM, EPA indicated that it would select one endpoint for 
each toxic substance for use in the offsite consequence assessment 
methodology and sought comment on whether it should use a single 
endpoint to the extent possible (e.g., the Immediately Dangerous to 
Life and Health (IDLH) value developed by the National Institute for 
Occupational Safety and Health (NIOSH), unless one does not exist for a 
substance), or a hierarchy of endpoints (e.g., ERPGs; if one does not 
exist, then the IDLH; and finally toxicity data if no other value is 
available). EPA also asked whether overpressure or both overpressure 
and radiant heat effects should be used for flammable substance 
endpoints. Some commenters supported the use of ERPG values for the 
toxic substance endpoint, or a hierarchy of values beginning with the 
ERPG. Others opposed IDLH or the IDLH divided by 10 for technical 
reasons.
    EPA agrees with commenters that one toxic endpoint should be set 
for each substance. The endpoint for each listed toxic substance is 
provided in Appendix A to the final rule. The endpoint, applicable 
whether the source uses the EPA guidance or conducts site-specific 
modeling described below, is the AIHA ERPG-2 or, if no ERPG-2 is 
available, the level of concern (LOC) developed for the Technical 
Guidance, corrected where necessary to account for new toxicity data. 
The LOCs that were based on IDLHs have been updated only if the IDLHs 
were revised between the original LOC listing in 1987 and the 1995 IDLH 
revisions. The most recent IDLH revisions were not used because they 
are based on a methodology that EPA has not reviewed; the previous IDLH 
methodology was reviewed by EPA's Science Advisory Board for use as 
LOCs. EPA chose the ERPG-2 first because ERPGs are subject to peer 
review and are specifically developed by a scientific committee for 
emergency planning to protect the general public in emergency 
situations. The ERPG-2 represents the maximum airborne concentration 
below which the committee judges that nearly all individuals could be 
exposed for up to an hour without experiencing or developing 
irreversible or other serious human health effects or symptoms that 
could impair their ability to take protective action. EPA rejected the 
ERPG-3, which is a lethal exposure level, because it is not protective 
enough of the public in emergency situations. About 30 listed toxic 
substances have ERPGs. EPA chose to use LOC levels for substances with 
no ERPG because LOCs have been peer reviewed by EPA's Science Advisory 
Board, they are intended to be protective of the general public for 
exposure periods of up to an hour, they are widely used by the 
emergency response planning community, and, for a majority of the 
listed toxic substances, there are no acceptable alternatives. EPA 
notes that, for substances with both values, the LOC is comparable to, 
and in some cases is identical to, the ERPG-2.
    EPA recognizes potential limitations associated with the ERPG and 
LOC and is working with other agencies to develop Acute Exposure 
Guideline Limits (AEGLs). See Establishment of a National Advisory 
Committee for Acute Exposure Guideline Levels (AEGLs) for Hazardous 
Substances, (60 FR 55376; October 31, 1995). When these values have 
been developed and peer-reviewed, EPA intends to adopt them, through 
rulemaking, as the toxic endpoint for substances under this rule.
    As proposed, vapor cloud explosion distances will be based on an 
overpressure of 1 psi, and for analysis of worst-case releases, a yield 
factor of 10 percent. Yield factors (the percentage of the available 
energy released in the explosion process) can vary considerably. EPA 
selected 10 percent to generate conservative worst-case consequences. 
For flammables, EPA selected a radiant heat exposure level of 5 kW/
m<SUP>2 for 40 seconds as recommended by the commenters, and, for vapor 
cloud fire and jet fire dispersion analysis, the lower flammability 
limit (LFL) as specified by NFPA or other recognized sources.
    b. Meteorology. In the NPRM, EPA proposed that sources model the 
downwind dispersion of the worst-case release scenario using an F 
atmospheric stability class and 1.5 m/s wind speed and model the 
alternative release scenarios using both the worst-case conditions and 
the meteorological conditions prevailing at the source. EPA did not 
revise the meteorological assumptions in the SNPRM.
    Several commenters argued that the worst-case meteorological 
conditions were too conservative or not applicable on a national basis 
and that site-specific conditions should be used, while others agreed 
that for worst case, minimum wind speeds and the most stable 
atmospheric conditions should be used. In the final rule, EPA has 
decided that sources must conduct worst-case dispersion modeling using 
an F atmospheric stability class and a 1.5 m/s wind speed. A higher 
wind speed or less stable atmospheric stability class may be used if 
the owner or operator has local meteorological data applicable to the 
source that show that the lowest recorded wind speed was always greater 
or the atmospheric stability class was always less stable during the 
previous three years.
    In the final rule, EPA also requires sources to conduct alternative 
release scenario dispersion modeling using the typical meteorological 
conditions applicable to the source. If meteorological data are not 
available, typical conditions in the RMP Offsite Consequence Analysis 
Guidance may be used. EPA believes typical meteorological conditions 
should be used to generate realistic hazard assessments for 
communication with the public and first responders and for emergency 
planning.

C. Consideration of Environmental Impact

    The issue of whether and how environmental impacts should be 
addressed in the hazard assessment and the rule in general drew 
considerable comment. The comments divide into three questions: Should 
EPA consider environmental impacts from accidental releases? If so, 
which environments should be identified? What constitutes an 
environmental impact?
    1. Inclusion of Environmental Impacts. Environmental groups argued 
that the CAA requires assessment of potential impacts to the 
environment and that the environmental receptors listed in the SNPRM 
should be broadened. One commenter stated that since the CAA Amendments 
of 1990 strengthened limits of continuous air toxic emissions, wildlife 
is now threatened more by accidental releases. However, the majority of 
commenters on this issue, principally industry groups, opposed 
consideration of the environment because it is adequately protected by 
other environmental statutes, environmental protection in section 
112(r) relates only to emergency

[[Page 31686]]

response, and Congress intended in section 112(r) for the environment 
to be addressed only to the extent that human health is protected. 
Several commenters argued that flammable substances were unlikely to 
generate environmental impacts. Commenters also stated that many 
industries have voluntarily developed nature reserves around their 
sources, often at the urging of government agencies. Additional 
regulations based on ``environmental'' impact consideration would 
``penalize'' these sources for their efforts. Finally, two commenters 
noted that EPA's endpoints are based on acute human effects; applying 
these to the environment may not be valid.
    EPA disagrees that section 112(r) was not intended to protect the 
environment as well as human health. Although section 112(r)(5) links 
the threshold quantity to human health, section 112(r)(3) requires EPA 
to select substances that could impact human health and the 
environment. EPA agrees that the only time sections 112(r)(7)(B)(I) and 
(ii) mention protection of the environment is in conjunction with 
emergency response; however, this is also true for protection of human 
health. Congress did not intend to limit concern about either impact 
strictly to emergency response procedures; Congress may not have 
mentioned either impact relative to prevention because the act of 
preventing an accident eliminates the impact on both. When accidents 
occur, human health and the environment need protection. By mentioning 
both impacts in the response or post accident phase, Congress was 
stressing its concern for the environment as well as human health. 
Given the integrated nature of the RMP, it would be an inappropriately 
narrow reading of CAA section 112(r)(7)(B) to say environmental impacts 
must be ignored in hazard assessments and in the design of the 
prevention program, but must be accounted for in emergency response. In 
addition, section 112(r)(9) provides authority for EPA to take 
emergency action when an actual or threatened accidental release of a 
regulated substance may cause imminent and substantial endangerment to 
human health, welfare, or the environment. Clearly, section 112(r)(9) 
allows EPA to take action to prevent, as opposed to simply respond to, 
accidental releases to protect the environment. Because section 
112(r)(7) is intended to prevent situations that could lead to 
emergency orders under section 112(r)(9), it is logical to conclude 
that Congress meant EPA to develop regulations that would prevent 
accidental releases that could cause environmental damage. Although the 
consequences may not be precisely known, EPA believes that impacts 
could occur at environmental receptors located within the distance to a 
human acute exposure endpoint associated with a worst-case or 
alternative scenario because wildlife may be more sensitive or require 
less exposure to cause an adverse effect than humans.
    2. Environmental Receptors to Be Considered. In the SNPRM, EPA 
proposed that sources report in their RMP which sensitive environments 
listed by the National Oceanographic and Atmospheric Administration 
(NOAA) for the Clean Water Act are within the distance determined by 
the worst-case or alternative case scenario. A few commenters argued 
that the list should include state and local level analogues to Federal 
entities (e.g., state parks), all surface waters that are fishable or 
swimmable or supply drinking water, and ground water recharge areas. 
Many commenters opposed the NOAA list, arguing that the list is 
extremely broad, covers millions of acres in primarily rural areas, and 
contains areas that are difficult for both the regulated community and 
the government to clearly identify (e.g., habitat used by proposed 
threatened or endangered species, cultural resources, and wetlands). 
They stated that the NOAA list is not appropriate for this rule because 
it represents guidance applicable to offshore sources, and to a limited 
number of very large onshore sources, that could have catastrophic oil 
spills. A few commenters suggested limiting the list to Federal Class I 
areas designated under the CAA prevention of significant deterioration 
program, or reducing the list of sensitive areas to national parks and 
the designated critical habitat for listed endangered species, and 
limiting environmental concern to those accidents that generate a 
significant and long-term impact, such as an actual ``taking'' of an 
endangered species.
    For the final rule, EPA has not used the NOAA list. Instead EPA 
requires owners or operators to indicate in the RMP the environmental 
receptors located within circles whose radii are the distances to an 
endpoint for the worst-case and alternative release scenarios. EPA 
agrees with commenters that the locations of certain natural resources 
are difficult to identify. Consequently, EPA has defined environmental 
receptors as natural areas such as national or state parks, forests, or 
monuments; officially designated wildlife sanctuaries, preserves, 
refuges, or areas; and Federal wilderness areas, that can be exposed to 
an accidental release. All such receptors typically can be found on 
local U.S. Geological Survey (USGS) maps or maps based on USGS data. 
Habitats of endangered or threatened species are not included because 
the locations of these habitats are frequently not made public to 
protect the species. Natural resource agencies will have access to the 
RMP information and can raise concerns with local officials about 
potential harm to these habitats, as necessary. Local emergency 
planners and responders may want to consult with environmental 
management agencies as part of emergency preparedness.
    3. Level of Analysis Required. In the SNPRM, EPA proposed that 
sources only identify sensitive environments within the area of the 
worst-case release, rather than analyzing potential impacts. A few 
commenters opposed this approach, stating that the CAA requires that 
sources analyze impacts. Most commenters supported EPA's position 
because extensive expertise at considerable cost is required to 
adequately assess all environmental impacts associated with the 
environments list EPA provided. Commenters stated that this cost would 
make fewer resources available for prevention activities and providing 
no benefit. Other commenters noted that much of the data needed for 
such analyses is not available.
    EPA agrees that extensive environmental analysis is not justified. 
Irreversible adverse effect exposure level data for the wide variety of 
environmental species potentially exposed in an accidental release 
event are not available for most of the listed substances. EPA believes 
that identification of potentially affected environmental receptors in 
the RMP is sufficient for purposes of accident prevention, 
preparedness, and response by the source and at the local level.

D. Program 3 Consistency with OSHA PSM Standard

    1. Prevention Program. In EPA's original proposal, the prevention 
program requirements were based on the elements of OSHA's PSM standard 
(29 CFR 1910.119), and some commenters supported this approach. But EPA 
added a paragraph to each OSHA prevention program element to explain 
the purpose of the provision and, in some instances, added additional 
recordkeeping, reporting, or substantive provisions to ensure that 
statutory requirements were met. Several commenters argued that these 
additions cause confusion and appear to require sources to create two 
separate

[[Page 31687]]

prevention programs, which could cause conflicting inspection and 
enforcement actions and greater cost for sources that must comply with 
both the OSHA and EPA requirements. Many commenters suggested that EPA 
simply reference the OSHA requirements.
    EPA agrees that the Program 3 prevention program requirements 
should be identical to OSHA's PSM standard to avoid confusion and 
redundant requirements and to ensure that sources develop one 
accidental release prevention program that protects workers, the 
general public, and the environment. Therefore, EPA has moved the 
Management System requirement (see section I.D) supported by most 
commenters to a section separate from the Prevention Program and 
deleted the introductory paragraphs and modifications to the PSM 
language. The Agency recognizes that many workplace hazards also 
threaten public receptors and that the majority of accident prevention 
steps taken to protect workers also protect the general public and the 
environment; thus, a source owner or operator responsible for a process 
in compliance with the OSHA PSM standard should already be in 
compliance with the Program 3 prevention program requirements.
    EPA did not cross-reference sections of the PSM standard in today's 
rule because, under Office of Federal Register requirements at 1 CFR 
21.21(c)(2), EPA cannot adopt OSHA's requirements. EPA and OSHA have 
separate legal authority to regulate chemical process safety to prevent 
accidental releases. Furthermore, cross-referencing the OSHA standard 
would be tantamount to a delegation of authority to set standards in 
this area from the Administrator of EPA to the Secretary of Labor, 
because OSHA would be able to modify the PSM requirements without an 
EPA rulemaking under CAA Sec. 307(d). The Senate explicitly considered 
and rejected the possibility of the Administrator delegating to OSHA 
responsibility for hazard assessment. Senate Report at 226. As that 
term was used in the Senate bill, hazard assessment included many of 
the elements of PSM.
    With the exception of some key terms and phrases, the Program 3 
prevention program language in the final rule is identical to the OSHA 
standard language (the rulemaking docket contains a side-by-side 
analysis of the OSHA standard and EPA rule text with word differences 
highlighted). Most of the differences are terms based on specific 
legislative authorities given to OSHA or EPA that have essentially the 
same meaning:

------------------------------------------------------------------------
               OSHA term                             EPA term           
------------------------------------------------------------------------
Highly hazardous substance.............  Regulated substance.           
Employer...............................  Owner or operator.             
Facility...............................  Stationary source.             
Standard...............................  Rule or part.                  
------------------------------------------------------------------------

    EPA also agrees with commenters that sound process safety 
management systems ideally address chemical accident prevention in a 
way that protects workers, the public, and the environment. Since 
OSHA's responsibility is to protect workers, there are phrases in the 
OSHA standard that are designed to focus employer attention on 
accidents that affect the workplace. It could be argued that these 
phrases inadvertently exclude consideration of offsite impacts. EPA has 
deleted the phrases noted below to ensure that all sources implement 
process safety management in a way that protects not only workers, but 
also the public and the environment:

------------------------------------------------------------------------
          OSHA PSM requirement              EPA program 3 requirement   
------------------------------------------------------------------------
1910.119(d)(2)(E) An evaluation of the   68.65(c)(1)(v) An evaluation of
 consequences of deviations, including    the consequences of           
 those affecting the safety and health    deviations.                   
 of employees.                                                          
1910.119(e)(3)(ii) The identification    68.67(c)(2) The identification 
 of any previous incident which had a     of any previous incident which
 likely potential for catastrophic        had a likely potential for    
 consequences in the workplace.           catastrophic consequences.    
1910.119(e)(3)(vii) A qualitative        68.67(c)(7) A qualitative      
 evaluation of a range of the possible    evaluation of a range of the  
 safety and health effects of failure     possible safety and health    
 of controls on employees in the          effects of failure of         
 workplace.                               controls.                     
1910.119(m)(1) The employer shall        68.81(a) The owner or operator 
 investigate each incident which          shall investigate each        
 resulted in, or could reasonably have    incident which resulted in, or
 resulted in a catastrophic release of    could reasonably have resulted
 a highly hazardous chemical in the       in a catastrophic release of a
 workplace.                               regulated substance.          
------------------------------------------------------------------------

    EPA also made changes to specific schedule dates to coordinate with 
the OSHA PSM requirements, made internal references consistent, and 
added a provision to the PHA section specifically grandfathering all 
OSHA PHAs and allowing sources to update and revalidate these PHAs on 
their OSHA schedule. EPA believes these modifications do not cause 
source owners or operators to make major adjustments to their PSM 
systems established under OSHA. These minor modifications ultimately 
lead to the development of one comprehensive process safety management 
system satisfying both OSHA and EPA that works to prevent accidents 
affecting workers, the public, and the environment.
    EPA also modified the OSHA definition of catastrophic release, 
which serves as a trigger for an accident investigation, to include 
events ``that present imminent and substantial endangerment to public 
health and the environment.'' This modification, in combination with 
the changes noted above, ensure that sources covered by both OSHA and 
EPA requirements must investigate not only accidents that threaten 
workers, but also those that threaten the public or the environment. 
EPA agrees with commenters and recognizes that most catastrophic 
accidental releases affect workers first. However, the Agency also 
believes that there are accidental release situations where workers are 
protected but the public and the environment are threatened, e.g. 
vessel overpressurizations that cause emergency relief devices to work 
as designed and vent hazardous atmospheres away from the workplace and 
into the air where they are carried downwind. Although many sources 
through the PHA process will have recognized and addressed the 
potential impact offsite associated with safety measures that protect 
workers (e.g. an

[[Page 31688]]

emergency vent scrubber system), EPA believes that the requirements in 
today's rule ensure that all sources routinely consider such 
possibilities and integrate the protection of workers, the public, and 
the environment into one program.
    2. Enforcement. Many commenters expressed concern for conflicting 
audit procedures, interpretations, and enforcement actions when EPA and 
OSHA auditors inspect the same processes. EPA has no authority to 
exempt a source covered under the PSM standard and today's rule from 
any prospect of an EPA enforcement action for violations of section 
112(r) and EPA regulations issued under it. EPA and OSHA are working 
closely to ensure that enforcement actions are based on consistent 
interpretations and coordinated to avoid overlapping audits. Such 
coordination in enforcement was recognized as an appropriate method for 
exercising the Administrator's duty to coordinate the EPA program with 
OSHA (Senate Report at 244).
    3. Exemptions. Many commenters suggested that the Agency exempt 
small businesses or certain industry sectors because the rule is too 
costly, some industries are already subject to substantial regulation 
by other Federal or state agencies, OSHA exempts certain industries 
from the PSM standard, and some sources have effective self-policing 
regimes in place.
    Regardless of whether the source is covered under some other 
Federal, state, or local program, EPA has no authority to exempt a 
source that has more than a threshold quantity of a regulated substance 
from complying with the risk management program rule (CAA section 
112(r)(7)(B)(ii)). EPA established the tiered approach to acknowledge 
that different industries pose different potential risks to human 
health and the environment and that elements of other regulatory 
programs may serve to prevent accidents. EPA believes that owners or 
operators can indicate in their Program and RMP how compliance with 
other particular regulations and standards satisfies Program or RMP 
elements, thereby, avoid duplication. Only those processes in certain 
SIC codes or covered by OSHA's PSM standard must implement the full PSM 
program under Program 3. A source owner or operator can demonstrate 
compliance with the Program 2 or 3 prevention program under today's 
rule for a covered process by showing that it complies with the PSM 
standard. This approach is consistent with the authority to set 
different standards for different types of sources under CAA section 
112(r)(7)(B)(I).

E. Relationship to Air Permitting

    Several commenters on the NPRM requested that EPA clarify the 
relationship between the risk management program and the air permit 
program under Title V of the CAA for sources subject to both 
requirements. In the SNPRM, EPA indicated that in Title V, section 
502(b)(5)(A), Congress clearly requires that permitting authorities 
must have the authority to ``assure compliance by all sources required 
to have a permit under this title with each applicable standard, 
regulation or requirement under this Act.'' EPA further states in part 
70.2 that ``Applicable Requirement means * * * (4) Any standard or 
other requirement under section 112 of the Act, including any 
requirement concerning accident prevention under section 112(r)(7) of 
the Act; * * *'' Consequently, EPA must require that air permitting 
authorities implementing Title V permit programs be able to assure 
compliance with section 112(r). In the SNPRM, EPA attempted to identify 
the section 112(r) ``applicable requirements,'' clarify the minimum 
content of part 70 permits with respect to these requirements, and to 
specify the role and responsibilities of the part 70 permitting 
authority in assuring compliance with these requirements.
    The sections below address the major issue areas raised by 
commenters on the SNPRM. More detail can be found in the Risk 
Management Program Rule: Summary and Response to Comments in the 
Docket. The SNPRM also addressed the role and responsibilities of the 
implementing agency with respect to section 112(r). This issue is 
addressed separately in Section R below.
    1. General relationship between the part 68 and air permitting 
programs. Some commenters agreed with EPA's proposed role for the air 
permitting authority with respect to section 112(r), but encouraged EPA 
to avoid new, confusing, and duplicative state and source permitting 
requirements. A few commenters suggested that all part 68 requirements 
should become permit conditions, that it be fully enforced through the 
part 70 permitting program, and that anything less violates the CAA. 
Most commenters (state air permitting authorities and industry), 
opposed EPA's proposal stating that Congress did not intend, and 
legislative history does not support, section 112(r) to be implemented 
or enforced through the Title V permit program.
    EPA agrees that Congress did not intend for section 112(r) to be 
implemented and enforced primarily through Title V and recognizes the 
potential for confusion and burden on sources and air permitting 
authorities associated with section 112(r). EPA believes that the 
requirements in today's rule are flexible, impose minimal burden, 
address the concerns raised by commenters and satisfy the CAA 
requirement for assurance of compliance with section 112(r) as an 
applicable requirement for permitting. The requirements apply only to 
sources subject to both part 68 and parts 70 or 71; there are no 
permitting requirements on sources subject solely to part 68. EPA 
agrees that ideally, one authority should implement part 68 oversight; 
however, air permitting authorities should not be responsible for 
implementation just as implementing agencies should not be responsible 
for permitting (see implementing agency discussion in Section R, 
below). The air permitting authority has the flexibility under today's 
rule to obtain assistance, expertise or resources from other agencies 
in fulfilling its responsibilities with respect to section 112(r). This 
will foster interaction and coordination of air pollution, pollution 
prevention, public and worker safety and health and environmental 
programs at the state and local levels leading to more effective 
oversight.
    2. Impact of EPA's proposal on air permitting programs. Several 
commenters stated that EPA's proposal places an unreasonable burden on 
air permitting programs because states would need to amend or develop 
new legislative authority and implementing regulations which diverts 
limited state resources away from the development and operation of more 
important routine emissions permit programs.
    EPA disagrees that today's rule places an unreasonable burden on 
air permitting programs. Part of the approval process for a state air 
permitting program is confirmation that states have the authority to 
ensure that sources are in compliance with air toxics requirements 
under section 112 including section 112(r). The provisions of section 
68.215 are sufficient to meet the obligations under part 70. Thus, for 
state and local agencies that have approved part 70 programs, states 
would need to develop new legislative authorities only if they seek 
delegation to implement part 68 beyond the narrow responsibilities 
provided in Sec. 68.215 (see Section R, below). State obligations under 
Sec. 68.215, which should be covered by permit fees (see section E.11, 
below), should not impose a substantial burden on state resources 
because the rule streamlines the RMP requirements and establishes 
centralized recordkeeping for RMPs.

[[Page 31689]]

    3. Part 68 as an ``applicable requirement'' under part 70. As 
described above, the CAA requires that air permitting authorities 
ensure that sources are in compliance with applicable requirements as a 
condition of permitting. In the preamble of previous rulemakings for 
part 70 (57 FR 32301), EPA indicated that the definition of 
``applicable requirement'' under Title V includes ``any requirement 
under section 112(r) to prepare and register a risk management plan 
(RMP).'' This explanatory statement preceded development of part 68, 
which implements section 112(r)(7). In the SNPRM, EPA proposed more 
specific provisions to assure compliance with applicable requirements 
for section 112(r) than the part 70 preamble so that air permitting 
authority responsibility is clear. EPA believed that all elements of 
part 68 are applicable requirements; however, compliance with 
applicable requirements could be assured by including generic terms in 
permits and certain minimal oversight activities. Together, these steps 
ensure that permitted sources fulfill their accident prevention and 
information sharing responsibilities.
    EPA proposed standard permit conditions that would allow air 
permitting authorities to verify compliance with part 68. Commenters 
stated that alteration of the part 70 rule definition of the term 
`applicable requirement' under the part 68 rulemaking is inappropriate 
and that the role of the air permitting authority with respect to 
section 112(r) should be defined in part 70 rulemakings rather than in 
part 68.
    EPA's action today does not alter the definition of ``applicable 
requirements'' under 40 CFR 70.2, which already includes ``any 
requirement concerning accident prevention under section 112(r)(7).'' 
Rather, EPA is establishing very simple permit terms and flexible, 
minimal oversight responsibilities that will assure compliance with 
part 68. EPA disagrees that part 68 cannot establish more specific 
terms for permits than those given in part 70 or 71 with respect to 
section 112(r). As mentioned in the SNPRM preamble, part 70 does not 
preclude EPA from clarifying or even expanding air permitting 
responsibilities. Specific permit requirements are useful to clearly 
establish the minimum permit conditions and state responsibilities 
essential to ensuring compliance with part 68 and to reduce 
uncertainties that may lead to overly broad interpretations of the 
requirements. However, air permitting authorities still have the 
flexibility to establish additional terms for the permit if it so 
chooses.
    4. Role of the air permitting authority. In the SNPRM, EPA proposed 
certain air permitting authority responsibilities necessary to ensure 
that sources are in compliance with part 68 for purposes of permitting. 
Commenters stated that the role of the Title V permitting authority 
should be defined in part 70, not in part 68 and opposed EPA's proposal 
arguing that it causes unnecessary confusion for sources. Commenters 
also argued that air permitting authorities do not have the relevant 
expertise needed and that states should have the flexibility to 
implement risk management programs in whichever agency they see fit. 
Other commenters argued that air permitting authorities, without 
section 112(l) delegation, could not accept the responsibilities 
assigned by the SNPRM and that EPA was unlawfully attempting to 
delegate the responsibility for implementing section 112(r) to the 
state permitting authorities. Several commenters believed the 
permitting authority should have no responsibilities beyond those set 
forth in EPA's April 13, 1993, policy memorandum from John Seitz, 
Director of the Office of Air and Quality Planning and Standards 
(OAQPS), to EPA Regional Air Division Directors, available in the 
docket because states invested significant resources and effort into 
the development of their programs, guided by this EPA memorandum. 
However, a state permitting authority stated that the EPA memorandum 
did not account for many of the key program elements, including the 
necessary incorporation of standard permit conditions. Many commenters 
also opposed requiring extensive details or all aspects of part 68 
compliance in the permit, finding this approach excessive and overly 
burdensome on both state air permitting authorities and sources and 
contrary to the law and Congressional intent in that it would have 
required section 112(r)(7) to be fully implemented by state permit 
programs.
    Several commenters were concerned that a single violation of part 
68 could potentially be enforced by both the permitting authority and 
the implementing agency. One commenter suggested that the only case 
where a violation of a part 68 requirement should also be considered a 
violation of part 70 would be the failure to register an RMP on time 
under the requirements of Sec. 68.12. Another commenter requested that, 
at Sec. 68.58(b)(3), EPA should allow the state the discretion to 
determine whether a penalty should be assessed. Several commenters, 
uncertain how the Programs proposed by EPA in the SNPRM would affect 
the role of the permitting authority, suggested that EPA develop a 
process to inform states of the tiering approach and to exclude Program 
1 and 2 sources from additional permitting requirements.
    EPA believes that part 68 should more clearly define the role of 
the air permitting authority with respect to section 112(r). Part 70 
requirements were established well before part 68 and are therefore 
vague. Consequently, EPA is using part 68 to clarify the applicable 
requirements, to specify permit terms and to establish the minimum 
permit conditions and activities to avoid misinterpretations and to 
ensure compliance with part 68. EPA agrees that air permitting 
authorities may not have the expertise necessary with respect to part 
68; consequently, the requirements in today's rule only specify the 
actions the state must take to assure that sources have met their part 
68 responsibilities while giving the state flexibility to assign or 
designate by agreement entities other than the permitting authority to 
carry out these activities. The elements in today's rule are the 
minimal components of a successful compliance program; anything less 
falls short of the statutory requirements of assuring compliance with 
all applicable requirements. EPA also disagrees that it is forcing 
delegation on air permitting authorities to implement section 112(r). 
As described in the SNPRM and above, air permitting authorities must 
ensure that sources are in compliance with applicable requirements for 
purposes of permitting. This is not section 112(r) implementation (see 
section R below). EPA is merely specifying more clearly the 
requirements already upon air permitting authorities; without the 
specification given in today's rule, it could be argued that air 
permitting authorities are obligated to review and evaluate the 
adequacy of RMP submissions. EPA agrees that oversight of the adequacy 
of part 68 compliance, including RMPs, is not an appropriate activity 
for the air permitting authority and is more appropriately an 
implementing agency duty. Delegation of these implementing agency 
activities can only be accomplished through a delegation consistent 
with part 63, subpart E.
    EPA also maintains that the air permitting authority role should be 
more specifically defined than that offered by the April 13, 1993, 
memorandum. The April 1993 policy was prepared prior to the NPRM and 
SNPRM, it does not account for implementation of the risk management 
program by the source (as opposed to

[[Page 31690]]

implementation of the plan), and there is no mechanism, such as a 
review of the RMP by the permitting authority, to ensure that the plan 
contains the elements required by part 68. These deficiencies were 
previously indicated by EPA in a June 24, 1994, memorandum from John 
Seitz and Jim Makris, Director of the Chemical Emergency Preparedness 
and Prevention Office (CEPPO) to EPA Regional Division Directors, which 
stated that ``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. EPA acknowledges 
that states may have invested considerable resources and effort in 
development of air permitting programs based on the April 13, 1993 
policy. However, EPA also believes that the minimum requirements and 
flexibility offered by today's rule allow air permitting authorities to 
fold these activities into their programs with minimal burden. EPA 
recognizes that there may be multiple agency oversight related to 
permitting and part 68. As mentioned above, today's rule allows the air 
permitting authority the flexibility to use other agencies, such as the 
implementing agency or a designated agency (upon agreement), to better 
coordinate at the state and local level. In addition, EPA must note 
that there is no `approval' of either initial or revised RMP 
submissions.
    EPA agrees that requiring the permit to contain extensive details 
of part 68 compliance goes well beyond the need for part 70 permits to 
assure compliance with applicable section 112(r) requirements and it 
would impose considerable resource and expertise burdens on the 
permitting authority. EPA has maintained that it is not 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 programs.
    While enforcement would primarily occur using part 68 authority, 
EPA agrees that the permitting authority also has the authority to 
pursue violations under part 70 and sources could be subject to 
multiple violations. This is no different from any other standard 
promulgated by EPA that becomes an applicable requirement for 
permitting. EPA agrees that the air permitting authority has the 
discretion to coordinate with the implementing agency with respect to 
penalty assessment associated with Sec. 68.58(b)(3) in the SNPRM 
(Sec. 68.215(e)(4) under today's rule).
    Finally, the tiering (Program) approach benefits sources as well as 
air permitting authorities. EPA has simplified the tiering provisions 
so sources and air permitting authorities should be able to readily 
determine the Program requirements each process must satisfy, leading 
to more effective oversight. EPA has also streamlined the RMP reporting 
requirements and is working on electronic submission of RMP information 
which serve to reduce the burden on air permitting authorities and 
implementing agencies.
    5. Title V permit application contents. Many commenters stated that 
sources regulated under parts 70 or 71 and part 68 should only be 
required to certify whether they are subject to section 112(r) in their 
initial permit application to allow timely processing. Although EPA 
indicated that it did not want the RMP included in permit applications 
or in the permit, many commenters stated their opposition because the 
additional time required for RMP review could delay permit grants and, 
in some states, the RMP could be included in the source's permit. 
Several commenters suggested that the air permitting authority should 
decide whether it wants the RMP; one commenter stated that sources 
would have a significant incentive to comply with such a request, given 
the permitting authority's ability to withdraw an application shield. 
Others stated that the permitting authority should be prohibited from 
asking for the RMP as part of the permit application.
    As EPA has indicated, the RMP should not be submitted with the 
permit application or made part of the permit. EPA is working to 
streamline permit application requirements and has indicated that the 
minimum with respect to section 112(r) is a ``check box'' for the 
source to note whether it is subject to section 112(r), and either 
certification that the source is in compliance with part 68 or has a 
plan for achieving compliance. Any other requirements are up to the air 
permitting authority. All sources will be required to submit their RMP 
to a central point to be specified by EPA and will be immediately 
available to local responders and the state which may elect to make it 
available to air permitting authorities.
    6. Air permit contents. EPA proposed in the SNPRM that each permit 
contain standard conditions that address key compliance elements in 
part 68 and mechanisms for compliance plans, certifications and 
revisions. Although EPA indicated it did not believe the RMP should be 
part of the permit, two commenters suggested that it should be included 
while most others indicated that it should not or that the air 
permitting authority should decide. Several commenters supported no 
more than the four conditions proposed in the SNPRM while others 
suggested requirements including: prompt development and updating of a 
complete RMP; no conditions other than an indication that a source is 
subject to part 68; provisions stating the need to register according 
to Sec. 68.12; a condition stating that the source will comply with all 
part 68 requirements; and a standard provision recognizing that the 
implementing agency has the section 112(r) enforcement authority.
    Except for the provisions of Sec. 68.215(a), EPA does not believe 
that the RMP or all or any portion of the remainder of part 68 should 
become permit conditions because the RMP and part 68 elements will be 
highly source-specific and subject to frequent change introducing 
unnecessary complexity and delaying permit implementation. The 
provisions of Sec. 68.215 should allow the air permitting authority to 
implement the conditions in a standardized way across many sources with 
minimal burden. EPA has revised Sec. 68.215 to require that all permits 
contain a statement listing part 68 as an applicable requirement and 
that conditions shall be added that require the source to submit a 
compliance schedule for meeting the requirements of part 68 or, as part 
of the compliance certification all permitted sources must submit under 
40 CFR 70.6(c)(5), a certification statement that, to the best of the 
owner or operator's knowledge, the source is in compliance with all 
requirements of this part, including the registration and submission of 
the RMP. EPA had amended the authority citation for part 68 to include 
CAA Title V because EPA is promulgating permit terms and oversight 
duties. Consistent with parts 70 and 71, the permit shield provisions 
of parts 70 and 71 would not apply to the substantive requirements of 
part 68 because the detailed substantive requirements of part 68 are 
not addressed in the Title V permit or permit application. If a permit 
without these conditions has already been issued, then when the permit 
comes up for renewal under part 70 or 71 requirements (40 CFR Part 
70.7), the owner or operator shall submit an application for a revision 
to its permit to incorporate these conditions. The suggested 
alternative conditions, not adopted, generally help assure compliance 
only with portions of part 68, such as registration or the preparation 
of the RMP, or omit critical

