
[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]
[Proposed Rules]
[Pages 44603-44633]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18037]



[[Page 44603]]

Vol. 79

Thursday,

No. 147

July 31, 2014

Part VI





Environmental Protection Agency





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40 CFR Part 68





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

  Federal Register / Vol. 79 , No. 147 / Thursday, July 31, 2014 / 
Proposed Rules  

[[Page 44604]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2014-0328; FRL-9911-62-OSWER]
RIN 2050-ZA07


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Request for information.

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SUMMARY: The Environmental Protection Agency (EPA), in response to 
Executive Order 13650, requests comment on potential revisions to its 
Risk Management Program regulations and related programs. In this 
Request for Information (RFI), the Agency asks for information and data 
on specific regulatory elements and process safety management 
approaches, the public and environmental health and safety risks they 
address, and the costs and burdens they may entail. The EPA will use 
the information received in response to this RFI to inform what action, 
if any, it may take.

DATES: Comments and additional material must be received on or before 
October 29, 2014.

ADDRESSES: Submit comments and additional materials, identified by 
docket EPA-HQ-OEM-2014-0328 by any of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: Send comments to: OSWER Docket, EPA Docket Center, 
Mail Code 2822-1T, Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OEM-
2014-0328. Please include two copies of your comments.
     Hand delivery: Deliver two copies of your comments to: 
Environmental Protection Agency, EPA Docket Center, Room 3334, 1301 
Constitution Avenue NW., Washington, DC, Attention Docket ID No. EPA-
HQ-OEM-2014-0328. Such deliveries are only accepted during the docket's 
normal hours of operation and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OEM-
2014-0328. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be confidential business information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you submit an electronic comment, the EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If the EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, the EPA may not be able to consider your comment. 
Electronic files should not include special characters or any form of 
encryption and be free of any defects or viruses. For additional 
information about the EPA's public docket, visit the EPA Docket Center 
homepage at: http://www.epa.gov/dockets.
    Docket: The EPA has established a docket for this information 
request under Docket ID Number EPA-HQ-OEM-2014-0328. All documents in 
the docket are listed in the regulations.gov index. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, will be publicly 
available only in hard copy. Publicly available docket materials are 
available either electronically in regulations.gov or in hard copy at 
the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For more detailed information on 
specific aspects of this RFI, contact Mr. James Belke, Chemical 
Engineer, United States Environmental Protection Agency, Office of 
Emergency Management, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 
telephone: (202) 564-8023; email: belke.jim@epa.gov.
    Electronic copies of this RFI and related news releases are 
available at EPA's Web page at http://www.epa.gov/emergencies. Copies 
of this RFI are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: Here are the contents of today's notice.

I. Background
    A. Statutory Authority
    B. Executive Order 13650
    C. EPA Risk Management Program Regulations
II. Discussion and Request for Data, Information, and Comments
    A. Introduction
    B. Potential Costs and Economic Effects of Regulatory and Policy 
Changes
    C. Items in OSHA's RFI Relevant to EPA's RMP Regulation
    1. Update the List of Regulated Substances
    a. Adding Other Toxic or Flammable Substances
    b. Adding High and/or Low Explosives
    c. Adding Ammonium Nitrate
    d. Adding Reactive Substances and Reactivity Hazards
    e. Adding Other Categories of Substances
    f. Removing Certain Substances From the List or Raising Their 
Threshold Quantity
    g. Lowering the Threshold Quantity for Substances Currently on 
the List
    2. Additional Risk Management Program Elements
    3. Define and Require Evaluation of Updates to Applicable 
Recognized and Generally Accepted Good Engineering Practices
    4. Extend Mechanical Integrity Requirements To Cover Any Safety-
Critical Equipment
    5. Require Owners and Operators To Manage Organizational Changes
    6. Require Third-Party Compliance Audits
    7. Effects of OSHA PSM Coverage on RMP Applicability
    D. Additional Items for Which EPA Requests Information
    1. Safer Technology and Alternatives Analysis
    2. Emergency Drills To Test a Source's Emergency Response 
Program or Plan
    3. Automated Detection and Monitoring for Releases of Regulated 
Substances
    4. Additional Stationary Source Location Requirements
    5. Compliance With Emergency Response Program Requirements in 
Coordination With Local Responders
    6. Incident Investigation and Accident History Requirements
    7. Worst Case Release Scenario Quantity Requirements for 
Processes Involving Numerous Small Vessels Stored Together
    8. Public Disclosure of Information To Promote Regulatory 
Compliance and Improve Community Understanding of Chemical Risks
    9. Threshold Quantities and Off-Site Consequence Analysis 
Endpoints for Regulated Substances Based on Acute Exposure Guideline 
Level Toxicity Values
    10. Program 3 NAICS Codes Based on RMP Accident History Data
    11. The ``Safety Case'' Regulatory Model
    12. Streamlining RMP Requirements

[[Page 44605]]

I. Background

A. Statutory Authority

    The statutory authority for this action is provided by section 
112(r) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r)) and by 
the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 
(42 U.S.C. 11001-11050), which was enacted as Title III of the 
Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99- 499), 
(SARA).

B. Executive Order 13650

    On August 1, 2013, President Obama signed Executive Order 13650, 
entitled Improving Chemical Facility Safety and Security. The Executive 
Order establishes the Chemical Facility Safety and Security Working 
Group (``Working Group''), co-chaired by the Secretary of Homeland 
Security, the Administrator of EPA, and the Secretary of Labor or their 
designated representatives at the Assistant Secretary level or higher, 
and composed of senior representatives of other Federal departments, 
agencies, and offices. The Executive Order requires the Working Group 
to carry out a number of tasks whose overall aim is to prevent chemical 
accidents, such as the explosion that occurred at the West Fertilizer 
facility in West, Texas, on April 17, 2013.
    Section 6 of the Executive Order is entitled ``Policy, Regulation, 
and Standards Modernization'', and among other things, requires certain 
federal agencies to consider possible changes to existing chemical 
safety and security regulations. Specifically, section 6(e)(ii) of the 
Executive Order requires the Secretary of Labor to issue a RFI designed 
to identify issues related to modernization of the Process Safety 
Management (PSM) standard and related standards necessary to meet the 
goal of preventing major chemical accidents. The Occupational Safety 
and Health Administration (OSHA) published a RFI responsive to this 
portion of the order on December 9, 2013 (78 FR 73756; http://www.gpo.gov/fdsys/pkg/FR-2013-12-09/pdf/2013-29197.pdf). The OSHA RFI 
requested information on 17 potential policy and rulemaking topics 
relating to modernization of the PSM standard and other related OSHA 
standards.
    While Executive Order 13650 does not specifically direct EPA to 
publish a similar RFI, EPA believes it is an appropriate step for 
several reasons. First, section 6(a)(i) of the order requires the 
Working Group to develop options for improved chemical facility safety 
and security that identify ``improvements to existing risk management 
practices through agency programs, private sector initiatives, 
Government guidance, outreach, standards, and regulations.'' With 
regard to EPA specifically, section 6(c) of the order requires the 
Administrator of EPA and the Secretary of Labor to ``review the 
chemical hazards covered by the Risk Management Program (RMP) and the 
Process Safety Management Standard (PSM) and determine if the RMP or 
PSM can and should be expanded to address additional regulated 
substances and types of hazards.'' Information collected through this 
action will inform the results of this review.
    Second, the EPA RMP regulation closely tracks the accident 
prevention measures contained in the OSHA PSM standard because Section 
112(r)(7)(D) of the CAA requires EPA to coordinate the RMP regulation 
with ``any requirements established for comparable purposes'' by OSHA. 
Consequently, the OSHA PSM standard and EPA RMP regulation are closely 
aligned in content, policy interpretations, Agency guidance, and 
enforcement. Since the inception of these regulations, EPA and OSHA 
have coordinated closely on their implementation in order to minimize 
regulatory burden and avoid conflicting requirements for regulated 
facilities. For example, owners and operators of RMP-covered processes 
also subject to the OSHA PSM standard will generally have met their RMP 
accident prevention program obligations if they have properly 
implemented their PSM program. This RFI will allow EPA to evaluate any 
potential updates to the RMP regulation in parallel to OSHA's 
evaluation of potential updates to the PSM standard. Lastly, this RFI 
addresses a number of added topics in which the Agency is interested 
that are not raised in the OSHA RFI.
    Topics are divided into two categories--those addressed in parallel 
to the OSHA RFI, and additional topics not raised by OSHA. Readers are 
encouraged to review the OSHA RFI in detail, as this notice does not 
always reiterate OSHA's full justification on the same or similar 
topics.
    Information collected under this RFI will inform EPA as it 
considers what actions, if any, may be necessary to update the RMP 
regulations. It does not commit the Agency to rulemaking. If the Agency 
elects to undertake rulemaking, it will do so in accordance with 
established rulemaking procedures as set forth in the Clean Air Act 
section 307(d), 42 U.S.C. 7607(d).

C. EPA Risk Management Program Regulations

    Both EPA's 40 CFR part 68 RMP regulation \1\ and OSHA's 29 CFR 
1910.119 PSM standard were authorized in the Clean Air Act (CAA) 
Amendments of 1990 (1990 CAAA), in response to a number of catastrophic 
chemical accidents occurring worldwide that had resulted in public and 
worker fatalities and injuries, environmental damage, and other 
community impacts. OSHA published the PSM standard in 1992 (57 FR 6356, 
February 24, 1992), as required by section 304 of the 1990 CAAA, using 
its authority under 29 U.S.C. 653.
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    \1\ 40 CFR part 68 is titled, ``Chemical Accident Prevention 
Provisions,'' but is more commonly known as the ``RMP regulation,'' 
the ``Risk Management Program,'' or ``the RMP.'' The RMP may also 
refer to the document required to be submitted under subpart F of 40 
CFR part 68, the Risk Management Plan. This document generally uses 
RMP or Risk Management Program to refer to 40 CFR part 68. See 
http://www.epa.gov/oem/content/rmp/ for more information on the Risk 
Management Program.
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    The 1990 CAAA added to the accidental release provisions under CAA 
section 112(r). The statute required EPA to develop a list of at least 
100 regulated substances for accident prevention and related thresholds 
(CAA section 112(r)(3)-(5)), authorized accident prevention regulations 
(CAA section 112(r)(7)(A)), and required EPA to develop ``reasonable 
regulations'' requiring facilities with over a threshold quantity (TQ) 
of a regulated substance to undertake accident prevention steps and 
submit a ``risk management plan'' to various local, state, and federal 
planning entities (CAA section 112(r)(7)(B)).
    EPA published the RMP regulation in two stages. The Agency 
published the list of regulated substances and TQs in 1994 (59 FR 4478, 
January 31, 1994) (the ``list rule'') \2\ and published the RMP final 
regulation, containing risk management requirements for covered 
sources, in 1996 (61 FR 31668, June 20, 1996).3 4 Both the 
OSHA PSM standard and the EPA RMP regulation aim to prevent or minimize 
the consequences of accidental chemical releases through implementation 
of management program elements that integrate technologies, procedures, 
and

[[Page 44606]]

management practices. In addition to requiring implementation of 
management program elements, the RMP regulation requires covered 
sources to submit a document summarizing the source's risk management 
program--called a risk management plan--to EPA. The RMP regulation 
required covered sources to comply with its requirements and submit 
initial risk management plans to EPA by June 21, 1999.
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    \2\ Documents and information related to development of the list 
rule can be found in the EPA docket for the rulemaking, docket 
number A-91-74.
    \3\ Documents and information related to development of the RMP 
regulation can be found in EPA docket number A-91-73.
    \4\ The 40 CFR Part 68 RMP regulations apply to owners and 
operators of stationary sources that have more than a TQ of a 
regulated substance within a process. The regulations do not apply 
to chemical hazards other than listed substances held above a TQ 
within a regulated process.
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    The RMP establishes three ``program levels'' for regulated 
processes:
    Program level 1 applies to processes that would not affect the 
public in the case of a worst-case release and with no accidents with 
specific off-site consequences within the past five years. Program 1 
imposes limited hazard assessment requirements and minimal prevention 
and emergency response requirements.
    Program level 2 applies to processes not eligible for Program 1 or 
subject to Program 3, and imposes streamlined prevention program 
requirements, including safety information, hazard review, operating 
procedures, training, maintenance, compliance audits, and incident 
investigation elements. Program 2 also imposes additional hazard 
assessment, management, and emergency response requirements.
    Program level 3 applies to processes not eligible for Program 1 and 
either subject to OSHA's PSM standard under federal or state OSHA 
programs or classified in one of ten specified North American 
Industrial Classification System (NAICS) codes listed at 40 CFR 
68.10(d)(1). Program 3 imposes elements nearly identical to those in 
OSHA's PSM standard as the accident prevention program. The Program 3 
prevention program includes requirements relating to process safety 
information, process hazard analysis, operating procedures, training, 
mechanical integrity, management of change, pre-startup review, 
compliance audits, incident investigations, employee participation, hot 
work permits, and contractors. Program 3 also imposes the same hazard 
assessment, management, and emergency response requirements that are 
required for Program 2.
    EPA believes the RMP regulation has been effective in preventing 
and mitigating chemical accidents in the United States and protecting 
human health and the environment from chemical hazards. However, major 
incidents, such as the West, Texas explosion, highlight the importance 
of reviewing and evaluating current practices and regulatory 
requirements, and applying lessons learned to advance process safety 
management where needed. This RFI seeks public input on process safety 
and risk management issues relevant to the RMP regulation to inform 
potential actions that may further reduce the number of chemical 
accidents within the United States.