[[Page 31691]]

information, such as whether the source is subject to part 68 or what 
its compliance status is. The implementing agency's enforcement 
authority is apparent on the face of the CAA.
    7. Completeness review. As part of ensuring compliance, EPA 
proposed in the SNPRM that within a certain time-frame the air 
permitting authority must verify that an RMP containing the required 
elements had been submitted and indicated in the preamble that it would 
assist air permitting authorities by developing a checklist. EPA stated 
that this review is independent of completeness reviews required for 
permit applications to avoid interfering with the permit process. 
Further, air permitting authorities could arrange for other agencies, 
including the implementing agency, to perform the completeness review. 
EPA also requested comment on whether the permitting authority should 
be able to require sources to make revisions to an RMP.
    Most commenters disagreed with this proposal arguing that if a 
completeness check is necessary, it should be performed by the 
implementing agency since most air permitting authorities will not have 
the technical expertise (e.g., chemical process safety) required to 
adequately review RMPs for technical completeness. Commenters also 
argued that a completeness review would be merely procedural, it 
duplicates effort without creating any real benefit, it consumes scarce 
resources, and it leads to inconsistent RMP review without ensuring the 
source is in compliance with risk management program requirements. Some 
commenters suggested that the completeness review could be better 
defined only as a review of source self-certification that a complete 
RMP was submitted rather than a substantive review. Some commenters 
generally agreed that completeness checks should be completed within 
sixty days. Finally, most commenters argued that only the implementing 
agency should be able to require revisions to the RMP. Otherwise, 
another revision review, appeal and verification process would be 
necessary, duplicating the process already established for the 
implementing agency.
    Based on these comments, EPA has decided not to require that air 
permitting authorities perform a completeness check as part of the 
verification of compliance with part 68. EPA has modified the rule 
requirements so that the air permitting authority may select for itself 
one or more appropriate mechanisms (such as source audits, record 
reviews, source inspections or completeness checks) and time-frame in 
conjunction with source certifications, to ensure that permitted 
sources are in compliance with the part 68 requirements. Without some 
kind of oversight, source self-certification is not a sufficient means 
of compliance assurance, given that an RMP contains information 
essential at the local level for emergency prevention, preparedness, 
and response and is not subject to routine, case-by-case review for 
quality. These oversight mechanisms do not need to be used on each 
source in order to be effective. EPA agrees that the review for quality 
or adequacy of the RMP is best accomplished by the implementing agency 
on a frequency and scope that may vary. EPA is willing to work with air 
permitting authorities on guidance, checklists or other tools to assist 
in the development of compliance mechanisms related to the RMP. In 
addition, EPA is willing to assist air permitting authorities in 
electronic checks once the electronic system for RMP submittal is 
developed. EPA emphasizes that if an RMP completeness check is used by 
the air permitting authority, it should remain independent of the 
completeness determination for the permit application. The RMP will 
most likely be submitted at a different time than a permit application, 
since almost all permit applications will have been submitted well in 
advance of the risk management program rule deadline. If the 
completeness check determines that an incomplete RMP has been 
submitted, the permitting authority can request additional information 
under Sec. 68.215(b) and should coordinate with the implementing agency 
on necessary RMP revisions. The completeness checks are facial reviews 
of RMPs to verify that there are no omissions. Such checks could be 
performed on a select basis and occasionally integrated with a multi-
purpose source inspection conducted to ensure that the air source is in 
compliance with its permit.
    8. Interaction of the implementing agency and the permitting 
authority. In the SNPRM, EPA attempted to delineate the specific 
requirements unique to the air permitting authority and the 
implementing agency. The role of the state is described in more detail 
in E.4 while the implementing agency is discussed in R. Commenters on 
the SNPRM suggested that EPA should require the implementing agency to 
certify to permitting authorities whether part 68 sources regulated 
under part 70 are in compliance with part 68 requirements. Such 
certification should be deemed sufficient to ``assure compliance'' with 
the applicable requirement under part 70. Other commenters suggested 
that the permitting authority could simply consult with the 
implementing agency when it believes there is a problem requiring 
attention or that the implementing agency should notify the permitting 
authority of any problems in part 68 compliance, so that the permitting 
authority may then expand the permit conditions accordingly.
    EPA does not believe it is necessary to define the interaction 
between the permitting authority and the implementing agency. Ideally, 
this coordination and interaction should occur at the state or local 
level. Coordination of other CAA programs (Title V, SBAP, and other 112 
programs) with the 112(r) program will ensure that the programs are 
more consistently implemented and enforced, while easing regulatory 
burden and providing the public greater access to information. However, 
when EPA is the implementing agency, it stands ready to work with air 
permitting authorities on oversight associated with permitting and 
enforcement of the part 68 requirements. Today's rule also provides the 
state the flexibility to assign some or all of its responsibilities by 
prior cooperative agreements or memoranda of understanding to the 
implementing agency or another state, local, or Federal ``designated 
agency.'' EPA recognizes that each state is structured differently and 
will have different impediments and opportunities; therefore each state 
has the flexibility to place the program in an appropriate agency or 
department, including the air permitting agency.
    9. The ``designated agency.'' In the SNPRM, EPA proposed to define 
the designated agency as the state or local agency designated by the 
air permitting authority as the agency responsible for the review of an 
RMP for completeness. This provision was designed to give the air 
permitting authority the flexibility to obtain expertise from other 
agencies to fulfill its responsibilities. Several commenters believed 
the SNPRM does not clearly allow the permitting authority to delegate 
tasks to a designated agency and the permitting authority should be 
able to delegate more than the completeness review, e.g., enforcement. 
Some commenters requested that EPA redefine the term to allow 
permitting authorities to delegate tasks to EPA or other Federal 
agencies; while one commenter argued that EPA should not allow the 
permitting authority to designate EPA as the designated agency.

[[Page 31692]]

    EPA agrees that the definition should be revised to give the air 
permitting authority more flexibility. EPA has dropped the mandatory 
completeness review, added broader implementation and enforcement 
activities, and included Federal agencies in the designated agency 
definition. Thus, a ``designated agency'' may be any state, local, or 
Federal agency designated by the state as the agency to carry out the 
provisions of Sec. 68.215, provided that such designation is in writing 
and, in the case of a Federal agency, consented to by the agency. The 
parties to any such designation should negotiate the terms and details 
of any agreements.
    10. Reopening part 70 permits to incorporate section 112(r) 
requirements. In the preamble to the SNPRM, EPA indicated that part 68 
requirements should be incorporated into part 70 or 71 permits using 
the part 70 administrative amendment process because of the timing 
difference between part 68 and air permitting. Most commenters agreed 
with this approach or indicated that permits should not be reopened at 
all; instead, sources that submitted permit applications prior to 
promulgation of the final section 112(r) regulations should not be 
subject to enforcement action under Title V until after the first 
renewal of the permit (i.e., after 5 years).
    As discussed under section E.6, if a permit without the necessary 
part 68 conditions has already been issued, then the owner or operator 
or air permitting authority shall initiate a permit revision or 
reopening according to the procedures detailed in 40 CFR 70.7 or 71.7 
to incorporate the terms and conditions under paragraph (a) of 
Sec. 68.215. Although EPA has not completed part 70 permit streamlining 
efforts, the requirements for permit revisions or reopenings should be 
complete by the time sources will be required to be in compliance with 
the part 68 requirements. Under the most recent part 70 proposal, the 
part 68 requirements would be classified as ``less environmentally 
significant'' and the associated procedures would be followed. Sources 
with such permits shall be subject to enforcement under authorities 
other than Title V.
    11. Use of Title V funds. In the SNPRM, EPA indicated that 
activities conducted by air permitting authorities should be covered by 
fees collected under part 70 since part 68 is an ``applicable 
requirement.'' EPA also acknowledged that air permitting authorities 
may not have planned for section 112(r) activities and requested input 
on alternative funding mechanisms or whether resources would need to be 
reduced in other programs to allow completion of part 68 
responsibilities.
    Several commenters raised concerns about the impact of the section 
112(r) requirements on state and local air permitting authorities 
because funding will be needed and it may not be possible in the 
current political climate for the permitting authorities to raise the 
necessary fees through Title V. Some commenters argued that funding 
decisions should be left up to the air permitting authorities.
    EPA agrees that funding decisions regarding the part 68 program 
should be made at the discretion of the state and local agencies. 
However, air permitting authorities need to be aware that the CAA 
requires states to impose permit fees that are sufficient to cover the 
direct and indirect costs of implementing the permit program, including 
part 68 activities and activities conducted by state designated 
agencies. EPA believes the straight-forward and flexible requirements 
established in today's rule impose minimal additional burden on air 
permitting authorities. Funding associated with section 112(r) 
implementation is addressed in section R, below.
    12. Other issues. In the SNPRM preamble, EPA stated that it 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 
the approaches described. EPA stated that the proposed 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.'' Two commenters disagreed, arguing that in January 
1995, the National Governors Association (NGA) and ECOS (organization 
of state environmental officials) presented numerous recommendations to 
EPA Assistant Administrator Mary Nichols for changes in several clean 
air programs; regarding section 112(r), NGA/ECOS recommended that Title 
V permitting authorities be required only to certify that an RMP has 
been submitted. These commenters believe that the SNPRM fails to 
adequately address states' central concern; requiring permitting 
authorities to review RMPs will encumber an already overtaxed system.
    Although EPA disagrees that the proposal fails to adequately 
address states' concerns, EPA agreed that the air permitting authority 
requirements could be more sharply focused to minimize the burden. EPA 
believes that today's rule is the product of many hours of hard work 
with state and local air permitting authorities to recognize their 
concerns and to develop a rule that is effective, flexible and imposes 
the least economic burden possible.

F. General Definitions

    1. Significant Accidental Release. In the NPRM, EPA proposed to 
define significant accidental release as ``any release of a regulated 
substance that has caused or has the potential to cause offsite 
consequences such as death, injury, or adverse effects to human health 
or the environment or to cause the public to shelter in place or be 
evacuated to avoid such consequences.'' This definition was key to the 
applicability of a number of rule requirements, including hazard 
assessment, accident history, and accident investigation. Only four of 
more than 115 commenters supported this proposal arguing that the 
definition should be protective of the public and should consider 
inconvenience to the public and precautionary measures taken. Other 
commenters argued that Congress intended for the section 112(r) rules 
to address catastrophic releases, not those with minor impacts, and 
that this definition overly broadens the scope of the rule diverting 
resources and increasing cost for little additional benefit. Many 
commenters stated that ``injury'' and ``adverse effects'' are undefined 
and could mean any health impact from irreversible effects to minor 
irritation requiring no medical treatment. ``Potential to cause'' was 
also considered too vague. As discussed in Section III.C, many 
commenters objected to consideration of environmental impacts. 
Commenters also opposed sheltering-in-place and evacuation as criteria 
because these actions are often precautionary and, in many cases, are 
later viewed as unnecessary and may discourage owners or operators from 
making recommendations to evacuate or shelter-in-place. Several 
commenters submitted alternative definitions where injuries were 
limited to those that require hospitalization, adverse effects were 
limited to serious effects, and environmental effects were limited to 
those that generate human deaths or hospitalizations. Some suggested 
that all environmental effects be dropped.
    EPA agrees that the definition as proposed was too vague and 
subject to a wide variety of interpretations. In addition, EPA decided 
that a single definition does not adequately address

[[Page 31693]]

the criteria needed for all affected sections of the rule. For example, 
the five-year accident history requirement depends on the offsite 
impacts generated by the accident while endpoint criteria are used for 
the worst-case and alternate scenario offsite consequence assessments. 
Consequently, EPA has decided to drop the definition and instead 
identify the criteria for the types of releases or impacts that should 
be addressed by the appropriate requirement. EPA has considered the 
suggestions offered by commenters and added definitions of the terms 
``environmental receptor,'' ``injury,'' ``medical treatment,'' and 
``public receptor'' and adopted (with modifications as described above) 
the OSHA definition of catastrophic release. EPA notes that sources 
should be aware that within the definition of Injury, direct 
consequences include effects caused by shrapnel and debris set in 
motion by a vapor cloud explosion. EPA adopted its Medical Treatment 
definition from one OSHA uses for logging occupational injuries and 
illness. Finally, under the environmental and public receptor 
definitions, sources should note that certain parks and recreational 
areas may be both if the public could be exposed as a result of an 
accidental release.
    2. Stationary Source. Commenters requested that EPA state whether 
the term stationary source covers the entire ``facility'' or simply a 
single process and provide guidance on which requirements apply source-
wide and which are process-specific. EPA also received comments 
regarding the relationship or overlap between the stationary source 
definition and DOT regulations. These are discussed in section III.P.2 
below.
    In the List and Thresholds rule, EPA defined stationary source to 
include an entire ``facility.'' Sources will be required to submit one 
RMP and one registration as part of that RMP for all processes at the 
source with more than a threshold quantity of a regulated substance. 
Although the management system applies to all Program 2 and 3 
processes, the prevention program elements are process-specific. The 
hazard assessment requirements apply to the regulated substances, but 
only in covered processes. As a practical matter, the emergency 
response program will probably apply to the entire source although 
technically it applies only to covered processes.
    3. Process. Several commenters argued that the definition of 
process was susceptible to overly expansive interpretations and asked 
that certain activities such as storage at sources or distribution 
terminals be excluded. Many commenters sought clarification of ``close 
proximity'' and ``interconnected vessel.'' Commenters also wanted the 
definition to be consistent with OSHA.
    EPA adopted OSHA's definition of process in the original proposal 
and for the final rule. This definition specifically covers storage (as 
well as handling and processing) of regulated substances. EPA disagrees 
that storage-only sources are adequately covered by SPCC regulations 
since the regulations under SPCC and OPA-90 cover oil terminals and 
releases to water. This rule is directed at accidental releases of 
regulated substances (not including oil) to the ambient air. Generally, 
OSHA PSM also covers these chemical terminals; consequently, the only 
additional steps these sources will need to take will be to conduct the 
hazard assessment and submit the RMP, as existing emergency response 
plans may meet the emergency response program requirements.
    Since EPA's definition is identical to OSHA's, EPA will coordinate 
interpretations of the definition of process with OSHA to ensure that 
the rule is applied consistently. OSHA has stated that processes are in 
``close proximity'' if a release from one could lead to a release from 
the other. Owners or operators must be able to demonstrate that an 
``effective barrier'' exists to prevent a release from one process from 
affecting another. OSHA has interpreted ``interconnected vessel'' to 
mean vessels connected by any means, such as piping, valves or hoses, 
even if these are occasionally disconnected. EPA will also adhere to 
these interpretations.
    4. Offsite. One commenter stated that EPA's proposed definition of 
offsite should be expanded to include the air above and below the point 
of release to cover exposure to the upper atmosphere and groundwater. 
Another asked EPA to limit the definition to areas frequented by the 
public. Two commenters opposed including areas on site where the public 
has access because OSHA already covers these areas.
    In the final rule, EPA has retained a definition of offsite as 
``areas beyond the property boundary of the stationary source or areas 
within the property boundary to which the public has routine and 
unrestricted access during or outside business hours.'' OSHA's 
jurisdiction includes visitors that may be on the property of a 
facility who are conducting business as employees of other companies 
but does not necessarily extend to casual visitors or to areas within a 
facility boundary to which the public has routine and unrestricted 
access at any time.
    5. Other Definitions. Commenters raised questions about several 
other definitions. Three commenters suggested changes or clarifications 
to the definition of accidental release. EPA's definition is the 
statutory definition. Commenters also proposed modifications to the 
definition of ``analysis of offsite consequence.'' As noted above, EPA 
has determined that this definition is not needed and has deleted it 
from the final rule.
    Commenters sought clarification of the definition of mitigation 
systems and whether personnel should be considered an active mitigation 
system. Others asked for a list of passive mitigation systems and 
provided proposals. These commenters also objected to limiting passive 
systems to those that capture or control released substances; they 
suggested that systems that are designed to prevent releases or control 
the volume or rate of a release, such as vent/catch tanks, quench 
tanks, blowdown tanks, elevated stacks and high velocity stacks, 
adsorbents including carbon beds, neutralization tanks, double-walled 
vessels or pipelines, chemical sewers, closed drain header systems for 
flammables, vapor-liquid separators, fire barriers, explosion-resistant 
walls, isolation distances, barriers to prevent free access of air flow 
after a release, containment buildings, pre-charged water spray 
systems, closed vent systems, and filters should also be considered 
passive mitigation. One commenter suggested that active mitigation 
systems should be defined as those that require manual activation or an 
energy source (other than gravitational attraction) to perform their 
intended function.
    For the final rule, EPA has decided to define passive mitigation 
systems as those systems that operate without human, mechanical, or 
other energy input and would include building enclosures, dikes, and 
containment walls but excludes active mitigation systems such as excess 
flow valves, fail-safe systems, scrubbers, flares, deluge systems, and 
water curtains. In addition to the requirements outlined in Secs. 68.25 
and 68.28, EPA provides further guidance on the consideration of the 
effect of passive mitigation in its RMP Offsite Consequence Analysis 
Guidance. EPA does not believe that all systems designed to prevent 
releases or control the volume or rate of a release should be 
considered passive mitigation, consistent with its intent to reflect 
the potential for failure of any system that requires human, 
mechanical, or other energy inputs.

[[Page 31694]]

G. Risk Management Plan (RMP)

    In the NPRM, EPA proposed that owners or operators of stationary 
sources covered by the requirements submit an RMP summarizing the key 
elements of its risk management program. In the NPRM preamble, EPA 
indicated that summaries of the information requested (e.g., hazard 
assessment and emergency response program) would provide the most 
useful information to the public and local agencies without 
overburdening them with unneeded detailed information. EPA further 
stated that the RMP should serve to provide local and state agencies 
and the public with sufficient information to determine if additional 
details are needed. These details would be available, if needed, to 
implementing agency officials conducting audits or compliance 
inspections.
    1. Level of Detail. Most commenters agreed with EPA's proposal 
noting that the public should be able to identify key hazard and risk 
management information from the RMP without being overwhelmed by 
extraneous documentation that is more appropriately maintained on site. 
A detailed submission would not be cost-effective and could threaten 
plant security; these commenters expressed fears of terrorism, thieves, 
and saboteurs.
    Other commenters disagreed and argued that summaries would not 
provide enough information while ``full disclosure'' would support an 
informed public. Some commenters argued that the public could be misled 
by a summary derived from a ``full'' RMP withheld from the public by 
the source. Further, several commenters made the general argument that 
right-to-know provisions should be strengthened and that the public 
should be given full access to all risk management program information 
including PHAs and actual operating procedures. Individual commenters 
also requested public access to specific information regarding such 
details as worst-case scenarios and descriptions of chemical accidents. 
Some commenters argued that an informed public and public scrutiny, in 
general, can act as a powerful force in reducing risk and preventing 
accidents at stationary sources.
    EPA agrees that an informed public is a key element of sound 
chemical emergency prevention, preparedness, and response. However, EPA 
also believes that it is essential for the public to focus on the 
information essential at the local level for prevention, preparedness, 
and response and has decided to maintain its proposed requirement that 
the RMP provide certain information about the risk management programs 
at a source. EPA notes that its previous use of the word summary was 
not intended to imply that the source prepares a ``full'' RMP document 
from which a source extracts summary information that is shared with 
the public. Rather, the source is obligated to develop certain 
information about the hazards, prevention, and emergency response 
programs from the array of documentation at the source to prepare an 
RMP. EPA believes it would be impractical to require sources to share 
all documentation used for the safe operation of the processes at a 
source. Not only is much of this information likely to be confidential, 
but significant technical expertise and time are necessary to extract, 
understand, and to make meaningful judgments about the adequacy of the 
information. The RMP will consist of an executive summary and required 
data elements addressing all elements of the risk management program as 
described below. Detailed supporting documentation will be maintained 
on site available to the implementing agency for review.
    2. RMP Contents. Most commenters requested that EPA generally limit 
the level of detail required, the number of scenarios, or the number of 
pages in the RMP. Other commenters recommended EPA require submission 
of only information specified in the CAA and incorporate other detailed 
information by reference. Commenters also noted that documenting each 
action taken to address a hazard, the date on which the action started 
(or is scheduled to start), and the actual or scheduled completion date 
would prove impractical. EPA received many comments stating that the 
requirement that exact dates on which training, emergency exercises, or 
rescue drills, are conducted would be impractical and unnecessary.
    Commenters seeking more comprehensive RMPs argued in favor of 
requiring an index or bibliography of detailed information or a catalog 
of all available documents, an investigation and analysis of all other 
credible release scenarios, and submission of assumptions, methodology, 
and modeling methods used to determine worst-case accidents.
    As described above, EPA is considering development of a reporting 
mechanism and form to collect key data elements. As discussed below, 
this approach will foster electronic submission and immediate 
availability to Federal, state and local entities, and the public. To 
make such submission possible, EPA wants to collect data that generally 
can be reported by numerical information, yes/no answers, and check 
boxes. For the offsite consequence analyses, owners or operators will 
be asked to provide distance to the endpoint, populations and 
environments affected, and enough of the data used to determine these 
distances so that local entities and the public can check the distance 
against the distance derived from EPA's reference tables or a model 
identified in the RMP. If EPA's guidance was not used, sources will 
need to indicate which models were used. Many of the parameters for 
modeling are set in the rule and do not need to be respecified in the 
RMP. The rule requires only one alternative release scenario per toxic 
substance and one for all flammables; owners or operators may submit 
additional scenarios.
    For prevention programs, owners or operators must provide 
information (primarily dates) that will allow the implementing agency 
to assess whether the source is in compliance with the rule elements. 
For the PHA, owners or operators must state which technique was used 
for each covered process, the general hazards associated with the 
chemicals and process, the process controls in use, mitigation and 
monitoring or detection systems in use, and changes instituted since 
the last PHA (Program 3) or hazard review (Program 2) update. Through 
lists and checkoff boxes, EPA can collect a significant amount of 
information on current safety practices without requiring sources to 
develop lengthy documentation that would have proved a burden to both 
the source and any government or public data user and reduced the 
potential for electronic submission. EPA believes this approach 
provides the Agency and others with a mechanism for identifying 
industry practices and controls from almost 70,000 sources that would 
not be feasible otherwise. EPA notes that some of the largest chemical 
sources and refineries may be providing data on 30 or more processes. 
In the format proposed in the NPRM, these sources might have submitted 
several thousand pages each; analyzing such submissions would have been 
a daunting task for the implementing agencies and probably would have 
made it impossible for public interest groups to review an industry as 
a whole. With electronic submission, such reviews will be easier. The 
implementing agency or EPA can seek additional details from individual 
sources, as needed. EPA has eliminated the requirement to provide dates 
of training and emergency exercises or

[[Page 31695]]

drills because the Agency agrees that this amount of detail is 
unnecessary and impractical.
    3. Submission. In the NPRM preamble, EPA proposed that computer 
software be developed that would provide sources with a standard format 
for completing the information required in the RMP; that local 
authorities be allowed to designate the state as the receiving entity; 
or that RMPs be submitted only on request from the state, or local 
entity.
    Many commenters, particularly those in the potentially regulated 
community, supported submission of the RMP upon request or mandatory 
submission to the implementing agency with submission by request to 
other organizations. Others recommended submission to the LEPC and 
public with submission by request to the implementing agency, and SERC. 
Most commenters favored reducing the paperwork burden and electronic 
submission because it would reduce time and errors, provide more 
consistency, and make information more useful for the LEPC and 
regulatory agencies. Only two commenters opposed electronic filing 
because all sources may not have the computer capability.
    Commenters also supported the development of a standard RMP format 
regardless of whether the RMP is submitted electronically because 
standardization would ensure submissions were manageable and useful and 
would ease burdens on both regulated and reviewing entities.
    EPA has decided to work toward electronic submission of RMPs. The 
Agency believes this will meet numerous objectives of the program and 
will address several issues. First, electronic submission would reduce 
the burden on regulated and receiving entities. The Agency has noted 
that information management of regulatory documents is not a cost-free 
requirement, and that duplication of effort, including system 
development, personnel resources, and storage and maintenance efforts 
could be significant. Electronic submissions would reduce the paperwork 
burden on sources and state and local governments and would further 
serve to comply with the Paperwork Reduction Act of 1995, which 
supports the maximum feasible use of electronic submission. Second, EPA 
wishes to limit the information management burden on local entities so 
they can focus on the chemical safety issues raised by this rule.
    Third, electronic submissions would benefit affected communities 
and the general public. Besides having the RMP provide the statutorily 
required information on compliance with the regulations to the 
implementing agency, EPA believes the specific value of RMP information 
is for the local community to understand its community's risk from 
chemical accidents and to help them work with sources using these 
chemicals to reduce such risks. The Agency believes this objective 
would not be served well with a centralized paper information source 
and that using an electronic medium would support better access to 
information. With electronic submission of RMPs to a central point, 
states, local entities, and the public will have access to all RMPs 
electronically. RMP information may also be made available on-line via 
libraries and other institutions. Electronic submissions further 
address the issue of standardized RMPs. The RMP data elements included 
in the submission will be checkoff boxes, yes/no answers, or numerical 
entries to ease the burden of submission and reception and will promote 
consistency and uniformity. The Agency intends to develop technical 
guidance for the submission of the RMPs, which will provide for 
submission and receipt of an electronic formatted document containing 
the data elements outlined in Secs. 68.160 through 68.180.
    4. Other Issues. In the NPRM, EPA proposed that RMPs be resubmitted 
within six months of an information change. Several commenters argued 
it would generate a continual flow of paperwork and recommended an 
update frequency requirement of once a year.
    EPA has retained the requirement that the RMP be resubmitted within 
six months of the elimination of a substance in a process or at the 
source, a change in Program status for a process, or if a process 
change at the source requires a revised hazard assessment or hazard 
review/PHA. To be consistent with the statutory requirements for 
compliance, the RMP would also have to be updated on the date an 
already regulated substance becomes present in a process above the 
threshold or within three years of the date when EPA lists a new 
substance. EPA believes that with a standardized format and electronic 
filing, updates can be rapidly and easily made, and this information 
should be promptly shared. EPA changed the update schedule for hazard 
assessments to make them consistent with the RMP update. EPA also 
specified when offsite consequence analyses require update; the rule 
states that these analyses need to be reviewed and changed if on-site 
changes may be reasonably expected to change the distance to an 
endpoint by a factor of two or more. EPA notes that this change is 
likely to reduce the number of updates required. For PHAs, only major 
changes to a process or installation of new processes is likely to 
trigger a revised PHA. EPA expects that relatively few sources will 
need to update either their offsite consequence analyses or PHAs/hazard 
reviews more frequently than once every five years because the majority 
of sources have simple processes that do not change frequently. 
Chemical industry sources may need to submit more updates if processes 
are changing significantly. The RMP should reflect such significant 
changes.
    EPA proposed that RMPs be submitted to implementing agencies, 
SERCs, and LEPCs, and be made available to the public. Several 
commenters recommended that additional parties, local fire officials in 
particular, also receive RMPs. One commenter stated that EPCRA requires 
various reports go to local fire departments, and another commenter 
noted that RMP information may be better used by emergency management 
agencies, fire departments, and hazardous materials teams. Because EPA 
plans to have RMPs submitted to and available from a central point in 
electronic format, any agency that wants the information will be able 
to access it directly on-line. The RMP will be immediately available to 
local responders and the state. Thus, this manner of submission 
fulfills the requirements of CAA section 112(r)(7)(B)(iii). Additional 
submission requirements are, therefore, unnecessary.
    The Department of Defense (DOD) commented concerning the lack of a 
rule provision explicitly declaring that information that is classified 
under applicable laws and Executive Orders (E.O.s) is not to be 
included in the RMP. EPA is clarifying that such classified information 
is protected from disclosure by including a specific regulatory 
exemption for such information. Furthermore, EPA is clarifying that no 
provision of part 68 requires the disclosure of classified information 
in violation of Federal law, regulations, or E.O.s. Finally, EPA is 
also promulgating a definition of ``classified information'' that 
adopts the definition under the Classified Information Procedures Act.
    EPA has found no relevant statutory language superseding or 
impliedly repealing the Classified Information Procedures Act or 
applicable E.O.s regarding disclosure of classified information, nor 
has EPA found any legislative history indicating that Congress intended 
to supersede or repeal these provisions when it established the 
requirement to prepare

[[Page 31696]]

publicly-available RMPs. The provision for exemptions from standards 
and limitations established under CAA section 112 narrowly addresses 
the procedures for an exemption when ``the President determines that 
the technology to implement such standard is not available and * * * it 
is in the national security interests of the United States to do so.'' 
CAA Sec. 112(i)(4). The focus of section 112(i)(4) is on the technical 
capability to meet a limitation; for example, the provision would apply 
when an emission standard requires a control device that precludes 
national security-related equipment from functioning. Section 112(i)(4) 
does not consider or address the availability or distribution of 
classified information to the public, nor does the legislative history 
demonstrate that such disclosure was contemplated.
    The requirement of section 112(r)(7)(B)(iii) to make RMPs publicly 
available must read in congruence with the provisions prohibiting 
disclosure of classified information. ``Classified information,'' as 
defined by the Classified Information Procedures Act, 18 U.S.C. App. 3, 
section 1(a), is ``any information or material that has been determined 
by the United States Government pursuant to an Executive order, 
statute, or regulation, to require protection against unauthorized 
disclosure for reasons of national security. * * *'' ``National 
security * * * means the national defense and foreign relations of the 
United States'' 18 U.S.C. App. 3, section 1(b). Criminal penalties 
exist for unauthorized disclosure of classified information that has 
been designated by the Department of Defense or defense agencies for 
limited or restricted dissemination or distribution. 18 U.S.C. 793. It 
is not reasonable to interpret the CAA to require the disclosure of 
classified information in violation of criminal law. It has been EPA's 
long-standing policy to interpret information disclosure provisions in 
its statutes as being consistent with national security law to the 
maximum extent possible and to require such information to be 
maintained in accordance with the originating agency's requirements. 
Federal Facilities Compliance Strategy (November 1988), at page V-6. 
Therefore, EPA is promulgating language in Sec. 68.150(d) to clarify 
its intent with respect to the disclosure of classified information in 
RMPs by specifically exempting classified information from the RMP 
except by means of a classified annex submitted to appropriately 
cleared Federal or state representatives with proper security 
clearances. Furthermore, EPA is promulgating Sec. 68.210(b) to clarify 
that disclosure of classified information is controlled by the 
Classified Information Procedures Act, E.O.s 12958 and 12968, and other 
laws, regulations, and E.O.s applicable to classified information. 
Finally, in Sec. 68.3, EPA is defining classified information by 
promulgating the definition under the Classified Information Procedures 
Act.