II. Discussion and Request for Data, Information, and Comments

A. Introduction

    This section discusses each RMP item and provides specific 
questions to collect data, information, and comments. The Agency 
invites the public to respond to any questions for which they have 
specific knowledge, data, or information, regardless of their 
involvement in RMP-covered operations. Note that at several points in 
this document, we discuss whether modifying, clarifying, strengthening, 
or making more explicit a requirement is an appropriate way to address 
an issue. The solicitation of comment on these matters should not be 
read as EPA, OSHA, the Department of Justice, or any other federal 
entity suggesting legal ambiguity in the relevant regulations or 
recognizing a particular interpretation by any regulated entity of 
either CAA section 112(r) or the RMP regulation. For purposes of this 
comment solicitation, exploration of ways to further clarify particular 
aspects of the current regulations should not be viewed as an 
indication that the current language is inadequate, or in any way 
undermines our ability to enforce these regulations as written.

B. Potential Costs and Economic Effects of Regulatory and Policy 
Changes

    As part of this RFI, the Agency is requesting data and information 
on the potential costs and economic impacts of amending regulatory 
requirements relevant to the various issues identified, including any 
possible significant economic impact on a substantial number of small 
entities. EPA requests that commenters discuss potential economic 
impacts, whenever possible, in terms of quantitative benefits (e.g., 
reductions in injuries, fatalities, and property damage), costs (e.g., 
compliance costs, including paperwork burden, or decreases in 
production), and offsets to costs (e.g., less need for maintenance and 
repairs, less loss or waste of product) when responding to the 
questions in this RFI. EPA also requests that commenters provide data 
and information on economic effects that any amendments may have on 
market conditions or services (e.g., market structure and 
concentration), and in particular, any special circumstances related to 
small entities, such as potential market-structure disruptions or 
uniquely high costs that small entities may bear.
    EPA requests that commenters discuss economic impacts in as 
specific terms as possible. For example, if a regulatory or policy 
change would necessitate additional employee training, then helpful 
information would include the following: The training courses 
necessary; the types of employees or contractors who would receive the 
training; topics covered; any retraining necessary; and the training 
costs if conducted by a third-party vendor or in-house trainer. The 
Agency invites comment on the time and level of expertise required to 
implement potential regulatory or policy changes discussed in this RFI, 
even if dollar-cost estimates are not available. For discussion of 
equipment-related costs, EPA requests that commenters estimate relevant 
factors, such as purchase price, cost of installation, cost of 
equipment maintenance, cost of training, and expected life of the 
equipment. The Agency also requests that, when responding to the 
questions in this RFI, commenters discuss any disproportionate impacts 
to communities near chemical facilities, particularly with respect to 
economically distressed, low-income, or predominantly minority 
communities. For example, disproportionate impacts could be changes 
that affect the number of local residents employed at a facility or the 
number of residents affected by a release from a facility. Commenters 
should also include specific information about any technical 
feasibility issues or implementation challenges associated with any of 
the possible revisions discussed in thie RFI. EPA also welcomes input 
on which potential amendments to regulatory requirements should be 
given priority for further development over any others along with the 
basis for such prioritization. For example, identify those issues 
posing a greater safety risk than others; those requiring less time or 
effort to amend; those with less costs to industry; or other reasons.

C. Items in OSHA's RFI Relevant to EPA's RMP Regulation

    This section discusses items that are the same or related to items 
in the OSHA RFI that could also apply to or affect the RMP regulation. 
Each item discussion is followed by specific questions to collect data, 
information, and comments on each item.

[[Page 44607]]

1. Update the List of Regulated Substances
    Section 112(r)(3) of the 1990 CAAA authorized EPA to develop a list 
of at least 100 substances which, in the case of an accidental release, 
are known to cause or may reasonably be anticipated to cause death, 
injury, or serious adverse effects to human health or to the 
environment. EPA was required to use, but was not limited to, the list 
of extremely hazardous substances (EHSs) published under the Emergency 
Planning and Community Right-to-Know Act (EPCRA), with modifications as 
appropriate. The initial list was also to include 16 substances 
specified by statute. EPA was to consider the following criteria: (1) 
The severity of any acute adverse health effects associated with 
accidental releases of the substances; (2) the likelihood of accidental 
releases of the substances; and (3) the potential magnitude of human 
exposure to accidental releases of the substances. The TQ for each 
substance was to account for the toxicity, reactivity, volatility, 
dispersibility, combustibility, or flammability of the substance, and 
the amount that if accidentally released could cause death, injury or 
serious adverse effects on human health. The list may not include any 
air pollutant for which a national primary ambient air quality standard 
has been established (except anhydrous sulfur dioxide which is required 
by statute to be included on the list), nor any CAA title VI 
stratospheric ozone pollutants. The list may be revised by EPA or by 
petition and it must be reviewed at least every 5 years.
    The August 1999 Chemical Safety Information, Site Security and 
Fuels Regulatory Relief Act amended section 112(r)(4) of the CAA to 
exempt from RMP reporting ``a flammable substance when used as a fuel 
or held for sale as a fuel at a retail facility . . . because of the 
explosive or flammable properties of the substance, unless a fire or 
explosion caused by the substance will result in acute adverse health 
effects from human exposure to the substance, including the unburned 
fuel or its combustion byproducts, other than those caused by the heat 
of the fire or impact of the explosion.'' However, flammable substances 
used as a feedstock or held for sale as fuel at a wholesale facility 
are still covered.
    The list now consists of two categories of chemicals--77 toxic 
substances and 63 flammable substances. The regulated substances and 
TQs are found in 40 CFR 68.130. The list of toxic substances is based 
on a subset of the EHS acute toxics found in 40 CFR part 355. The RMP 
list of substances was further limited to gases and volatile liquids 
(vapor pressure equal to or greater than 10 mm of mercury (Hg) at 25 
[deg]C), focusing accident prevention regulations on those chemicals 
that were more likely to become airborne and have an adverse effect 
beyond a facility's fence line in the event of an accidental release.
    Flammable gases and volatile flammable liquids with the National 
Fire Protection Association (NFPA) flammability ratings of 4 (i.e., 
gases and liquids having a flash point below 73 [deg]F (22.8 [deg]C) 
and a boiling point below 100 [deg]F (37.8 [deg]C)) were listed. Only 
chemicals in commercial production were included on the list and 
several non-EHS toxic chemicals were listed based on high production 
volumes and accident history. Most of the sixteen substances mandated 
by statute were also identified through the listing criteria for toxic 
or flammable substances.
    The 1994 final list rule included as covered chemicals, any ``high 
explosives'' which were explosives classified by the Department of 
Transportation (DOT) as Class 1, Division 1.1 and listed as such in 49 
CFR 172.101 (the Hazardous Materials Table). Subsequently, the 
explosives were deleted from coverage in 1998 (63 FR 640, January 6, 
1998) \5\ due to settlement of litigation with the Institute for 
Manufacturers of Explosives (IME) (discussed in more detail below).
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    \5\ Documents and information related to deleting explosives 
from the list of RMP-regulated substances can be found in EPA docket 
number A-96-08.
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    EPA is requesting information on whether the Agency should modify 
the list of regulated substances by:

 Adding other toxic or flammable substances
 Adding high and/or low explosives
 Adding ammonium nitrate
 Adding reactive substances and reactivity hazards
 Adding other categories of substances
 Removing certain substances from the list or raising their TQ
 Lowering the TQ for substances currently on the list

    Each of these areas is briefly discussed below.
a. Adding Other Toxic or Flammable Substances
    EPA is interested in determining whether there are other substances 
that meet the established acute toxicity or flammability criteria for 
listing, are in commerce, and are present in sufficient quantities that 
would present a risk to the community if accidentally released.
    EPA requests information on the following questions:
    i. What other chemical lists or other sources of information should 
be reviewed to identify acutely toxic or flammable chemicals meeting 
the RMP listing criteria?
    ii. What chemicals, if any, should EPA add to the RMP list of 
regulated toxic and flammable substances? Please provide references to 
the acute toxicity studies, sources of flammability information or 
summary results of such studies, information showing that the chemical 
meets the listing criteria or examples of incidents related to the 
hazards associated with the chemicals.
    iii. Please provide any information on the annual amount of the 
individual substance manufactured, imported or used, the extent of its 
availability in commerce and the types of U.S. industries that 
manufacture, import, or use the substance.
    iv. What would be the economic impacts of adding other toxic or 
flammable chemicals to the RMP list of substances? Are there any 
special circumstances involving small entities that EPA should consider 
with respect to adding such chemicals to the RMP list of substances?
b. Adding High and/or Low Explosives
    In light of the April 17, 2013 explosion in West, Texas involving 
ammonium nitrate (AN) fertilizer, EPA is reconsidering whether it 
should include explosives on the RMP list. In addition to raising 
concerns about AN, this accident has shifted attention to how well 
facilities handling other potentially explosive materials are 
safeguarding communities from their hazards and whether emergency 
responders are prepared to deal with accidents involving such 
materials, whether or not they are designed to be used as explosives. 
This subsection of the RFI addresses explosives other than AN--Further 
discussion of regulating AN, including AN fertilizer, is covered later 
in this section.
    EPA listed high explosives on the RMP list in 1994 but removed them 
on January 6, 1998 (63 FR 640) (see discussion below regarding 
settlement of litigation with IME).
    The 1994 final RMP list rule (59 FR 4478, January 31, 1994) 
included Division 1.1 explosives--a category of high explosives defined 
by DOT classification. DOT Division 1.1 explosives are those that 
present a mass explosion hazard, which is an explosion that affects 
almost the entire load instantaneously. Explosives were

[[Page 44608]]

initially listed because of their potential to cause off-site effects 
from blast waves. In addition, EPA believed that potential gaps existed 
in emergency planning and response communication that made risk 
management planning appropriate for sources with explosives.
    EPA chose to list only DOT Division 1.1 explosives because EPA's 
analysis indicated that low explosives, which primarily pose a fire 
hazard rather than a mass explosion hazard, were less likely to cause a 
catastrophic event when compared to the same quantity of high 
explosives. The deflagration or burning of a low explosive generates 
lower pressures and is less destructive than the detonation of a high 
explosive, although the Agency recognized that it may be possible for 
some low explosives to detonate under unusual conditions, with effects 
similar to the detonation of a high explosive. The DOT Division 1.1 
explosives were listed because of their potential to readily detonate, 
causing off-site impacts. High explosives were listed as a class, 
rather than as individual substances, because explosives are usually 
mixtures or formulations rather than specific chemicals. An individual 
chemical could be a component of a high explosive or a low explosive, 
or could be non-explosive, depending on various factors, such as 
particle size, concentration, and other components of the formulation.
    The Institute of Makers of Explosives (IME) petitioned for judicial 
review challenging the final listing of high explosives (IME v. EPA, 
D.C. Cir. No. 94-1276). Among IME's objections to the rule were that 
existing regulations by the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF), DOT, Mine Safety and Health Administration (MSHA), 
and OSHA already adequately regulated DOT Division 1.1 explosives. In a 
settlement with IME, the Agency agreed to propose delisting explosives 
and IME agreed to undertake certain measures to enhance local emergency 
response and dismiss its case if EPA ultimately delisted high 
explosives (61 FR 13858, March 28, 1996). The measures that IME agreed 
to take included the following:
     IME member companies would post at their facilities 
warning signs at all normal access routes stating, ``Danger. Never 
Fight Explosive Fires. Explosives are stored on this site,'' and 
providing an emergency phone number.
     Whenever a new Division 1.1 commercial explosives storage 
or manufacturing location is established at a temporary job site, IME 
member companies will notify Local Emergency Planning Committees 
(LEPCs) and other local authorities (e.g., fire departments and law 
enforcement agencies) of the type, quantity, and location of explosives 
on site.
     At Division 1.1 commercial explosives storage or 
manufacturing locations with 5,000 pounds or more of Division 1.1 
explosives (not including temporary job sites) where preparation of 
emergency response plans is not already required, IME member companies 
would prepare emergency response plans, notify LEPCs and other local 
authorities of the type, quantity, and location of explosives on site, 
provide the emergency response plans to local emergency responders, and 
respond to reasonable requests for information from said authorities.
     IME member companies also would inform their customers and 
IME would inform other non-IME commercial explosives manufacturers of 
the contents of the Settlement Agreement and the actions to be taken.
    EPA proposed to delist high explosives from the RMP list on April 
15, 1996 (61 FR 16598) and removed high explosives in a January 6, 1998 
final rule (63 FR 640). The preambles to both rules discuss the 
measures IME was to take to enhance local emergency response.
    Even after the removal of high explosives from the RMP list, most 
forms of explosives (not just high explosives) remain subject to 
hazardous chemical inventory reporting requirements under EPCRA. The 
owner or operator of any facility with more than a reporting threshold 
of any hazardous chemical requiring a safety data sheet (formerly 
material safety data sheet) under the OSHA Hazard Communication 
Standard is required to submit safety data sheets to their State 
Emergency Response Commission (SERC), LEPC, and local fire department, 
and to annually report their inventory of hazardous chemicals to their 
SERC, LEPC, and local fire department.\6\ This information should 
better prepare local authorities to respond to emergencies at 
facilities that handle hazardous chemicals, including explosives.
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    \6\ See 40 CFR part 370.
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    ATF regulates ``explosive materials'' which are defined as 
explosives, blasting agents, water gels and detonators. Explosive 
materials include, but are not limited to, all items in the ``List of 
Explosive Materials,'' which is published annually.\7\
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    \7\ The 2013 List of Explosive Materials can be found at http://www.gpo.gov/fdsys/pkg/FR-2013-10-28/pdf/2013-25370.pdf.
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    ATF regulations \8\ provide specific construction requirements for 
storage of explosive materials in magazines and limit the amount of 
these materials that can be stored in each magazine. Such magazines 
must be regularly inspected and meet the Table of Distance requirements 
which specify distances that the materials must be stored away from 
inhabited buildings, public highways, and passenger railways, to ensure 
an accidental explosion will not produce blast waves that are hazardous 
to people at distances where the public could be affected. ATF inspects 
licensed facilities to ensure the safe and secure storage of 
explosives, their proper inventory and control, and accurate 
recordkeeping. However, ATF does not inspect or regulate manufacturing 
processes.\9\
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    \8\ 27 CFR part 555, Subpart K.
    \9\ Sierra Chemical Co. Final Investigation Report, CSB, 9-23-
1988.
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    OSHA regulates the manufacture, keeping, having, storage, sale, 
transportation, and use of explosives and blasting agents under its 
Occupational Safety and Health Standards for explosives and blasting 
agents (29 CFR 1910.109). Section 1910.109(k)(2) of this standard also 
requires that explosive manufacturers meet the requirements of the PSM 
standard (29 CFR 1910.119). OSHA regulations provide construction 
requirements for explosive materials storage magazines and specify 
minimum distances between magazines with explosives and blasting 
agents, between stores of AN and blasting agents, and between blasting 
agents and inhabited buildings, passenger railroads, and public 
highways. Regulations involving the storage of all grades of AN, 
including fertilizer grade, but not blasting agents, are found at 29 
CFR 1910.109(i).
    Significant accidents involving explosives have raised questions 
concerning whether existing safety regulations are adequate. An April 
8, 2011 explosion at Donaldson Enterprises in Waikele, Hawaii, killed 
five workers who were disposing of fireworks. The U.S. Chemical Safety 
and Hazard Investigation Board (CSB) investigated the explosion and 
determined that gaps in federal regulations--specifically with regard 
to dismantling and disposal of explosives--contributed to the 
accident.\10\ The January 7, 1998, explosion at the Sierra Chemical 
Company's Kean Canyon explosives manufacturing plant prompted the state 
of Nevada to develop regulations

[[Page 44609]]

covering certain explosives manufacturing facilities under the state's 
Chemical Accident Prevention Program,\11\ which is similar to EPA's RMP 
regulation.
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    \10\ CSB Report No. 2011-06-I-HI.
    \11\ http://ndep.nv.gov/bapc/capp/capmore.html.
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    EPA is seeking information relating to the potential regulation of 
explosives under the RMP. EPA requests information on the following 
questions:
    i. Should EPA reconsider listing explosives on the RMP list? What 
are the safety gaps in current regulations and practice (e.g., EPCRA, 
other federal programs, state programs, and industry efforts) that can 
best be filled by expansion of the RMP? Are there other approaches for 
filling any such safety gaps? What type of explosive materials should 
be covered and why? How many facilities manufacture, store or use 
explosives and what are the typical quantities stored on-site by type 
of facility or industry? What TQs should be established, and what 
should be the basis for the TQs? If EPA were to list explosives and 
establish a TQ at 5,000 pounds (the same TQ that was established for 
explosives in the 1994 list rule), how many facilities would exceed 
that TQ and potentially be regulated?
    ii. Are there other incidents involving the manufacture and 
processing of explosive materials that should be reviewed to determine 
if covering these operations under the RMP would decrease the risk of 
an accidental explosion affecting an off-site community? Does the 
presence of explosives impose unique risks on rural, disadvantaged, or 
otherwise environmentally burdened communities?
    iii. Should the RMP regulation apply to manufacturers of 
explosives, end users, and/or explosive recyclers?
    iv. If the RMP regulation is amended to cover explosives, should 
EPA consider establishing requirements for safe separation distances 
between explosive materials and public receptors similar to those 
required by ATF and OSHA (see section II.D.4 of this RFI for additional 
discussion of stationary source location requirements)? What other 
requirements should EPA consider? Which if any of these requirements 
could have prevented or minimized the impacts of specific historical 
accidents?
    v. What would be the economic impacts of adding explosives to the 
RMP list of substances? Are there any special circumstances involving 
small entities that EPA should consider with respect to adding 
explosives to the RMP list of substances?
    vi. As an alternative to expanding the scope of the RMP, would 
expanded use of EPCRA information (such as better integration of 
information on explosive hazards into local emergency plans) and other 
governmental and industry programs (including voluntary programs) be 
able to address safety gaps? What are the advantages and disadvantages 
of such an approach relative to expansion of the RMP?
c. Adding Ammonium Nitrate
    As previously discussed, EPA listed high explosives on the RMP list 
in 1994 but removed them on January 6, 1998 (63 FR 640). Some forms of 
AN formulated as explosives would have been covered under the 1994 RMP 
list rule, but the rule would not have included AN fertilizer, which 
was not classified as and was not intended to function as an explosive. 
However, the explosion at West Fertilizer has highlighted the explosive 
properties of AN fertilizer under certain conditions (heat, shock, 
contamination and/or confinement) and its potential to adversely impact 
communities if it decomposes and detonates.
    Industry manufactures millions of tons of AN annually in the United 
States. High-density or fertilizer-grade AN, with Chemical Abstracts 
Service Registry Number (CASRN) 6484-52-2, is commonly used in 
fertilizer; low-density or technical-grade AN is used to manufacture 
explosives or blasting agents. Approximately 80% of AN is used in 
explosives and blasting agents and 20% is used as a fertilizer.
    Blasting agents are relatively low sensitivity explosives which 
cannot be initiated by blasting caps and are unlikely to explode except 
under special conditions. A blasting agent is a fuel plus oxidizer, 
intended for blasting, and not otherwise classified as an explosive. 
Blasting agents are frequently formulated with AN as the oxidizer.
    Ammonium nitrate/fuel oil (ANFO or AN/FO) is a blasting agent 
widely used in coal mining, quarrying, metal mining, and civil 
construction. Mining and construction sites that use ANFO may not be as 
likely to have explosions adversely affecting the public because they 
are often remote.
    AN has an NFPA instability rating of 3, indicating it is capable of 
detonation, explosive decomposition, or explosive reaction; ignition 
requires a strong initiating source or heating the substance under 
confinement. Stored AN is generally stable, but explosions of AN can be 
severe and have resulted in many injuries and fatalities.
    There are several examples of accidents involving AN. As discussed 
earlier, on April 17, 2013, an AN explosion at the West Fertilizer 
Company storage and distribution facility in West, Texas involving 
about 30 tons of AN killed 15 people and injured over 160 others. As an 
initial action, EPA and its partner agencies OSHA and ATF issued an 
updated chemical advisory on the safe storage, handling, and management 
of AN.\12\
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    \12\ Chemical Advisory: Safe Storage, Handling, and Management 
of Ammonium Nitrate, EPA 550-S-13-001, published by EPA, OSHA, and 
ATF, August 2013. http://www.epa.gov/oem/docs/chem/AN_advisory.pdf.
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    The deadliest industrial accident in United States history was an 
AN explosion in Texas City, Texas, on April 16, 1947. In that case, the 
initial explosion of a ship carrying AN, and the subsequent chain 
reaction of fires and explosions in other ships and nearby oil-storage 
facilities, killed at least 581 people and injured thousands of others. 
The AN was coated with wax, a combustible material, to prevent caking. 
New process technologies and safe practices introduced in the 1950s 
eliminated the use of wax coatings and AN currently produced for 
fertilizer use contains less than 0.2 percent combustible material. 
Ammonium nitrate with more than 0.2 percent combustible substances is 
now regulated by DOT as an explosive material with specific storage 
requirements and restrictions in cargo vessels.
    On September 21, 2001, a massive explosion occurred in a warehouse 
at the Azote de France fertilizer factory in Toulouse, France, 
involving 200-300 tons of AN, which was stored in bulk in a hangar. The 
explosion resulted in the death of 30 people, 2,500 injuries, the 
destruction of the factory, and an additional 10,000 buildings being 
heavily damaged. The exact cause of this accident remains unknown. 
Storage of incompatible material with AN is believed to have been a 
factor.
    On December 13, 1994 at Terra Industries in Port Neal, Iowa, AN 
solution exploded in a neutralizer vessel in a manufacturing process 
that was in standby mode, causing four deaths.\13\ The blast resulted 
in major plant damage, including damage to on-site ammonia tanks, 
creating an ammonia cloud that resulted in the evacuation of 2,500 
people.
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    \13\ http://www.epa.gov/oem/docs/chem/cterra.pdf.
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    EPA is requesting information on how to best address the safe 
storage, handling and risk management of AN. Despite its widespread use 
as an explosive and as a fertilizer, AN explosions are rare, but when 
they do

[[Page 44610]]