H. Prevention Program

    In the NPRM preamble, EPA noted that the CAA requires the risk 
management program to include a prevention program that covers safety 
precautions and maintenance, monitoring, and employee training 
measures. Because OSHA PSM covers this same set of elements, EPA 
proposed a prevention program that adopted and built on OSHA PSM. The 
proposed requirements for EPA's prevention program included a 
management system requirement and sections covering nine elements: 
process hazard analysis, process safety information, operating 
procedures (SOPs), training, maintenance, pre-startup review, 
management of change, safety audits, and accident investigation.
    To assist in describing its prevention program, EPA included a 
section in its preamble comparing its prevention program to OSHA PSM 
standard. EPA noted that with the exception of the management system 
requirement, the proposed prevention program covered the same elements 
as OSHA's PSM and generally used identical language except where the 
statutory mandates of the two agencies dictated differences. EPA added 
introductory paragraphs to most sections to provide additional 
information. Further, in some of the sections, EPA proposed additional 
requirements and established different deadlines. The majority of 
comments EPA received concerned conflicts and differences between EPA's 
proposed requirements and OSHA PSM standard.
    In the final rule, the Program 3 prevention program is the OSHA PSM 
standard for parallel elements, with minor wording changes to address 
statutory differences. For elements that are in both the EPA and OSHA 
rules, EPA has used OSHA's language verbatim, changing only certain 
regulatory terms (e.g., highly hazardous chemical to regulated 
substance and employer to owner/operator) and dates. The sections of 
the OSHA PSM standard were not cross-referenced for the reasons 
discussed in section III.D of this preamble. Key issues under PSM are 
discussed below; the remainder are addressed in the Response to 
Comments Document.
    Management. In the NPRM preamble, EPA stated the purpose of its 
proposed management system is to ensure integration of all prevention 
program elements. EPA proposed that owners or operators identify a 
single person or position that has the overall responsibility for the 
development, implementation, and integration of the risk management 
program requirements. When responsibility for implementing individual 
requirements of the risk management program is assigned to persons 
other than the person designated, the names or positions of these 
people shall be documented and the lines of authority defined through 
an organization chart or similar document.
    Several commenters agreed with this approach because it serves a 
useful purpose and many PSM sources already implement management 
systems. Many commenters opposed the requirement for submission of an 
organization chart of their source because it would be of no value to 
EPA and that continual updating would waste company resources.
    EPA has decided to maintain its management system requirements in 
the final rule for sources with processes in Program 2 and 3, but has 
moved it to general requirements (Sec. 68.15) because it is the entire 
risk management program that should be managed, not just the prevention 
program. EPA has also revised the requirement to provide flexibility in 
indicating lines of authority; an organization chart is not absolutely 
required and is not included in the RMP.
    Management of Change. Some commenters objected to EPA's definition 
of replacement in kind, asking that EPA adopt the OSHA PSM definition. 
Other commenters stated that management of change procedures should 
only be implemented when the changes had the potential to increase the 
risk (e.g., an increase in inventory, an introduction of a new 
substance).
    As part of its efforts to strengthen coordination between the two 
programs, EPA will use the OSHA definition for ``replacements in 
kind'': ``a replacement which satisfies the design specification.'' 
OSHA defined this term to address a concern expressed by commenters on 
its standard that failing to define ``replacements in kind'' could 
result in misunderstandings such as employers believing that only a 
replacement with the same brand and model number could be characterized 
as a ``replacement in kind.'' OSHA promulgated a definition in 
recognition of these comments, and EPA

[[Page 31697]]

understands it to reflect a concept understood in industry.
    Further, EPA does not agree that management of change requirements 
should exclude changes that reduce the risk of an accidental release. 
The Agency does not believe that only changes to ``critical systems'' 
should be subject to management of change procedures. As EPA stated in 
the NPRM preamble, most process changes improve process safety or 
efficiency. However, even these changes may result in unintended 
effects when source owners and operators fail to evaluate the 
consequences of the change. Therefore, the Agency continues to believe 
that a change that reduces the risk of an accidental chemical release 
may, nonetheless, be an appropriate subject for a management of change 
procedure. Failure to subject such changes to a management of change 
process could inadvertently result in a change that was believed to 
lower risk when such a change, in fact, increases risk. Regarding the 
comment about critical systems, EPA notes that chemical processes are 
integrated systems, and that a change in one part of the process can 
have unintended effects in other parts of the system--irrespective of 
whether the system is ``critical.'' Consequently, EPA agrees with OSHA 
that source owners and operators must establish and implement written 
management of change procedures for any change to a regulated 
substance, process technology, or equipment and any change to a source 
that affects the covered process.
    Other Provisions. Several commenters stated that EPA should include 
in its risk management program the OSHA PSM provisions on contractors, 
employee participation, and hot work permits that EPA had not proposed 
in its prevention program. The NPRM solicited comment on whether to 
include these provisions (58 FR 54205; October 20, 1993). Commenters 
argued that contractors have been responsible for a number of accidents 
that have affected the public and the environment. Commenters presented 
the same argument to support inclusion of the hot work permit 
requirements. A substantial number of commenters also argued that 
employee participation is a key factor in successful implementation of 
PSM. A few commenters supported EPA's initial position that these 
requirements were more properly OSHA concerns.
    In response to the former commenters' arguments and to ensure 
consistency between the elements of the two rules, EPA has decided to 
add these sections to its Program 3 prevention program. EPA believes 
that each of these elements is important to the implementation of an 
effective prevention program. Worker participation in PHAs and other 
elements is critical to the success of process safety because workers 
are intimately familiar with the process and equipment operation, 
possible failure modes and consequences of deviations. It also serves 
as a mechanism for greater communication and understanding of specific 
process hazards (as opposed to the general chemical hazards) and the 
importance of developing and following proper procedures. Similarly, 
contract employees have been involved in a number of major accidents in 
recent years; for example, the explosion in Pasadena, Texas, in 1989, 
which killed 23 workers, has been attributed to improper maintenance 
practices by contractor employees. Oversight of contractors, therefore, 
can be critical for accident prevention. Finally, hot work permits 
ensure that use of flame or spark-producing equipment is carefully 
controlled. Not only are many of the listed substances highly 
flammable, but fires in the vicinity of vessels or pipes containing the 
toxic substances can lead to releases of these substances.

I. Accident History

    In the NPRM, EPA required sources to document a five-year history 
of releases that caused or had the potential to cause offsite 
consequences for each regulated substance handled at the source. EPA 
specified that the accident history should include the nature of any 
offsite consequences, such as deaths, injuries, hospitalizations, 
medical treatments, evacuations, sheltering-in-place, and major offsite 
environmental impacts such as soil, groundwater, or drinking water 
contamination, fish kills, and vegetation damage.
    A few commenters argued that releases with only the potential for 
offsite consequences should not be included, while other commenters 
were evenly divided on whether near-miss events should be included in 
the accident history. A number of commenters indicated that releases 
with on-site consequences should be added to the accident history. 
Several commenters requested that EPA clarify that the accident history 
applies only to covered processes.
    In recognition of these comments, in the final rule, only those 
accidents from covered processes that resulted in deaths, injuries, or 
significant property damage on-site, or known offsite deaths, injuries, 
evacuations, sheltering in place, property damage, or environmental 
damage need to be included in the five-year accident history. Near-miss 
accidents or accidents with only the potential for offsite consequences 
(that did not meet any of the previous criteria) would not need to be 
included. Because the accident history is, by statute, an aspect of the 
hazard assessment, and the hazard assessment provisions apply only to 
covered processes, EPA believes that requiring the accident history to 
address accidental releases from processes not covered by this rule 
would be inconsistent with the structure of part 68. EPA notes that 
such releases may be subject to reporting under other statutes; the 
Agency may investigate such releases to determine the need for a 
response action under CERCLA and to determine whether CAA section 
112(r)(1) has been violated.

J. Emergency Response Program

    In the proposed rule, EPA required sources to develop an emergency 
response plan that defines the steps the source and each employee 
should take during an accidental release of a regulated substance. EPA 
noted that most sources are already required to have at least part of 
the emergency response plan in place as a result of other EPA (Spill 
Prevention, Control, and Countermeasures and Resource Conservation and 
Recovery Act) and OSHA (emergency action plans and HAZWOPER) 
regulations and requested comment on how the proposed requirements 
could best be integrated with these existing programs to minimize 
duplication. Many of the commenters were particularly concerned with 
the potential for increased duplication of emergency planning 
requirements at the state and Federal levels that would require 
expenditure of additional resources without improving source emergency 
response capabilities. Most of these commenters suggested that EPA 
allow compliance with other Federal regulatory programs to meet the 
mandate of the Clean Air Act for an emergency response program, while 
other commenters recommended that EPA work with other agencies to 
develop a format for a single, comprehensive response plan for the 
source. Some commenters addressed related concerns with respect to 
state program or voluntary initiatives.
    EPA has decided to adopt the emergency response requirements found 
in the statute, without additional specific planning requirements. This 
action is consistent with the Agency's effort to develop a single 
Federal approach for emergency response planning. The Review of Federal 
Authorities for Hazardous Materials Accident Safety, (required under 
section

[[Page 31698]]

112(r)(10) of the Clean Air Act) reported little harmony in the 
required formats or elements of response plans prepared to meet various 
Federal regulations. Accordingly, EPA has committed not to specify new 
plan elements or a specific plan format in today's rule. EPA believes 
that plans developed to comply with other EPA contingency planning 
requirements and the OSHA Hazardous Waste and Emergency Operations 
(HAZWOPER) rule (29 CFR 1910.120) will meet the requirements for the 
emergency response program provided that they address the elements in 
section 68.95(a). EPA believes that coordination of the emergency 
response plan with the community emergency response plan will help 
ensure that offsite response issues are addressed. In addition, EPA and 
other National Response Team agencies have prepared Integrated 
Contingency Plan Guidance (``one plan'') (NRT, May 1996). An emergency 
response plan that includes the elements specified in this guidance can 
be used to meet the requirements in today's rule. The final rule also 
provides relief for sources that are too small to respond to releases 
with their own employees; these sources will not be required to develop 
emergency response plans provided that appropriate responses to their 
hazards have been discussed in the community emergency response plan 
developed under EPCRA (42 U.S.C. 11003) for toxics or coordinated with 
the local fire department for flammables.

K. Registration

    In the NPRM, EPA proposed that sources register with the EPA 
Administrator by three years after the publication date of the final 
rule, or within three years of the date on which a source becomes 
subject to the risk management program requirements as mandated by the 
CAA. While a number of commenters agreed with this proposal, a greater 
number requested that EPA accelerate the registration to between six 
months and two years of promulgation of the rule so that implementing 
agencies could better determine resource allocation and conduct more 
extensive outreach and technical assistance to sources developing risk 
management programs and preparing RMPs.
    EPA agrees that earlier registration could aid outreach efforts and 
help implementing agencies focus resources. However, since the first 
RMP need not be submitted until June 21, 1999, an earlier, pre-
registration would impose an additional burden on sources. Some sources 
may reduce inventories, make process modifications or switch chemicals 
prior to the first RMP due date and, consequently, will not be subject 
to the rule. If EPA required a pre-registration, these sources would 
have to deregister at that time. Further, states and local agencies 
already have information gathered under EPCRA section 312 that could be 
used for early identification and outreach to sources covered by this 
rule. EPA is also working with trade associations and other 
representatives of affected industries to ensure that sources are aware 
of the rule. Instead, in today's rule, the registration is included as 
part of the RMP to limit the number of filings made by sources.
    EPA also proposed that sources submit written registration 
information. A number of commenters advocated either the modification 
of existing forms (e.g., the EPCRA Tier II form) or an electronic 
filing system for the submission of this information. Since the RMP and 
the registration are consolidated into one submission, this issue is 
addressed generally in Section III.G.
    Under the proposed rule sources would need to submit an amended 
notice to the Administrator and the implementing agency within 60 days 
if information in the registration is no longer accurate. Many 
commenters argued that six months or a year is needed to ensure 
compliance with the certification requirements. EPA agrees with 
commenters and in the final rule has lengthened the time for submission 
of an amended registration to six months which should be enough time to 
modify the information and to electronically resubmit the registration 
and RMP.

L. Model Risk Management Programs

    Commenters supported the development of model risk management 
programs and RMPs, stating that the models were needed by smaller 
businesses and public systems that lack the expertise to implement 
process safety management. Commenters specifically supported 
development of models for industries with well-understood processes and 
practices, such as chlorination systems, propane and ammonia retailers, 
and refrigeration systems. A few commenters asked that the models be 
made available for public review. Others said the models should be 
published as guidance, not regulations.
    EPA is working with industry groups to develop model programs for 
ammonia refrigeration, propane handling, and water treatment. After 
having provided the public with an opportunity to review a draft of the 
ammonia model program, EPA today is issuing a guidance on a model 
program for this industry (see Model Risk Management Program for 
Ammonia Refrigeration). EPA encourages other industry groups to work 
with the Agency to develop models for their sectors. EPA notes that the 
models are particularly relevant to sources with Program 2 processes. 
Because EPA has adopted the OSHA PSM standard, EPA has not provided an 
EPA guidance on PSM compliance. EPA will also publish general technical 
guidance to help sources understand and comply with the rule which will 
include Program 2 prevention program guidance. The RMP Offsite 
Consequence Analysis Guidance contains reference tables for the offsite 
consequence analysis, which can be used instead of site-specific 
modeling. EPA emphasizes that the models are guidance, not regulations; 
sources are not required to use them.

M. Implementing Agency Audits

    EPA originally proposed in Sec. 68.60 seven criteria an 
implementing agency could use to determine whether to audit a source's 
RMP. EPA also proposed that the implementing agency have the authority 
to determine whether an RMP should be revised and to direct the owner 
or operator to make revisions. Many commenters suggested that the 
Agency lacked statutory authority to specify measures to correct risk 
management program elements through the RMP, and that RMP changes based 
on implementing agency directives will be costly.
    EPA or other implementing agencies have general inspection and 
enforcement authority under CAA sections 112(r)(7)(E), 113, and 114 to 
compel source owners and operators to correct deficiencies in the risk 
management program. EPA intends to use the audit process as a way to 
verify the quality of the program summarized in the RMP. When it is 
reasonable, EPA will require modifications to the RMP that may lead to 
quality improvements in the underlying program.
    EPA notes that many commenters were uncertain of the distinction 
among audits conducted under Sec. 68.220, reviews by the permitting 
authority under Sec. 68.215, and inspections. CAA section 
112(r)(7)(B)(iii) requires EPA to develop, by regulation, a system for 
auditing RMPs. These audits will review the information submitted by 
sources to determine whether the source is in compliance with the rule 
elements. For example, the implementing agency will consider whether 
the dates for reviews and revisions of various elements are consistent 
with the steps sources are

[[Page 31699]]

required to take. If a source reported a major change on a date later 
than the last date on which safety information and operating procedures 
were reviewed, the implementing agency could seek further information 
about why such reviews had not been conducted and require updates if 
the agency determined that the source should have reviewed the 
documents. Audits may be detailed paper reviews or may be done at a 
source to confirm that on-site documentation is consistent with 
reported information.
    In contrast, the air permitting authority or its designated agency 
may be reviewing the RMP for completeness, rather that the quality of 
the RMP contents. Inspections are generally more extensive in scope 
than audits although they may include a review of the accuracy of the 
RMP information. Inspections will consider whether the source is in 
compliance with part 68 as a whole, not just with the RMP requirements, 
and may review both the documentation kept at the source and operating 
practices.
    Regarding comments that making changes to the RMP would be too 
costly, EPA has endeavored to ameliorate the cost burden of this rule 
by using a tiering approach to make the risk management program 
elements on which the RMP rests appropriate for sources of various 
sizes and complexity. In addition, EPA is considering development of a 
standard RMP reporting format and data elements, which should 
significantly reduce the time and effort necessary to revise the RMP. 
Any source owner or operator can further limit the costs associated 
with revising its RMP by submitting a timely, complete, and valid plan 
in the first instance.

N. Public Participation

    In the SNPRM, EPA requested comments on how public participation in 
the risk management program process might be encouraged. EPA's 
preferred approach was to encourage the public and sources to use 
existing groups, primarily the LEPC, as a conduit for communications 
between the source and the public throughout the RMP development 
process. A substantial number of commenters supported this approach, 
stating that the LEPC was well placed to interpret the RMP information 
for the public. Commenters said that LEPCs and their member 
organizations have considerable experience and have established rapport 
in dealing with the community. Others stated that this role is a 
logical extension of current LEPC responsibilities under EPCRA, 
although funding for LEPCs was a concern.
    A number of commenters opposed this approach because some LEPCs are 
not functional and that LEPCs are not a substitute for public 
participation. A few LEPCs also objected to assuming any additional 
role. Commenters suggested that EPA should require public participation 
in the development of the RMP and require all major sources to have a 
public participation strategy. Industry commenters generally opposed 
any mandated public participation requirements because direct 
involvement in risk management program development would delay the 
process and would represent an unwarranted and inappropriate 
interference in management and site control responsibilities. A few 
commenters supported the SNPRM suggestion that public participation be 
limited to sources with Program 3 processes because these sources 
represent the greatest risk. Other commenters opposed this idea, 
preferring the decision to be left to local authorities.
    EPA has not adopted any specific public participation requirements. 
EPA plans to make the RMP immediately available to any member of the 
public. LEPCs and others will be able to compare their sources with 
similar sources in other areas to determine whether quantities on 
sites, process controls, mitigation systems, and monitoring systems are 
significantly different. This information will give the public an 
opportunity to gain a better understanding of local industries and 
carry on a more informed dialogue with sources on their prevention 
practices. EPA continues to encourage sources to work with the LEPCs 
and other community groups to provide information to the public and 
ensure an on-going dialogue during and after RMP development and 
submission. The public is a valuable resource and a key stakeholder in 
chemical accident prevention, preparedness, and response at the local 
level.
    A number of commenters said that EPA should prohibit the public 
from triggering an audit through petitions because this approach would 
open the process to litigation; a petition process would be expensive, 
time-consuming, and increase the time needed to complete the RMP. Some 
commenters said it would impose an excessive burden on the implementing 
agency. Two commenters favored public petitions to trigger audits. One 
said that the audits should be conducted by qualified third parties, 
subject to community selection and supervision.
    EPA has not included public petitions as a mechanism for periodic 
audits of sources under Sec. 68.220. States, however, are able to adopt 
more stringent requirements.

O. Inherently Safer Technologies

    In response to the NPRM, a number of commenters stated that EPA 
should require sources to conduct ``technology options analyses'' to 
identify inherently safer technologies. In the SNPRM, EPA solicited 
comments on this issue, but did not propose a requirement for such 
analyses.
    A number of commenters stated that EPA should require analyses of 
inherently safer technologies, at least for sources with Program 3 
processes or new processes. Some commenters argued that inherent safety 
is primary prevention (directed at the source of the hazard), while 
EPA's proposed requirements are secondary prevention (control of the 
hazard). One commenter asked that sources be required to provide full 
economic and technical analyses of options. Commenters argued that 
without a technology options analysis requirement, industry will not 
conduct these analyses because, unlike its pollution prevention 
efforts, EPA has provided no incentive for safer plants.
    Other commenters strongly opposed any requirement for these 
analyses because PHA teams regularly suggest viable, effective (and 
inherently safer) alternatives for risk reduction, which may include 
features such as inventory reduction, material substitution, and 
process control changes. These changes are made as opportunities arise, 
without regulation or adopting of completely new and unproven process 
technologies. Commenters said that similar analyses are frequently 
conducted during the design phase of a process or source where there 
are sufficient economic incentives to design a process with as few 
costly additional safety features as possible without new EPA 
requirements. Commenters also said that a requirement would prove 
costly, without providing commensurate benefits.
    EPA has decided not to mandate inherently safer technology 
analyses. EPA does not believe that a requirement that sources conduct 
searches or analyses of alternative processing technologies for new or 
existing processes will produce additional benefits beyond those 
accruing to the rule already. As many commenters, including those that 
support such analyses, pointed out, an assessment of inherently safer 
design alternatives has the most benefit in the development of new 
processes. Industry generally

[[Page 31700]]

examines new process alternatives to avoid the addition of more costly 
administrative or engineering controls to mitigate a design that may be 
more hazardous in nature. Although some existing processes may be 
superficially judged to be inherently less safe than other processes, 
EPA believes these processes can be safely operated through management 
and control of the hazards without spending resources searching for 
unavailable or unaffordable new process technologies. Good PHA 
techniques often reveal opportunities for continuous improvement of 
existing processes and operations. EPA encourages sources to continue 
to examine and adopt viable alternative processing technologies, system 
safeguards, or process modifications to make new and existing processes 
and operations inherently safer. EPA included questions related to 
process modifications in the RMP so that sources can demonstrate, and 
users of the RMP information can observe, progress toward safer 
processes and operations.

P. Coverage by Other Regulations

    A large number of commenters expressed concerns about duplication 
between the risk management program rule and other Federal and state 
regulations. Issues related to overlap between this rule and OSHA PSM 
are discussed in Section III.D of this preamble; issues related to 
overlap between this rule and other emergency response planning 
regulations are discussed in Section III.J of this preamble.
    1. General Issues. A substantial number of commenters stated that 
EPA had failed to consider other regulations to which sources are 
subject that cover some of the same requirements as this rule. They 
noted that many sources are covered by DOT rules, other EPA rules, OSHA 
rules, and, in some cases, other agency or state rules. Some commenters 
argued that these other regulations essentially prevent accidents and, 
therefore, this rule is not needed. Commenters stated that EPA should 
define jurisdictional and enforcement boundaries so that sources 
subject to multiple regulations are not subjected to multiple 
enforcement actions for the same violation. Other commenters said that 
EPA should clearly identify which similar requirements imposed by other 
programs satisfy this rule and what additional steps are needed. Some 
commenters said that any source covered by another, similar rule should 
be excluded from this rule. Others suggested that EPA explicitly cross-
reference other applicable rules. A few commenters stated that EPCRA 
reporting requirements provide ample information to local entities and 
no further reporting is needed.
    EPA disagrees with some of these comments. Except for the OSHA PSM 
rule, no other rule cited by the commenters addresses accidental 
releases of regulated substances to the extent that today's rule does. 
Some Federal and state rules for certain industries provide design 
standards; compliance with these rules will satisfy parts of today's 
rule. For example, sources in compliance with 29 CFR 1910.111 for 
handling of anhydrous ammonia may not need to take additional steps to 
ensure the safe design of the process. These other standards generally 
do not cover training, maintenance, hazards analysis, and accident 
investigation, which are all key elements in process safety management. 
In addition, none of the Federal rules require offsite consequence 
analyses or reporting to the public on the results of these analyses 
and on prevention steps. Information submitted under EPCRA, which 
consists primarily of annual inventories, is not equivalent to the RMP 
information.
    Nevertheless, EPA agrees with commenters that duplication should be 
minimized, which is why the emergency response and Program 2 prevention 
program steps recognize that meeting other requirements will satisfy 
elements of this rule. The model risk management programs that EPA is 
developing with industry will explicitly cite other regulations, as 
well as codes and standards, that satisfy specific elements of this 
rule.
    2. DOT Transportation Regulations. Commenters concerned with 
overlap with DOT regulations focused on two issues: pipeline 
regulations, and loading/unloading and storage regulations. Commenters 
asked EPA to exclude pipelines and transportation containers connected 
for loading or unloading since these are adequately covered by DOT 
regulations. Some commenters disagreed and wanted loading and unloading 
of transportation containers to be included because many accidents 
occur during these procedures.
    In the final List Rule, EPA defined stationary source to include 
``transportation containers that are no longer under active shipping 
orders and transportation containers that are connected to equipment at 
the stationary source for the purposes of temporary storage, loading, 
or unloading.'' One commenter stated that the 1993 oleum release in 
Richmond, California, demonstrated that DOT regulations do not 
adequately address risk management of loading and unloading. The other 
commenters, however, said that loading and unloading were covered by 
DOT regulations and should not be subject to this rule. They noted that 
DOT has adopted regulations requiring training for anyone who loads or 
unloads hazardous materials. They further said that at distribution 
centers, regulated substances are not used or processed, and, if in 
packages, the containers are not opened.
    Several commenters were concerned that EPA regulation in this area 
could create problems with DOT's preemption of state rules. Under U.S. 
law, states may not adopt regulations in certain specified areas that 
are not substantively the same as DOT rules or in other areas that pose 
an obstacle to DOT goals under Federal Hazardous Materials 
Transportation Law. If state laws are authorized by Federal law, 
however, states could develop different requirements than DOT imposes. 
In this case, the commenter said, if EPA were to regulate loading and 
unloading under the CAA, the states would have the authority under the 
CAA to impose more stringent requirements on this activity.
    EPA disagrees with the commenters concerning the scope of the 
Hazardous Materials Transportation Act preemption authority in this 
area. EPA's definition of stationary source clearly covers 
transportation containers only when they are no longer in 
transportation in commerce and was addressed in the List Rule. EPA 
believes commenters have overstated the extent of any preemption 
problem. EPA's interpretation today is consistent with DOT's, as 
explained in ``California and Los Angeles County Requirements 
Applicable to the On-Site Handling and Transportation of Hazardous 
Materials--Preemption Determination'' (60 FR 8774, 8776-78, February 
15, 1995). EPA notes that in many cases warehouses and wholesalers take 
delivery of materials and resell them; EPA considers this storage to be 
covered by today's rule. EPA believes that DOT standards for container 
integrity satisfy process safety information requirements. The same 
applies to DOT standards for training requirements for loading and 
unloading; that training satisfies the training requirements of this 
rule for loading and unloading. Requirements for the PHA only apply to 
connections to transportation containers and for storage of containers.
    3. Other EPA Regulations. Many commenters stated that other EPA 
regulations cover the same activities and

[[Page 31701]]

should be deferred to or referenced to prevent duplicative requirements 
and enforcement. A number of commenters said that regulations under the 
Clean Water Act, specifically the Spill Prevention, Control, and 
Countermeasure (SPCC) and Oil Pollution Act of 1990 (OPA-90) rules, 
duplicate many of the provisions of this rule. Other commenters argued 
the Underground Storage Tank (UST) rules require sources to comply with 
requirements equivalent to many of the notification, prevention, and 
emergency response provisions. A few commenters stated that EPCRA 
already covers the right-to-know provisions; others stated that the 
risk management program regulations should support existing EPCRA 
rules. Three commenters said that EPA should exempt any source covered 
by the Resource Conservation and Recovery Act (RCRA) because the rules 
under that act already impose comprehensive risk management 
requirements.
    As discussed in Section III.J, emergency response plans developed 
under SPCC, OPA-90, or RCRA can be used to meet the emergency response 
requirements of this rule. EPA notes, however, that SPCC, OPA-90, and 
UST rules do not address storage, handling, and release prevention for 
regulated substances. SPCC and OPA-90 rules apply to oil; UST rules 
apply to oil and gasoline. The processes addressed by these rules, 
therefore, do not overlap with the processes covered by today's rule.
    RCRA requirements apply only to certain activities undertaken at 
sources that may be subject to the requirements of today's final rule. 
As noted above, EPA anticipates that emergency response plans developed 
under RCRA can be used to meet the emergency response requirements of 
this rule. In addition, certain training and other release prevention 
activities required under RCRA may satisfy certain of the prevention 
program requirements for Program 2 processes.
    4. Other Federal Regulations. A number of commenters stated that 
EPA should not cover outer continental shelf (OCS) sources because they 
are adequately regulated under the Marine Mineral Service, Pipeline 
Safety Act, and OPA-90. The mining industry said that they should not 
be covered because their handling of explosives is regulated in great 
detail by the Mine Safety and Health Administration and the Bureau of 
Alcohol, Tobacco, and Firearms. In its proposed rule (61 FR 16598, 
April 15, 1996), EPA has proposed to delist explosives and proposed a 
stay of the affected list provisions; elsewhere in today's Federal 
Register, EPA has stayed implementation of the affected provisions 
until these changes are finalized. OCS sources are not subject to part 
68 because the connection between this part and protection of ambient 
air quality is too remote; therefore, CAA section 328 proscribes EPA's 
jurisdiction.
    5. State and Local Regulations. Commenters sought clarification of 
how risk management programs implemented under state laws in Delaware, 
New Jersey, California, and Nevada would be treated. Some commenters 
said sources complying with these state rules should be grandfathered 
into EPA's rule for at least five years. California commenters asked 
that risk management prevention programs (RMPPs) developed and 
submitted under California's rule be considered in lieu of the required 
RMP. Some commenters asked that documentation created to meet the state 
requirements be considered adequate to meet EPA's program so that 
additional documentation need not be created just to meet slightly 
different rules. A few commenters suggested that EPA should explicitly 
preempt any state risk management program regulations that are not 
submitted to and approved by EPA. Other states said that EPA should 
defer to state rules on hydrogen sulfide and propane.
    None of the four state risk management program rules is identical 
to EPA's or each other. The Delaware, New Jersey, and Nevada programs 
closely parallel the OSHA PSM rule; the California program is less 
specific. EPA expects that sources in compliance with these state 
programs will have completed most of the steps required under EPA's 
rule. EPA notes that these sources are generally also covered by OSHA 
PSM and, therefore, should be in compliance with a significant portion 
of EPA's rule.
    In relation to the request for grandfathering, EPA does not have 
the authority to grandfather compliance with programs that the Agency 
has not reviewed and approved. EPA expects that these four states will 
seek delegation of the 112(r) program under CAA section 112(l). At that 
time, EPA will review the state programs and approve them if they are 
as stringent as EPA's rule and meet other section 112(l) requirements. 
If states are granted delegation, they will have the authority to 
grandfather previous compliance. Because the CAA specifically grants 
states the right to impose more stringent regulations, EPA cannot 
preempt state programs as one commenter requested.
    EPA believes that substitution of the RMPP for the RMP for 
California sources is not feasible. The California RMPPs are voluminous 
documents, submitted per process, not per source. These documents could 
not be submitted electronically. Because EPA is concentrating on 
submission of data elements, EPA believes that its RMP requirements can 
be met quickly by any source that has completed an RMPP. Completion of 
the RMP will not impose a large burden on sources. If the RMPP has 
summary sections, these may be directly transferable for use as the 
executive summary.
    In regard to other state laws, states may include them as part of 
their CAA section 112(l) submission for EPA's review and approval. 
These laws, however, must be as stringent as EPA's; that is, they must 
cover all elements of the rule with requirements that at least match 
EPA's. EPA notes that state propane laws are generally based on NFPA-
58, which EPA is using to help develop its model risk management 
program for propane distributors and users. Therefore, sources in 
compliance with NFPA-58 requirements may meet many of the requirements 
of Program 2, as defined in the model.

Q. Industry-Specific Issues

    A number of industries submitted comments on issues that were 
particular to them, in many cases seeking exemption from the rule.
    1. Oil and Gas Facilities. Industry commenters argued that 
components of the oil and gas industries should be excluded from EPA's 
risk management program; in particular, that EPA should exempt the 
following operations and facilities from RMP requirements:
    <bullet> Atmospheric storage and transfer of flammable liquids;
    <bullet> Retail facilities;
    <bullet> Marketing terminals and bulk plants;
    <bullet> Remote, low-risk petroleum operations;
    <bullet> Oil and gas exploration, production and processing 
facilities;
    <bullet> Crude oil separation, handling, and storage operations;
    <bullet> Subsurface hydrocarbon reservoirs;
    <bullet> All transportation and facilities incident to 
transportation; and
    <bullet> Outer continental shelf facilities.