occur, can result in deaths, injuries, and extensive property damage.
    Currently, AN is not a listed substance under the RMP regulation. 
29 CFR part 1910.109(k)(2) requires that the manufacture of explosives 
shall also meet the requirements contained in Sec.  1910.119, thus 
manufacturing of explosives containing AN would be covered under PSM 
regulations. OSHA does not regulate AN storage and handling by 
distributors and users under the PSM standard, but it does regulate 
certain processes and activities involving AN under other specific 
standards (see below). Therefore, under federal regulations, AN 
distributors, such as bulk fertilizer retailers, are not required to 
implement any RMP or PSM accident prevention program elements (such as 
conducting a process hazard analyses, developing written operating 
procedures, etc.), perform an off-site consequence analysis, or develop 
an emergency action plan or emergency response plan.
    ATF regulates the storage and handling of AN as an explosive 
material (either as part of an explosive or as a blasting agent) (27 
CFR 555.201-224). The ATF regulations specify construction requirements 
for storage magazines, limitations on the type and amount of material 
that can be stored in each type of magazine and minimum distances that 
must be maintained between AN in explosive materials and public 
receptors and between AN and explosives and blasting agents.
    OSHA regulates the storage, handling, and transportation of AN when 
it is used in explosives, water slurries, gels or blasting agents 
(29CFR 1910.109 (a)-(h), (k)) or when stored on-site with explosives or 
blasting agents, including their storage at use sites and mixing and 
packaging operations. The requirements detail various procedures and 
safeguards that must be followed for these operations. The OSHA 
standard requires minimum specified separation distances between AN and 
explosives or blasting agents stored on the same site. Construction 
requirements for buildings and bulk storage bins containing blasting 
agents (which can contain AN) are also specified.
    OSHA also regulates bulk storage of AN over 1,000 pounds in a 
building or structure in the form of crystals, flakes, grains, or 
prills including fertilizer grade, dynamite grade, nitrous oxide grade, 
technical grade, and other mixtures, but not blasting agents, 
containing 60 percent, or more, AN by weight, in 29 CFR 1910.109(i). 
This standard limits the dimensions of piles of bagged AN and bulk AN 
in storage bins, and specifies the conditions for storage and the type 
of the construction materials for storage bins. The standard does not 
specify minimum separation distances between stored AN and public 
receptors such as are required for explosives and blasting agents. The 
standard requires separation of AN from incompatible or combustible 
materials and use of fire-resistive building materials if combustible 
materials are stored within a certain distance. A building with more 
than 2,500 tons of bagged ammonium nitrate must be equipped with an 
automatic sprinkler system.
    OSHA's PSM standard covers some reactive chemicals. Ammonium 
nitrate, although it is a reactive chemical (oxidizer) and met the 
original criteria that OSHA used to add substances for coverage, was 
not covered by the PSM standard. The Explosives and Blasting Agents 
standard is a specification standard based on a consensus standard, 
while PSM is a performance-based standard and would require employers 
to put management systems in place that would include requirements to 
evaluate hazards and follow industry recognized best practices. As 
explained above above, OSHA issued an RFI seeking, among other items, 
comments on potential revisions to its PSM standard and its Explosives 
and Blasting Agents standard. The RFI specifically invited comments on 
safe work practices for storing, handling, and managing ammonium 
nitrate and on regulatory requirements to improve its approach to 
preventing the hazards associated with ammonium nitrate. OSHA is 
working to determine whether ammonium nitrate hazards are best handled 
in the Explosives and Blasting Agents standard, the PSM standard, or a 
combination of both, and will pursue any appropriate regulatory changes 
as expeditiously as possible. As OSHA develops its approach to improve 
workplace safety associated with ammonium nitrate hazards, EPA will 
consider if additional action to protect the community is needed to 
complement OSHA regulations. EPA is considering whether the coverage 
provided to ammonium nitrate facilities will be sufficient or whether 
ammonium nitrate should be included in the RMP regulation.
    Because past AN accidents with adverse effects off-site, such as 
blast waves, have typically involved its storage in large quantities, 
EPA could list AN on the RMP list with a high threshold in order to 
prioritize process safety requirements for those facilities and 
locations where large amounts of AN are stored. When EPA had included 
high explosives on the RMP list, the TQ was based on a trinitrotoluene 
(TNT) equivalent weight; EPA could determine a threshold amount for AN, 
based on a TNT-equivalent weight calculation adjusted for AN.\14\ The 
RMP requirements for AN could be established at the statutory minima 
with more specific provisions tailored to particular types of 
facilities, e.g., manufacturers, fertilizer distributors and other 
facilities that have large amounts of explosives, blasting agents or 
fertilizers. EPA is authorized under CAA section 112(r)(5) to establish 
a greater TQ for, or to exempt entirely, any substance that is a 
nutrient used in agriculture when held by a farmer. Therefore, farmers 
who hold AN for use as a fertilizer could be exempted entirely in the 
same way as EPA has exempted farmers holding ammonia for use as a 
fertilizer (see 40 CFR 68.125).
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    \14\ TNT equivalent-weight calculation is a method for 
estimating the quantity of an explosive required to produce blast 
effects at various distances from the source of the explosion. The 
method uses the scaling law of distances, which relates quantity of 
explosive material and distance for a given overpressure. For 
explosives other than TNT, an empirically-derived equivalency factor 
is used to account for differences between the explosive 
characteristics of the actual explosive and those of an equivalent 
weight of TNT. Additional information on EPA's threshold methodology 
for high explosives can be found in the Technical Background 
Document, Development of Threshold Quantities for List of Regulated 
Substances for Accidental Release Prevention, Clean Air Act Section 
112(r). See: Technical Background Document for the Development of 
Threshold Quantities for List of Regulated Substances for Accidental 
Release Prevention, Clean Air Act Section 112(r). Original 
Docket A-91-74, document  III-B-2, June 21, 1992.
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    Alternatively, under CAA 112(r)(7)(A), EPA could require safe 
storage practices of solid AN forms similar to the practices required 
in the OSHA standard for Explosives and Blasting Agents at 29 CFR 
1910.109(i) or in the NFPA 400 Hazardous Materials Code, Chapter 11. 
Promulgating regulations separate from the RMP requirements may be more 
appropriate to cover facilities whose handling of this chemical does 
not involve typical manufacturing and processing operations normally 
seen with chemicals that are hazardous gases and liquids, such as 
fertilizer distribution facilities. However, manufacturers of AN who 
handle molten and liquid AN in processes involving chemical reactions, 
at elevated temperature and pressure, or in process vessels, tanks, 
pumps and associated control equipment may be more appropriately 
covered by the RMP regulation.
    EPA requests information on the following questions:
    i. Are there safety gaps in the current regulations for AN that 
could be

[[Page 44611]]

addressed using regulations under CAA section 112(r)? Should EPA 
regulate AN under CAA section 112(r) authority to improve chemical 
safety practices at facilities handling AN? What types of AN and AN 
facilities should be subject to the RMP regulations to prevent chemical 
accidents involving AN that could have adverse effects, such as blast 
overpressure, on the public, environment and off-site property? Should 
EPA consider safety regulations to cover the storage and handling of AN 
fertilizer only and continue to rely on ATF regulations and OSHA 
standards to cover AN in explosives and blasting agents? What role 
should voluntary industry programs (such as the one undertaken by IME 
for high explosives) have in a decision on whether safety gaps exist 
that warrant regulation under the RMP? Please discuss the economic 
impacts associated with the potential regulation of AN under CAA 
section 112(r), including any special circumstances involving small 
entities that EPA should consider.
    ii. Should EPA amend the RMP requirements to address the hazard 
posed by AN? If so, what specific requirements would be appropriate for 
AN? Alternatively, should EPA use its regulatory authority under CAA 
112(r)(7)(A) to require more tailored safety steps for facilities 
handling AN and list AN at a high threshold to better focus these 
requirements on fewer holders of large quantities that pose the 
greatest risk? What would be the benefits of regulating AN under the 
RMP regulations as opposed to only maintaining the current SDS and 
hazardous chemical inventory reporting already required under EPCRA?
    iii. If EPA were to regulate AN under 40 CFR part 68, what quantity 
of AN poses a sufficient hazard to be covered? What would be the basis 
for establishing this TQ?
    iv. Does your facility store, handle, or manage AN? If so, in what 
form (e.g., solid, liquid) and in what grade (e.g., high density, low 
density)? If you are not a manufacturer of AN, how does your facility 
process or use AN? What quantities of AN are typically stored at your 
facility at one time?
    v. Are there any other standards, including consensus standards, 
applicable to AN storage, handling, and management that your facility 
follows? If so, which ones?
    vi. Please provide any data or information on accidents involving 
the storage, handling, and management of AN that affected people or 
property.
    vii. Please provide data on the population surrounding AN sites, 
including socio-economic information and other environmental burdens on 
surrounding communities.
    viii. If EPA were to regulate AN under CAA Section 112(r), should 
EPA exempt farmers who store AN for use as a fertilizer? How many 
farmers would be eligible for such an exemption? Should there be any 
limits on such an exemption, such as maximum quantity on-site at any 
given time? Please provide the reasoning and any available data 
supporting your views.
d. Adding Reactive Substances and Reactivity Hazards
    Although the chemicals listed in 40 CFR 68.130 were listed based on 
their toxicity or flammability, a number of them could be considered 
reactive chemicals based on a variety of metrics, including consensus 
standard sources. For example, the RMP list currently includes three 
chlorosilanes listed as toxic substances.\15\ These compounds are 
included on the list because their levels of acute toxicity based on 
animal studies met the RMP listing criteria. However, they primarily 
produce acute toxic effects on exposed populations because of their 
rapid and intensive reaction with moisture in the air to produce 
hydrogen chloride, which can cause acute injury to any body tissue 
contacted as well as nasal, throat, or lung irritation, coughing, 
wheezing, and shortness of breath. Nevertheless, while certain listed 
substances such as these are reactive, the RMP list does not 
specifically focus on reactive chemicals. There are other chemicals 
that do not meet the RMP listing criteria, but could potentially be 
listed based on the hazards of their reaction byproducts (e.g., other 
chlorosilanes that produce hydrochloric acid upon release to the air).
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    \15\ These include methyltrichlorosilane (CASRN 75-79-6), 
dimethyldichlorosilane (CASRN 75-78-5), and trimethylchlorosilane 
(CASRN 75-77-4).
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    EPA has long been aware of the hazards associated with reactive 
chemicals. In the January 19, 1993 proposed rule for listing substances 
(58 FR 5102), we considered whether to include on the list chemicals 
whose reactive properties could cause effects, in the event of an 
accident, that would impact nearby communities. In order to meet the 
conditions in CAA section 112(r)(3) for the listing of substances, EPA 
sought to determine the common physical-chemical characteristics or 
properties that would be used as criteria to identify a set of 
chemicals to be listed and to provide the technical basis for these 
criteria. For toxic and flammable substances, the listing criteria 
included inherent properties of the chemical substances, such as 
physical state or boiling point, that are indicators of the potential 
to pose a severe threat to the community. EPA attempted to evaluate the 
hazards associated with reactive substances and develop an adequate 
technical basis to determine potential effects on the community. One 
difficulty is that it is not feasible for national listing decisions to 
take into account process- and site-specific factors, which can vary 
widely. EPA has instead addressed these factors in the accident 
prevention regulations (e.g., owners and operators implement hazard 
controls based on a PHA or hazard review that identifies the specific 
hazards of their regulated processes). Using criteria from other 
organizations, for example, an NFPA instability rating of 4 assigned to 
materials that are readily capable of detonation, explosive 
decomposition, or explosive reaction at normal pressures and 
temperatures provides important information but gives little indication 
of the potential impact on a community from an accident that takes 
place inside an industrial facility. The 1993 proposed rule requested 
comments from the public on approaches that could be used to evaluate 
the consequences to communities from incidents involving reactive 
substances. However, very few comments were received and no specific 
methods or listing criteria were identified by commenters. Several 
commenters suggested that a small number of highly reactive chemicals, 
specifically those that have toxic byproducts as a result of 
degradation or combustion, and have been involved in serious accidents, 
be added to the list. Several other commenters suggested deferring the 
listing of reactive substances based on the complexity of the technical 
issues, the lack of a methodology to screen reactive hazards, and the 
expectation that reactive substances are unlikely to migrate off-site.
    Serious accidents involving reactive chemicals have called 
attention to their hazards and raised questions regarding whether 
reactive chemicals are adequately regulated. In response to a 1995 
chemical explosion that killed five workers at Napp Technologies, Inc., 
in Lodi, New Jersey, OSHA and EPA investigated the accident and 
concluded in a jointly-issued report \16\ that the explosion was most 
likely triggered by an uncontrolled chemical reaction of water, sodium 
hydrosulfite, and aluminum powder. However this

[[Page 44612]]

investigation did not result in any changes in OSHA or EPA regulations.
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    \16\ EPA/OSHA, EPA/OSHA Joint Chemical Accident Investigation 
Report--Napp Technologies, Inc., Lodi, New Jersey (EPA-550-R-97-002, 
October, 1997).
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    In August 2000, after investigating a runaway reaction at Morton 
International in Patterson, New Jersey that injured nine employees, the 
CSB initiated a comprehensive review of reactive hazards nationwide and 
issued a final report \17\ in 2002 with recommendations to reduce the 
number and severity of such incidents. The report recommended that EPA 
revise the RMP regulation to address catastrophic reactive hazards that 
have the potential to seriously impact the public, including those 
resulting from self-reactive chemicals and combinations of chemicals 
and process-specific conditions. It also recommended coverage of 
chemicals based on a class of highly reactive properties, similar to 
the way the existing PSM standard defines a class of flammable liquids 
or gases. The CSB argued that a performance-based approach to 
evaluating reactive hazards would allow for both a comprehensive 
analysis and flexibility in implementation, but cautioned that a proper 
analysis would require expertise in reactivity hazards.
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    \17\ CSB, Hazard Investigation--Improving Reactive Hazard 
Management, U.S. Chemical Safety and Hazard Investigation Board 
(Report No. 2001-01-H, October 2002). http://www.csb.gov/assets/1/19/ReactiveHazardInvestigationReport.pdf.
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    CSB also recommended that EPA modify the accident reporting 
requirements in risk management plans and in ``RMP*Info'' (EPA's 
database for risk management plans) to define and record reactive 
incidents and add the term ``reactive incident'' to the four existing 
``release events'' in EPA's current 5-year accident reporting 
requirements (Gas Release, Liquid Spill/Evaporation, Fire, and 
Explosion). According to CSB, structuring the information collection in 
this way would allow EPA and its stakeholders to identify and focus 
resources on industry sectors that experienced the incidents; chemicals 
and processes involved; and impacts on the public, the workforce, and 
the environment. Consequently, in 2004 EPA amended the format for risk 
management plan submissions to include uncontrolled chemical reactions 
on the list of possible accident causes that covered sources may select 
when completing five-year accident history reports. Since amending the 
format, 29 reactive chemical incidents have been reported in RMPs 
submitted to EPA. In total, these accidents resulted in zero deaths, 48 
injuries, 190 people evacuated, approximately $3 million in off-site 
property damage, and approximately $33 million in onsite property 
damage. Processes in 16 different NAICS codes were involved in these 
incidents; however, processes in NAICS 325211 (Plastics Material and 
Resin Manufacturing) accounted for 9 of the incidents. No other NAICS 
code accounted for more than 3 incidents.
    One approach to regulating reactive hazards is the approach adopted 
in the New Jersey Toxic Catastrophe Prevention Act (TCPA), which 
includes a ``List of Individual Reactive Hazardous Substances,'' as 
well as a list of ``Reactive Hazard Substances Mixture Functional 
Groups.'' \18\ TCPA includes substances with certain functional groups 
and molecular structures that have been identified as highly reactive, 
based on scientific research and accident history. Under the TCPA, 
covered facilities must determine if any of the chemicals they are 
intentionally mixing include components on the Functional Group list. 
If so, then the facility must determine the heat of the reaction and 
the corresponding TQ for TCPA coverage. This approach takes into 
account not only certain specific chemicals, but also their overall 
reactivity in determining the level of coverage.
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    \18\ The New Jersey Toxic Catastrophe Prevention Act is the 
state's process safety regulation. It adopts the federal RMP 
requirements, and includes additional state-level requirements. See 
http://www.nj.gov/dep/rpp/brp/tcpa/index.htm.
---------------------------------------------------------------------------

    In 2010, the NFPA published the first edition of its Hazardous 
Materials Code (NFPA 400). NFPA 400 was subsequently updated in 2012 
(i.e., NFPA 400 Hazardous Materials Code, 2013 Edition).\19\ NFPA 400 
specifies storage, use, and handling requirements for various 
categories of hazardous materials, including unstable (reactive) solids 
and liquids, water reactive solids and liquids, and others. EPA could 
adopt similar requirements as the basis for reactive hazards 
regulations.
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    \19\ http://www.nfpa.org/catalog/product.asp?pid=40013&cookie_test=1.
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    EPA is considering including reactive chemicals on the RMP list and 
is seeking information on potential approaches to addressing reactive 
hazards, including the approach used in the TCPA, application of the 
requirements contained in NFPA 400, or others. EPA requests information 
on the following questions:
    i. What are the best criteria to use in classifying reactive 
hazards? How do you identify a reactive chemical or a reactive mixture?
    ii. Should EPA add reactive chemicals to the list of RMP-covered 
chemicals in 40 CFR 68.130? If so, which chemicals? What criteria 
should EPA consider using to establish TQs for reactive chemicals? 
Should EPA add only specific chemicals, or groups of chemicals defined 
by particular chemical characteristics?
    iii. Should EPA list additional chlorosilanes as toxic substances 
on the RMP list due to their reactive hazard due to formation of 
hydrochloric acid when a chlorosilane is accidentally released into the 
air and reacts with moisture?
    iv. If your facility is covered by the New Jersey TCPA, have those 
requirements been effective in protecting human health and the 
environment from reactive hazards? Please describe any economic impacts 
associated with TCPA coverage (e.g., costs and benefits, cost savings, 
shifts in usage of reactive chemicals, special circumstances involving 
small entities, etc.).
    v. Should EPA revise the RMP regulation to use chemical functional 
groups similar to those in the TCPA \20\ to define hazardous reactive 
mixtures? If so, which chemical functional groups should EPA use?
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    \20\ The definition of ``reactive hazard substance (RHS) 
mixture'' in the TCPA references a list of chemical functional 
groups specified in N.J.A.C. 7:31-6.3(a), Table I, part D, Group II. 
Whether any of the chemical functional groups are present determines 
in part coverage of an RHS mixture under the TCPA.
---------------------------------------------------------------------------

    vi. Does your facility follow NFPA 400 for reactive hazards? If so, 
please describe the economic impacts associated with following NFPA 400 
(e.g., cost of additional equipment, cost of additional training, 
benefits of quality management, special circumstances involving small 
entities, etc.). Is following NFPA 400 an effective way of protecting 
human health and the environment from reactive hazards? Please explain.
    vii. Has your facility implemented a reactive-hazards management 
program other than a program specified by the TCPA and NFPA 400? If so, 
please describe your facility's program, whether it protects human 
health and the environment more or less than the TCPA and NFPA 400, 
whether it is voluntary or mandatory and, if the latter, under what 
authority, any economic impacts associated with the program, and any 
special circumstances involving small entities.
    viii. What alternative regulatory approach to TCPA or NFPA 400, if 
any, should EPA consider using to address reactive hazards? What would 
be the economic impacts of this approach and would there be any special 
circumstances involving small entities? Are there specific requirements 
that EPA should consider adding to the RMP regulations to ensure that 
owners and

[[Page 44613]]

operators adequately manage reactive hazards?
    ix. Please provide any data or information on accidents, near 
misses, or other safety-related incidents involving reactive hazards 
not covered under the existing RMP regulation. What reactive-hazards 
management requirements might have prevented these incidents if they 
had been included in the RMP regulation?
e. Adding Other Categories of Substances
    This section addresses substances which are not traditionally 
classified as highly toxic, flammable, or explosive but that have 
nonetheless caused or contributed to serious accidents. Other 
categories of substances beyond highly toxic and flammable liquids and 
gases could cause death, injury, or serious adverse effects to human 
health or the environment in the event of an accident. For example, 
certain types of flammable and explosive solids and non-volatile 
liquids can explode and cause blast waves that have the potential to 
injure people and cause property damage beyond a facility's fence line. 
Such explosions or detonations could involve categories of chemicals 
not currently regulated as RMP substances or previously discussed in 
this section as potential additions to the RMP list. Examples of these 
include organic peroxides, oxidizers, combustible dusts or other 
flammable solids.
    EPA requests information on the following questions:
    i. Should EPA consider adding organic peroxides, oxidizers, 
combustible dusts, flammable solids, or other additional types of 
chemicals to the RMP list? Are there any particular chemicals belonging 
to these or other classes which present a high hazard that could cause 
adverse effects beyond a facility's fence line in the event of an 
accidental release?
    ii. If a particular new category of chemicals should be considered 
for inclusion on the RMP list, what criteria should be used to 
prioritize the hazard(s) and determine which chemicals should be 
listed?
    iii. If EPA were to add combustible dusts to the lists of covered 
chemicals, are there categories of dusts, such as agricultural dusts 
(e.g., grain dust, pesticide dust, etc.), that should be excluded? What 
factors, such as existing handling practices, accident history, and 
potential risk to surrounding communities should EPA consider in 
evaluating potential exclusions?
f. Removing Certain Substances From the List or Raising Their Threshold 
Quantity
    EPA is also seeking information on whether certain substances 
should be removed from the current list of regulated substances. There 
are six RMP chemicals (four toxic, two flammable) for which EPA has 
never received a RMP report. The four toxic chemicals are arsenous 
trichloride (CASRN 7784-34-1), cyanogen chloride (CASRN 506-77-4), 
sulfur tetrafluoride (CASRN 7783-60-0), and tetramethyl lead (CASRN 75-
74-1). The two flammable chemicals are: chlorine monoxide (CASRN 7791-
21-1) and ethyl nitrite (CASRN 109-95-5). EPA's 2012 Chemical Data 
Reporting (CDR) information on the production and use of chemicals 
manufactured or imported into the United States also showed no 
facilities reporting any data for these six chemicals, when searched by 
CASRN.\21\ EPA's Envirofacts system,\22\ which contains reporting on 
chemicals from the various environmental databases and reporting 
systems managed by EPA, also did not show any reports for these six 
substances, when searched by CASRN. A search of the E-Plan database, 
which contains EPCRA Tier II Emergency and Hazardous Chemical Inventory 
reports for most states, showed that four of the six chemicals were 
reported in E-Plan for filing year 2012, but only one facility each 
reported for three of the chemicals and five facilities reported for 
sulfur tetrafluoride. However, E-Plan only contains reports from about 
40 states, and for several of these, the database does not contain 
complete information. The search results show that four of the six 
chemicals are in commerce, although the Tier II amounts reported on 
site were below RMP reporting thresholds.
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    \21\ http://www.epa.gov.cdr/. However, manufacturing or 
production volume data was only required for CDR when 2011 site-
specific production volume for reportable chemicals equaled or 
exceeded 25,000 pounds. Chemicals manufactured only for non-TSCA 
uses such as pesticides or chemicals regulated by the FDA are not 
required to be reported under CDR. Also, small manufacturers 
(including importers) are generally exempt from CDR requirements if 
their annual company sales do not exceed certain limits.
    \22\ http://www.epa.gov/enviro/index.html.
---------------------------------------------------------------------------

    One of the sixteen substances mandated by Congress for the initial 
listing of regulated substances for accident prevention was toluene 
diisocyanate (TDI). In order to ensure that all forms of TDI were 
listed, the RMP list of toxic substances contains three listings 
representing this chemical, including both the 2,4 and 2,6 isomers 
(also listed as EHSs) and unspecified isomers or mixture of isomers 
(not listed as an EHS), all of which have distinct separate CAS 
Registry numbers.


Toluene, 2,4-diisocyanate.........  CASRN...............        584-84-9
Toluene, 2.6-diisocyanate.........  CASRN...............         91-08-7
Toluene diisocyanate, unspecified   CASRN...............      26471-62-5
 isomer.                                                            \23\
 

    Although the vapor pressure for TDI is relatively low at ambient 
temperature (< 0.5 mm Hg) and does not meet the vapor pressure listing 
criteria of >= 10 mm Hg for a regulated toxic substance, EPA believed 
that the language of CAA section 112(r)(3) precluded the Agency from 
omitting TDI from the initial list of RMP substances. The Senate Report 
on its version of the 1990 CAAA \24\ says ``the Administrator is not 
authorized to remove substances from the initial list.'' The format of 
CAA 112(r)(3), which mandates the initial list contain certain 
chemicals and requires a more expansive list by rulemaking, first 
appears in the Senate Bill. However, the statute itself does not 
prohibit later deletions of substances that were mandated for inclusion 
on the initial list. The final enacted CAA section 112(r)(3) authorizes 
both additions and deletions from the list, in contrast to the version 
in the Senate Report that only authorized additions.\25\ The enacted 
language is similar to the structure of the hazardous air pollutant 
(HAP) ``initial list'' under CAA section 112(b), which authorizes 
revisions and deletions and is cross-referenced in CAA section 
112(b)(3) for its revision procedures. Fifty-three accidents involving 
TDI have been reported in RMP accident history reports since 1995, but 
none of these resulted in fatalities or off-site injuries.
---------------------------------------------------------------------------

    \23\ This CASRN is used for the ``generic TDI'' for any mixture 
of the 2,4-TDI and 2,6-TDI isomers, of varying ratio between the two 
specific isomers.
    \24\ Senate Committee on Environment and Public Works, Clean Air 
Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st 
Session 211 (1989), page 220.
    \25\ See Senate Report at 560 (section 129(c)).
---------------------------------------------------------------------------

    Currently the TQ for all three TDI listings is 10,000 pounds. EPA 
is considering whether the TQ for TDI

[[Page 44614]]

should be higher because its much lower vapor pressure would result in 
a lower volatilization rate and less potential for an air release. The 
current TQs were assigned based on a ranking scheme using a Level of 
Concern (LOC) based on acute toxicity and the potential for airborne 
dispersion. For each chemical, a ranking factor was calculated that 
equaled the LOC divided by an air dispersion factor (V). Chemicals were 
assigned TQs of 500, 1,000, 2,500, 5,000, 10,000, 15,000 or 20,000 
pounds based on the order of magnitude ranges of the ranking factors. 
The LOC was based on the Immediately Dangerous to Life and Health 
(IDLH) level developed by the National Institute of Occupational Safety 
and Health (NIOSH) or an approximation of the IDLH based on animal 
toxicity data. For gases, V = 1, while for liquids, V was based on a 
volatilization model using the molecular weight and boiling point of 
the chemical. The TQ methodology is described in detail and the ranking 
factors for each chemical are provided in the Technical Background 
Documents for the Development of Threshold Quantities,\26\ which are 
available in the public docket for this notice. The minimum level of TQ 
was set at 500 pounds to represent a drum sized container. The highest 
TQ of 20,000 pounds represented typical handling quantities and allowed 
the range of thresholds to better reflect the relative hazards among 
the listed toxic chemicals.
---------------------------------------------------------------------------

    \26\ USEPA. June 21, 1992. Technical Background Document for the 
Development of Threshold Quantities for List of Regulated Substances 
for Accidental Release Prevention, Clean Air Act Section 112(r). 
Original Docket A-91-74, document  III-B-2.
    USEPA. January 14, 1994. Technical Background Document 
Supporting Development of Threshold Quantities for Regulated 
Substances under Section 112(r) of the Clean Air Act. Original 
Docket A-91-74, document  V-B-2.
---------------------------------------------------------------------------