Commenters noted that these industries and facilities pose a low risk 
to the public for a number of reasons. Significant accidental releases 
are highly unlikely because these facilities handle materials which, 
given site conditions, have limited potential for release to the air or 
offsite impacts. Existing regulations reduce the potential

[[Page 31702]]

for significant accidental releases. Additionally, commenters argued 
that the RMP provisions extend beyond EPA's statutory authority and run 
counter to the Domestic Natural Gas and Oil Initiative established by 
President Clinton.
    Commenters stated that most of the exploration and production 
facilities are remotely located and argued that even the tiering 
approach that EPA proposed in the SNPRM did not provide adequate relief 
for these sources, which pose minimal risks. They noted that OSHA 
specifically excludes remotely located sources, retail facilities, DOT-
regulated sources, and atmospheric storage tanks. A number of 
commenters said that EPA had never included most of these sources in 
its economic analysis, implying that EPA did not intend to cover them 
in these regulations; they requested an explicit statement to that 
effect. One commenter opposed an exemption for oil and gas sources and 
pipeline and other transportation companies, arguing that these sources 
have some of the most common or worst accidents.
    EPA does not agree that marketing terminals or bulk plants should 
be excluded if there are regulated substances present above their 
threshold quantities. Although EPA did not specifically exempt gasoline 
and naturally occurring hydrocarbons (e.g., crude oil), it did not 
intend to cover regulated flammables in these mixtures. In its proposed 
rule (61 FR 16598, April 15, 1996), EPA has proposed to revise the 
criteria for flammable mixtures and to exclude naturally occurring 
hydrocarbons prior to processing at a gas processing plant or refinery. 
Flammable mixtures would be covered only if they met all of the NFPA-4 
criteria. Gasoline and crude oil are listed with NFPA 3 flammability 
ratings in NFPA 325 M, Fire Hazard Properties of Flammable Liquids, 
Gases, and Volatile Solids, 1991. Elsewhere in today's Federal 
Register, EPA has stayed implementation of the risk management program 
rule for substances and processes that would be affected by the 
proposed changes. As EPA explained in the preamble to the final list 
rule, the Agency has not adopted OSHA's exemption for atmospheric 
storage of flammables because, unlike OSHA, EPA has listed only 
flammable gases and highly volatile flammable liquids. EPA considers 
these substances to be intrinsically hazardous, regardless of storage 
conditions and, therefore, does not believe it is appropriate to 
provide an exemption for such tanks.
    2. Retail Facilities. The rule is expected to cover a substantial 
number of retail facilities, specifically those handling propane and 
ammonia as a fertilizer. Approximately 100 commenters requested that 
EPA exempt propane retailers from coverage under the risk management 
program, primarily due to the effectiveness of the existing regulatory 
structure for the industry (in particular, NFPA Standard 58). At the 
same time, more than 50 commenters requested that EPA exempt 
agricultural chemical retailers (with inventories of ammonia 
fertilizer) from coverage under the risk management program because of 
the existing state and Federal regulation of these operations.
    a. Propane Retailers. Commenters argued that the primary thrust of 
the proposed regulations is to preclude unwarranted risk to the 
surrounding community from an accidental failure of a storage tank. 
They stated that the basic purpose of NFPA 58, the Storage and Handling 
of Liquefied Petroleum Gases, is to prevent such releases through 
design and engineering. This standard requires fire safety analyses, 
distance separation between the storage tank and surrounding exposures, 
and approval of plans for new or existing facilities by local 
authorities. They noted that NFPA 58 has been adopted as state law in 
48 of the 50 states and that the two remaining states (California and 
Texas) have similar rules. They said that propane storage containers 
are manufactured strictly to the specifications of the American Society 
of Mechanical Engineers. According to commenters, emergency response 
planning is already covered by NFPA-58, OSHA, and DOT. Because of 
compliance with this standard and state law, commenters argued that the 
rule would not provide any improvement in safety. A number of 
commenters argued that propane was a heating fuel, not a chemical, and 
did not pose the same level of risk as larger quantities of propane 
held and used as a chemical feedstock. One commenter noted that OSHA 
had exempted retailers and propane when used as a fuel.
    In contrast, one state, which also regulates propane under its 
state risk management program law, argued that propane is not 
sufficiently regulated. It stated:
    Fire authorities inspect each new facility before propane is 
introduced. They concentrate on adequate fire water supply, electrical 
code compliance, and distance separation requirements. Some fire 
authorities are not technically capable of determining if the facility 
piping system complies with NFPA 58. There are no follow-up inspections 
to assure continuing compliance and no requirements under NFPA 58 for 
training distribution plant operators or mechanics, written maintenance 
programs, or procedures to control change. During our inspections, we 
have identified some facilities that were not in conformance with NFPA 
58.
    EPA does not agree with commenters who are seeking exemption of 
propane retailers and users. In a supplemental notice, EPA sought 
comment on whether flammable substances, when used as a fuel, posed a 
lesser intrinsic hazard than the same substances handled otherwise; no 
data were submitted to EPA to justify this position. Further, EPA has 
considerable accident data for propane that illustrates its potential 
to affect the public located nearby. As a result, EPA continues to 
believe that the hazard posed by propane is inherent and does not vary 
with its use. Because of a lack of data justifying a different level of 
hazard for flammables used as fuel, the Agency will not adopt a fuel 
use exemption similar to that provided by OSHA.
    Furthermore, EPA notes that many propane retailers are relatively 
close to other commercial buildings and the community. Should a fire or 
explosion occur, the community could be substantially impacted. EPA 
believes the community and sources need to be aware of the potential 
risk and understand the steps the source is taking to limit the 
potential for a release. Because EPA recognizes that the full PSM 
standard is not appropriate for propane retailers, EPA has assigned 
propane retailers and users to Program 2. Compliance with most aspects 
of Program 2 should be simple. For example, use of tanks that meet 
relevant ASME standards and retention of the material safety data 
sheets required by OSHA will satisfy the safety information 
requirements of Sec. 68.48. Furthermore, EPA is developing a model risk 
management program to help sources comply. This model is being based on 
NFPA-58 standards, where they apply, so that sources already in 
compliance with NFPA-58 will be in substantial compliance with Program 
2. The model will help sources comply with other elements in a cost-
effective manner.
    b. Ammonia Retailers. Ammonia is sold as a fertilizer from 
agricultural retailers, primarily in the Middle West, Great Plains, and 
West. Commenters stated that the retail fertilizer industry is already 
governed by OSHA's Health and Safety Standards, which are specifically 
applicable to the storage and handling of anhydrous ammonia. They noted 
that this standard (29 CFR 1910.111) is based on ANSI K61.1 and sets 
forth extensive

[[Page 31703]]

requirements applicable to the design, construction, location, 
installation, and operation of anhydrous ammonia facilities. Measures 
designed to adequately provide for the prevention of and response to 
accidental releases are an integral part of this standard. Some 
commenters said that if EPA did not exempt retail sources, ammonia 
retailers should be deemed to be in compliance with the prevention 
program. In addition, commenters said they are regulated under state 
laws and are subject to EPCRA reporting requirements. Many commenters 
argued that retail fertilizer sources have an excellent safety record. 
They stated that retail fertilizer facilities are limited in size, do 
not involve complex processing and manufacturing operations, and are 
located in rural areas; consequently, they present a low risk to the 
surrounding communities. Commenters objected to the regulations because 
they would impose a substantial burden on what are small operations. 
Some commenters argued that, because Congress had granted EPA the 
authority to exempt ammonia when held by a farmer for use as a 
fertilizer, EPA could grant retail ammonia sources the same exemption.
    Although EPA recognizes that other regulatory programs address 
safety for agricultural retailers and that such operations do not 
involve complex processing or manufacturing, EPA disagrees with the 
conclusions of these commenters. According to the industry, the typical 
ammonia retailer has 200 tons of ammonia on site at times. Even in 
rural areas, release of even a fraction of this quantity could affect 
the community. Sources constructed and operated consistent with the 
relevant ANSI standard will meet the EPA rule for subjects addressed by 
both. EPA recognizes the OSHA standard for anhydrous ammonia handling 
and hopes to work with the ammonia industry to develop a model risk 
management program for ammonia retailers. This model would be based on 
the OSHA standard, where applicable. The standard, however, does not 
include some elements mandated by the CAA as part of the prevention 
program, specifically training and maintenance programs. In addition, 
EPA believes that there is a further need to convey information on 
hazards and risk management practices of these operations to the public 
and local entities. The model will provide guidance to help sources 
comply with these elements in a cost-effective manner. Finally, EPA 
does not agree that the Congressionally allowed exemption of farmers 
can be extended to non-farmers. See 136 Cong. Rec. S2284 (March 7, 
1990) (colloquy between Sens. Kerrey and Chafee).
    3. Refrigeration Systems. A number of commenters stated that 
ammonia used in a refrigeration system should be exempted from this 
rule because these systems pose little risk to the public. One 
commenter said that EPA should exempt roof-mounted air handlers, pipes, 
and components. Some commenters said that the industry was already 
overregulated and the imposition of this rule would be a burden.
    The CAA requires EPA to impose this rule on any source with more 
than a threshold quantity of a regulated substance. Therefore, EPA 
cannot exempt ammonia refrigeration systems that contain more than 
10,000 pounds of ammonia. In addition, ammonia refrigeration plants 
have had a substantial number of accidents where the ammonia has 
migrated offsite, indicating that these systems do pose a risk to the 
public. At the same time, it should be noted that all of these 
refrigeration systems are already covered by the OSHA PSM standard. 
Consequently, the only additional steps sources will have to take are 
to conduct the hazard assessment, comply with the emergency response 
requirements, and file the RMP. EPA worked with the International 
Institute of Ammonia Refrigeration to develop a model risk management 
program that will facilitate compliance and reduce the burden on 
sources (Model Risk Management Program for Ammonia Refrigeration). For 
most of these sources, which have only one chemical, the RMP will be a 
very brief document.
    4. Other Operations. Comments were submitted on a range of other 
industries.
    The warehouse industry said that it should be exempted where 
material is received and shipped in packages that are not opened; 
commenters noted that they are covered by DOT packaging regulations. 
EPA believes that warehouses must be covered if they have more than a 
threshold quantity of a regulated substance. Under the OSHA definition 
of process, which EPA has adopted, packages of a substance stored in 
the same room may be counted toward the threshold quantity if the 
packages could release their contents in the same event. EPA notes that 
warehouse fires have created major incidents in the past 10 years, and 
the Agency believes that warehouses should take the steps necessary to 
prevent and mitigate such incidents. EPA is interested in working with 
the industry to create a model risk management program that would help 
sources develop a hazard assessment process that can account for 
potentially changing contents of a warehouse.
    Batch processors face related problems with changing chemicals on 
site. EPA is willing to work with industry to develop a generic 
approach to risk management programs. EPA believes, however, that most 
batch processors will already be covered by OSHA PSM. The RMP Offsite 
Consequence Analyses Guidance will reduce the burden of developing 
multiple release scenario analyses. To minimize the need for continual 
revision of their worst-case scenario to accommodate periodic inventory 
changes, sources such as warehouses and batch processors may want to 
analyze their expected chemical inventory in developing a scenario that 
represents the worst case for the foreseeable future, even if the 
substance is not currently in use at the source.
    A number of commenters raised questions about coverage of POTWs. A 
specific concern was EPA's statement in the NPRM that substances in 
waste streams would not be covered by the rule. This statement is based 
on the belief that the regulated toxic substances will not constitute 
more than one percent of any waste stream received by a POTW. 
Consequently, they will not be considered in calculations of threshold 
quantities. No waste stream is likely to meet EPA's flammability 
criteria. POTWs are likely, however, to be covered because of regulated 
substances they use to treat wastes.

R. Implementing Agency Delegation

    EPA received a number of comments to the NPRM regarding the role 
and potential burden on LEPCs, SERCs, and other local agencies that may 
result from implementation of the risk management program. In the SNPRM 
preamble, EPA indicated that EPA and the states share the 
responsibility for protecting public health and the environment and 
encouraged state and local agencies to seek delegation for this program 
because their participation is essential to successful chemical 
accident prevention, preparedness and response and recognized by the 
legislative history and the CAA section 112(r) requirements by 
requiring that RMPs be submitted to states and local planning entities. 
States are already involved in chemical emergency preparedness and 
planning through the requirements of EPCRA.
    Commenters on the SNPRM requested that the final rule clearly state 
that EPA is the implementing agency unless a state or local agency is 
granted a

[[Page 31704]]

delegation of authority under section 112(l). Several commenters 
indicated that EPA should allow states the flexibility to designate the 
most appropriate implementing agency, such as OSHA or the state agency 
that administers and enforces the OSHA PSM standard, rather than 
mandating the air permitting authority or a SERC agency in the final 
rule. A number of commenters on the SNPRM and NPRM suggested that 
existing local emergency planning agencies (e.g., LEPCs, fire 
departments) would be best suited to serve as implementing agencies, in 
part because they are closest to the communities at risk. However, many 
commenters (including LEPCs that commented) argued that LEPCs would be 
unprepared to take on such a burden and that even a minimal role in 
implementing section 112(r), including mere storage of RMPs, would 
overwhelm their limited resources and technical expertise. In addition, 
commenters indicated that LEPCs, as mostly volunteer agencies, would 
not and could not have the authority necessary to implement and enforce 
the RMP rule.
    The implementing agency is the state or local agency that obtains 
delegation of the section 112(r) program under section 112(l). As 
stated in the definition of Implementing Agency in today's rule, until 
a state or local agency is granted delegation of the risk management 
program under CAA section 112(l), EPA will serve as the implementing 
agency. States may select any state or local agency to implement this 
program, including an air permitting authority or a state OSHA program, 
provided the agency has the expertise, legal authority and resources to 
implement the program; the state must also have the authority to 
enforce the program. EPA realizes that, in most cases, LEPCs will not 
have the authority to be implementing agencies, but they should be 
involved as much as possible in the program.
    Commenters on the SNPRM suggested that EPA should avoid adding 
specific implementation details to the final rule so that states would 
have the flexibility to develop or continue programs that meet local 
needs. Other commenters, however, suggested that EPA should issue 
delegation guidance and to define the elements of an adequate state 
program to avoid inconsistent interpretations and implementation of the 
rule. Commenters representing companies that operate in several states 
were particularly concerned about maintaining uniform implementation.
    EPA has not added specific state or local implementation 
requirements to today's rule because the Agency already promulgated 
sufficient provisions for delegation of accident prevention programs 
under section 112(r) to states and local authorities under 40 CFR part 
63, subpart E, which implements CAA Sec. 112(l). As EPA discussed in 
the SNPRM, implementing agencies will be responsible for such tasks as 
reviewing RMP information, auditing and inspecting a percentage of 
sources annually, requiring revisions to the RMP as necessary, and 
assisting the permitting authority in ensuring compliance. States have 
the flexibility to implement their own programs, however the CAA 
requires that state or local program requirements must be as stringent 
as EPA's and must include EPA regulated substances and processes. This 
means that California, Delaware, Nevada, and New Jersey will need to 
revise their existing program requirements, substance lists, and in 
some cases, thresholds, to meet EPA's requirements and to obtain 
section 112(r) delegation. EPA intends to issue additional guidance 
that will help state and local agencies obtain program delegation. EPA 
must review delegation requests submitted under 40 CFR part 63, subpart 
E to ensure that state and local programs requirements are as stringent 
as EPA's. With respect to nationwide uniform implementation, EPA notes 
that the CAA specifically grants states the right to develop more 
stringent requirements; consequently, there may be state-to-state 
variations. Many states, however, are prohibited under their state laws 
from adopting regulations that are more stringent than Federal rules.
    One commenter on the NPRM indicated that EPA's estimation of the 
costs of implementing the section 112(r) program is extremely low, 
representing demands that are 65 to 75 percent lower than those 
experienced by states implementing similar programs. LEPCs and state 
governments were concerned about the imposition of section 112(r) 
requirements on state and local governments as an unfunded mandate. 
Several state agencies indicated that the considerable financial burden 
imposed by section 112(r) implementation would prohibit them from 
seeking section 112(l) delegation. Commenters encouraged EPA to develop 
guidance on potential funding mechanisms, including descriptions of the 
fee systems used by existing state programs for accidental release 
prevention. Several commenters indicated that the political climate at 
the state and local level would make it impossible to levy new, or 
raise existing, fees.
    Since states are not required to seek delegation of this program, 
it does not constitute an unfunded mandate (see also section V.C). 
Before EPA grants delegation, state or local agencies must show that 
they have the resources to implement and enforce the risk management 
program rules. EPA recognizes that there is no Federal funding 
associated with implementation of section 112(r) but believes that the 
tiered program levels and centralized electronic submission of RMPs in 
today's rule substantially reduces the cost and resource demand for 
state and local entities seeking delegation. State and local agencies 
that fully implement section 112(r) will be able to develop and operate 
a program that best fits their individual needs, resources, and 
structures. As part of consideration of the costs to implement section 
112(r), state and local agencies should also weigh the benefits of 
integrating accident prevention with pollution prevention, 
environmental protection, and worker and public health and safety at 
the state level, and the benefits to local industry associated with 
state, rather than Federal, implementation of this program. Many states 
and local agencies have established a close working relationship with 
the sources in their jurisdiction. In addition, a number of state and 
local publicly owned sources are covered by this rule; state 
implementation can serve to enhance compliance that may otherwise 
require increased coordination with EPA. Although other states have 
successfully ``self-funded'' their accident prevention programs with 
various state authorized fees, EPA recognizes that it may be difficult 
for state or local agencies to generate the resources necessary to fund 
full section 112(r) implementation.
    Several commenters on the SNPRM requested guidance and training for 
sources, local entities, and implementing agencies on understanding 
hazard assessments, and conducting program inspections, reviews, and 
audits. EPA recognizes the need for guidance and training for 
implementing agencies and sources. EPA plans to modify and to continue 
offering its four-day Chemical Safety Audit workshop to other federal 
agency representatives, state and local government officials, and 
industry representatives as an introduction to chemical process safety, 
current industry chemical accident prevention practices and 
understanding the elements of the risk management program. EPA is ready 
to assist state and local agencies through its regional offices to 
coordinate state and local

[[Page 31705]]

programs and to help in obtaining program delegation and development of 
resources to fund state or local programs. Region 4 in Atlanta, 
Georgia, for example, has developed an integrated section 112(r) work 
group of state and local air pollution control, SERC, and LEPC 
representatives who participate in workshops, seminars, and pilot 
studies designed to foster local program implementation and to build a 
support network. EPA also continues to work with NOAA to enhance 
modeling and information management tools contained in the Computer 
Aided Management of Emergency Operations (CAMEO) and Areal Locations of 
Hazardous Atmospheres (ALOHA) software for local emergency planners and 
responders.
    Two commenters on the NPRM requested that EPA address the issue of 
tort liability in the event that an accidental release occurs after an 
RMP has been submitted to the implementing agency. One other commenter 
believed that the implementing agency must be held accountable for RMP 
content while another believed that EPA must ensure that adequate 
limits to implementing agency liability exist.
    The primary responsibility for accident prevention rests with the 
owners or operators of sources. Section 112(r) does not create a basis 
for implementing agency tort liability under federal law. CAA 
Sec. 112(r)(1). When EPA is the implementing agency, it is immune from 
tort liability under state law. States that are implementing agencies 
generally will have protection from liability under their state laws. 
If a state has waived its sovereign immunity, EPA cannot take steps to 
alter that situation. EPA encourages states concerned about this issue 
to discuss the matter with their attorneys general to determine whether 
state law protects them from liability.

S. Accident Information Reporting

    In the SNPRM, EPA discussed the possibility of additional accident 
reporting to support a variety of future accident prevention 
activities. EPA proposed that sources either submit an OSHA PSM or 
Program 3 investigation report for certain accidental releases or a 
survey form that collects certain accident data. Otherwise EPA could 
use existing authorities to collect additional accident data from 
existing information, as needed.
    Most commenters opposed EPA's proposal for additional accident 
reporting requirements, especially the collection of accident 
investigations prepared under Program 3 or OSHA PSM, because it 
increases costs, it would have no benefit, it generates significant 
liability issues, and it would divert limited resources away from 
activities with greater public health benefit. Commenters supported the 
use of existing reports since this approach should not generate an 
additional burden, such reports are available through EPA and OSHA 
under other regulations and they should be adequate for the objectives 
outlined by EPA.
    EPA agrees with commenters and has decided not to adopt any 
additional accident reporting requirements. EPA will rely on the five-
year accident history for the immediate future and, based on that 
information, determine whether additional information and requirements 
are needed. EPA has the authority under CAA section 114 to investigate 
releases and seek additional information as needed.

T. Other Issues

    1. OSHA VPP. In the SNPRM, EPA asked whether the OSHA Voluntary 
Protection Program (VPP) protects public health and the environment and 
suggested that one approach to third party review (discussed below) 
would be to assign sources that participate in VPP to Program 2. Many 
commenters supported VPP participation as a criterion for assigning a 
source to Program 2. Several of these commenters noted, however, that 
because VPP sources are probably already covered by OSHA PSM, assigning 
them to Program 2 would provide no reduction in burden or regulatory 
relief. One commenter suggested that EPA could allow VPP sources the 
flexibility to determine, with the LEPC, what the offsite consequence 
analysis would cover. Seven commenters opposed VPP participation as a 
Program 2 criterion because VPP does not address offsite consequences, 
no evidence was presented that PSM is being carried out adequately at 
VPP sources, and this approach would discriminate against other 
voluntary programs.
    After consideration of the comments, EPA has decided not to use VPP 
participation as a Program 2 criterion, but has adopted language in the 
final rule to exempt sources with a Star or Merit ranking under OSHA's 
VPP from selection for audits based on the criteria in Sec. 68.220 
(b)(2) and (b)(7); such a source may be audited if it has an accidental 
release that requires an accident investigation under these 
regulations. This decision recognizes that such sources have active 
accident prevention programs and should not be regarded in the same way 
as other sources within the same industry or as other sources in 
general. In addition, it thus provides a similar degree of benefit with 
respect to EPA auditing as it does with respect to OSHA auditing. EPA 
agrees that VPP sources would gain no benefit by assignment to Program 
2. EPA does not believe it is appropriate to adjust the hazard 
assessment requirements for VPP sources; this information is essential 
to local emergency preparedness and response and for public dialogue.
    2. Qualified Third Party. In the SNPRM, EPA sought comments on 
whether sources should be allowed to have qualified third parties 
assist them in achieving and maintaining compliance. Eight commenters 
supported third party reviews as a way to reduce implementing agency 
efforts. One commenter stated that sources should be required to hire a 
qualified third party to assess their activities. Most commenters, 
however, expressed some reservations including greater cost if sources 
were required to hire third parties, when many sources already have 
staff qualified to implement the risk management program. Commenters 
said that a third party review would be particularly costly for 
retailers who will have model programs and stated that use of third 
parties would add another layer of bureaucracy to the process. A number 
of commenters said that EPA should fund third parties. Commenters also 
stated that use of third parties might confuse the issue of who was 
responsible for safety and for enforcement; they said that EPA must 
make it clear that the owner or operator of the source remains 
responsible for accidents and that the implementing agency retains 
enforcement authority. Finally, several commenters asked who would 
determine the qualifications of a qualified third party.
    EPA is not requiring use of qualified third parties in this rule. 
EPA, however, endorses the concept of offering sources the option of 
using third parties to assist owner/operators in meeting their 
obligations under the rule. Based on the comments, EPA recognizes that 
any third party proposal must:
    <bullet> Not weaken the compliance responsibilities of source 
owner/operators;
    <bullet> Offer cost savings and benefits to the industry, 
community, and implementing agencies that significantly exceed the cost 
of implementing the qualified third party approach;
    <bullet> Lead to a net increase in process safety, particularly for 
smaller, less technically sophisticated sources; and
    <bullet> Promote cost-effective agency prioritization of 
implementing agency oversight resources.

[[Page 31706]]

    Several key issues need further discussion before the use of a 
qualified third party may be offered as an option. These include 
qualification criteria, certification procedures, liability, and other 
critical issues associated with the use of a qualified third party. 
Therefore, following promulgation of this rule, EPA proposes to call a 
meeting to solicit input from trade associations, professional and 
technical societies, states, and other interested parties to address 
these issues and investigate the need for developing a process and a 
national exam to qualify third parties.
    3. Documentation. Commenters expressed a number of concerns about 
the level of recordkeeping and the availability of information. Some 
commenters stated that records need to be maintained for longer than 
five years; commenters suggested 10 years, 20 years, and the life of 
the source. One commenter suggested that records should be kept for the 
life of the process and then seven years thereafter to ensure that 
records would be available if a lawsuit was initiated. Industry 
commenters said that only current documents and data should be 
maintained to prevent confusion from having multiple versions of the 
same document. One commenter stated that policies and procedures should 
be kept until they are superseded, then they should be destroyed; 
retaining old, superseded information is unsafe and unacceptable and 
can result in accidents.
    One commenter said that sources should be required to develop and 
maintain a master index or catalogue of documents relevant to the 
proposed rule to support public access. Another commenter stated that, 
in addition to maintaining records supporting the implementation of the 
risk management program, the owner or operator should submit the 
records to the implementing agency. A third commenter said that the 
rule should require that all records supporting compliance with the 
rule be organized and readily available through the designated contact 
person at the source to the implementing agency for inspection.
    Other commenters said the proposed recordkeeping was excessive. One 
stated that EPA is forcing industries towards ``defensive universal 
recordkeeping,'' retaining mountains of documents because EPA has not 
specified what records need to be kept. Another commenter said that an 
examination of the proposal indicated that no fewer than about 22 
separate written documents are required to be maintained on site or 
submitted to the responsible regulatory agency and other parties. One 
commenter noted that more resources will be spent on filling out 
paperwork than on actual spill prevention.
    In the final rule, EPA has adopted the OSHA PSM language for 
Program 3 processes; therefore, documentation for PSM elements is 
dictated by that rule. For other elements of the risk management 
program and for processes in other tiers, EPA has set a period of five 
years for the maintenance of supporting documentation. EPA agrees with 
commenters that only current versions of documents and procedures 
should be retained. On the issue of records submitted to the 
implementing agency, EPA believes that the provisions outlined in the 
final rule (as described in Subpart G to part 68) will limit the volume 
of such documentation. The implementing agency and EPA will have access 
to all on-site documentation when needed. Much of the on-site 
documentation will be confidential and protected under Section 114(c) 
of the CAA. The burden on the implementing agency will be substantially 
reduced because it will not have to establish protected trade secret 
files and procedures.
    Finally, EPA agrees with commenters that level of recordkeeping 
should be kept as low as possible consistent with EPA's statutory 
mandate. EPA has reduced the documentation requirements for Program 2 
processes (particularly with respect to the prevention program) because 
it believes that for these sources, the benefit of the records does not 
offset the cost of creating and maintaining files.

IV. Section-by-Section Analysis of the Rule

    This section discusses specific changes to the rule that are not 
otherwise described in this preamble. The rule has been renumbered to 
include new sections and subparts. The hazard assessment requirements 
have been divided into separate sections in subpart B. The Program 2 
prevention program requirements are in subpart C; Program 3 prevention 
program elements are in Subpart D. Emergency response requirements are 
in subpart E, RMP requirements in subpart G. The registration 
requirement, proposed Sec. 68.12, has been moved to the RMP subpart. 
Tables 3 and 4 present the distribution of NPRM and SNPRM sections and 
derivation of final rule sections.

                      Table 3.--Distribution Table                      
------------------------------------------------------------------------
        NPRM and SNPRM citations               Final rule citations     
------------------------------------------------------------------------
68.3   Definitions.....................  68.3   Definitions.            
68.10  Applicability...................  68.10  Applicability.          
68.12  Registration....................  68.160  Registration.          
68.13  No Impact Sources (Tier 1)......  68.10(b)  Applicability.       
                                         68.12(b)  General Requirements.
68.14  Streamlined Risk Management       Subpart C Program 2 Prevention 
 Program (Tier 2).                        Program (68.48-68.60).        
68.15  Hazard Assessment...............  Subpart B Hazard Assessment    
                                          (68.20-68.42).                
68.20  Prevention Program--Purpose.....  Deleted.                       
68.22  Prevention Program--Management    68.15  Management.             
 System.                                                                
68.24  Prevention Program--Process       68.67  Process Hazard Analysis.
 Hazard Analysis.                                                       
68.26  Prevention Program--Process       68.65  Process Safety          
 Safety.                                  Information.                  
68.28  Prevention Program--Standard      68.69  Operating Procedures.   
 Operating Procedures.                                                  
68.30  Prevention Program--Training....  68.71  Training.               
68.32  Prevention Program--Maintenance   68.73  Mechanical Integrity.   
 (mechanical integrity).                                                
68.34  Prevention Program--Pre-Startup   68.77  Pre-Startup Review.     
 Review.                                                                
68.36  Prevention Program--Management    68.75  Management of Change.   
 of Change.                                                             
68.38  Prevention Program--Safety        68.58  Compliance Audits.      
 Audits.                                                                
                                         68.79  Compliance Audits.      
68.40  Prevention Program--Accident      68.60  Incident Investigation. 
 Investigation.                                                         
                                         68.81  Incident Investigation. 
68.45  Emergency Response Program......  68.95  Emergency Response      
                                          Program.                      