    Applying EPA's TQ ranking methodology, the ranking factor for TDI 
was 0.73, which was midrange for the toxic substances assigned the TQ 
of 10,000 pounds. Other toxic chemicals assigned the 10,000 pounds TQ 
had ranking factors ranging from 0.3 to 0.9. The acute toxicity of TDI 
is relatively high compared to most of the other toxic chemicals. The 
LOC toxicity value of TDI is 0.07 g/m\3\ (10 ppm) and the LOC toxicity 
values for the other toxic chemicals range from 0.0025 g/m\3\ to 4.9 g/
m\3\ (the lower the LOC toxicity value, the more toxic the chemical).
    Although the vapor pressure of TDI is much less than the cutoff 
vapor pressure of 10 mm Hg used to select other liquid toxic 
substances, the air dispersion factor (V) does not use the vapor 
pressure at ambient temperature to determine the volatilization rate. 
Instead, the equation for calculating V uses the boiling point of the 
chemical to reflect worst case conditions of accidental releases that 
are likely to involve heat (e.g., fires, exothermic runaway reactions, 
or upset process conditions), which cause more rapid volatilization of 
the liquid.
    To assign TDI a TQ based on its vapor pressure, a different 
rationale would have to be used for determining the threshold such as 
using ambient liquid temperature conditions instead of boiling liquid 
temperatures for calculating the air dispersion factor V. EPA is 
requesting information on whether the methodology for assigning TQs 
should be changed to account for the much lower vapor pressure of TDI, 
and if so, information on a rationale for how it should be done.
    One consideration for retaining TDI on the list of substances 
despite its low vapor pressure is that TDI is known as a potent dermal 
and lung sensitizer. In sensitized individuals, exposure to even small 
amounts of diisocyanates may cause allergic reactions such as asthmas 
and severe breathing difficulties. The LOC toxicity value for TDI was 
based on a 1990 IDLH value of 10 ppm, which has since been revised to 
2.5 ppm.\27\ The Acute Exposure Guideline Level-2 (AEGL-2) for a 1-hour 
exposure has been established at 0.083 ppm \28\ which is a 
concentration above which it is predicted that the general population, 
including susceptible individuals, could experience irreversible or 
other serious, long-lasting adverse health effects or an impaired 
ability to escape (see section II.D.9 later for further discussion 
about AEGLs). However, neither the revised IDHL or AEGL values are 
based on exposures of individuals or animals sensitized to TDI. Thus, 
some accidental releases of TDI that would not cause severe acute 
health effects in most individuals, may trigger breathing problems or 
severe allergic reactions in sensitized individuals. The sensitizing 
nature of TDI should be considered when evaluating whether to raise the 
TQ of TDI and perhaps should be considered as a reason for lowering the 
TQ instead of raising it.
---------------------------------------------------------------------------

    \27\ http://www.cdc.gov/niosh/idlh/584849.html.
    \28\ http://www.epa.gov/oppt/aegl/pubs/tsd47.pdf.
---------------------------------------------------------------------------

    One of the flammable chemicals on the RMP list, 1,3-pentadiene 
(CASRN 504-60-9), fails to meet the flammability criteria discussed 
earlier in this section. Its inclusion in the RMP list of flammable 
substances was due to a typographical error in the boiling point of the 
substance as reported by one reference source. NFPA had listed the 
boiling point for 1,3-pentadiene as -43 [deg]C,\29\ but according to 
other data sources, it is actually + 43 [deg]C, which is above the 
cutoff of 37.8 [deg]C for an NFPA flammability 4 rating. NFPA has since 
corrected the boiling point and changed the flammability rating to 
3.\30\ Therefore, 1,3- pentadiene does not meet the flammability and 
volatility criteria for RMP-listed flammable substances.
---------------------------------------------------------------------------

    \29\ NFPA. 1994. NFPA 325 Guide to Fire Hazard Properties of 
Flammable Liquids, Gases and Volatile Solids, 1994 ed. National Fire 
Protection Association, Pg 325-77.
    \30\ NFPA. 2010. NFPA Fire Protection Guide to Hazardous 
Materials, 14th ed., Fire Hazard Properties of Flammable Liquids, 
Gases, and Volatile Solids. National Fire Protection Association. 
Pg. 325-95.
---------------------------------------------------------------------------

    EPA requests information on the following questions:
    i. Would it be appropriate for EPA to delete TDI (a substance 
mandated by Congress to be included on the initial RMP list) from the 
RMP toxic substances list because its vapor pressure does not meet the 
vapor pressure listing criteria established by EPA?
    ii. If it is not appropriate to delete TDI, would it be appropriate 
for EPA to continue to list TDI on the RMP list but with a higher TQ 
for RMP reporting? Should the methodology for assigning TQs account for 
the much lower vapor pressure of TDI, and if so, how should this be 
done? Currently, the TQ for all three TDI listings is 10,000 pounds.
    iii. If it is not appropriate to delete TDI because it is a 
sensitizer, should EPA continue to list TDI on the RMP list but with a 
lower TQ because of its unique toxicity, and if so, what should be the 
basis for setting a lowered TQ?
    iv. Are there other listed substances that should have a higher TQ? 
If so, which ones, what are the appropriate TQs, and why?
    v. Should EPA delete from the RMP list any of the six substances 
for which the Agency has not received any RMP report if the Agency 
believes that they are not widespread in commerce or only stored in 
quantities well below the RMP TQ? EPA requests any available 
information about the extent of these six chemicals' manufacture and 
use in commerce, including any annual amounts manufactured, imported or 
used in the U.S.
    vi. Is there any reason that EPA should not delete 1, 3-pentadiene 
from the RMP list as it does not meet the listing criteria for 
flammable substances and was erroneously listed? Are there any other 
RMP substances that are known to be listed based on erroneous data?

[[Page 44615]]

g. Lowering the Threshold Quantity for Substances Currently on the List
    EPA is also seeking information on whether the TQ for any 
substances currently on the list should be reduced:
    i. Are the current TQs protective of human health and the 
environment, or are there certain substances for which the TQ is too 
high? If so, which substances? For such substances, what TQ should EPA 
establish and what would it be based on?
    ii. What would be the economic impacts of any lowering of the TQ 
which might be warranted? Are there any special circumstances involving 
small entities that EPA should consider with respect to lowering of a 
TQ?
2. Additional Risk Management Program Elements
    Approaches to chemical process safety have continued to evolve 
since both the RMP regulation and OSHA PSM standard were promulgated. 
New management system elements and best practices are now being used to 
address human health, worker safety and environmental protection. 
Lessons learned from data collected in RMP submissions regarding safety 
management systems have also informed EPA's perspective on the issue. 
The Agency is requesting information on the management system elements 
OSHA has identified in their RFI, but with a focus on their 
applicability to the RMP requirements, and how they can enhance the 
protection of human health and the environment.
    Like OSHA, EPA is considering three elements taken from the Risk 
Based Process Safety Program recommended by the Center for Chemical 
Process Safety (CCPS): \31\ (1) Measurements and Metrics; (2) 
Management Review and Continuous Improvement; and (3) Process Safety 
Competency. A ``Measurements and Metrics'' element would require the 
facility to establish performance and efficiency indicators to track 
the effectiveness of the risk management system and to identify 
opportunities for improvement of its elements and work activities. This 
element would guide facilities in measuring the real-time performance 
of their process safety management systems An example of a measurement 
and metrics indicator would be to track the frequency of process upsets 
and near-miss accidents. A ``Management Review and Continuous 
Improvement'' element would focus on ongoing ``due diligence'' 
management reviews that fill the gap between day-to-day work activities 
and periodic formal audits. This element would require facilities to 
regularly evaluate the management systems in place, as opposed to 
waiting for an incident to occur, or for scheduled audits to identify 
deficiencies. A ``Process Safety Competency'' element would encompass 
three interrelated activities: (1) To continuously improve on knowledge 
and competency, (2) to ensure appropriate information is available to 
those who need it, and (3) to consistently apply lessons learned. The 
main focus of this competency element is organizational learning, so 
that the process knowledge can be applied to situations in order to 
effectively manage risk.
---------------------------------------------------------------------------

    \31\ American Institute of Chemical Engineers, Center for 
Chemical Process Safety, Guidelines for Risk Based Process Safety, 
New York, Wiley, 2007.
---------------------------------------------------------------------------

    The Agency is also requesting information on two additional 
management-system elements that were identified by OSHA in their review 
of relevant safety standards promulgated by other federal agencies. 
Specifically, the Bureau of Safety and Environmental Enforcement (BSEE) 
promulgated revisions to their Safety and Environmental Management 
Systems (SEMS II) requirements (78 FR 20423; April 5, 2013) to help 
ensure the safe operations of their regulated facilities. The revisions 
included a number of management-system elements not addressed in the 
RMP regulation. The two elements the Agency is focusing on are a ``Stop 
Work Authority'' and an ``Ultimate Work Authority.'' In its SEMS II 
Fact Sheet,\32\ BSEE describes these elements as follows:
---------------------------------------------------------------------------

    \32\ http://www.bsee.gov/Regulations-and-Guidance/Safety-and-Environmental-Management-Systems-SEMS/Fact-Sheet/.
---------------------------------------------------------------------------

     Developing and implementing a stop work authority that 
creates procedures and authorizes any and all offshore industry 
personnel who witness an imminent risk or dangerous activity to stop 
work.
     Developing and implementing an ultimate work authority 
that requires offshore industry operators to clearly define who has the 
ultimate work authority on a facility for operational safety and 
decision-making at any given time.
    While the requirements under SEMS II focus on offshore facilities 
under the jurisdiction of BSEE, the concept of requiring these elements 
may be applicable to facilities subject to the RMP regulation. 
Established procedures for any and all employees on the facility to 
implement a stop work authority when witnessing an activity that 
creates a threat of danger, and clearly defined requirements 
establishing who has the ultimate authority on the facility for 
operational safety and decision making at any given time could help to 
better protect human health and the environment.
    In addition to the management system elements identified in the 
OSHA RFI, EPA is also interested in receiving public comment on whether 
there are other accident prevention elements that should be considered 
for inclusion in the RMP regulation. The Agency notes that both the 
CCPS Guidelines for Risk Based Process Safety and the BSEE SEMS 
regulations contain additional management system elements not present 
in the RMP regulation. One such element is ``conduct of operations'' 
which CCPS defines as ``the execution of operational and management 
tasks in a deliberate and structured manner.'' Conduct of operations 
includes a variety of measures such as formal communications between 
workers, work groups, and work shifts. It also involves establishing 
clear rules governing access to key process areas, such as control 
rooms, performing regular tours or rounds to monitor equipment status 
and keeping written shift logs of equipment status and ongoing process 
activities, maintaining clear and accurate labeling for process 
equipment, and maintaining good housekeeping in process areas.
    Another element contained in the CCPS Guidelines is ``process 
safety culture.'' CCPS defines process safety culture as ``the 
combination of group values and behaviors that determine the manner in 
which process safety is managed.'' Poor safety culture can lead to 
accidents by allowing production pressures to overshadow safety 
concerns, or by limiting the free exchange of important safety 
information among plant personnel. Safety culture has been implicated 
in recent serious accidents, such as the August 2012 accident at the 
Chevron refinery in Richmond, California. In that accident, the CSB 
found indications that a weak safety culture may have led to the 
normalization of deviance in the refinery's mechanical integrity 
management system. Consequently, the California Interagency Working 
Group on Refinery Safety published a report concluding that both the 
California OSHA PSM requirements and the California Accidental Release 
Prevention RMP requirements should be strengthened to require 
California refineries to conduct safety culture assessments at least 
every three years.\33\
---------------------------------------------------------------------------

    \33\ California Interagency Working Group on Refinery Safety: 
Improving Public and Worker Safety at Oil Refineries, California 
Environmental Protection Agency, February 2014, http://www.calepa.ca.gov/Publications/Reports/2014/RefineryRpt.pdf.