[[Page 31707]]

                                                                        
68.50  Risk Management Plan............  Subpart G Risk Management Plan 
                                          (68.150-68.190).              
68.55  Recordkeeping Requirements......  68.200  Recordkeeping.         
68.58  Permit Content and Air            68.215  Permit Content and Air 
 Permitting Authority Requirements.       Permitting Authority or       
                                          Designated Agency             
                                          Requirements.                 
68.60  Audits..........................  68.220  Audits.                
------------------------------------------------------------------------



                       Table 4.--Derivation Table                       
------------------------------------------------------------------------
          Final rule citations               NPRM and SNPRM citations   
------------------------------------------------------------------------
68.3   Definitions.....................  68.3   Definitions.            
68.10  Applicability...................  68.10  Applicability, SNPRM    
                                          68.13.                        
68.12  General Requirements............  SNPRM 68.13, 68.14.            
68.15  Management......................  68.22  Prevention Program--    
                                          Management.                   
68.20  Applicability (Hazard             68.10  Applicability.          
 Assessment).                                                           
68.22  Offsite Consequence Analysis      68.15(e) Hazard Assessment.    
 Parameters (Hazard Assessment).                                        
68.25  Worst-Case Release Analysis       68.15(c) Hazard Assessment.    
 (Hazard Assessment).                                                   
68.28  Alternative Release Analysis      68.15(d) Hazard Assessment.    
 (Hazard Assessment).                                                   
68.30  Defining Offsite Impacts--        68.15(e)(3) Hazard Assessment. 
 Population (Hazard Assessment).                                        
68.33  Defining Offsite Impacts--        68.15(e)(4) Hazard Assessment. 
 Environment (Hazard Assessment).                                       
68.36  Review and Update (Hazard         68.15(g) Hazard Assessment.    
 Assessment).                                                           
68.39  Documentation (Hazard             68.15(h) Hazard Assessment.    
 Assessment).                                                           
68.42  Five-year Accident History        68.15(f) Hazard Assessment.    
 (Hazard Assessment).                                                   
68.48  Safety Information (Program 2)..  68.14(b) Streamlined Risk      
                                          Management Program (Tier 2);  
                                          68.26 Process Safety          
                                          Information.                  
68.50  Hazard Review (Program 2).......  68.14(b) Streamlined Risk      
                                          Management Program (Tier 2);  
                                          68.24 PHA.                    
68.52  Operating Procedures (Program 2)  68.14(b) Streamlined Risk      
                                          Management Program (Tier 2);  
                                          68.28 SOPs.                   
68.54  Training (Program 2)............  68.14(b) Streamlined Risk      
                                          Management Program (Tier 2);  
                                          68.30 Training.               
68.56  Maintenance (Program 2).........  68.14(b) Streamlined Risk      
                                          Management Program (Tier 2);  
                                          68.32 Maintenance.            
68.58  Compliance Audits (Program 2)...  68.38  Prevention Program--    
                                          Safety Audits.                
68.60  Incident Investigation (Program   68.40  Prevention Program--    
 2).                                      Incident Investigation.       
68.65  Process Safety Information        68.26  Prevention Program--    
 (Program 3).                             Process Safety.               
68.67  Process Hazard Analysis (Program  68.24  Prevention Program--    
 3).                                      Process Hazard Analysis.      
68.69  Operating Procedures (Program 3)  68.28  Prevention Program--    
                                          Standard Operating Procedures.
68.71  Training (Program 3)............  68.30  Prevention Program--    
                                          Training.                     
68.73  Mechanical Integrity (Program 3)  68.32  Prevention Program--    
                                          Maintenance (mechanical       
                                          integrity).                   
68.75  Management of Change (Program 3)  68.36  Prevention Program--    
                                          Management of Change.         
68.77  Pre-Startup Review (Program 3)..  68.34  Prevention Program--Pre-
                                          Startup Review.               
68.79  Compliance Audits (Program 3)...  68.38  Prevention Program--    
                                          Safety Audits.                
68.81  Accident Investigation (Program   68.40  Prevention Program--    
 3).                                      Accident Investigation.       
68.83  Employee Participation (Program   68.24(f) Process Hazard        
 3).                                      Analysis.                     
68.85  Hot Work Permit (Program 3).....  NPRM Preamble (58 FR 54205).   
68.87  Contractors (Program 3).........  NPRM Preamble (58 FR 54205).   
68.90  Applicability (Emergency          68.45(a) Emergency Response    
 Response).                               Program.                      
68.95  Emergency Response Program......  68.45(b)-(f) Emergency Response
                                          Program.                      
68.150  Submission (Risk Management      68.50(a) Risk Management Plan. 
 Plan).                                                                 
68.155  Executive Summary (Risk          68.50(a) Risk Management Plan. 
 Management Plan).                                                      
68.160  Registration (Risk Management    68.12  Registration.           
 Plan).                                                                 
68.165  Offsite Consequence Analysis     68.50(c) Risk Management Plan. 
 (Risk Management Plan).                                                
68.168  Five-Year Accident History       68.15(f) Hazard Assessment.    
 (Risk Management Plan).                                                
68.170  Prevention Program/Program 2     68.14(b) Streamlined Risk      
 (Risk Management Plan).                  Management Program (Tier 2);  
                                          68.50(g).                     
68.175  Prevention Program/Program 3     68.50(g) Risk Management Plan. 
 (Risk Management Plan).                                                
68.180  Emergency Response Program       68.50(e) Risk Management Plan. 
 (Risk Management Plan).                                                
68.185  Certification (Risk Management   68.50(g) Risk Management Plan. 
 Plan).                                                                 
                                         68.13(a) No Impact Sources.    
68.190  Updates (Risk Management Plan).  68.50(h) Risk Management Plan. 
68.200  Recordkeeping..................  68.55  Recordkeeping           
                                          Requirements.                 
68.210  Availability of Information to   42 U.S.C. 7412.                
 the Public.                                                            
68.215  Permit Content and Air           68.58  Permit Content and Air  
 Permitting Authority or Designated       Permitting Authority          
 Agency Requirements.                     Requirements.                 
68.220  Audits.........................  68.60  Audits.                 
Appendix A--Table of Toxic Endpoints...  68.15(h)(3)(iii) Hazard        
                                          Assessment.                   
------------------------------------------------------------------------

    Section 68.3, Definitions, has been revised to add or delete a 
number of definitions. A definition of administrative controls has been 
added that is derived from the definition used

[[Page 31708]]

by the Center for Chemical Process Safety (CCPS).
    The definition of analysis of offsite consequences has been 
deleted.
    A definition of catastrophic release has been added that is adapted 
from OSHA's definition of catastrophic release (29 CFR 1910.119); 
OSHA's language on danger to employees in the workplace has been 
changed to imminent and substantial endangerment to public health and 
the environment.
    A definition of classified information has been added. The 
definition is adopted from the Classified Information Procedures Act.
    The proposed definition of covered process is unchanged.
    The proposed definition of designated agency has been revised to 
indicate that the state, not the state air permitting authority, shall 
select an agency to conduct activities required by Sec. 68.215.
    As discussed above, a definition of environmental receptor has been 
added to list the receptors of concern.
    The definition of full-time employee has been deleted.
    A definition of hot work has been adopted verbatim from the OSHA 
PSM standard.
    The definition of implementing agency is adopted as proposed in the 
SNPRM.
    A definition of injury has been added.
    A definition of major change has been added to clarify the types of 
changes that necessitate actions to manage change. The definition will 
help sources understand when they are required to take steps to review 
their activities for new hazards.
    A definition of mechanical integrity has been added to clarify the 
requirements of maintenance sections.
    A definition of medical treatment has been added to clarify what 
constitutes an injury. The definition is adapted from an OSHA 
definition used by sources in logging occupational injuries and 
illnesses.
    The proposed definition of mitigation has been changed by adding a 
definition of active mitigation.
    A definition of offsite has been changed to clarify that areas 
within the source would be considered offsite if the public has routine 
and unrestricted access during or outside of business hours. Areas 
within a source's boundaries that may be considered offsite are public 
roads that pass through sections of the site and natural areas owned by 
the source to which the public has unrestricted access. For some sites, 
parking lots within the boundary may be offsite if the source cannot 
restrict access.
    A definition of population has been added. Population is defined as 
the public.
    A definition of public has been added to state that all persons 
except employees and contractors at the stationary source are members 
of the public. A number of commenters stated that employees at other 
facilities should not be considered part of the public. EPA disagrees 
because these employees may not be trained in protective actions or 
have protective equipment appropriate for releases from covered 
processes.
    A definition of public receptor has been added. Some commenters 
stated that EPA should include public roads within this definition. EPA 
decided that inclusion of public roads was unwarranted. EPA recognizes 
that people on public roads may be exposed during a release. In most 
cases, however, vehicles on public roads will be able to leave the area 
quickly and further access can be blocked, especially in isolated 
areas. If public roads were included, almost no sources would be 
eligible for Program 1 because there will be public roads leading to 
the source. In those cases where public roads are heavily traveled, 
there will be other public receptors near the source and, therefore, 
the source's processes will not qualify for Program 1.
    OSHA's definition of replacement in kind has been adopted.
    The definition of significant accidental release has been deleted.
    A definition of typical meteorological conditions has been added 
which means the temperature, wind speed, cloud cover, and atmospheric 
stability class prevailing at the source. Data on the first three of 
these are available from local meteorological stations (e.g., 
airports). Atmospheric stability class can be derived from cloud cover 
data.
    The definition of worst-case release has been revised to clarify 
that the release is the one that leads to the greatest distance to the 
applicable endpoint.
    Section 68.10, Applicability, has been revised to change the term 
``tier'' to ``Program.'' The section now details the eligibility 
criteria for all three programs. Paragraph (a) has been revised to be 
consistent with statutory language on compliance dates. Sources must 
comply with the requirements by June 21, 1999, three years after EPA 
first lists a substance, or the date on which a source first becomes 
subject to this part, whichever is latest. After June 21, 1999, sources 
that begin using a regulated substance that has been listed for at 
least three years must be in compliance with the requirements of part 
68 on the day they bring the substance on site above a threshold 
quantity.
    The Program 1 eligibility requirements have been revised to clarify 
that the criteria are applied to a process, not the source as a whole, 
as discussed above. EPA has deleted requirements for explosives because 
the Agency is proposing to delist explosives. The types of accidents 
that will disqualify a process from Program 1 are now specified in the 
rule as those accidental releases of a regulated substance that led to 
offsite exposure to the substance, its reaction products, overpressure 
generated by an explosion involving the substance, or radiant heat 
generated by a fire involving the substance which resulted in offsite 
death or injury (as defined by the rule), or response or restoration 
activities at an environmental receptor. These accidental release 
criteria eliminate the need for a definition of significant accidental 
release, which has been deleted. Offsite environmental response or 
restoration would include such activities as collection, treatment and 
disposal of soil, shutoff of drinking water, replacement of damaged 
vegetation, or isolation of a natural areas due to contamination 
associated with an accidental release. The distance calculation 
equation for flammables has been dropped, and the worst-case release 
endpoint for flammables is specified which allows the source to use the 
reference tables or their own methodology to determine the distance to 
the endpoint. The requirement that the community have an EPCRA 
emergency response plan has been replaced by a requirement that the 
source coordinate emergency response procedures with local community 
responders.
    As discussed above, the eligibility criteria for Program 2 and 3 
have been changed. Both apply to processes, not sources.
    Paragraph (e) states that if a process no longer meets the 
eligibility criteria of its Program level, the source must comply with 
the requirements of the new Program level and the update the RMP 
according to Sec. 68.190. This paragraph clarifies the responsibility 
of the source when a process becomes ineligible for a Program level 
(e.g., public receptors move within the distance to an endpoint for a 
Program 1 process or OSHA changes the applicability of its PSM 
standard).
    Proposed Sec. 68.12, Registration, has been dropped. Registration 
requirements are now part of the RMP requirements in subpart G, 
Sec. 68.160.
    New Sec. 68.12, General Requirements, has been added to provide a 
roadmap

[[Page 31709]]

for sources to use to identify the requirements that apply to processes 
in each of the three tiers. The Program 1 requirements, in proposed 
Sec. 68.13, have been included in this section. Owners or operators of 
Program 1 processes are required to analyze and document in the RMP the 
worst-case release to ensure that they meet the eligibility criteria of 
no public receptors within the distance to the endpoint. As discussed 
above, the requirement to post signs has been dropped. The 
certification statement has been revised to be consistent with the 
eligibility requirements. If a source has more than one Program 1 
process, a single certification may be submitted to cover all such 
processes.
    The Program 2 requirements specify the sections of the rule that 
apply to these processes.
    The Program 3 requirements specify the sections of the rule that 
apply to these processes.
    Proposed Sec. 68.22, Management, has been moved from the prevention 
program to Sec. 68.15 in subpart A-General. The section has been 
adopted as proposed except that the purpose sentence in paragraph (a) 
has been dropped and a phrase at the beginning of paragraph (b) has 
been deleted as unnecessary.
    A new subpart B has been created to cover the hazard assessment 
requirements. The proposed Sec. 68.15 has been divided into separate 
sections to cover the parameters, the different types of analyses, the 
identification of offsite populations and environments, documentation 
and updates, and the five-year accident history. EPA believes that 
limiting each section to a single topic will make the rule easier to 
understand.
    Section 68.20 has been added to specify which hazard assessment 
requirements apply to Program 1, 2, and 3 processes. All sources are 
required to complete a worst-case release analysis for regulated 
substances in covered processes, based on the requirements of 
Sec. 68.25. Program 2 and 3 processes must also perform alternative 
release analyses required by Sec. 68.28. All sources must complete the 
five-year accident history for all covered processes.
    A new Sec. 68.22 has been added to list the parameters to be used 
in the offsite consequence analyses. Owners or operators who choose to 
use their own air dispersion modeling tools must use the parameters 
specified in paragraphs (a), (e), (f), and (g) of this section; they 
must use the meteorological parameters specified in paragraph (b) of 
this section unless they can demonstrate that the conditions do not 
exist at their site. Paragraph (c) specifies the ambient temperature 
and humidity for worst case (highest daily maximum over the previous 
three years and average humidity); if a source uses the guidance, it 
may use average temperature and humidity (25 deg. C and 50 percent) as 
default values. EPA recognizes that these values are less conservative 
than the worst-case meteorological conditions, but determined that they 
represent a reasonable average to be used for developing tables. 
Providing tables for a variety of temperatures and humidity would have 
made the guidance much more voluminous and difficult to use. EPA is 
requiring sources that use dispersion models instead of the guidance to 
use actual temperature and humidity data applicable to the site. EPA 
believes this approach represents a reasonable tradeoff. The guidance 
generates conservative results even with the less conservative 
assumptions about temperature and humidity; air dispersion modeling 
will generally produce less conservative results and, therefore, should 
be based on actual data for these variables. Average data applicable to 
the source may be used for alternative scenarios. Paragraph (d) 
requires that the release height for worst-case be at ground level 
(zero feet). Paragraph (e) specifies that urban or rural topography be 
used as appropriate in modeling. Paragraph (f) requires sources to use 
models or tables appropriate for the density of the substance being 
released (e.g., dense gases must be modeled using tables or models that 
account for the behavior of dense gases). Dense gases are typically 
those that are heavier than air as well as those that form aerosols and 
behave as if they are heavier than air upon release. For worst-case 
releases, liquids (other than gases liquefied by refrigeration only) 
shall be considered to be released at the highest daily maximum 
temperature or at process temperature, whichever is higher. For 
alternative scenarios, substances may be considered to be released at 
ambient or process temperatures as appropriate. Owners or operators may 
choose to use EPA's RMP Offsite Consequence Analysis Guidance for their 
offsite consequence analyses. All of the parameters specified here are 
reflected in this guidance.
    A new Sec. 68.25 has been added on the worst-case release analysis. 
As discussed above, the section requires one worst-case release for 
toxics and one for flammables. If additional scenarios, for either 
class of substances, would potentially expose receptors not exposed by 
the worst-case release, the additional scenario shall be analyzed and 
reported. This provision is to take into account the possibility that 
at large sources, vessels at opposite ends of the source may expose 
different populations.
    The section specifies how maximum quantity in a vessel or pipe is 
to be determined, the scenarios to be considered for toxic gases, toxic 
gases liquefied by refrigeration only, toxic liquids, and flammables, 
the parameters to be used, consideration of passive mitigation, and 
factors to be considered in selecting the worst-case scenario. The 
section also specifies that sources may use proprietary models if the 
source provides the implementing agency access to the model and 
explains differences between the model and publicly available models, 
if requested. This approach will allow sources to use the most 
appropriate models available, while preserving the transparency of the 
results.
    A new Sec. 68.28 has been added on alternative release scenario 
analysis. As discussed above, the section requires one alternative 
release analysis for all flammables held above the threshold in 
processes at the source and one alternative release analysis for each 
toxic held above the threshold in processes. For each scenario, the 
owner or operator shall select a scenario that is more likely to occur 
than the worst case; and that will reach an endpoint offsite, unless no 
such scenario exists. The section includes a list of scenarios that 
owners/operators may want to consider, but does not dictate a 
particular scenario. EPA has provided additional direction and 
suggestions for defining these scenarios in the RMP Offsite Consequence 
Analysis Guidance. As noted above, the section references the 
parameters to be used and allows consideration of both passive and 
active mitigation systems. The section specifies factors to be 
considered in selecting alternative scenarios; specifically, sources 
shall consider releases that have been documented in the five-year 
accident history; or failure scenarios identified through the PHA or 
hazard review.
    A new Sec. 68.30 has been added on defining offsite impacts--
population. The section specifies that populations are to be defined 
for a circle with a radius that is the distance to the endpoint. Owners 
or operators are required only to estimate the residential population 
within the circle to two significant digits and may use Census data to 
make these estimates. Owners or operators are also required to note, in 
the RMP, the presence of any major institutions, such as schools, 
hospitals, prisons, public recreational areas, arenas, and major 
commercial and

[[Page 31710]]

industrial developments, but they are not required to estimate the 
number of people present at such sites. These additional locations are 
those that would normally be shown on area street maps.
    A new Sec. 68.33 has been added on defining offsite impacts to the 
environment. As discussed above, the owners or operators are required 
only to identify any environmental receptors within the circle with a 
radius determined by the distance to the endpoint. The owners or 
operators are not required to assess the potential types or degree of 
damage that might occur from a release of the substance. The 
environmental receptors are those that can be identified on U.S. 
Geological Survey local topographical maps or maps based on U.S.G.S. 
data.
    A new Sec. 68.36 has been added to list the requirements for 
reviewing and updating the offsite consequence analysis. As proposed, 
if no changes occur at the site, the analyses must be reviewed and 
updated at least once every five years. If changes at the site occur 
that would reasonably be expected either to increase or decrease the 
distance to the endpoint by a factor of two or more, owners/operators 
are required to update the offsite consequence analysis within six 
months. The time for the reanalysis has been changed to six months to 
make it consistent with the update requirements for the RMP. The 
proposed requirement for reviewing the analyses based on offsite 
changes has been deleted. A number of commenters objected to the 
requirement because it would have compelled them to track changes over 
very large areas. Because the distance to the endpoints, especially for 
toxics, may be as much as 40 km, the area affected could easily exceed 
1,000 square miles. EPA agreed with commenters that there was little 
benefit from requiring sources to track offsite changes and redo 
analyses because the public is aware of the changes.
    A new Sec. 68.39 has been added to list the documentation related 
to the offsite consequence analyses that must be retained on site. For 
both types of scenarios, the documentation shall include a description 
of the scenarios identified, assumptions and parameters used, the 
rationale for the selection of specific scenarios; assumptions shall 
include use of mitigation and any administrative controls that were 
assumed to limit the quantity that could be released. Documentation 
shall include the effect of the mitigation and controls on the release 
quantity. The documentation shall also include the estimated quantities 
released, release rates, and durations of release. The owners or 
operators shall also identify the methodology used to determine 
distance to endpoints (i.e., EPA's guidance or an air dispersion model) 
and the data used to estimate population and environmental receptors 
potentially affected. EPA has deleted the proposed requirement for 
documentation of endpoints because these are now dictated by the rule. 
EPA has also dropped the requirement for documentation of distance 
calculations; distances will either be determined from EPA's reference 
tables or by an air dispersion model.
    A new Sec. 68.42 has been added to detail the requirements for the 
five-year accident history. As discussed above, the accident history is 
limited to accidental releases of listed substances from covered 
processes only. The only accidental releases that must be included in 
the history are those that resulted in deaths, injuries, or significant 
property damage on site, or known offsite deaths, injuries, 
evacuations, sheltering in place, property damage, or environmental 
damage. Although language related to the types of environmental damage 
listed in the proposed rule has been dropped, EPA intends that 
environmental damage not be limited to environmental receptors; events 
where any known environmental impact of any kind (e.g., fish or animal 
kills, lawn, shrub, or crop damage), should be included in the history.
    The data required on each accident include date, time, and 
approximate duration of the release; chemical(s) released; estimated 
quantity in pounds; the type of release event and its source; weather 
conditions (if known); on-site impacts and known offsite impacts; the 
initiating event and contributing factors (if known); whether offsite 
responders were notified (if known); and operational or process changes 
that resulted from the release. Estimates may be provided to two 
significant digits. EPA expects that for accidents that occur after the 
publication of this rule, sources will be able to document weather 
conditions, initiating events and contributing factors, and 
notification of offsite responders as these items would be part of the 
incident investigation. The Agency recognizes, however, that for 
incidents that occur before the rule is final, sources may not have 
this information unless OSHA PSM already would require the source to 
gather such information (e.g., initiating event and contributing 
factors). EPA has dropped the requirement that the concentration of the 
released substance be reported. Concentration at the point of release 
is assumed to be 100 percent except for substances in solution, where 
the concentration at the point of release is assumed to be the 
percentage of the solution as held or processed. The data provided will 
allow the source or the public to estimate the concentration offsite.
    Because the five-year accident history will initially cover 
releases that occurred before this rule is promulgated, EPA is 
requiring reports on weather conditions only if the source has a 
record. For future releases, EPA encourages the owners or operators 
keep a record of wind speed and temperature if possible as these 
conditions have a significant impact on the migration of a release 
offsite. The rule specifies that the source must document known offsite 
impacts. The source is not required to conduct research on this 
subject, but must report impacts of which it is aware through direct 
reporting to the source or claims filed, or reasonably should have been 
aware of from publicly available information. The source is not 
required to verify the accuracy of public or media reports.
    A new subpart C has been created to include the requirements of the 
prevention program for Program 2 processes.
    New Sec. 68.48 details the safety information that sources will be 
required to develop. The information is a subset of the information 
required under the OSHA rule and is limited to those items that are 
likely to apply to Program 2 processes: MSDSs, maximum intended 
inventory, safe upper and lower process parameters, equipment 
specifications, and the codes and standards used to design, build, and 
operate the process. Because Program 2 processes are generally simple, 
EPA determined that items such as process chemistry, process flow 
diagrams, detailed drawings on equipment, and material and energy 
balances are not necessary for these processes. Evaluation of 
consequences of deviations will be handled under the process review and 
the offsite consequence analysis.
    Paragraph (b) of Sec. 68.48 requires owners or operators to ensure 
that the process is designed in compliance with good engineering 
practices. The paragraph states that compliance with Federal or state 
regulations that address industry-specific safe design or with 
industry-specific design codes may be used to demonstrate compliance. 
NFPA-58 for propane handlers and OSHA's rule for ammonia handling (29 
CFR 1910.111) are examples of such design codes.

[[Page 31711]]

    The final paragraph of Sec. 68.48 requires owners or operators to 
update the safety information if a major change makes it inaccurate.
    New Sec. 68.50 sets the requirements for a hazard review. The 
section lists the hazards and safeguards that the owners or operators 
must identify and review. The section states that owners or operators 
may use checklists, such as those provided in model risk management 
programs, to conduct the review. For processes that are designed to 
industry standards (e.g., NFPA-58) or Federal/state design rules, 
owners or operators need only check their equipment closely to ensure 
that it has been fabricated and installed according to the standards or 
rules and is being operated appropriately. In this case, the standard 
or rule-setting body has, in essence, conducted the hazard review and 
designed the equipment to reduce hazards. Like the PHA required under 
PSM, the hazard review must be documented and the findings resolved. 
The review must be updated at least once every five years or when a 
major change occurs. A streamlined version of the PHA requirement, the 
review recognizes that for simple processes some of the OSHA 
requirements, such as the requirement for a team and a person trained 
in the technique, may not be necessary. Most Program 2 processes will 
have model risk management programs that will assist owners or 
operators in conducting the review.
    New Sec. 68.52 covers operating procedures. The section allows 
owners or operators to use standardized procedures developed by 
industry groups or provided in model risk management programs as a 
basis for the SOPs. Owners or operators will need to review 
standardized SOPs to ensure that they are appropriate for their 
operations; some may need to be tailored. The steps covered in the SOP 
are adapted from the OSHA PSM standard. Certain elements of the PSM 
requirement (e.g., safety and health consideration) were dropped 
because they are generally covered in training provided under the OSHA 
hazard communication standard. Other elements were not included because 
they are covered by other OSHA rules or may not apply to the kinds of 
sources in Program 2. The section requires that the SOPs be updated 
whenever necessary.
    New Sec. 68.54 covers training and is a streamlined version of the 
OSHA PSM requirement. The primary difference with the OSHA PSM training 
element is that the documentation requirements have been dropped. EPA 
believes that for Program 2 sources, which generally will have simple 
processes and few employees involved in the process, the level of 
documentation required by OSHA PSM is not needed. The section 
specifically states that training conducted to comply with other 
Federal or state rules or industry codes may be used to demonstrate 
compliance with the section if the training covers the SOPs for the 
process. Workers must be retrained when SOPs change as a result of a 
major change.
    New Sec. 68.56 covers maintenance and requires owners or operators 
to prepare and implement procedures for maintenance and train workers 
in these procedures. The owners or operators are also required to 
inspect and test process equipment consistent with good engineering 
practices. The OSHA list of equipment has been dropped because it 
seemed too detailed for the simpler Program 2 processes. Similarly, the 
OSHA PSM requirements for documentation, equipment deficiencies, and 
quality assurance seem too burdensome given the type of processes in 
Program 2. EPA emphasizes that sources should address equipment 
deficiencies when they arise.
    New Secs. 68.58 and 68.60 on compliance audits and accident 
investigation are adopted directly from the OSHA PSM standard. EPA 
believes that these two elements are critical to good prevention 
practices and that no changes are needed from the OSHA requirements. 
EPA has added a provision to clearly indicate that audit reports more 
than five-years old need not be retained.
    The Program 3 prevention program is codified in new subpart D. As 
explained above, the subpart adopts the OSHA PSM standard with only 
minor editorial changes necessitated by the different statutory 
authorities of the two agencies. Throughout the subpart, ``employer'' 
has been changed to ``owner or operator,'' ``facility'' to ``stationary 
source,'' and ``highly hazardous chemical'' to ``regulated substance.'' 
EPA has reordered the elements somewhat so that the order reflects the 
progression in which sources will generally implement the program. For 
example, process safety information, which is needed for the PHA, now 
precedes that section. Pre-startup review, which is the last step of 
management of change procedures, now follows management of change. The 
reordering does not reflect any change in the content.
    Section 68.65, process safety information, is adopted directly from 
OSHA. The only changes are the following: references to other 
requirements have been changed to reflect the appropriate EPA section 
numbers; the phrase ``highly hazardous chemical'' has been changed to 
``regulated substance''; the word ``standard'' has been changed to 
``rule'' in paragraph (a); and the date when material and energy 
balances are needed for new processes has been changed to June 21, 
1999. The words ``including those affecting the safety and health of 
employees'' has been deleted from the requirement for the evaluation of 
the consequences of deviations (paragraph (c)(1)(v)) because EPA has no 
authority to regulate the workplace. Further, EPA believes this change 
reflects EPA's desire that sources implement one prevention program 
that protects the safety and health of workers, the public and the 
environment and should have no effect on sources already complying with 
the OSHA PSM rule.
    Section 68.67, process hazard analysis, has been adopted from the 
OSHA rule with a few changes. The OSHA schedule for completion of PHAs 
has been replaced with the compliance date of this rule; a new sentence 
has been added to state that PHAs conducted to comply with OSHA PSM are 
acceptable as the initial PHA under this rule. These PHAs shall be 
updated and revalidated based on their OSHA completion date. This 
provision will ensure that sources do not need to duplicate PHAs 
already completed or change their update schedule.
    In paragraph (c)(2), the phrase ``in the workplace'' has been 
deleted from the requirement to identify previous incidents with the 
potential for catastrophic consequences because EPA does not have the 
authority to regulate the work place. EPA believes that this change 
will have no effect on the rule; any incident with the potential for 
catastrophic consequences in the workplace will also have had the 
potential for catastrophic consequences offsite. Similarly, the phrase 
``on employees in the workplace'' has been deleted from paragraph 
(c)(7), which requires a qualitative evaluation of a range of the 
possible safety and health effects of failure of controls. By deleting 
the language, rather than changing it, EPA is consistent with its 
authority without imposing any new requirements on sources. A new 
sentence has been added to paragraph (f) to state that PHAs updated and 
revalidated under the OSHA rule are acceptable for EPA's purposes. 
Throughout this section, internal references have been changed.
    To maintain consistency with OSHA PSM, proposed paragraph (j), 
which would have required the evaluation of mitigation and detection 
systems, has been dropped, as have proposed

[[Page 31712]]

references to offsite consequences and public health and the 
environment. Evaluation of mitigation and detection systems is normally 
part of the PHA process and of management's decisions on implementing 
recommendations and, therefore, EPA decided that a separate requirement 
was not needed. EPA will collect information on monitoring, detection, 
and mitigation systems used in each Program 2 and 3 process as part of 
the RMP. Proposed paragraph (a), which was advisory, has been dropped.
    Section 68.69, Operating Procedures, has been adopted verbatim from 
OSHA except for changing ``employer'' to ``owner or operator.'' 
Proposed paragraph (a) has been deleted to ensure consistency with 
OSHA.
    Section 68.71, Training, has been adopted verbatim from OSHA except 
for changing ``employer'' to ``owner or operator'' and changes in 
referenced sections. Proposed paragraph (a) has been deleted to ensure 
consistency with OSHA, as has proposed paragraph (e).
    Section 68.73, Mechanical Integrity proposed as Maintenance, has 
been adopted verbatim from OSHA except for changing ``employer'' to 
``owner or operator.'' Proposed paragraph (a) has been deleted to 
ensure consistency with OSHA. The proposed requirements to develop a 
critical equipment list, document training, and ``maintain'' as well as 
inspect and test under paragraph (d) have been dropped to ensure 
consistency with OSHA.
    Section 68.75, Management of Change, has been adopted verbatim from 
OSHA except for changing ``employer'' to ``owner or operator'' and 
changes to referenced sections. Proposed paragraph (a) has been deleted 
to ensure consistency with OSHA. EPA's proposed paragraph (b), which 
defined changes not covered by the section, has also been dropped in 
favor of OSHA's definition of ``replacement in kind.''
    Section 68.77, Pre-Startup Review, has been adopted verbatim from 
OSHA except for changing ``employer'' to ``owner or operator'' and 
changes to referenced sections. Proposed paragraph (a) and the 
reference to emergency response training in proposed paragraph (c)(4) 
have been deleted to ensure consistency with OSHA.
    Section 68.79, Compliance Audits, has been adopted verbatim from 
OSHA except for changing ``employer'' to ``owner or operator'' and 
changes to referenced sections. Proposed paragraph (a) has been deleted 
to ensure consistency with OSHA.
    Section 68.81, Accident Investigation, has been adopted verbatim 
from OSHA except for changing ``employer'' to ``owner or operator'' and 
``highly hazardous chemical'' to ``regulated substance'' and changes to 
referenced sections. Proposed paragraphs (a) and (b), the latter of 
which would have required written procedures, have been deleted to 
ensure consistency with OSHA. References to significant accidental 
release have been dropped because the phrase is no longer used. 
Although EPA has adopted OSHA's language, EPA has changed the 
definition of catastrophic release. Consequently, this section requires 
owners or operators to investigate accidents that resulted in or could 
reasonably have resulted in a release that presented serious danger to 
public health or the environment. EPA does not believe that, except in 
isolated cases, the modification to this provision will require sources 
to investigate accidents that they would not investigate under the OSHA 
rule.
    Section 68.83, Employee Participation, has been adopted verbatim 
from OSHA except for changing ``employer'' to ``owner or operator.'' 
Although EPA did not propose adopting this section, the Agency 
solicited comments on this issue, and commenters convinced the Agency 
that employee participation is an important component of a complete 
prevention program.
    Section 68.85, Hot Work Permit, has been adopted verbatim from OSHA 
except for changing ``employer'' to ``owner or operator.'' Although EPA 
did not propose adopting this section, the Agency solicited comments on 
this provision and decided that it was valuable to maintain consistency 
with the OSHA PSM elements and that the hot work permit was important 
to good prevention practices.
    Section 68.87, Contractors, has been adopted verbatim from OSHA 
except for changing ``employer'' to ``owner or operator,'' changing to 
referenced sections, and deleting OSHA's paragraph 29 CFR 
1910.119(h)(2)(vi). Although EPA did not propose adopting this section, 
the Agency solicited comments on this issue. Commenters argued that 
contractor practices are an important component of a complete 
prevention program. A number of major accidents have resulted from 
contractor mistakes. EPA agrees with the commenters and has included 
the provision in the final rule. EPA has, however, deleted the 
requirement that employers maintain an occupational injury and illness 
log for contract employees because the Agency does not have the 
authority to impose this requirement.
    EPA has placed the emergency response requirements in a new Subpart 
E and divided the proposed emergency response section into two separate 
sections, an applicability section and a section to cover the emergency 
response program.
    A new Sec. 68.90, Applicability, has been added. Because many 
sources covered by this rule may be too small to handle emergency 
response themselves, EPA has provided, in this new section, the actions 
they must take if they will not respond to releases. Specifically, for 
sources with regulated toxic substances, the source must be addressed 
in the community emergency response plan developed under EPCRA section 
303. Sources with regulated flammable substances must coordinate 
response actions with the local fire department. These sources must 
also establish a mechanism to contact local emergency responders. 
Sources that do not meet these requirements must comply with EPA's 
emergency response program requirements.
    Section 68.95, Emergency Response Program, is adopted from 
Sec. 68.45 of the proposed rule. The program has four components: an 
emergency response plan, procedures for use of response equipment and 
its maintenance, training for employees, and procedures to update the 
plan after changes to the source. The required elements of the plan are 
those specified in CAA section 112(r)(7)(B)(ii): procedures for 
informing the public and local response agencies; documentation of 
emergency medical treatment; and procedures and measures for emergency 
response. As explained above, EPA decided that, to avoid inconsistency 
with other emergency response planning regulations, the rule would be 
limited to the statutory requirements. Consequently, EPA has deleted 
the following proposed requirements: documentation of evacuation routes 
(which should be covered under the emergency action plans required by 
OSHA under 29 CFR 1910.38); descriptions of all response and mitigation 
technologies available at the source; documentation of the maintenance 
and training programs; emergency response drills and exercises; 
revision of the plan based on the findings of the drills and exercises; 
and documentation of management's response to findings and a schedule 
for completion. EPA believes that these requirements are addressed in 
other Federal regulations and, therefore, sources are already doing 
them. By not including them, EPA, however, avoids the possibility that 
slightly different wording could lead to unnecessary additional effort 
on the part of sources.

[[Page 31713]]

    EPA has added a paragraph (b) to this section to state that 
compliance with other Federal contingency plan regulations or use of 
the National Response Team's Integrated Contingency Plan Guidance 
(``One Plan'') that results in a written plan that addresses the 
elements in paragraph (a) shall satisfy the requirements of the rule, 
provided that the owner or operator also complies with paragraph (c) of 
this section.
    Paragraph (c) is adopted from proposed paragraph Sec. 68.45(g) and 
requires coordination of the plan with the local community emergency 
response plan. References to the local emergency planning committee 
(LEPC) have been changed to `local emergency response officials' to 
recognize and include other local groups that may be in charge of 
coordinating emergency planning. LEPCs would be included in this 
category.
    A new Subpart G has been created to cover the Risk Management Plan. 
The Risk Management Plan includes three main sections, an executive 
summary, the registration, and data elements that provide information 
on the offsite consequence analyses, the five-year accident history, 
the prevention program, and the emergency response program. The subpart 
includes separate section to address each of these, plus sections on 
submission, certifications, and updates.
    New Sec. 68.150, Submission, has been added. As discussed above, an 
owner or operator shall submit a single RMP for the source, regardless 
of the number of covered processes or the tiers for which they are 
eligible. All RMPs will be submitted in a manner and method EPA will 
specify by the compliance date to a point designated by EPA; no other 
submission will be required because other agencies and the public will 
have access to the submissions on-line. As required by the CAA, the 
first RMP must be submitted by June 21, 1999, three years after EPA 
first lists a substance, or the date on which a source first becomes 
subject to this part, whichever is latest. As discussed above under 
applicability, after June 21, 1999, sources that begin using a 
substance that has been listed for at least three years will be 
required to submit their RMPs on the date the substance is first on 
site above the threshold quantity. Sources that begin using such a 
regulated substance prior to June 21, 1999 will need to be in 
compliance with the rule on June 21, 1999. The final paragraph states 
that, except for a classified annex that would not be publicly 
available, the RMP shall exclude classified information.
    New Sec. 68.155 details the requirements for the executive summary. 
The summary shall include brief descriptions of the following items: 
the source's prevention and emergency response approach; the stationary 
source and regulated substances; worst-case release scenario(s) and 
alternative release scenario(s), including any administrative controls 
applied to limit the release quantity; the general prevention program 
and chemical-specific prevention steps; the five-year accident history; 
the emergency response program; and planned changes to improve safety. 
EPA anticipates that none of these items should require more than a 
half page of text. Because this information may be filed 
electronically, EPA is not asking sources to submit maps of the worst-
case or alternative release scenario circles. The data submitted under 
each of these sections will allow state or local agencies and the 
public to map the circles.
    Section 68.160, Registration, replaces proposed Sec. 68.12. The 
registration shall include the following data: stationary source name, 
street, city, county, state, zip code, latitude, and longitude; the 
stationary source and corporate Dun and Bradstreet numbers; the name, 
telephone number, and mailing address of the owner/operator; the name 
and title of the person responsible for implementation of the risk 
management program; the name, title, telephone number, and 24-hour 
telephone number of the emergency contact; the stationary source EPA 
identifier; the number of full-time employees at the stationary source; 
whether the stationary source is subject to 29 CFR 1910.119; whether 
the stationary source is subject to 40 CFR part 355; and the date on 
which the stationary source last had a safety inspection by a Federal, 
state, or local government agency.
    For each covered process, the source must list the regulated 
substances present above a threshold quantity (name and CAS number), 
the maximum quantity of each substance in the process, the SIC code of 
the process, and the Program level that applies to the process. This 
process information provides a simple method for describing covered 
processes and identifying Program levels.
    The reporting of the quantity has been changed; rather than have 
sources report in ranges, the rule requires that the quantity be 
reported to two significant digits. EPA has found that the reporting 
ranges are so broad (generally an order of magnitude) that data 
analysis is extremely difficult. By limiting the reporting to two 
significant digits, EPA will allow sources to estimate quantities, but 
still provide more precise data than are currently available. EPA has 
added a requirement for reporting full-time employees. These data are 
easy for sources to provide and will enhance the Agency's ability to 
assess the impact of its rule on businesses of various sizes. The EPA 
identifier will be the unique number EPA will assign to each source and 
will allow EPA to cross reference other reporting to the Agency. Use of 
the identifier also means that EPA may not need to collect certain data 
on this form because they will be available from the identifier 
database; EPA may revise the requirements when the identifier rule is 
promulgated.
    EPA has deleted the certification statement proposed for the 
registration because the RMP as a whole will have a certification 
statement that will cover all elements, including registration. 
Corrections to the registration will be treated as corrections to the 
RMP and must be filed within six months of the change, rather than the 
60 days proposed for registration changes.
    The registration now requires the owners or operators to check off 
the agency that last conducted a safety inspection at the source and 
provide the date. The inspection does not need to have been related to 
prevention practices as defined in this rule, but may instead cover 
fire safety, workplace safety, etc.
    New Sec. 68.165 covers the requirements for reporting on the 
offsite consequence analysis. As discussed in Section III.B, the RMP 
shall include data on one worst case release scenario for each Program 
1 process; and, for Program 2 and 3 processes, one worst case release 
scenario for toxics and one for flammables (for sources with substances 
in both hazard classes). If additional worst-case release scenarios are 
required under Sec. 68.25 for either class, data on that scenario must 
also be reported. Sources with Program 2 and 3 processes will also 
provide data on one alternative release scenario to cover all 
flammables in covered processes and an alternative release scenario for 
each toxic substance held in covered processes.
    For each reported scenario, the owners or operators shall provide 
the following data: chemical name; physical state (toxics only); basis 
of results and model (if used); scenario; quantity released in pounds; 
release rate; duration; wind speed and stability (toxics only); 
topography (toxics only); distance to endpoint; public and 
environmental receptors within the distance; passive mitigation 
considered; and active mitigation (alternative releases only) 
considered. A number of the data elements are not relevant to all

[[Page 31714]]

flammable releases; for example, in the worst-case release flammables 
are assumed to be released and explode almost instantly so that release 
rate, duration, wind speed and stability, and topography are not 
factors in determining distances.
    The purpose of requiring these data elements, rather than the 
proposed summary of the assessment, is to provide the public with the 
essential estimates of distance to the endpoints and provide enough 
data on the release scenario to allow agencies or the public to confirm 
the distance estimate. With the data provided, a public agency will be 
able to use EPA's guidance to determine the distance for a particular 
chemical release and compare that distance with the one reported by the 
source. This ability will be particularly important when a source has 
chosen to use an air dispersion model rather than the reference table. 
The proposed rule approach, which required a summary of the assessment, 
would have resulted in considerable variation in the information 
submitted, as happened in the Kanawha Valley exercise. In that case, 
each source decided on the level of information to provide; although 
each provided maps, it was not possible, in many cases, to determine 
how the distances were estimated because much of the underlying data 
was not reported. EPA believes that these requirements will impose a 
minimal burden on sources, because they will already have the data from 
completing the analyses, will ensure that the same data are reported by 
all sources, and will provide enough data to evaluate the results using 
publicly available documents and models.
    New Sec. 68.168 on the five-year accident history simply references 
the data elements listed in Sec. 68.42(a). The data elements will be 
reported for each accidental release covered by the accident history 
requirement.
    New Sec. 68.170, Prevention Program/Program 2, requires owners or 
operators with Program 2 processes to list the name of chemical(s) in, 
and SIC code for, the Program 2 process; to provide the dates of the 
most recent revisions or reviews of the prevention program elements; to 
provide, based on the hazard review, information on the major hazards, 
process controls, mitigation systems, monitoring or detection systems, 
and changes since the last hazard review; to list any state or federal 
regulations of industry-specific design codes or standards being used 
to demonstrate compliance with prevention program elements; to list the 
type of training and competency testing used; to provide the date of 
the most recent change that triggered a review or revision of 
prevention elements; and to provide the date of the completion of any 
changes resulting from hazard reviews, audits, or incident 
investigations. EPA recognizes that not all recommendations resulting 
from hazard reviews, audits, or incident investigations result in 
changes; some or all may be resolved without changes. However, if any 
changes are made, the owners or operators shall report in the RMP the 
date when such changes are complete or expected to be complete.
    New Sec. 68.175, Prevention Program/Program 3, requires owners or 
operators with Program 3 processes to list the name of chemical(s) in, 
and SIC code for, the Program 3 process; to provide the dates of the 
most recent revisions or reviews of the prevention program elements; to 
provide, based on the PHA, information on the major hazards, process 
controls, mitigation systems, monitoring or detection systems, and 
changes since the last PHA; to list the type of training and competency 
testing used; to provide the date of the most recent change that 
triggered a review or revision of prevention elements; and to provide 
the date of the completion of any changes resulting from PHAs, audits, 
or incident investigations. As above, EPA recognizes that not all 
recommendations resulting from PHAs, audits, or incident investigations 
result in changes; some or all may be resolved without changes. 
However, if any changes are made, the owners or operators shall report 
in the RMP the date when such changes are complete or expected to be 
complete.
    New Sec. 68.180, Emergency Response Program, requires owners or 
operators to answer questions about the required content of the 
emergency response plan, providing the date of the most recent training 
of employees update of the plan, indicate whether the source emergency 
response plan has been coordinated with the LEPC plan, provide the name 
and telephone number of the local agency with which the plan has been 
coordinated, and list other Federal or state emergency planning 
requirements to which the source is subject.
    New Sec. 68.185, Certification, specifies the certification 
requirements that owners or operators must complete when the RMP is 
submitted.
    New Sec. 68.190 details the requirements for updating the RMP. The 
plan must be updated at least once every five years. If a new substance 
is added to an already covered process or a new covered process is 
added, the RMP must be updated on the date on which the regulated 
substance is first present above a threshold quantity. If EPA lists a 
new substance that the source has above a threshold quantity, the RMP 
must be updated within three years of the date of listing. If a change 
at the source leads to a revised offsite consequence analysis, process 
hazard analysis or review, or a process changes Program level, the RMP 
must be revised and resubmitted within six months of the change. 
Subsequent updates will be required within five years of the update.
    A new Subpart H, Other Requirements, has been added.
    New Sec. 68.200, Recordkeeping, simply states that records will be 
maintained for five years unless otherwise specified in the Program 3 
prevention program.
    New Sec. 68.210, Availability of information to the public, has 
been added and a paragraph included to provide that classified 
information is protected under applicable laws, regulations, and 
executive orders.
    New Sec. 68.215, Permit content and air permitting authority or 
designated agency requirements, has been added to define the 
requirements for including part 68 in Part 70 and 71 permits, as 
discussed above.
    Section 68.220, Audits, has been revised to change references in 
paragraph (a). A new paragraph (c) has been added to specify the 
sources that have achieved a star or merit rating under OSHA's VPP 
program will be exempt from audits if the audit program is based on 
industry accident history or on neutral random oversight and if the 
source has not had an accidental release that requires investigation 
under the rule. Paragraph (h) has been revised to clarify that the 
source must revise the RMP 30 days after completion of the actions 
detailed in the implementation plan, not 30 days after the issuance of 
the final determination.
    Appendix A has been added to provide the toxic endpoints.

V. Required Analyses

A. E.O. 12866

    Under Executive Order (E.O.) 12866 (58 FR 51735; October 4, 1993), 
EPA must determine whether a regulatory action is ``significant'' and, 
therefore, subject to OMB review and the requirements of the E.O. 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.

[[Page 31715]]

    (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 E.O.
    Under terms of E.O. 12866, EPA has determined that today's final 
rulemaking is a ``significant regulatory action.'' EPA, therefore, has 
developed an economic impact analysis for the final rule, (Economic 
Analysis in Support of Final Rule on Risk Management Program 
Regulations for Chemical Accidental Release Prevention), which is 
available in the docket.
    In developing the final rule, EPA notes that it has taken actions 
to streamline requirements whenever possible and has tailored the 
requirements through the use of Programs. This approach differed from 
the proposed rule, which imposed what are now Program 3 requirements on 
all sources and processes. EPA has also changed substantially the 
requirements for two elements of the rule, the offsite consequence 
analysis and the RMP. For the offsite consequence analysis, EPA decided 
to develop methodologies and look-up tables so sources would not need 
to spend resources obtaining air dispersion models; EPA also reduced 
the requirements to define offsite populations by allowing sources to 
use Census data and to identify only those institutions and 
developments that appear on local maps (as opposed to identifying day 
care centers and nursing homes). For the RMP, EPA has limited the 
requirements for information to that which can be reported as data 
elements. In contrast, the rule as proposed would have required sources 
to document for each process all major hazards, the consequences of 
each of these hazards, the risk reduction steps taken to address each 
hazard, and the consequences of each risk reduction step. The result 
would have been, for large, complex sources, documents of a 1,000 pages 
or more.
    To analyze the cost impacts of the various approaches, EPA 
considered three possible options in the final EIA: the final rule, an 
option that imposed final rule Program 3 requirements on all sources, 
and an option that imposed proposed rule requirements on all sources. 
The last of these options was considered to evaluate the impact of 
changing the requirements for the offsite consequence analysis and RMP.
    Based on the final list and thresholds, EPA estimates that 
approximately 66,100 sources will be affected by the rule. EPA expects 
that about 360 sources and approximately 410 processes will be eligible 
for Program 1. These sources are primarily gas processors that, because 
they are remote and unstaffed, are not covered by OSHA PSM. EPA also 
estimated that approximately 50 processes using toluene di-isocyanate 
(TDI) may qualify for Program 1 based on the relatively low volatility 
of TDI. Program 2 is expected to include 40,200 sources and 47,700 
processes; these sources include all retailers, propane users, public 
drinking water and wastewater systems and public electric utilities not 
subject to OSHA PSM, wholesalers, processes at Federal facility 
processes, and non-chemical manufacturers. Program 3 is expected to 
cover 25,500 sources and 43,800 processes. These sources include 
manufacturers, electric utilities, POTWs and drinking water sites 
covered by OSHA PSM, wholesalers, ammonia refrigeration systems, gas 
utilities, gas processors, and Federal facilities. All of these sources 
are already covered by OSHA PSM for at least one regulated substance; 
EPA estimates that about 370 non-OSHA Program 3 processes in the 
specified SIC codes will be covered.
    Sources that already have a high quality PSM program would not need 
to take any additional actions to satisfy EPA's Program 3 prevention 
program, but the analysis assumed that many sources may still be in the 
process of improving their PSM programs after achieving initial 
compliance. The public scrutiny expected to follow submission of the 
RMP is likely to encourage sources to ensure that their prevention 
efforts are fully implemented and effective. To account for these 
efforts, the analysis assumed that sources covered by OSHA would 
improve training, maintenance, and management oversight and, in some 
cases, institute additional capital improvements.
    The rule provides sources three years to come into compliance with 
the rule. The rule, however, will impose continuing costs as sources 
implement their risk management programs. Initial compliance, 
therefore, covers the cost of meeting the requirements of the rule by 
the three-year compliance date. These costs are presented as a single 
figure, but are assumed to be incurred over a three-year period. Total 
costs to industry were estimated by multiplying the estimated unit 
costs of compliance with the risk management program elements by the 
estimated number of affected sources. Because many sources already 
implement some of the risk management requirements (e.g., training), 
cost estimates were adjusted to account for the expected likelihood 
that a source is already human health (death or injury), responses to 
these threats (evacuations, sheltering in place) threats to the 
environment, and economic damages (lost production, property damages, 
and litigation). Additional benefits may be provided by making 
information available to the public in the RMP. These benefits, 
however, cannot be quantified.

B. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act of 1980, Federal 
agencies must evaluate the impacts of rules on small entities and 
consider less burdensome regulatory alternatives. As originally 
proposed in 1993, EPA believes that the rule would have created a 
severe, adverse impact on small manufacturers. In February 1995, EPA 
published a supplemenatal proposal which introduced a tiering approach 
for this regulation. By using the tiering approach and streamlining the 
Program 2 requirements, this final rule significantly reduces the 
impact on small businesses. The tiering approach also significantly 
reduces the impact on small communities.
    EPA has developed a Regulatory Flexibility Analysis for this final 
rule evaluating the effects on small entities, which is presented in 
Chapter 7 of the EIA. The number of small manufacturers was estimated 
to be 960 sources with fewer than 20 FTEs, and 2,000 sources with 
between 20 and 99 FTEs. The number of small non-manufacturers is more 
difficult to determine. Virtually all retailer and wholesalers have 
fewer than 100 FTEs. Industry estimates, however, indicate that about 
80 percent of the affected retailers may be owned by larger companies; 
the analysis assumed that 3,700 retailers were small businesses. No 
information was available to estimate the percentage of wholesalers 
that might be owned by large corporations. The analysis assumed that 
all wholesalers were small. The total number of small businesses, 
therefore, was estimated to be 8,160.
    Public drinking water and waste water systems affected by the rule 
generally serve a minimum of 10,000 people. Approximately 980 water 
systems are estimated to serve between 10,000 and 25,000 people. 
Approximately 500 water systems are estimated to serve between 25,000 
and 50,000 people. Consequently, 1,480 drinking water systems would be 
considered small governmental entities. The number of small POTWs was

[[Page 31716]]

estimated to include all systems treating less than 10 mgd and 59 
percent of those treating between 10 and 25 mgd (based on the ratio of 
drinking water systems in this category that serve populations below 
50,000). Approximately 2,600 POTWs were estimated to serve between 
10,000 and 25,000 people and 180 to serve between 25,000 and 50,000, 
for a total of 2,800 POTWs. A total of approximately 4,300 small 
governmental entities would be affected by this rule.
    The total number of small entities affected by this rule was 
estimated to be 12,500 or 19 percent of the affected universe. No 
detailed analysis of the impact on small entities was performed because 
of the relatively low cost of the rule for small entities. Initial 
costs are considerably less than one percent of sales for all small 
manufacturers. Subsequent year costs will be even lower. Costs for non-
manufacturers are very low (less than $1,000 per year for initial 
compliance). These sums do not impose a serious adverse burden on these 
sources. Only chemical manufacturers with complex processes and 20 to 
99 FTEs have initial costs that exceed $6,000 per year. The costs for 
these sources, $28,000 to $30,000 per year for the first three years, 
represent less than 0.5 percent of sales. It should be noted that all 
of the costs for small manufacturers assume that the sources will take 
additional efforts, above their actions to comply with the OSHA rule, 
to improve the quality of the risk management programs. If they do not 
take additional actions, their costs would be substantially lower.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA must 
generally prepare a written statement, including a cost-benefit 
analysis for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternatives 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why the 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that significantly or uniquely affect small governments, 
including tribal governments, it must have developed under section 203 
of UMRA, a small government agency plan. The plan must provide for 
notifying potentially affected small governments, enabling officials of 
affected small governments to have meaningful and timely input into the 
development of the regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this rule contains a Federal mandate that 
may result in expenditures of $100 million or more for state, local, 
and tribal governments, in the aggregate, or to the private sector, in 
any one year. Accordingly, EPA has prepared, under section 202 of the 
UMRA, a written statement which is summarized below.
    EPA is required to promulgate this rule under CAA section 112(r). 
In the first and third year of initial compliance, the cost of the rule 
to the regulated community will exceed $100 million; in all subsequent 
years the costs will be below $100 million. EPA has developed an 
economic impact analysis, discussed above, that evaluates several 
regulatory alternatives. EPA has adopted the least costly of these 
alternatives. EPA estimates that annualized costs for state and local 
governments will be $13 million; annualized costs for the private 
sector are estimated to be $72 million.
    Consistent with the intergovernmental consultation provisions of 
section 204 of the UMRA and Executive Order 12875 ``Enhancing the 
Intergovernmental Partnership,'' EPA has involved state, local and 
business representatives in focus groups to develop the rule. EPA 
included representatives of state government in the rulemaking 
workgroup process, available to the public under CAA section 114(c) and 
40 CFR part 2; EPA does not believe that any of the requested 
information will be considered confidential.
    The public reporting burden will depend on the regulatory program 
into which the 66,100 sources are placed. The public reporting burden 
for rule familiarization is estimated to range from 4 to 68 hours per 
source for all three program tiers. The public reporting burden to 
prepare and submit the registration and other RMP elements is estimated 
to be 0.5 hours for sources with only Program 1 processes, between 6.0 
and 11.25 hours for Program 2 sources, and between 6.25 and 30.5 hours 
for Program 3 sources. The RMP is submitted once, at the end of the 
three year compliance period. The public recordkeeping burden to 
maintain on-site documentation is estimated to range from 10 to 180 
hours for Program 2 sources and from 52 to 1,200 hours for Program 3 
sources. On-site documentation must be developed and maintained on an 
ongoing basis, which varies by rule element; based on the statute of 
limitation for this rule, documentation must generally be maintained 
for five years. The total annual public reporting burden for rule 
familiarization, to complete the RMP, and to maintain on-site 
documentation is estimated to be about 3.36 million hours over three 
years, or an annual burden of 1.119 million hours. No capital costs are 
expected to be incurred to maintain or submit this documentation.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and use 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.

E. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is a ``major rule'' as defined by section 804(2) of the APA 
as amended.

[[Page 31717]]

List of Subjects in 40 CFR Part 68

    Environmental protection, Chemicals, Hazardous substances, 
Intergovernmental relations.

    Dated: May 24, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR Part 68 is amended 
as follows:

PART 68--[AMENDED]

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

    Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.

    2. Part 68 is amended by redesignating Subpart C (Secs. 68.100--
68.130) as Subpart F.

Subpart A--[Amended]

    4. Section 68.3 is amended to add the following definitions:


Sec. 68.3  Definitions.

    Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.)
* * * * *
    Administrative controls mean written procedural mechanisms used for 
hazard control.
    AIChE/CCPS means the American Institute of Chemical Engineers/
Center for Chemical Process Safety.
* * * * *
    API means the American Petroleum Institute.
    ASME means the American Society of Mechanical Engineers.
    Catastrophic release means a major uncontrolled emission, fire, or 
explosion, involving one or more regulated substances that presents 
imminent and substantial endangerment to public health and the 
environment.
    Classified information means ``classified information'' as defined 
in the Classified Information Procedures Act, 18 U.S.C. App. 3, section 
1(a) as ``any information or material that has been determined by the 
United States Government pursuant to an executive order, statute, or 
regulation, to require protection against unauthorized disclosure for 
reasons of national security.''
    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, local, or Federal agency 
designated by the state under the provisions of Sec. 68.215(d) .
* * * * *
    Environmental receptor means natural areas such as national or 
state parks, forests, or monuments; officially designated wildlife 
sanctuaries, preserves, refuges, or areas; and Federal wilderness 
areas, that could be exposed at any time to toxic concentrations, 
radiant heat, or overpressure greater than or equal to the endpoints 
provided in Sec. 68.22(a) , as a result of an accidental release and 
that can be identified on local U. S. Geological Survey maps.
    Hot work means work involving electric or gas welding, cutting, 
brazing, or similar flame or spark-producing operations.
    Implementing agency means the state or local agency that obtains 
delegation for an accidental release prevention program under subpart 
E, 40 CFR part 63. The implementing agency may, but is not required to, 
be the state or local air permitting agency. If no state or local 
agency is granted delegation, EPA will be the implementing agency for 
that state.
    Injury means any effect on a human that results either from direct 
exposure to toxic concentrations; radiant heat; or overpressures from 
accidental releases or from the direct consequences of a vapor cloud 
explosion (such as flying glass, debris, and other projectiles) from an 
accidental release and that requires medical treatment or 
hospitalization.
    Major change means introduction of a new process, process 
equipment, or regulated substance, an alteration of process chemistry 
that results in any change to safe operating limits, or other 
alteration that introduces a new hazard.
    Mechanical integrity means the process of ensuring that process 
equipment is fabricated from the proper materials of construction and 
is properly installed, maintained, and replaced to prevent failures and 
accidental releases.
    Medical treatment means treatment, other than first aid, 
administered by a physician or registered professional personnel under 
standing orders from a physician.
    Mitigation or mitigation system means specific activities, 
technologies, or equipment designed or deployed to capture or control 
substances upon loss of containment to minimize exposure of the public 
or the environment. Passive mitigation means equipment, devices, or 
technologies that function without human, mechanical, or other energy 
input. Active mitigation means equipment, devices, or technologies that 
need human, mechanical, or other energy input to function.
    NFPA means the National Fire Protection Association.
    Offsite means areas beyond the property boundary of the stationary 
source, and areas within the property boundary to which the public has 
routine and unrestricted access during or outside business hours.
    OSHA means the U.S. Occupational Safety and Health Administration. 
Owner or operator means any person who owns, leases, operates, 
controls, or supervises a stationary source.
    Population means the public.
* * * * *
    Public means any person except employees or contractors at the 
stationary source.
    Public receptor means offsite residences, institutions (e.g., 
schools, hospitals), industrial, commercial, and office buildings, 
parks, or recreational areas inhabited or occupied by the public at any 
time without restriction by the stationary source where members of the 
public could be exposed to toxic concentrations, radiant heat, or 
overpressure, as a result of an accidental release.
* * * * *
    Replacement in kind means a replacement that satisfies the design 
specifications.
    RMP means the risk management plan required under subpart G of this 
part.
    SIC means Standard Industrial Classification.
* * * * *
    Typical meteorological conditions means the temperature, wind 
speed, cloud cover, and atmospheric stability class, prevailing at the 
site based on data gathered at or near the site or from a local 
meteorological station.
* * * * *
    Worst-case release means the release of the largest quantity of a 
regulated substance from a vessel or process line failure that results 
in the greatest distance to an endpoint defined in Sec. 68.22(a).
    5. Section 68.10 is added to subpart A to read as follows:


Sec. 68.10  Applicability.

    (a) An owner or operator of a stationary source that has more than 
a threshold quantity of a regulated substance in a process, as 
determined under Sec. 68.115, shall comply with the requirements of 
this part no later than the latest of the following dates:
    (1) June 21, 1999;
    (2) Three years after the date on which a regulated substance is 
first listed under Sec. 68.130; or
    (3) The date on which a regulated substance is first present above 
a threshold quantity in a process.
    (b) Program 1 eligibility requirements. A covered process is 
eligible for

[[Page 31718]]

Program 1 requirements as provided in Sec. 68.12(b) if it meets all of 
the following requirements:
    (1) For the five years prior to the submission of an RMP, the 
process has not had an accidental release of a regulated substance 
where exposure to the substance, its reaction products, overpressure 
generated by an explosion involving the substance, or radiant heat 
generated by a fire involving the substance led to any of the following 
offsite:
    (i) Death;
    (ii) Injury; or
    (iii) Response or restoration activities for an exposure of an 
environmental receptor;
    (2) The distance to a toxic or flammable endpoint for a worst-case 
release assessment conducted under Subpart B and Sec. 68.25 is less 
than the distance to any public receptor, as defined in Sec. 68.30; and
    (3) Emergency response procedures have been coordinated between the 
stationary source and local emergency planning and response 
organizations.
    (c) Program 2 eligibility requirements. A covered process is 
subject to Program 2 requirements if it does not meet the eligibility 
requirements of either paragraph (b) or paragraph (d) of this section.
    (d) Program 3 eligibility requirements. A covered process is 
subject to Program 3 if the process does not meet the requirements of 
paragraph (b) of this section, and if either of the following 
conditions is met:
    (1) The process is in SIC code 2611, 2812, 2819, 2821, 2865, 2869, 
2873, 2879, or 2911; or
    (2) The process is subject to the OSHA process safety management 
standard, 29 CFR 1910.119.
    (e) If at any time a covered process no longer meets the 
eligibility criteria of its Program level, the owner or operator shall 
comply with the requirements of the new Program level that applies to 
the process and update the RMP as provided in Sec. 68.190.
    6. Section 68.12 is added to subpart A to read as follows:


Sec. 68.12  General requirements.

    (a) General requirements. The owner or operator of a stationary 
source subject to this part shall submit a single RMP, as provided in 
Secs. 68.150 to 68.185. The RMP shall include a registration that 
reflects all covered processes.
    (b) Program 1 requirements. In addition to meeting the requirements 
of paragraph (a) of this section, the owner or operator of a stationary 
source with a process eligible for Program 1, as provided in 
Sec. 68.10(b), shall:
    (1) Analyze the worst-case release scenario for the process(es), as 
provided in Sec. 68.25; document that the nearest public receptor is 
beyond the distance to a toxic or flammable endpoint defined in 
Sec. 68.22(a); and submit in the RMP the worst-case release scenario as 
provided in Sec. 68.165;
    (2) Complete the five-year accident history for the process as 
provided in Sec. 68.42 of this part and submit it in the RMP as 
provided in Sec. 68.168;
    (3) Ensure that response actions have been coordinated with local 
emergency planning and response agencies; and
    (4) Certify in the RMP the following: ``Based on the criteria in 40 
CFR 68.10, the distance to the specified endpoint for the worst-case 
accidental release scenario for the following process(es) is less than 
the distance to the nearest public receptor: [list process(es)]. Within 
the past five years, the process(es) has (have) had no accidental 
release that caused offsite impacts provided in the risk management 
program rule (40 CFR 68.10(b)(1)). No additional measures are necessary 
to prevent offsite impacts from accidental releases. In the event of 
fire, explosion, or a release of a regulated substance from the 
process(es), entry within the distance to the specified endpoints may 
pose a danger to public emergency responders. Therefore, public 
emergency responders should not enter this area except as arranged with 
the emergency contact indicated in the RMP. 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, title, date signed].''
    (c) Program 2 requirements. In addition to meeting the requirements 
of paragraph (a) of this section, the owner or operator of a stationary 
source with a process subject to Program 2, as provided in 
Sec. 68.10(c), shall:
    (1) Develop and implement a management system as provided in 
Sec. 68.15;
    (2) Conduct a hazard assessment as provided in Secs. 68.20 through 
68.42;
    (3) Implement the Program 2 prevention steps provided in 
Secs. 68.48 through 68.60 or implement the Program 3 prevention steps 
provided in Secs. 68.65 through 68.87;
    (4) Develop and implement an emergency response program as provided 
in Secs. 68.90 to 68.95; and
    (5) Submit as part of the RMP the data on prevention program 
elements for Program 2 processes as provided in Sec. 68.170.
    (d) Program 3 requirements. In addition to meeting the requirements 
of paragraph (a) of this section, the owner or operator of a stationary 
source with a process subject to Program 3, as provided in 
Sec. 68.10(d) shall:
    (1) Develop and implement a management system as provided in 
Sec. 68.15;
    (2) Conduct a hazard assessment as provided in Secs. 68.20 through 
68.42;
    (3) Implement the prevention requirements of Secs. 68.65 through 
68.87;
    (4) Develop and implement an emergency response program as provided 
in Secs. 68.90 to 68.95 of this part; and
    (5) Submit as part of the RMP the data on prevention program 
elements for Program 3 processes as provided in Sec. 68.175.
    7. Section 68.15 is added to subpart A to read as follows:


Sec. 68.15  Management.

    (a) The owner or operator of a stationary source with processes 
subject to Program 2 or Program 3 shall develop a management system to 
oversee the implementation of the risk management program elements.
    (b) The owner or operator shall assign a qualified person or 
position that has the overall responsibility for the development, 
implementation, and integration of the risk management program 
elements.
    (c) When responsibility for implementing individual requirements of 
this part is assigned to persons other than the person identified under 
paragraph (b) of this section, the names or positions of these people 
shall be documented and the lines of authority defined through an 
organization chart or similar document.
    8. Subpart B--is added to read as follows:

Subpart B--Hazard Assessment

Sec.
68.20  Applicability.
68.22  Offsite consequence analysis parameters.
68.25  Worst-case release scenario analysis.
68.28  Alternative release scenario analysis.
68.30  Defining offsite impacts  population.
68.33  Defining offsite impacts  environment.
68.36  Review and update.
68.39  Documentation.
68.42  Five-year accident history.

Subpart B--Hazard Assessment


Sec. 68.20  Applicability.