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

[[Page 44616]]

    The BSEE SEMS regulations contain requirements to conduct a ``Job 
Safety Analysis.'' BSEE indicates that the Job Safety Analysis (JSA) is 
an operations/task level hazard analysis technique used to identify 
risks to personnel associated with their job activities. The Agency is 
requesting public comment on whether these or other additional 
management system elements should be added to the RMP regulation, and 
whether and how these elements relate to prevention of accidental 
releases.
    Additionally, the Agency seeks public comment on whether management 
system elements that are currently contained within the RMP regulation 
should be modified, clarified or strengthened. For example:
     Contractors are increasingly used in a variety of roles at 
chemical process facilities, yet the RMP rule imposes fewer safety 
requirements on contractor owners and operators than on the owners and 
operators of the regulated stationary source. In October 2007, five 
contractor workers were killed at Xcel Energy, in Georgetown, Colorado, 
when a fire occurred inside a tunnel at the company's hydroelectric 
power plant. The CSB found that inadequate contractor safety practices 
and oversight contributed to the accident; \34\
---------------------------------------------------------------------------

    \34\ CSB, Investigation Report--Xcel Energy Hydroelectric Plant 
Penstock Fire, U.S. Chemical Safety and Hazard Investigation Board 
(Report No. 2008-01-I-CO, August 2010). http://www.csb.gov/assets/1/19/Xcel_Energy_Report_Final.pdf.
---------------------------------------------------------------------------

     The RMP rule requires owner/operators to conduct a Process 
Hazard Analysis (PHA) for Program 3 processes and a hazard review for 
Program 2 processes. PHAs and hazard reviews are intended to identify 
potential equipment malfunctions or human errors that could cause an 
accidental release, and safeguards needed to prevent such malfunctions 
and errors. However, the rule does not explicitly describe the types of 
failure scenarios or damage mechanisms that must be considered during 
PHAs and hazard reviews, and during some compliance inspections EPA has 
reviewed PHAs and hazard reviews that did not address failure scenarios 
such as natural disasters (e.g., floods, earthquakes, hurricanes, 
etc.), corrosion, vehicle collisions, and others. Additionally, the 
rule requires hazard reviews to be ``updated'', and PHAs to be 
``updated and revalidated'' at least every five years, but does not 
clearly define what is required in order for a hazard review to be 
updated or for a PHA to be updated and revalidated. EPA is interested 
in receiving comment on whether PHA and hazard review requirements 
should be clarified, and whether hazard review and PHA updates should 
be required more frequently than every five years, or whether certain 
events should trigger hazard review or PHA updates prior to the next 
scheduled 5-year update.
     The Pre-Startup Review element (section 68.67) requires 
the owner or operator to perform a pre-startup 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. However, the rule does not clearly state what 
modifications would require a change in process safety information. 
Also, EPA notes that process unit startup is a significantly more 
hazardous period compared to normal process operations, and that 
serious accidents such as the March 23, 2005 explosion at the BP 
America refinery in Texas City, Texas have occurred during process 
startup even when no significant equipment modifications were made to 
the process during the preceding turnaround.
    EPA requests information on any additional management-system 
elements or on potentially modifying, clarifying or expanding existing 
elements, including those discussed in this RFI, which would serve to 
improve protection of human health and the environment. The Agency 
welcomes data and information on management-system elements from 
consensus standards, safety organizations, federal standards, or other 
sources that could increase process safety if the RMP regulation were 
expanded to include them. The Agency invites the public to respond to 
any questions for which they have specific knowledge, data, or 
information, regardless of their involvement in RMP-regulated 
operations. Specifically, EPA requests information on the following 
questions:
    a. Does your facility follow any management-system elements not 
required under part 68 for RMP-regulated operations? If so, please 
describe the additional management-system elements, the safety 
benefits, any economic impacts associated with following the elements, 
and any special circumstances involving small entities.
    b. Would expanding the scope of the RMP regulation to require 
additional management-system elements, or expanding the scope of 
existing RMP management-system elements, improve the protection of 
human health and the environment? Should EPA require safety culture 
assessments, job safety analyses, or any of the other new management 
system elements described above? If so, please describe the elements, 
the safety benefits, any economic impacts associated with expanding the 
scope of the RMP regulation in this way, and any special circumstances 
involving small entities that EPA should consider. Would current staff 
at a facility be able to implement these additional elements or would 
new staff need to be hired?
    c. In systems using management and metrics, how do facilities 
develop useful leading indicators? Do you track the frequency of events 
such as process upsets, accidental releases, and ``near miss'' 
incidents? Does tracking such events allow managers and employees to 
make changes that prevent accidental releases? What other metrics and 
indicators do you use, and how do they help prevent releases?
    d. Would requiring RMP facilities to conduct periodic safety 
culture assessments meaningfully strengthen the safety culture 
incentives that already exist, such as avoidance of deaths, injuries, 
property and environmental damage, production loss, community impacts, 
damage to company reputation, etc., that may result from accidents?
    e. Would expansion of the RMP employee participation provision to 
include requirements such as the SEMS II stop-work authority, or other 
efforts to involve employees in all management-system elements, enhance 
protection of human health and the environment?
    f. Are there any other management-system elements in the existing 
RMP regulation that EPA should expand or clarify (e.g., a new 
requirement that facilities perform a root-cause analysis for incidents 
under Sec.  68.81, clarify PHA and hazard review requirements, require 
more frequent PHA and hazard review updates, strengthen contractor 
requirements, or require pre-startup reviews prior to all process 
startups)? If so, please describe the additional requirements, the 
safety benefits, any economic impacts associated with expanding the RMP 
regulation in this way, and any special circumstances involving small 
entities that EPA should consider.
    g. Are there any data or information on accidents, near misses, or 
other safety-related incidents that the facility could have prevented 
by following management-system elements not currently required under 
the RMP regulation?
    h. What would be the paperwork burden associated with the revisions 
to management-system elements discussed above? What special skills or 
training would employees need to implement

[[Page 44617]]

these elements, including associated reporting and recordkeeping 
requirements? What would be the costs of additional reporting and 
recordkeeping requirements, including costs for worker training and any 
required data management system upgrades?
3. Define and Require Evaluation of Updates to Applicable Recognized 
and Generally Accepted Good Engineering Practices
    The OSHA PSM standard's references to recognized and generally 
accepted good engineering practices (RAGAGEP) are almost identical to 
those contained in Subpart D of 40 CFR part 68 (i.e., Program 3 
Prevention Program). Sec.  68.65(d)(2) requires the owner or operator 
to ``document that equipment complies with recognized and generally 
accepted good engineering practices.'' At facilities with ``existing 
equipment designed and constructed in accordance with codes, standards, 
or practices that are no longer in general use,'' Sec.  68.65(d)(3) 
further requires the owner or operator to ``determine and document that 
the equipment is designed, maintained, inspected, tested, and operating 
in a safe manner.'' These requirements parallel the requirements in 
paragraphs (d)(3)(ii) and (d)(3)(iii) of Sec.  1910.119, respectively, 
with the only difference being that OSHA uses the term ``employer'' 
where EPA uses the term ``owner or operator.'' The RMP rule and PSM 
standard also contain identical references to RAGAGEP in Sec.  68.73/
Sec.  1910.119(j) (i.e., Mechanical Integrity). Additionally, Subpart C 
of 40 CFR part 68 (i.e., Program 2 Prevention Program) contains 
references to RAGAGEP in Sec.  68.48 (Safety information) and Sec.  
68.56 (Maintenance).
    EPA requests information on the following questions:
    a. What does your facility use as a definition for RAGAGEP? Would 
adding a definition for RAGAGEP to the RMP rule improve understanding 
of RMP requirements and prevent accidental releases? If so, what 
specific definition for RAGAGEP should EPA add to the RMP rule? What 
would be the economic impacts of adding such a definition?
    b. From what sources (e.g., codes, standards, published technical 
reports, guidelines, etc.) does your facility select applicable RAGAGEP 
for operations covered under the PSM standard?
    c. Does your facility evaluate updates to its selected RAGAGEP? If 
so, how does your facility monitor any updates, and how often do you 
evaluate them?
    d. Please provide any data or information on accidents, near 
misses, or other safety-related incidents involving failure to evaluate 
and/or implement updates to applicable RAGAGEP for RMP-covered 
processes. Would requiring employers to evaluate and/or implement 
updates to applicable RAGAGEP prevent such accidental releases?
    e. Should owners or operators covered by the applicable provisions 
of the RMP regulation be required to evaluate updates to applicable 
RAGAGEP? Should owners and operators be required to comply with new 
RAGAGEP requirements that occur after the owner or operator's initial 
compliance with the applicable provision of the RMP regulation? How 
would such updates or new requirements be identified? What would be an 
appropriate time period in which to conduct this evaluation and/or to 
comply with updated RAGAGEP? What would be the economic impacts of this 
change?
    f. Would a requirement to evaluate updates to applicable RAGAGEP be 
more appropriate in another paragraph of the RMP rule? For example, 
should such a requirement become part of the Process Hazard Analysis 
revalidation requirements at Sec.  68.67(f), or the management of 
change requirements at Sec.  68.75? How would EPA incorporate such a 
requirement for Program 2 processes?
4. Extend Mechanical Integrity Requirements To Cover Any Safety-
Critical Equipment
    EPA is interested in receiving information on whether the scope of 
the mechanical integrity provisions of the RMP rule should be expanded 
to cover the mechanical integrity of any safety-critical equipment, and 
whether additional mechanical integrity requirements should be added to 
the rule's provisions. In its RFI, OSHA notes that the mechanical 
integrity provisions of the PSM standard apply to six specific 
categories of equipment, including pressure vessels and storage tanks, 
piping systems (including piping components such as valves), relief and 
vent systems and devices, emergency shutdown systems, controls 
(including monitoring devices and sensors, alarms, and interlocks), and 
pumps. While these categories of equipment encompass most safety-
critical equipment within regulated processes, during some compliance 
inspections EPA has observed that facilities have failed to apply 
mechanical integrity program measures to certain additional types of 
equipment and systems that could reasonably be judged to be critical to 
process safety. Examples of such equipment would include computer 
software systems that interact with process components, electrical 
power systems, and other utility systems that interact with pumps, 
valves, or control systems.
    EPA notes that the RMP Program 2 maintenance requirements, which 
were intended as a streamlined version of the mechanical integrity 
requirements for Program 3 processes, apply to all process equipment, 
rather than being restricted to specific categories of equipment. This 
potentially causes the unintended result where certain aspects of a 
process subject to Program 2 must meet more rigorous maintenance 
requirements than the same equipment located in a Program 3 process. 
EPA is interested in receiving feedback on whether expanding the scope 
of the Program 3 mechanical integrity requirements or reducing the 
scope of the Program 2 maintenance requirements would appropriately 
address this potential discrepancy.
    In addition to expanding the scope of the rule's existing 
mechanical integrity provisions to cover any safety critical equipment, 
EPA is also interested in whether additional requirements should be 
added to this section, or whether any existing requirements need to be 
clarified. For example, emergency shutdown systems are one type of 
process equipment covered under the rule's mechanical integrity 
provisions. However, the regulation does not explicitly require that 
all covered sources install emergency shutdown systems.
    EPA requests information on the following questions:
    a. Should EPA amend the mechanical integrity provisions of the RMP 
rule to explicitly cover all safety critical process equipment? If so, 
what type(s) of equipment? Did you identify safety-critical equipment 
not explicitly covered under Sec.  68.73? If so, how did your facility 
determine that the equipment was safety-critical, and does your 
facility treat the equipment as if it were RMP-covered for safety or 
other reasons? Did you identify the equipment as safety-critical 
through an RMP process hazard analysis?
    b. Please provide any data or information on accidental releases, 
near misses, or other safety-related incidents related to the 
mechanical integrity of safety-critical equipment not explicitly 
covered under Sec.  68.73.
    c. Would expanding the scope of Sec.  68.73 to explicitly cover the 
integrity of all equipment critical to process safety make it more 
likely to prevent accidental releases?
    d. Should EPA add additional requirements to the mechanical 
integrity provisions, or clarify any existing

[[Page 44618]]