    The owner or operator of a stationary source subject to this part 
shall prepare a worst-case release scenario analysis as provided in 
Sec. 68.25 of this part and complete the five-year accident history as 
provided in Sec. 68.42. The owner or

[[Page 31719]]

operator of a Program 2 and 3 process must comply with all sections in 
this subpart for these processes.


Sec. 68.22  Offsite consequence analysis parameters.

    (a) Endpoints. For analyses of offsite consequences, the following 
endpoints shall be used:
    (1) Toxics. The toxic endpoints provided in Appendix A of this 
part.
    (2) Flammables. The endpoints for flammables vary according to the 
scenarios studied:
    (i) Explosion. An overpressure of 1 psi.
    (ii) Radiant heat/exposure time. A radiant heat of 5 kw/m<SUP>2 for 
40 seconds.
    (iii) Lower flammability limit. A lower flammability limit as 
provided in NFPA documents or other generally recognized sources.
    (b) Wind speed/atmospheric stability class. For the worst-case 
release analysis, the owner or operator shall use a wind speed of 1.5 
meters per second and F atmospheric stability class. If the owner or 
operator can demonstrate that local meteorological data applicable to 
the stationary source show a higher minimum wind speed or less stable 
atmosphere at all times during the previous three years, these minimums 
may be used. For analysis of alternative scenarios, the owner or 
operator may use the typical meteorological conditions for the 
stationary source.
    (c) Ambient temperature/humidity. For worst-case release analysis 
of a regulated toxic substance, the owner or operator shall use the 
highest daily maximum temperature in the previous three years and 
average humidity for the site, based on temperature/humidity data 
gathered at the stationary source or at a local meteorological station; 
an owner or operator using the RMP Offsite Consequence Analysis 
Guidance may use 25 deg.C and 50 percent humidity as values for these 
variables. For analysis of alternative scenarios, the owner or operator 
may use typical temperature/humidity data gathered at the stationary 
source or at a local meteorological station.
    (d) Height of release. The worst-case release of a regulated toxic 
substance shall be analyzed assuming a ground level (0 feet) release. 
For an alternative scenario analysis of a regulated toxic substance, 
release height may be determined by the release scenario.
    (e) Surface roughness. The owner or operator shall use either urban 
or rural topography, as appropriate. Urban means that there are many 
obstacles in the immediate area; obstacles include buildings or trees. 
Rural means there are no buildings in the immediate area and the 
terrain is generally flat and unobstructed.
    (f) Dense or neutrally buoyant gases. The owner or operator shall 
ensure that tables or models used for dispersion analysis of regulated 
toxic substances appropriately account for gas density.
    (g) Temperature of released substance. For worst case, liquids 
other than gases liquified by refrigeration only shall be considered to 
be released at the highest daily maximum temperature, based on data for 
the previous three years appropriate for the stationary source, or at 
process temperature, whichever is higher. For alternative scenarios, 
substances may be considered to be released at a process or ambient 
temperature that is appropriate for the scenario.


Sec. 68.25  Worst-case release scenario analysis.

    (a) The owner or operator shall analyze and report in the RMP:
    (1) For Program 1 processes, one worst-case release scenario for 
each Program 1 process;
    (2) For Program 2 and 3 processes:
    (i) One worst-case release scenario that is estimated to create the 
greatest distance in any direction to an endpoint provided in Appendix 
A of this part resulting from an accidental release of regulated toxic 
substances from covered processes under worst-case conditions defined 
in Sec. 68.22;
    (ii) One worst-case release scenario that is estimated to create 
the greatest distance in any direction to an endpoint defined in 
Sec. 68.22(a) resulting from an accidental release of regulated 
flammable substances from covered processes under worst-case conditions 
defined in Sec. 68.22; and
    (iii) Additional worst-case release scenarios for a hazard class if 
a worst-case release from another covered process at the stationary 
source potentially affects public receptors different from those 
potentially affected by the worst-case release scenario developed under 
paragraphs (a)(2)(i) or (a)(2)(ii) of this section.
    (b) Determination of worst-case release quantity. The worst-case 
release quantity shall be the greater of the following:
    (1) For substances in a vessel, the greatest amount held in a 
single vessel, taking into account administrative controls that limit 
the maximum quantity; or
    (2) For substances in pipes, the greatest amount in a pipe, taking 
into account administrative controls that limit the maximum quantity.
    (c) Worst-case release scenario--toxic gases.
    (1) For regulated toxic substances that are normally gases at 
ambient temperature and handled as a gas or as a liquid under pressure, 
the owner or operator shall assume that the quantity in the vessel or 
pipe, as determined under paragraph (b) of this section, is released as 
a gas over 10 minutes. The release rate shall be assumed to be the 
total quantity divided by 10 unless passive mitigation systems are in 
place.
    (2) For gases handled as refrigerated liquids at ambient pressure:
    (i) If the released substance is not contained by passive 
mitigation systems or if the contained pool would have a depth of 1 cm 
or less, the owner or operator shall assume that the substance is 
released as a gas in 10 minutes;
    (ii) If the released substance is contained by passive mitigation 
systems in a pool with a depth greater than 1 cm, the owner or operator 
may assume that the quantity in the vessel or pipe, as determined under 
paragraph (b) of this section, is spilled instantaneously to form a 
liquid pool. The volatilization rate (release rate) shall be calculated 
at the boiling point of the substance and at the conditions specified 
in paragraph (d) of this section.
    (d) Worst-case release scenario--toxic liquids.
    (1) For regulated toxic substances that are normally liquids at 
ambient temperature, the owner or operator shall assume that the 
quantity in the vessel or pipe, as determined under paragraph (b) of 
this section, is spilled instantaneously to form a liquid pool.
    (i) The surface area of the pool shall be determined by assuming 
that the liquid spreads to 1 centimeter deep unless passive mitigation 
systems are in place that serve to contain the spill and limit the 
surface area. Where passive mitigation is in place, the surface area of 
the contained liquid shall be used to calculate the volatilization 
rate.
    (ii) If the release would occur onto a surface that is not paved or 
smooth, the owner or operator may take into account the actual surface 
characteristics.
    (2) The volatilization rate shall account for the highest daily 
maximum temperature occurring in the past three years, the temperature 
of the substance in the vessel, and the concentration of the substance 
if the liquid spilled is a mixture or solution.
    (3) The rate of release to air shall be determined from the 
volatilization rate of the liquid pool. The owner or operator may use 
the methodology in the RMP Offsite Consequence Analysis Guidance or any 
other publicly available techniques that account for the modeling 
conditions and are recognized by industry as applicable as part of

[[Page 31720]]

current practices. Proprietary models that account for the modeling 
conditions may be used provided the owner or operator allows the 
implementing agency access to the model and describes model features 
and differences from publicly available models to local emergency 
planners upon request.
    (e) Worst-case release scenario--flammables. The owner or operator 
shall assume that the quantity of the substance, as determined under 
paragraph (b) of this section, vaporizes resulting in a vapor cloud 
explosion. A yield factor of 10 percent of the available energy 
released in the explosion shall be used to determine the distance to 
the explosion endpoint if the model used is based on TNT-equivalent 
methods.
    (f) Parameters to be applied. The owner or operator shall use the 
parameters defined in Sec. 68.22 to determine distance to the 
endpoints. The owner or operator may use the methodology provided in 
the RMP Offsite Consequence Analysis Guidance or any commercially or 
publicly available air dispersion modeling techniques, provided the 
techniques account for the modeling conditions and are recognized by 
industry as applicable as part of current practices. Proprietary models 
that account for the modeling conditions may be used provided the owner 
or operator allows the implementing agency access to the model and 
describes model features and differences from publicly available models 
to local emergency planners upon request.
    (g) Consideration of passive mitigation. Passive mitigation systems 
may be considered for the analysis of worst case provided that the 
mitigation system is capable of withstanding the release event 
triggering the scenario and would still function as intended.
    (h) Factors in selecting a worst-case scenario. Notwithstanding the 
provisions of paragraph (b) of this section, the owner or operator 
shall select as the worst case for flammable regulated substances or 
the worst case for regulated toxic substances, a scenario based on the 
following factors if such a scenario would result in a greater distance 
to an endpoint defined in Sec. 68.22(a) beyond the stationary source 
boundary than the scenario provided under paragraph (b) of this 
section:
    (1) Smaller quantities handled at higher process temperature or 
pressure; and
    (2) Proximity to the boundary of the stationary source.


Sec. 68.28  Alternative release scenario analysis.

    (a) The number of scenarios. The owner or operator shall identify 
and analyze at least one alternative release scenario for each 
regulated toxic substance held in a covered process(es) and at least 
one alternative release scenario to represent all flammable substances 
held in covered processes.
    (b) Scenarios to consider. (1) For each scenario required under 
paragraph (a) of this section, the owner or operator shall select a 
scenario:
    (i) That is more likely to occur than the worst-case release 
scenario under Sec. 68.25; and
    (ii) That will reach an endpoint offsite, unless no such scenario 
exists.
    (2) Release scenarios considered should include, but are not 
limited to, the following, where applicable:
    (i) Transfer hose releases due to splits or sudden hose uncoupling;
    (ii) Process piping releases from failures at flanges, joints, 
welds, valves and valve seals, and drains or bleeds;
    (iii) Process vessel or pump releases due to cracks, seal failure, 
or drain, bleed, or plug failure;
    (iv) Vessel overfilling and spill, or overpressurization and 
venting through relief valves or rupture disks; and
    (v) Shipping container mishandling and breakage or puncturing 
leading to a spill.
    (c) Parameters to be applied. The owner or operator shall use the 
appropriate parameters defined in Sec. 68.22 to determine distance to 
the endpoints. The owner or operator may use either the methodology 
provided in the RMP Offsite Consequence Analysis Guidance or any 
commercially or publicly available air dispersion modeling techniques, 
provided the techniques account for the specified modeling conditions 
and are recognized by industry as applicable as part of current 
practices. Proprietary models that account for the modeling conditions 
may be used provided the owner or operator allows the implementing 
agency access to the model and describes model features and differences 
from publicly available models to local emergency planners upon 
request.
    (d) Consideration of mitigation. Active and passive mitigation 
systems may be considered provided they are capable of withstanding the 
event that triggered the release and would still be functional.
    (e) Factors in selecting scenarios. The owner or operator shall 
consider the following in selecting alternative release scenarios:
    (1) The five-year accident history provided in Sec. 68.42; and
    (2) Failure scenarios identified under Secs. 68.50 or 68.67.


Sec. 68.30  Defining offsite impacts--population.

    (a) The owner or operator shall estimate in the RMP the population 
within a circle with its center at the point of the release and a 
radius determined by the distance to the endpoint defined in 
Sec. 68.22(a).
    (b) Population to be defined. Population shall include residential 
population. The presence of institutions (schools, hospitals, prisons), 
parks and recreational areas, and major commercial, office, and 
industrial buildings shall be noted in the RMP.
    (c) Data sources acceptable. The owner or operator may use the most 
recent Census data, or other updated information, to estimate the 
population potentially affected.
    (d) Level of accuracy. Population shall be estimated to two 
significant digits.


Sec. 68.33  Defining offsite impacts--environment.

    (a) The owner or operator shall list in the RMP environmental 
receptors within a circle with its center at the point of the release 
and a radius determined by the distance to the endpoint defined in 
Sec. 68.22(a) of this part.
    (b) Data sources acceptable. The owner or operator may rely on 
information provided on local U.S. Geological Survey maps or on any 
data source containing U.S.G.S. data to identify environmental 
receptors.


68.36  Review and update.

    (a) The owner or operator shall review and update the offsite 
consequence analyses at least once every five years.
    (b) If changes in processes, quantities stored or handled, or any 
other aspect of the stationary source might reasonably be expected to 
increase or decrease the distance to the endpoint by a factor of two or 
more, the owner or operator shall complete a revised analysis within 
six months of the change and submit a revised risk management plan as 
provided in Sec. 68.190.


Sec. 68.39  Documentation

    The owner or operator shall maintain the following records on the 
offsite consequence analyses:
    (a) For worst-case scenarios, a description of the vessel or 
pipeline and substance selected as worst case, assumptions and 
parameters used, and the rationale for selection; assumptions shall 
include use of any administrative

[[Page 31721]]

controls and any passive mitigation that were assumed to limit the 
quantity that could be released. Documentation shall include the 
anticipated effect of the controls and mitigation on the release 
quantity and rate.
    (b) For alternative release scenarios, a description of the 
scenarios identified, assumptions and parameters used, and the 
rationale for the selection of specific scenarios; assumptions shall 
include use of any administrative controls and any mitigation that were 
assumed to limit the quantity that could be released. Documentation 
shall include the effect of the controls and mitigation on the release 
quantity and rate.
    (c) Documentation of estimated quantity released, release rate, and 
duration of release.
    (d) Methodology used to determine distance to endpoints.
    (e) Data used to estimate population and environmental receptors 
potentially affected.


Sec. 68.42   Five-year accident history.

    (a) The owner or operator shall include in the five-year accident 
history all accidental releases from covered processes that resulted in 
deaths, injuries, or significant property damage on site, or known 
offsite deaths, injuries, evacuations, sheltering in place, property 
damage, or environmental damage.
    (b) Data required. For each accidental release included, the owner 
or operator shall report the following information:
    (1) Date, time, and approximate duration of the release;
    (2) Chemical(s) released;
    (3) Estimated quantity released in pounds;
    (4) The type of release event and its source;
    (5) Weather conditions, if known;
    (6) On-site impacts;
    (7) Known offsite impacts;
    (8) Initiating event and contributing factors if known;
    (9) Whether offsite responders were notified if known; and
    (10) Operational or process changes that resulted from 
investigation of the release.
    (c) Level of accuracy. Numerical estimates may be provided to two 
significant digits.
    9. Subpart C is added to read as follows:

Subpart C--Program 2 Prevention Program

Secs.
68.48 Safety information.
68.50 Hazard review.
68.52 Operating procedures.
68.54 Training.
68.56 Maintenance.
68.58 Compliance audits.
68.60 Incident investigation.

Subpart C--Program 2 Prevention Program


Sec. 68.48  Safety information.

    (a) The owner or operator shall compile and maintain the following 
up-to-date safety information related to the regulated substances, 
processes, and equipment:
    (1) Material Safety Data Sheets that meet the requirements of 29 
CFR 1910.1200(g);
    (2) Maximum intended inventory of equipment in which the regulated 
substances are stored or processed;
    (3) Safe upper and lower temperatures, pressures, flows, and 
compositions;
    (4) Equipment specifications; and
    (5) Codes and standards used to design, build, and operate the 
process.
    (b) The owner or operator shall ensure that the process is designed 
in compliance with recognized and generally accepted good engineering 
practices. Compliance with Federal or state regulations that address 
industry-specific safe design or with industry-specific design codes 
and standards may be used to demonstrate compliance with this 
paragraph.
    (c) The owner or operator shall update the safety information if a 
major change occurs that makes the information inaccurate.


Sec. 68.50  Hazard review.

    (a) The owner or operator shall conduct a review of the hazards 
associated with the regulated substances, process, and procedures. The 
review shall identify the following:
    (1) The hazards associated with the process and regulated 
substances;
    (2) Opportunities for equipment malfunctions or human errors that 
could cause an accidental release;
    (3) The safeguards used or needed to control the hazards or prevent 
equipment malfunction or human error; and
    (4) Any steps used or needed to detect or monitor releases.
    (b) The owner or operator may use checklists developed by persons 
or organizations knowledgeable about the process and equipment as a 
guide to conducting the review. For processes designed to meet industry 
standards or Federal or state design rules, the hazard review shall, by 
inspecting all equipment, determine whether the process is designed, 
fabricated, and operated in accordance with the applicable standards or 
rules.
    (c) The owner or operator shall document the results of the review 
and ensure that problems identified are resolved in a timely manner.
    (d) The review shall be updated at least once every five years. The 
owner or operator shall also conduct reviews whenever a major change in 
the process occurs; all issues identified in the review shall be 
resolved before startup of the changed process.


Sec. 68.52  Operating procedures.

    (a) The owner or operator shall prepare written operating 
procedures that provide clear instructions or steps for safely 
conducting activities associated with each covered process consistent 
with the safety information for that process. Operating procedures or 
instructions provided by equipment manufacturers or developed by 
persons or organizations knowledgeable about the process and equipment 
may be used as a basis for a stationary source's operating procedures.
    (b) The procedures shall address the following:
    (1) Initial startup;
    (2) Normal operations;
    (3) Temporary operations;
    (4) Emergency shutdown and operations;
    (5) Normal shutdown;
    (6) Startup following a normal or emergency shutdown or a major 
change that requires a hazard review;
    (7) Consequences of deviations and steps required to correct or 
avoid deviations; and
    (8) Equipment inspections.
    (c) The owner or operator shall ensure that the operating 
procedures are updated, if necessary, whenever a major change occurs 
and prior to startup of the changed process.


Sec. 68.54  Training.

    (a) The owner or operator shall ensure that each employee presently 
operating a process, and each employee newly assigned to a covered 
process have been trained or tested competent in the operating 
procedures provided in Sec. 68.52 that pertain to their duties. For 
those employees already operating a process on June 21, 1999, the owner 
or operator may certify in writing that the employee has the required 
knowledge, skills, and abilities to safely carry out the duties and 
responsibilities as provided in the operating procedures.
    (b) Refresher training. Refresher training shall be provided at 
least every three years, and more often if necessary, to each employee 
operating a process to ensure that the employee understands and adheres 
to the current operating procedures of the process. The owner or 
operator, in consultation with the employees operating the process, 
shall determine the appropriate frequency of refresher training.

[[Page 31722]]

    (c) The owner or operator may use training conducted under Federal 
or state regulations or under industry-specific standards or codes or 
training conducted by covered process equipment vendors to demonstrate 
compliance with this section to the extent that the training meets the 
requirements of this section.
    (d) The owner or operator shall ensure that operators are trained 
in any updated or new procedures prior to startup of a process after a 
major change.


Sec. 68.56  Maintenance.

    (a) The owner or operator shall prepare and implement procedures to 
maintain the on-going mechanical integrity of the process equipment. 
The owner or operator may use procedures or instructions provided by 
covered process equipment vendors or procedures in Federal or state 
regulations or industry codes as the basis for stationary source 
maintenance procedures.
    (b) The owner or operator shall train or cause to be trained each 
employee involved in maintaining the on-going mechanical integrity of 
the process. To ensure that the employee can perform the job tasks in a 
safe manner, each such employee shall be trained in the hazards of the 
process, in how to avoid or correct unsafe conditions, and in the 
procedures applicable to the employee's job tasks.
    (c) Any maintenance contractor shall ensure that each contract 
maintenance employee is trained to perform the maintenance procedures 
developed under paragraph (a) of this section.
    (d) The owner or operator shall perform or cause to be performed 
inspections and tests on process equipment. Inspection and testing 
procedures shall follow recognized and generally accepted good 
engineering practices. The frequency of inspections and tests of 
process equipment shall be consistent with applicable manufacturers' 
recommendations, industry standards or codes, good engineering 
practices, and prior operating experience.


Sec. 68.58  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated 
compliance with the provisions of this subpart at least every three 
years to verify that the procedures and practices developed under the 
rule are adequate and are being followed.
    (b) The compliance audit shall be conducted by at least one person 
knowledgeable in the process.
    (c) The owner or operator shall develop a report of the audit 
findings.
    (d) The owner or operator shall promptly determine and document an 
appropriate response to each of the findings of the compliance audit 
and document that deficiencies have been corrected.
    (e) The owner or operator shall retain the two (2) most recent 
compliance audit reports. This requirement does not apply to any 
compliance audit report that is more than five years old.


Sec. 68.60  Incident investigation.

    (a) The owner or operator shall investigate each incident which 
resulted in, or could reasonably have resulted in a catastrophic 
release.
    (b) An incident investigation shall be initiated as promptly as 
possible, but not later than 48 hours following the incident.
    (c) A summary shall be prepared at the conclusion of the 
investigation which includes at a minimum:
    (1) Date of incident;
    (2) Date investigation began;
    (3) A description of the incident;
    (4) The factors that contributed to the incident; and,
    (5) Any recommendations resulting from the investigation.
    (d) The owner or operator shall promptly address and resolve the 
investigation findings and recommendations. Resolutions and corrective 
actions shall be documented.
    (e) The findings shall be reviewed with all affected personnel 
whose job tasks are affected by the findings.
    (f) Investigation summaries shall be retained for five years.
    10. Subpart D is added to read as follows:

Subpart D--Program 3 Prevention Program

Sec.
68.65  Process safety information.
68.67  Process hazard analysis.
68.69  Operating procedures.
68.71  Training.
68.73  Mechanical integrity.
68.75  Management of change.
68.77  Pre-startup review.
68.79  Compliance audits.
68.81  Incident investigation.
68.83  Employee participation.
68.85  Hot work permit.
68.87  Contractors.

Subpart D--Program 3 Prevention Program


Sec. 68.65  Process safety information.

    (a) In accordance with the schedule set forth in Sec. 68.67, the 
owner or operator shall complete a compilation of written process 
safety information before conducting any process hazard analysis 
required by the rule. The compilation of written process safety 
information is to enable the owner or operator and the employees 
involved in operating the process to identify and understand the 
hazards posed by those processes involving regulated substances. This 
process safety information shall include information pertaining to the 
hazards of the regulated substances used or produced by the process, 
information pertaining to the technology of the process, and 
information pertaining to the equipment in the process.
    (b) Information pertaining to the hazards of the regulated 
substances in the process. This information shall consist of at least 
the following:
    (1) Toxicity information;
    (2) Permissible exposure limits;
    (3) Physical data;
    (4) Reactivity data:
    (5) Corrosivity data;
    (6) Thermal and chemical stability data; and
    (7) Hazardous effects of inadvertent mixing of different materials 
that could foreseeably occur.

    Note to paragraph (b): Material Safety Data Sheets meeting the 
requirements of 29 CFR 1910.1200(g) may be used to comply with this 
requirement to the extent they contain the information required by 
this subparagraph.

    (c) Information pertaining to the technology of the process.
    (1) Information concerning the technology of the process shall 
include at least the following:
    (i) A block flow diagram or simplified process flow diagram;
    (ii) Process chemistry;
    (iii) Maximum intended inventory;
    (iv) Safe upper and lower limits for such items as temperatures, 
pressures, flows or compositions; and,
    (v) An evaluation of the consequences of deviations.
    (2) Where the original technical information no longer exists, such 
information may be developed in conjunction with the process hazard 
analysis in sufficient detail to support the analysis.
    (d) Information pertaining to the equipment in the process.
    (1) Information pertaining to the equipment in the process shall 
include:
    (i) Materials of construction;
    (ii) Piping and instrument diagrams (P&ID's);
    (iii) Electrical classification;
    (iv) Relief system design and design basis;
    (v) Ventilation system design;
    (vi) Design codes and standards employed;
    (vii) Material and energy balances for processes built after June 
21, 1999; and
    (viii) Safety systems (e.g. interlocks, detection or suppression 
systems).

[[Page 31723]]

    (2) The owner or operator shall document that equipment complies 
with recognized and generally accepted good engineering practices.
    (3) For existing equipment designed and constructed in accordance 
with codes, standards, or practices that are no longer in general use, 
the owner or operator shall determine and document that the equipment 
is designed, maintained, inspected, tested, and operating in a safe 
manner.


Sec. 68.67  Process hazard analysis.

    (a) The owner or operator shall perform an initial process hazard 
analysis (hazard evaluation) on processes covered by this part. The 
process hazard analysis shall be appropriate to the complexity of the 
process and shall identify, evaluate, and control the hazards involved 
in the process. The owner or operator shall determine and document the 
priority order for conducting process hazard analyses based on a 
rationale which includes such considerations as extent of the process 
hazards, number of potentially affected employees, age of the process, 
and operating history of the process. The process hazard analysis shall 
be conducted as soon as possible, but not later than June 21, 1999. 
Process hazards analyses completed to comply with 29 CFR 1910.119(e) 
are acceptable as initial process hazards analyses. These process 
hazard analyses shall be updated and revalidated, based on their 
completion date.
    (b) The owner or operator shall use one or more of the following 
methodologies that are appropriate to determine and evaluate the 
hazards of the process being analyzed.
    (1) What-If;
    (2) Checklist;
    (3) What-If/Checklist;
    (4) Hazard and Operability Study (HAZOP);
    (5) Failure Mode and Effects Analysis (FMEA);
    (6) Fault Tree Analysis; or
    (7) An appropriate equivalent methodology.
    (c) The process hazard analysis shall address:
    (1) The hazards of the process;
    (2) The identification of any previous incident which had a likely 
potential for catastrophic consequences.
    (3) Engineering and administrative controls applicable to the 
hazards and their interrelationships such as appropriate application of 
detection methodologies to provide early warning of releases. 
(Acceptable detection methods might include process monitoring and 
control instrumentation with alarms, and detection hardware such as 
hydrocarbon sensors.);
    (4) Consequences of failure of engineering and administrative 
controls;
    (5) Stationary source siting;
    (6) Human factors; and
    (7) A qualitative evaluation of a range of the possible safety and 
health effects of failure of controls.
    (d) The process hazard analysis shall be performed by a team with 
expertise in engineering and process operations, and the team shall 
include at least one employee who has experience and knowledge specific 
to the process being evaluated. Also, one member of the team must be 
knowledgeable in the specific process hazard analysis methodology being 
used.
    (e) The owner or operator shall establish a system to promptly 
address the team's findings and recommendations; assure that the 
recommendations are resolved in a timely manner and that the resolution 
is documented; document what actions are to be taken; complete actions 
as soon as possible; develop a written schedule of when these actions 
are to be completed; communicate the actions to operating, maintenance 
and other employees whose work assignments are in the process and who 
may be affected by the recommendations or actions.
    (f) At least every five (5) years after the completion of the 
initial process hazard analysis, the process hazard analysis shall be 
updated and revalidated by a team meeting the requirements in paragraph 
(d) of this section, to assure that the process hazard analysis is 
consistent with the current process. Updated and revalidated process 
hazard analyses completed to comply with 29 CFR 1910.119(e) are 
acceptable to meet the requirements of this paragraph.
    (g) The owner or operator shall retain process hazards analyses and 
updates or revalidations for each process covered by this section, as 
well as the documented resolution of recommendations described in 
paragraph (e) of this section for the life of the process.


Sec. 68.69  Operating procedures.

    (a) The owner or operator shall develop and implement written 
operating procedures that provide clear instructions for safely 
conducting activities involved in each covered process consistent with 
the process safety information and shall address at least the following 
elements.
    (1) Steps for each operating phase:
    (i) Initial startup;
    (ii) Normal operations;
    (iii) Temporary operations;
    (iv) Emergency shutdown including the conditions under which 
emergency shutdown is required, and the assignment of shutdown 
responsibility to qualified operators to ensure that emergency shutdown 
is executed in a safe and timely manner.
    (v) Emergency operations;
    (vi) Normal shutdown; and,
    (vii) Startup following a turnaround, or after an emergency 
shutdown.
    (2) Operating limits:
    (i) Consequences of deviation; and
    (ii) Steps required to correct or avoid deviation.
    (3) Safety and health considerations:
    (i) Properties of, and hazards presented by, the chemicals used in 
the process;
    (ii) Precautions necessary to prevent exposure, including 
engineering controls, administrative controls, and personal protective 
equipment;
    (iii) Control measures to be taken if physical contact or airborne 
exposure occurs;
    (iv) Quality control for raw materials and control of hazardous 
chemical inventory levels; and,
    (v) Any special or unique hazards.
    (4) Safety systems and their functions.
    (b) Operating procedures shall be readily accessible to employees 
who work in or maintain a process.
    (c) The operating procedures shall be reviewed as often as 
necessary to assure that they reflect current operating practice, 
including changes that result from changes in process chemicals, 
technology, and equipment, and changes to stationary sources. The owner 
or operator shall certify annually that these operating procedures are 
current and accurate.
    (d) The owner or operator shall develop and implement safe work 
practices to provide for the control of hazards during operations such 
as lockout/tagout; confined space entry; opening process equipment or 
piping; and control over entrance into a stationary source by 
maintenance, contractor, laboratory, or other support personnel. These 
safe work practices shall apply to employees and contractor employees.


Sec. 68.71  Training.

    (a) Initial training. (1) Each employee presently involved in 
operating a process, and each employee before being involved in 
operating a newly assigned process, shall be trained in an overview of 
the process and in the operating procedures as specified in Sec. 68.69. 
The training shall include emphasis on the specific safety and health 
hazards, emergency operations including shutdown, and safe work 
practices applicable to the employee's job tasks.

[[Page 31724]]

    (2) In lieu of initial training for those employees already 
involved in operating a process on June 21, 1999 an owner or operator 
may certify in writing that the employee has the required knowledge, 
skills, and abilities to safely carry out the duties and 
responsibilities as specified in the operating procedures.
    (b) Refresher training. Refresher training shall be provided at 
least every three years, and more often if necessary, to each employee 
involved in operating a process to assure that the employee understands 
and adheres to the current operating procedures of the process. The 
owner or operator, in consultation with the employees involved in 
operating the process, shall determine the appropriate frequency of 
refresher training.
    (c) Training documentation. The owner or operator shall ascertain 
that each employee involved in operating a process has received and 
understood the training required by this paragraph. The owner or 
operator shall prepare a record which contains the identity of the 
employee, the date of training, and the means used to verify that the 
employee understood the training.


Sec. 68.73  Mechanical integrity.

    (a) Application. Paragraphs (b) through (f) of this section apply 
to the following process equipment:
    (1) Pressure vessels and storage tanks;
    (2) Piping systems (including piping components such as valves);
    (3) Relief and vent systems and devices;
    (4) Emergency shutdown systems;
    (5) Controls (including monitoring devices and sensors, alarms, and 
interlocks) and,
    (6) Pumps.
    (b) Written procedures. The owner or operator shall establish and 
implement written procedures to maintain the on-going integrity of 
process equipment.
    (c) Training for process maintenance activities. The owner or 
operator shall train each employee involved in maintaining the on-going 
integrity of process equipment in an overview of that process and its 
hazards and in the procedures applicable to the employee's job tasks to 
assure that the employee can perform the job tasks in a safe manner.
    (d) Inspection and testing. (1) Inspections and tests shall be 
performed on process equipment.
    (2) Inspection and testing procedures shall follow recognized and 
generally accepted good engineering practices.
    (3) The frequency of inspections and tests of process equipment 
shall be consistent with applicable manufacturers' recommendations and 
good engineering practices, and more frequently if determined to be 
necessary by prior operating experience.
    (4) The owner or operator shall document each inspection and test 
that has been performed on process equipment. The documentation shall 
identify the date of the inspection or test, the name of the person who 
performed the inspection or test, the serial number or other identifier 
of the equipment on which the inspection or test was performed, a 
description of the inspection or test performed, and the results of the 
inspection or test.
    (e) Equipment deficiencies. The owner or operator shall correct 
deficiencies in equipment that are outside acceptable limits (defined 
by the process safety information in Sec. 68.65) before further use or 
in a safe and timely manner when necessary means are taken to assure 
safe operation.
    (f) Quality assurance. (1) In the construction of new plants and 
equipment, the owner or operator shall assure that equipment as it is 
fabricated is suitable for the process application for which they will 
be used.
    (2) Appropriate checks and inspections shall be performed to assure 
that equipment is installed properly and consistent with design 
specifications and the manufacturer's instructions.
    (3) The owner or operator shall assure that maintenance materials, 
spare parts and equipment are suitable for the process application for 
which they will be used.


Sec. 68.75  Management of change.

    (a) The owner or operator shall establish and implement written 
procedures to manage changes (except for ``replacements in kind'') to 
process chemicals, technology, equipment, and procedures; and, changes 
to stationary sources that affect a covered process.
    (b) The procedures shall assure that the following considerations 
are addressed prior to any change:
    (1) The technical basis for the proposed change;
    (2) Impact of change on safety and health;
    (3) Modifications to operating procedures;
    (4) Necessary time period for the change; and,
    (5) Authorization requirements for the proposed change.
    (c) Employees involved in operating a process and maintenance and 
contract employees whose job tasks will be affected by a change in the 
process shall be informed of, and trained in, the change prior to 
start-up of the process or affected part of the process.
    (d) If a change covered by this paragraph results in a change in 
the process safety information required by Sec. 68.65 of this part, 
such information shall be updated accordingly.
    (e) If a change covered by this paragraph results in a change in 
the operating procedures or practices required by Sec. 68.69, such 
procedures or practices shall be updated accordingly.


Sec. 68.77  Pre-startup review.

    (a) The owner or operator shall perform a pre-startup safety review 
for new stationary sources and for modified stationary sources when the 
modification is significant enough to require a change in the process 
safety information.
    (b) The pre-startup safety review shall confirm that prior to the 
introduction of regulated substances to a process:
    (1) Construction and equipment is in accordance with design 
specifications;
    (2) Safety, operating, maintenance, and emergency procedures are in 
place and are adequate;
    (3) For new stationary sources, a process hazard analysis has been 
performed and recommendations have been resolved or implemented before 
startup; and modified stationary sources meet the requirements 
contained in management of change, Sec. 68.75.
    (4) Training of each employee involved in operating a process has 
been completed.


Sec. 68.79  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated 
compliance with the provisions of this section at least every three 
years to verify that the procedures and practices developed under the 
standard are adequate and are being followed.
    (b) The compliance audit shall be conducted by at least one person 
knowledgeable in the process.
    (c) A report of the findings of the audit shall be developed.
    (d) The owner or operator shall promptly determine and document an 
appropriate response to each of the findings of the compliance audit, 
and document that deficiencies have been corrected.
    (e) The owner or operator shall retain the two (2) most recent 
compliance audit reports.


Sec. 68.81  Incident investigation.

    (a) The owner or operator shall investigate each incident which 
resulted in, or could reasonably have resulted in a catastrophic 
release of a regulated substance.
    (b) An incident investigation shall be initiated as promptly as 
possible, but not later than 48 hours following the incident.
    (c) An incident investigation team shall be established and consist 
of at least one person knowledgeable in the

[[Page 31725]]

process involved, including a contract employee if the incident 
involved work of the contractor, and other persons with appropriate 
knowledge and experience to thoroughly investigate and analyze the 
incident.
    (d) A report shall be prepared at the conclusion of the 
investigation which includes at a minimum:
    (1) Date of incident;
    (2) Date investigation began;
    (3) A description of the incident;
    (4) The factors that contributed to the incident; and,
    (5) Any recommendations resulting from the investigation.
    (e) The owner or operator shall establish a system to promptly 
address and resolve the incident report findings and recommendations. 
Resolutions and corrective actions shall be documented.
    (f) The report shall be reviewed with all affected personnel whose 
job tasks are relevant to the incident findings including contract 
employees where applicable.
    (g) Incident investigation reports shall be retained for five 
years.


Sec. 68.83  Employee participation.

    (a) The owner or operator shall develop a written plan of action 
regarding the implementation of the employee participation required by 
this section.
    (b) The owner or operator shall consult with employees and their 
representatives on the conduct and development of process hazards 
analyses and on the development of the other elements of process safety 
management in this rule.
    (c) The owner or operator shall provide to employees and their 
representatives access to process hazard analyses and to all other 
information required to be developed under this rule.


Sec. 68.85  Hot work permit.

    (a) The owner or operator shall issue a hot work permit for hot 
work operations conducted on or near a covered process.
    (b) The permit shall document that the fire prevention and 
protection requirements in 29 CFR 1910.252(a) have been implemented 
prior to beginning the hot work operations; it shall indicate the 
date(s) authorized for hot work; and identify the object on which hot 
work is to be performed. The permit shall be kept on file until 
completion of the hot work operations.


Sec. 68.87  Contractors.

    (a) Application. This section applies to contractors performing 
maintenance or repair, turnaround, major renovation, or specialty work 
on or adjacent to a covered process. It does not apply to contractors 
providing incidental services which do not influence process safety, 
such as janitorial work, food and drink services, laundry, delivery or 
other supply services.
    (b) Owner or operator responsibilities. (1) The owner or operator, 
when selecting a contractor, shall obtain and evaluate information 
regarding the contract owner or operator's safety performance and 
programs.
    (2) The owner or operator shall inform contract owner or operator 
of the known potential fire, explosion, or toxic release hazards 
related to the contractor's work and the process.
    (3) The owner or operator shall explain to the contract owner or 
operator the applicable provisions of subpart E of this part.
    (4) The owner or operator shall develop and implement safe work 
practices consistent with Sec. 68.69(d), to control the entrance, 
presence, and exit of the contract owner or operator and contract 
employees in covered process areas.
    (5) The owner or operator shall periodically evaluate the 
performance of the contract owner or operator in fulfilling their 
obligations as specified in paragraph (c) of this section.
    (c) Contract owner or operator responsibilities. (1) The contract 
owner or operator shall assure that each contract employee is trained 
in the work practices necessary to safely perform his/her job.
    (2) The contract owner or operator shall assure that each contract 
employee is instructed in the known potential fire, explosion, or toxic 
release hazards related to his/her job and the process, and the 
applicable provisions of the emergency action plan.
    (3) The contract owner or operator shall document that each 
contract employee has received and understood the training required by 
this section. The contract owner or operator shall prepare a record 
which contains the identity of the contract employee, the date of 
training, and the means used to verify that the employee understood the 
training.
    (4) The contract owner or operator shall assure that each contract 
employee follows the safety rules of the stationary source including 
the safe work practices required by Sec. 68.69(d).
    (5) The contract owner or operator shall advise the owner or 
operator of any unique hazards presented by the contract owner or 
operator's work, or of any hazards found by the contract owner or 
operator's work.
    11. Subpart E is added to read as follows:

Subpart E--Emergency Response

Sec.
68.90  Applicability.
68.95  Emergency Response Program.

Subpart E--Emergency Response


Sec. 68.90  Applicability.

    (a) Except as provided in paragraph (b) of this section, the owner 
or operator of a stationary source with Program 2 and Program 3 
processes shall comply with the requirements of Sec. 68.95.
    (b) The owner or operator of stationary source whose employees will 
not respond to accidental releases of regulated substances need not 
comply with Sec. 68.95 of this part provided that they meet the 
following:
    (1) For stationary sources with any regulated toxic substance held 
in a process above the threshold quantity, the stationary source is 
included in the community emergency response plan developed under 42 
U.S.C. 11003;
    (2) For stationary sources with only regulated flammable substances 
held in a process above the threshold quantity, the owner or operator 
has coordinated response actions with the local fire department; and
    (3) Appropriate mechanisms are in place to notify emergency 
responders when there is a need for a response.


Sec. 68.95  Emergency response program.

    (a) The owner or operator shall develop and implement an emergency 
response program for the purpose of protecting public health and the 
environment. Such program shall include the following elements:
    (1) An emergency response plan, which shall be maintained at the 
stationary source and contain at least the following elements:
    (i) Procedures for informing the public and local emergency 
response agencies about accidental releases;
    (ii) Documentation of proper first-aid and emergency medical 
treatment necessary to treat accidental human exposures; and
    (iii) Procedures and measures for emergency response after an 
accidental release of a regulated substance;
    (2) Procedures for the use of emergency response equipment and for 
its inspection, testing, and maintenance;
    (3) Training for all employees in relevant procedures; and
    (4) Procedures to review and update, as appropriate, the emergency 
response plan to reflect changes at the stationary source and ensure 
that employees are informed of changes.
    (b) A written plan that complies with other Federal contingency 
plan

[[Page 31726]]

regulations or is consistent with the approach in the National Response 
Team's Integrated Contingency Plan Guidance (``One Plan'') and that, 
among other matters, includes the elements provided in paragraph (a) of 
this section, shall satisfy the requirements of this section if the 
owner or operator also complies with paragraph (c) of this section.
    (c) The emergency response plan developed under paragraph (a)(1) of 
this section shall be coordinated with the community emergency response 
plan developed under 42 U.S.C. 11003. Upon request of the local 
emergency planning committee or emergency response officials, the owner 
or operator shall promptly provide to the local emergency response 
officials information necessary for developing and implementing the 
community emergency response plan.
    12. Subpart G is added to read as follows:

Subpart G--Risk Management Plan

Sec.
68.150  Submission.
68.155  Executive summary.
68.160  Registration.
68.165  Offsite consequence analysis.
68.168  Five-year accident history.
68.170  Prevention program/Program 2.
68.175  Prevention program/Program 3.
68.180  Emergency response program.
68.185  Certification.
68.190  Updates.

Subpart G--Risk Management Plan


Sec. 68.150  Submission.

    (a) The owner or operator shall submit a single RMP that includes 
the information required by Secs. 68.155 through 68.185 for all covered 
processes. The RMP shall be submitted in a method and format to a 
central point as specified by EPA prior to June 21, 1999.
    (b) The owner or operator shall submit the first RMP no later than 
the latest of the following dates:
    (1) June 21, 1999;
    (2) Three years after the date on which a regulated substance is 
first listed under Sec. 68.130; or
    (3) The date on which a regulated substance is first present above 
a threshold quantity in a process.
    (c) Subsequent submissions of RMPs shall be in accordance with 
Sec. 68.190.
    (d) Notwithstanding the provisions of Secs. 68.155 to 68.190, the 
RMP shall exclude classified information. Subject to appropriate 
procedures to protect such information from public disclosure, 
classified data or information excluded from the RMP may be made 
available in a classified annex to the RMP for review by Federal and 
state representatives who have received the appropriate security 
clearances.


Sec. 68.155  Executive summary.

    The owner or operator shall provide in the RMP an executive summary 
that includes a brief description of the following elements:
    (a) The accidental release prevention and emergency response 
policies at the stationary source;
    (b) The stationary source and regulated substances handled;
    (c) The worst-case release scenario(s) and the alternative release 
scenario(s), including administrative controls and mitigation measures 
to limit the distances for each reported scenario;
    (d) The general accidental release prevention program and chemical-
specific prevention steps;
    (e) The five-year accident history;
    (f) The emergency response program; and
    (g) Planned changes to improve safety.


Sec. 68.160  Registration.

    (a) The owner or operator shall complete a single registration form 
and include it in the RMP. The form shall cover all regulated 
substances handled in covered processes.
    (b) The registration shall include the following data:
    (1) Stationary source name, street, city, county, state, zip code, 
latitude, and longitude;
    (2) The stationary source Dun and Bradstreet number;
    (3) Name and Dun and Bradstreet number of the corporate parent 
company;
    (4) The name, telephone number, and mailing address of the owner or 
operator;
    (5) The name and title of the person or position with overall 
responsibility for RMP elements and implementation;
    (6) The name, title, telephone number, and 24-hour telephone number 
of the emergency contact;
    (7) For each covered process, the name and CAS number of each 
regulated substance held above the threshold quantity in the process, 
the maximum quantity of each regulated substance or mixture in the 
process (in pounds) to two significant digits, the SIC code, and the 
Program level of the process;
    (8) The stationary source EPA identifier;
    (9) The number of full-time employees at the stationary source;
    (10) Whether the stationary source is subject to 29 CFR 1910.119;
    (11) Whether the stationary source is subject to 40 CFR part 355;
    (12) Whether the stationary source has a CAA Title V operating 
permit; and
    (13) The date of the last safety inspection of the stationary 
source by a Federal, state, or local government agency and the identity 
of the inspecting entity.


Sec. 68.165  Offsite consequence analysis.

    (a) The owner or operator shall submit in the RMP information:
    (1) One worst-case release scenario for each Program 1 process; and
    (2) For Program 2 and 3 processes, one worst-case release scenario 
to represent all regulated toxic substances held above the threshold 
quantity and one worst-case release scenario to represent all regulated 
flammable substances held above the threshold quantity. If additional 
worst-case scenarios for toxics or flammables are required by 
Sec. 68.25(a)(2)(iii), the owner or operator shall submit the same 
information on the additional scenario(s). The owner or operator of 
Program 2 and 3 processes shall also submit information on one 
alternative release scenario for each regulated toxic substance held 
above the threshold quantity and one alternative release scenario to 
represent all regulated flammable substances held above the threshold 
quantity.
    (b) The owner or operator shall submit the following data:
    (1) Chemical name;
    (2) Physical state (toxics only);
    (3) Basis of results (give model name if used);
    (4) Scenario (explosion, fire, toxic gas release, or liquid spill 
and vaporization);
    (5) Quantity released in pounds;
    (6) Release rate;
    (7) Release duration;
    (8) Wind speed and atmospheric stability class (toxics only);
    (9) Topography (toxics only);
    (10) Distance to endpoint;
    (11) Public and environmental receptors within the distance;
    (12) Passive mitigation considered; and
    (13) Active mitigation considered (alternative releases only);


Sec. 68.168  Five-year accident history.

    The owner or operator shall submit in the RMP the information 
provided in Sec. 68.42(b) on each accident covered by Sec. 68.42(a).


Sec. 68.170  Prevention program/Program 2.

    (a) For each Program 2 process, the owner or operator shall provide 
in the RMP the information indicated in paragraphs (b) through (k) of 
this section. If the same information applies

[[Page 31727]]

to more than one covered process, the owner or operator may provide the 
information only once, but shall indicate to which processes the 
information applies.
    (b) The SIC code for the process.
    (c) The name(s) of the chemical(s) covered.
    (d) The date of the most recent review or revision of the safety 
information and a list of Federal or state regulations or industry-
specific design codes and standards used to demonstrate compliance with 
the safety information requirement.
    (e) The date of completion of the most recent hazard review or 
update.
    (1) The expected date of completion of any changes resulting from 
the hazard review;
    (2) Major hazards identified;
    (3) Process controls in use;
    (4) Mitigation systems in use;
    (5) Monitoring and detection systems in use; and
    (6) Changes since the last hazard review.
    (f) The date of the most recent review or revision of operating 
procedures.
    (g) The date of the most recent review or revision of training 
programs;
    (1) The type of training provided--classroom, classroom plus on the 
job, on the job; and
    (2) The type of competency testing used.
    (h) The date of the most recent review or revision of maintenance 
procedures and the date of the most recent equipment inspection or test 
and the equipment inspected or tested.
    (i) The date of the most recent compliance audit and the expected 
date of completion of any changes resulting from the compliance audit.
    (j) The date of the most recent incident investigation and the 
expected date of completion of any changes resulting from the 
investigation.
    (k) The date of the most recent change that triggered a review or 
revision of safety information, the hazard review, operating or 
maintenance procedures, or training.


Sec. 68.175  Prevention program/Program 3.

    (a) For each Program 3 process, the owner or operator shall provide 
the information indicated in paragraphs (b) through (p) of this 
section. If the same information applies to more than one covered 
process, the owner or operator may provide the information only once, 
but shall indicate to which processes the information applies.
    (b) The SIC code for the process.
    (c) The name(s) of the substance(s) covered.
    (d) The date on which the safety information was last reviewed or 
revised.
    (e) The date of completion of the most recent PHA or update and the 
technique used.
    (1) The expected date of completion of any changes resulting from 
the PHA;
    (2) Major hazards identified;
    (3) Process controls in use;
    (4) Mitigation systems in use;
    (5) Monitoring and detection systems in use; and
    (6) Changes since the last PHA.
    (f) The date of the most recent review or revision of operating 
procedures.
    (g) The date of the most recent review or revision of training 
programs;
    (1) The type of training provided--classroom, classroom plus on the 
job, on the job; and
    (2) The type of competency testing used.
    (h) The date of the most recent review or revision of maintenance 
procedures and the date of the most recent equipment inspection or test 
and the equipment inspected or tested.
    (i) The date of the most recent change that triggered management of 
change procedures and the date of the most recent review or revision of 
management of change procedures.
    (j) The date of the most recent pre-startup review.
    (k) The date of the most recent compliance audit and the expected 
date of completion of any changes resulting from the compliance audit;
    (l) The date of the most recent incident investigation and the 
expected date of completion of any changes resulting from the 
investigation;
    (m) The date of the most recent review or revision of employee 
participation plans;
    (n) The date of the most recent review or revision of hot work 
permit procedures;
    (o) The date of the most recent review or revision of contractor 
safety procedures; and
    (p) The date of the most recent evaluation of contractor safety 
performance.


Sec. 68.180  Emergency response program.

    (a) The owner or operator shall provide in the RMP the following 
information:
    (1) Do you have a written emergency response plan?
    (2) Does the plan include specific actions to be taken in response 
to an accidental releases of a regulated substance?
    (3) Does the plan include procedures for informing the public and 
local agencies responsible for responding to accidental releases?
    (4) Does the plan include information on emergency health care?
    (5) The date of the most recent review or update of the emergency 
response plan;
    (6) The date of the most recent emergency response training for 
employees.
    (b) The owner or operator shall provide the name and telephone 
number of the local agency with which the plan is coordinated.
    (c) The owner or operator shall list other Federal or state 
emergency plan requirements to which the stationary source is subject.


Sec. 68.185  Certification.

    (a) For Program 1 processes, the owner or operator shall submit in 
the RMP the certification statement provided in Sec. 68.12(b)(4).
    (b) For all other covered processes, the owner or operator shall 
submit in the RMP a single certification that, to the best of the 
signer's knowledge, information, and belief formed after reasonable 
inquiry, the information submitted is true, accurate, and complete.


Sec. 68.190  Updates.

    (a) The owner or operator shall review and update the RMP as 
specified in paragraph (b) of this section and submit it in a method 
and format to a central point specified by EPA prior to June 21, 1999.
    (b) The owner or operator of a stationary source shall revise and 
update the RMP submitted under Sec. 68.150 as follows:
    (1) Within five years of its initial submission or most recent 
update required by paragraphs (b)(2) through (b)(7) of this section, 
whichever is later.
    (2) No later than three years after a newly regulated substance is 
first listed by EPA;
    (3) No later than the date on which a new regulated substance is 
first present in an already covered process above a threshold quantity;
    (4) No later than the date on which a regulated substance is first 
present above a threshold quantity in a new process;
    (5) Within six months of a change that requires a revised PHA or 
hazard review;
    (6) Within six months of a change that requires a revised offsite 
consequence analysis as provided in Sec. 68.36; and
    (7) Within six months of a change that alters the Program level 
that applied to any covered process.
    (c) If a stationary source is no longer subject to this part, the 
owner or operator shall submit a revised

[[Page 31728]]

registration to EPA within six months indicating that the stationary 
source is no longer covered.
    13. Subpart H is added to read as follows:

Subpart H--Other Requirements

Sec.
Sec. 68.200  Recordkeeping.
Sec. 68.210  Availability of information to the public.
68.215  Permit content and air permitting authority or designated 
agency requirements.
68.220  Audits.

Subpart H--Other Requirements


Sec. 68.200  Recordkeeping.

    The owner or operator shall maintain records supporting the 
implementation of this part for five years unless otherwise provided in 
Subpart D of this part.


Sec. 68.210  Availability of information to the public.

    (a) The RMP required under subpart G of this part shall be 
available to the public under 42 U.S.C. 7414(c).
    (b) The disclosure of classified information by the Department of 
Defense or other Federal agencies or contractors of such agencies shall 
be controlled by applicable laws, regulations, or executive orders 
concerning the release of classified information.


Sec. 68.215  Permit content and air permitting authority or designated 
agency requirements.

    (a) These requirements apply to any stationary source subject to 
this part 68 and parts 70 or 71 of this Chapter. The 40 CFR part 70 or 
part 71 permit for the stationary source shall contain:
    (1) A statement listing this part as an applicable requirement;
    (2) Conditions that require the source owner or operator to submit:
    (i) A compliance schedule for meeting the requirements of this part 
by the date provided in Sec. 68.10(a) or;
    (ii) As part of the compliance certification submitted under 40 CFR 
70.6(c)(5), a certification statement that the source is in compliance 
with all requirements of this part, including the registration and 
submission of the RMP.
    (b) The owner or operator shall submit any additional relevant 
information requested by the air permitting authority or designated 
agency.
    (c) For 40 CFR part 70 or part 71 permits issued prior to the 
deadline for registering and submitting the RMP and which do not 
contain permit conditions described in paragraph (a) of this section, 
the owner or operator or air permitting authority shall initiate permit 
revision or reopening according to the procedures of 40 CFR 70.7 or 
71.7 to incorporate the terms and conditions consistent with paragraph 
(a) of this section.
    (d) The state may delegate the authority to implement and enforce 
the requirements of paragraph (e) of this section to a state or local 
agency or agencies other than the air permitting authority. An up-to-
date copy of any delegation instrument shall be maintained by the air 
permitting authority. The state may enter a written agreement with the 
Administrator under which EPA will implement and enforce the 
requirements of paragraph (e) of this section.
    (e) The air permitting authority or the agency designated by 
delegation or agreement under paragraph (d) of this section shall, at a 
minimum:
    (1) Verify that the source owner or operator has registered and 
submitted an RMP or a revised plan when required by this part;
    (2) Verify that the source owner or operator has submitted a source 
certification or in its absence has submitted a compliance schedule 
consistent with paragraph (a)(2) of this section;
    (3) For some or all of the sources subject to this section, use one 
or more mechanisms such as, but not limited to, a completeness check, 
source audits, record reviews, or facility inspections to ensure that 
permitted sources are in compliance with the requirements of this part; 
and
    (4) Initiate enforcement action based on paragraphs (e)(1) and 
(e)(2) of this section as appropriate.


Sec. 68.220  Audits.

    (a) In addition to inspections for the purpose of regulatory 
development and enforcement of the Act, the implementing agency shall 
periodically audit RMPs submitted under subpart G of this part to 
review the adequacy of such RMPs and require revisions of RMPs when 
necessary to ensure compliance with subpart G of this part.
    (b) The implementing agency shall select stationary sources for 
audits based on any of the following criteria:
    (1) Accident history of the stationary source;
    (2) Accident history of other stationary sources in the same 
industry;
    (3) Quantity of regulated substances present at the stationary 
source;
    (4) Location of the stationary source and its proximity to the 
public and environmental receptors;
    (5) The presence of specific regulated substances;
    (6) The hazards identified in the RMP; and
    (7) A plan providing for neutral, random oversight.
    (c) Exemption from audits. A stationary source with a Star or Merit 
ranking under OSHA's voluntary protection program shall be exempt from 
audits under paragraph (b)(2) and (b)(7) of this section.
    (d) The implementing agency shall have access to the stationary 
source, supporting documentation, and any area where an accidental 
release could occur.
    (e) Based on the audit, the implementing agency may issue the owner 
or operator of a stationary source a written preliminary determination 
of necessary revisions to the stationary source's RMP to ensure that 
the RMP meets the criteria of subpart G of this part. The preliminary 
determination shall include an explanation for the basis for the 
revisions, reflecting industry standards and guidelines (such as AIChE/
CCPS guidelines and ASME and API standards) to the extent that such 
standards and guidelines are applicable, and shall include a timetable 
for their implementation.
    (f) Written response to a preliminary determination.
    (1) The owner or operator shall respond in writing to a preliminary 
determination made in accordance with paragraph (e) of this section. 
The response shall state the owner or operator will implement the 
revisions contained in the preliminary determination in accordance with 
the timetable included in the preliminary determination or shall state 
that the owner or operator rejects the revisions in whole or in part. 
For each rejected revision, the owner or operator shall explain the 
basis for rejecting such revision. Such explanation may include 
substitute revisions.
    (2) The written response under paragraph (f)(1) of this section 
shall be received by the implementing agency within 90 days of the 
issue of the preliminary determination or a shorter period of time as 
the implementing agency specifies in the preliminary determination as 
necessary to protect public health and the environment. Prior to the 
written response being due and upon written request from the owner or 
operator, the implementing agency may provide in writing additional 
time for the response to be received.
    (g) After providing the owner or operator an opportunity to respond 
under paragraph (f) of this section, the implementing agency may issue 
the owner or operator a written final determination of necessary 
revisions to

[[Page 31729]]

the stationary source's RMP. The final determination may adopt or 
modify the revisions contained in the preliminary determination under 
paragraph (e) of this section or may adopt or modify the substitute 
revisions provided in the response under paragraph (f) of this section. 
A final determination that adopts a revision rejected by the owner or 
operator shall include an explanation of the basis for the revision. A 
final determination that fails to adopt a substitute revision provided 
under paragraph (f) of this section shall include an explanation of the 
basis for finding such substitute revision unreasonable.
    (h) Thirty days after completion of the actions detailed in the 
implementation schedule set in the final determination under paragraph 
(g) of this section, the owner or operator shall be in violation of 
subpart G of this part and this section unless the owner or operator 
revises the RMP prepared under subpart G of this part as required by 
the final determination, and submits the revised RMP as required under 
Sec. 68.150.
    (i) The public shall have access to the preliminary determinations, 
responses, and final determinations under this section in a manner 
consistent with Sec. 68.210.
    (j) Nothing in this section shall preclude, limit, or interfere in 
any way with the authority of EPA or the state to exercise its 
enforcement, investigatory, and information gathering authorities 
concerning this part under the Act.
    14. Part 68 Appendix A is added to read as follows:

                                 Appendix A to Part 68--Table of Toxic Endpoints                                
                                    [As defined in Sec.  68.22 of this part]                                    
----------------------------------------------------------------------------------------------------------------
                                                                                                        Toxic   
                   CAS No.                                        Chemical name                     endpoint (mg/
                                                                                                         L)     
----------------------------------------------------------------------------------------------------------------
107-02-8.....................................  Acrolein [2-Propenal]..............................       0.0011 
107-13-1.....................................  Acrylonitrile [2-Propenenitrile]...................       0.076  
814-68-6.....................................  Acrylyl chloride [2-Propenoyl chloride]............       0.00090
107-18-6.....................................  Allyl alcohol [2-Propen-1-ol]......................       0.036  
107-11-9.....................................  Allylamine [2-Propen-1-amine]......................       0.0032 
7664-41-7....................................  Ammonia (anhydrous)................................       0.14   
7664-41-7....................................  Ammonia (conc 20% or greater)......................       0.14   
7784-34-1....................................  Arsenous trichloride...............................       0.010  
7784-42-1....................................  Arsine.............................................       0.0019 
10294-34-5...................................  Boron trichloride [Borane, trichloro-].............       0.010  
7637-07-2....................................  Boron trifluoride [Borane, trifluoro-].............       0.028  
353-42-4.....................................  Boron trifluoride compound with methyl ether (1:1)        0.023  
                                                [Boron, trifluoro[oxybis[methane]]-, T-4.                       
7726-95-6....................................  Bromine............................................       0.0065 
75-15-0......................................  Carbon disulfide...................................       0.16   
7782-50-5....................................  Chlorine...........................................       0.0087 
10049-04-4...................................  Chlorine dioxide [Chlorine oxide (ClO2)]...........       0.0028 
67-66-3......................................  Chloroform [Methane, trichloro-]...................       0.49   
542-88-1.....................................  Chloromethyl ether [Methane, oxybis[chloro-].......       0.00025
107-30-2.....................................  Chloromethyl methyl ether [Methane, chloromethoxy-]       0.0018 
4170-30-3....................................  Crotonaldehyde [2-Butenal].........................       0.029  
123-73-9.....................................  Crotonaldehyde, (E)-, [2-Butenal, (E)-]............       0.029  
506-77-4.....................................  Cyanogen chloride..................................       0.030  
108-91-8.....................................  Cyclohexylamine [Cyclohexanamine]..................       0.16   
19287-45-7...................................  Diborane...........................................       0.0011 
75-78-5......................................  Dimethyldichlorosilane [Silane, dichlorodimethyl-].       0.026  
57-14-7......................................  1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-]...       0.012  
106-89-8.....................................  Epichlorohydrin [Oxirane, (chloromethyl)-].........       0.076  
107-15-3.....................................  Ethylenediamine [1,2-Ethanediamine]................       0.49   
151-56-4.....................................  Ethyleneimine [Aziridine]..........................       0.018  
75-21-8......................................  Ethylene oxide [Oxirane]...........................       0.090  
7782-41-4....................................  Fluorine...........................................       0.0039 
50-00-0......................................  Formaldehyde (solution)............................       0.012  
110-00-9.....................................  Furan..............................................       0.0012 
302-01-2.....................................  Hydrazine..........................................       0.011  
7647-01-0....................................  Hydrochloric acid (conc 30% or greater)............       0.030  
74-90-8......................................  Hydrocyanic acid...................................       0.011  
7647-01-0....................................  Hydrogen chloride (anhydrous) [Hydrochloric acid]..       0.030  
7664-39-3....................................  Hydrogen fluoride/Hydrofluoric acid (conc 50% or          0.016  
                                                greater) [Hydrofluoric acid].                                   
7783-07-5....................................  Hydrogen selenide..................................       0.00066
7783-06-4....................................  Hydrogen sulfide...................................       0.042  
13463-40-6...................................  Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB-       0.00044
                                                5-11)-].                                                        
78-82-0......................................  Isobutyronitrile [Propanenitrile, 2-methyl-].......       0.14   
108-23-6.....................................  Isopropyl chloroformate [Carbonochloride acid, 1-         0.10   
                                                methylethyl ester].                                             
126-98-7.....................................  Methacrylonitrile [2-Propenenitrile, 2-methyl-]....       0.0027 
74-87-3......................................  Methyl chloride [Methane, chloro-].................       0.82   
79-22-1......................................  Methyl chloroformate [Carbonochloridic acid,              0.0019 
                                                methylester].                                                   
60-34-4......................................  Methyl hydrazine [Hydrazine, methyl-]..............       0.0094 
624-83-9.....................................  Methyl isocyanate [Methane, isocyanato-]...........       0.0012 
74-93-1......................................  Methyl mercaptan [Methanethiol]....................       0.049  
556-64-9.....................................  Methyl thiocyanate [Thiocyanic acid, methyl ester].       0.085  
75-79-6......................................  Methyltrichlorosilane [Silane, trichloromethyl-]...       0.018  
13463-39-3...................................  Nickel carbonyl....................................       0.00067
7697-37-2....................................  Nitric acid (conc 80% or greater)..................       0.026  

[[Page 31730]]

                                                                                                                
10102-43-9...................................  Nitric oxide [Nitrogen oxide (NO)].................       0.031  
8014-95-7....................................  Oleum (Fuming Sulfuric acid) [Sulfuric acid,              0.010  
                                                mixture with sulfur trioxide].                                  
79-21-0......................................  Peracetic acid [Ethaneperoxoic acid]...............       0.0045 
594-42-3.....................................  Perchloromethylmercaptan [Methanesulfenyl chloride,       0.0076 
                                                trichloro-].                                                    
75-44-5......................................  Phosgene [Carbonic dichloride].....................       0.00081
7803-51-2....................................  Phosphine..........................................       0.0035 
10025-87-3...................................  Phosphorus oxychloride [Phosphoryl chloride].......       0.0030 
7719-12-2....................................  Phosphorus trichloride [Phosphorous trichloride]...       0.028  
110-89-4.....................................  Piperidine.........................................       0.022  
107-12-0.....................................  Propionitrile [Propanenitrile].....................       0.0037 
109-61-5.....................................  Propyl chloroformate [Carbonochloridic acid,              0.010  
                                                propylester].                                                   
75-55-8......................................  Propyleneimine [Aziridine, 2-methyl-]..............       0.12   
75-56-9......................................  Propylene oxide [Oxirane, methyl-].................       0.59   
7446-09-5....................................  Sulfur dioxide (anhydrous).........................       0.0078 
7783-60-0....................................  Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)-       0.0092 
                                                ].                                                              
7446-11-9....................................  Sulfur trioxide....................................       0.010  
75-74-1......................................  Tetramethyllead [Plumbane, tetramethyl-]...........       0.0040 
509-14-8.....................................  Tetranitromethane [Methane, tetranitro-]...........       0.0040 
7750-45-0....................................  Titanium tetrachloride [Titanium chloride (TiCl4)         0.020  
                                                (T-4)-].                                                        
584-84-9.....................................  Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato-      0.0070 
                                                1-methyl-].                                                     
91-08-7......................................  Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato-      0.0070 
                                                2-methyl-].                                                     
26471-62-5...................................  Toluene diisocyanate (unspecified isomer) [Benzene,       0.0070 
                                                1,3-diisocyanatomethyl-].                                       
75-77-4......................................  Trimethylchlorosilane [Silane, chlorotrimethyl-]...       0.050  
108-05-4.....................................  Vinyl acetate monomer [Acetic acid ethenyl ester]..       0.26   
----------------------------------------------------------------------------------------------------------------


[FR Doc. 96-14597 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-M