provisions? For example, should the Agency require that certain types 
of covered facilities install emergency shutdown systems, such as 
redundant power supplies, emergency flares, vents, or scrubbers, etc., 
in order to prevent accidental releases resulting from uncontrolled 
emergency shutdowns?
    e. Are there any other provisions of this section that should be 
enhanced or clarified? Does labeling Sec.  68.73 as ``Mechanical 
Integrity'' cause owners and operators to disregard or neglect the 
maintenance, functionality, or integrity of process components that 
would not typically be considered ``mechanical'' components, such as 
electrical and computer systems?
    f. What would be the economic impacts of revising the mechanical 
integrity provisions as discussed above? Are there any special 
circumstances involving small entities that EPA should consider with 
respect to revising the mechanical integrity provisions of the RMP?
5. Require Owners and Operators To Manage Organizational Changes
    In its RFI, OSHA notes that while the PSM standard requires 
employers to establish and implement written procedures to manage 
change, including all modifications to equipment, technology, 
procedures, raw materials, and processing conditions other than 
replacement in kind, the standard does not explicitly require employers 
to follow management-of-change procedures for organizational changes, 
such as changes in management structure, budget cuts, or personnel 
changes. However, OSHA highlights a policy interpretation indicating 
that it is OSHA's view that the PSM standard does cover organizational 
changes if the changes have the potential to affect process safety. 
Additionally, OSHA notes the 2005 BP Texas City Refinery accident, 
where the CSB identified a lack of organizational management of change 
as a significant causal factor in the accident.
    The RMP rule contains management of change requirements for Program 
3 processes (see Sec.  68.75) that are virtually identical to the PSM 
standard. Therefore, EPA is also interested in receiving public comment 
on whether the RMP rule's management of change requirements should be 
expanded to include management of organizational changes.
    EPA requests information on the following questions:
    a. What do you consider to be an organizational change within the 
context of process safety management practices? For example, would you 
consider the following, or similar, changes to be organizational 
changes: Reducing the number of operators in a shift; changing from 5-
day to 7-day operations; changing from 8-hour to 12-hour operator 
shifts; replacing a unit manager; reducing the facility operations or 
maintenance budget; relocating a technical group to a remote corporate 
location; changing a supervisory or compensation structure; or hiring 
contractors to do work formerly performed by employees of the regulated 
facility? Are there other examples of organizational changes that may 
be relevant to safety management practices?
    b. If your facility has established and implemented written 
procedures for management of organizational changes, please describe 
any economic impacts associated with the procedures. Please note any 
implementation challenges that may be associated with requiring that 
such procedures be developed and followed.
    c. Would clarifying Sec.  68.75 with an explicit requirement that 
employers manage organizational changes prevent accidental releases? 
What would be the economic impact of such a clarification? Are there 
any special circumstances involving small entities that EPA should 
consider with respect to this option?
    d. Please describe any organizational changes made in your facility 
that have had the potential to affect process operations. Were 
management-of-change procedures followed before making the changes?
    e. What do you consider to be the best safety practices concerning 
management of organizational change?
    f. Please provide any data or information on accidents, near 
misses, or other safety-related incidents involving the failure to 
manage organizational change. Would following management-of-change 
procedures under Sec.  68.75 have prevented these incidents?
6. Require Third-Party Compliance Audits
    Sections 68.58 and 68.79 of the RMP regulation (Program 2 and 3 
Compliance Audits) are almost identical in language to that found in 
1910.119(o) of the OSHA PSM standard, with PSM's focus on worker safety 
and RMP's on protecting human health and the environment. Both section 
68.58 and 68.79 require that ``the owner or operator shall audit the 
compliance with the provisions of the subpart at least every three 
years.'' In addition, both require that ``the compliance audit shall be 
conducted by at least one person knowledgeable in the process.'' 
Neither OSHA nor EPA requires employers to use a third-party in 
conducting compliance audits.
    There may be advantages to third-party audits. For example, OSHA's 
RFI discusses CSB's findings concerning a lack of rigorous compliance 
audits in the 2005 BP Texas City Refinery explosion accident. OSHA's 
settlement with BP Texas City required BP to retain a third-party 
compliance auditor with adequate experience.\35\ The CCPS argues that 
experienced third-party auditors, like those provided by consulting 
companies, can provide the most objectivity.\36\
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    \35\ United States of America Occupational Safety and Health 
Administration, BP Products North America Inc. Settlement Agreement, 
September 21, 2005.
    \36\ American Institute of Chemical Engineers, Center for 
Chemical Process Safety, Guidelines for Risk Based Process Safety, 
New York, Wiley, 2007.
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    Additionally, BSEE's Safety and Environmental Management Systems 
(SEMS) standard, 30 CFR 250, Subpart S, requires that audits be 
conducted by independent third-parties subject to BSEE approval, or to 
avoid conflict of interest, personnel that are considered to be 
qualified by the employer. In their revisions to the SEMs II final 
rule, BSEE discussed its third-party-auditing requirements.
    EPA seeks information on whether to revise 40 CFR 68.58 and 68.79 
to require facility owners and operators to use a third-party for 
compliance audits, on whether requiring a third-party auditing process 
would increase protection of human health and the environment, and on 
whether the existing compliance audit requirements are sufficiently 
clear or if changes should be made to strengthen the audit 
requirements. Specifically, EPA requests information on the following 
questions:
    a. Does your facility use a third-party for conducting compliance 
audits under Sec.  68.58 and Sec.  68.79 for safety or other reasons? 
What was the basis for that decision? How has it affected the overall 
safety record of your facility?
    b. Please provide any data or information on accidents, near 
misses, or other safety-related incidents that could have been 
prevented by conducting more effective compliance audits for operations 
covered under Sec.  68.58 and Sec.  68.79. What were the deficiencies 
in those audits? Were the audits in question conducted by in-house 
staff or a third party?
    c. Would revising Sec.  68.58 and Sec.  68.79 to require owners and 
operators of RMP-regulated facilities to use a third-party for 
compliance audits help prevent accidental releases? What would be the 
economic impacts of revising Sec.  68.58

[[Page 44619]]

and Sec.  68.79 in this way (e.g., typical consultant fees, additional 
work hours required, special circumstances involving small entities, 
etc.)?
    d. Should EPA revise Sec.  68.58 and Sec.  68.79 to require owners 
and operators to use compliance auditors (internal or third-party) with 
certain minimum credentials or certifications? If so, what minimum 
credentials or certifications should the Agency require?
    e. How should owners/operators of RMP-regulated facilities address 
the findings of the third-party auditor? Should EPA amend the RMP rule 
to require owners/operators to document how they addressed each of the 
findings of the third-party auditor? Should a timeframe for addressing 
those findings be included in the RMP regulation? Should EPA include a 
procedure for how an owner/operator may appeal the findings of the 
third-party auditor?
    f. Should EPA require facilities that have incidents or near misses 
to conduct a full compliance audit under Sec.  68.58 or Sec.  68.79, as 
appropriate? Would such a requirement create a perverse incentive to 
underreport incidents or near misses?
    g. During compliance inspections at multiple-process sources, EPA 
inspectors have noted that some owners or operators have audited only a 
subset of covered processes at the source. Should EPA clarify Sec.  
68.58 and Sec.  68.79 to explicitly indicate that all covered processes 
must receive a full compliance audit at least every three years?
    h. Does the identity of the auditor (e.g., in-house, contractor, 
professionally-certified, party licensed by EPA) affect the credibility 
of the audit for potentially impacted communities?
7. Effects of OSHA PSM Coverage on RMP Applicability
    RMP Program 2 applies to processes not eligible for Program 1 or 
subject to Program 3, whereas Program 3 applies to processes not 
eligible for Program 1 and either subject to OSHA's PSM standard under 
federal or state OSHA programs or classified in one of ten specified 
NAICS codes (see section II.B.10 for a listing of Program 3 NAICS 
codes). A review of the current RMP national database indicates that 
approximately 5,360 RMP facilities have reported Program 2 processes 
within their RMP (in most cases, these facilities have reported a 
single covered process). Approximately 4,000 (75 percent) of these are 
bulk agricultural chemical distributors such as West Fertilizer. These 
facilities generally store large quantities of anhydrous ammonia, as 
well as other agricultural chemicals, for distribution or sale. 
Although the presence of anhydrous ammonia above an RMP TQ in a process 
would normally make that process subject to both Program 3 requirements 
(assuming it did not qualify for Program 1 by virtue of its remote 
location and lack of accident history) as well as OSHA PSM, these 
facilities generally claim that they are exempt from the OSHA PSM 
standard, and therefore eligible for RMP Program 2, based on the OSHA 
``retail facility'' exemption in 29 CFR 1910.119(a)(2)(i).
    In its RFI, OSHA has requested information on whether that Agency 
should change its enforcement policy for retail facilities. OSHA notes 
that its current application of the PSM exemption for retail facilities 
is inconsistent with the normal meaning of ``retail'' and the 
explanation of the purpose of the exemption provided in the preamble to 
the PSM standard. The OSHA RFI states: ``As stated in the preamble, 
OSHA chose to exclude retail facilities from PSM coverage because the 
limited container, package, or allotment sizes of the chemicals 
typically found at these facilities do not present the same safety 
hazards as those encountered at establishments working with large, bulk 
quantities of materials. . . . As a result of increased workplace 
hazards associated with large, bulk quantities of highly hazardous 
chemicals, OSHA believes that only retail-trade facilities listed in 
NAICS sectors 44 and 45 that sell highly hazardous chemicals in small 
containers, packages, or allotments to the general public qualify for 
the retail-facilities exemption in 29 CFR 1910.119(a)(2)(i).''
    If OSHA were to change its policy such that only facilities selling 
small containers, packages, or allotments to the general public would 
qualify for the retail facilities exemption, EPA believes that 
virtually every bulk agricultural chemical distribution facility 
process currently claiming Program 2 eligibility under the RMP 
regulation would henceforth be subject to Program 3 (unless the process 
were to meet Program 1 eligibility criteria).
    Of the remaining (i.e., non-agricultural) Program 2 processes, over 
70 percent are water or wastewater treatment facilities located in 
states without federally-delegated, state-run occupational safety and 
health programs. These facilities are generally not subject to PSM 
requirements because they are operated by state or municipal government 
employees, who are not subject to federal OSHA standards in states 
without delegated OSHA programs, (i.e., federal OSHA only regulates 
private employers). It is a peculiarity of the RMP regulation that two 
identical RMP-covered water or wastewater treatment plants--one located 
in a state with a state OSHA program and the other in a state without a 
state-delegated OSHA program--are subject to different levels of 
accident prevention requirements under the RMP rule. Non-PSM-covered 
water and wastewater treatment facilities are not classified as Program 
3, by definition. Water and wastewater treatment facilities are covered 
under the RMP regulation due to the presence of large quantities of 
highly toxic substances, such as chlorine and sulfur dioxide. Processes 
in private industry sectors involving similar quantities of these 
chemicals are virtually always subject to Program 3 as a result of 
their risk to nearby receptors. EPA is interested in receiving public 
comment on whether RMP-covered municipal water and wastewater plants 
that are not eligible for Program 1 should also be subject to RMP 
Program 3, regardless of whether or not they are located in a state 
with a federally-delegated OSHA program.
    Other than bulk agricultural chemical distributors and water and 
wastewater treatment facilities, there are fewer than 400 RMP 
facilities currently reporting Program 2 processes to EPA. Of these, 
EPA believes that approximately half are either non-agricultural bulk 
chemical distributors that would also become Program 3 in the event 
that OSHA were to restrict eligibility for its PSM retail exemption, or 
processes that incorrectly reported as Program 2 in their RMP (i.e., 
processes that are actually already subject to Program 3). In summary, 
if OSHA were to restrict eligibility for its retail exemption to 
facilities selling small containers, packages, or allotments to the 
general public, and EPA were to require all RMP-covered water and 
wastewater treatment plants not eligible for Program 1 to comply with 
Program 3, EPA believes that there would be approximately 200 RMP-
covered processes nationwide that would remain eligible for Program 2. 
In light of these facts, EPA invites comment on whether it should 
modify Program 2 eligibility criteria, or alternatively, eliminate 
Program 2 and require all formerly Program 2 processes to comply with 
Program 3 or Program 1 requirements.\37\
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    \37\ This would mean that formerly Program 2 processes would 
henceforth be subject to the 5 Program 3 management system elements 
not required under Program 2 (i.e., Management of change, Pre-
startup review, Employee participation, Hot work permits, and 
Contractors), as well as the more rigorous versions of the 7 Program 
3 elements for which there are Program 2 analogs (e.g., Mechanical 
integrity under Program 3 vs Maintenance under Program 2).

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[[Page 44620]]

    EPA requests information on the following questions:
    a. Do you currently operate a facility with Program 2 covered 
processes? Please indicate what type of Program 2 process your facility 
operates. Do you implement accident prevention measures that go beyond 
RMP Program 2 for this process? If so, why? What additional prevention 
elements do you use? Do you believe Program 2 requirements are 
necessary for the safe operation of this process? Do you have any 
Program 2 processes that may be adequately managed under Program 1? 
Please explain the basis for your views.
    b. Do you operate a water or wastewater treatment plant that is 
subject to the RMP regulation? If so, what level of accident prevention 
requirements do you believe are warranted for such facilities? If you 
operate a Program 2 process at a water or wastewater treatment plant, 
how much additional burden would be involved in implementing the 
additional RMP elements required for Program 3 processes?
    c. Should RMP-covered municipal water and wastewater plants that 
are not eligible for Program 1 always be subject to RMP Program 3, 
regardless of whether or not they are located in a state with a 
Federally-delegated OSHA program? Why or why not?
    d. If OSHA restricts its retail exemption to facilities selling 
regulated substances in small containers, should EPA eliminate RMP 
Program level 2 entirely or alternatively, modify Program 2 prevention 
elements or otherwise change the eligibility criteria for Program 2? If 
so, why?
    e. Would eliminating Program level 2 simplify rule compliance for 
the regulated universe and improve human and environmental health and 
safety, or does the current three-tiered prevention program framework 
under the RMP provide an appropriate level of protection?
    f. What would be the economic impacts of modifying or eliminating 
Program level 2? Are there any special circumstances involving small 
entities that EPA should consider with respect to modifying or 
eliminating Program 2?

D. Additional Items for Which EPA Requests Information

    This section discusses items that were not previously raised in the 
OSHA RFI. Each item discussion is followed by specific questions to 
collect data, information, and comments on each issue.
1. Safer Technology and Alternatives Analysis
    EPA has recognized the importance of considering safer technology 
and alternatives techniques \38\ that may result in improved process 
safety. EPA's existing guidance \39\ on the ``general duty clause'' in 
CAA section 112(r)(1) states that, ``The owners and operators should 
try to substitute less hazardous substances for extremely hazardous 
substances or minimize inventories when possible. This is usually the 
most effective way to prevent accidents and should be the priority of a 
prevention program.'' 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.'' \40\ Additionally, the structure of the 
applicability provisions of the RMP rule, with TQs, encourages 
minimizing the presence of regulated substances in processes. Thus, 
EPA's historic approach to safer technology and alternatives under CAA 
section 112(r) has encouraged many chemical plant operators to 
introduce safer technology and alternatives to help reduce the overall 
risk of their facilities but has not mandated their use or analysis. As 
we noted in the preamble to the 1996 final RMP rule, ``Application of 
good PHA techniques often reveals opportunities for continuous 
improvement of existing processes and operations without a separate 
analysis of alternatives'' (61 FR 31674, June 20, 1996). In addition, 
in CAA Section 112(r) enforcement cases, facilities have occasionally 
entered into consent agreements involving implementation of safer 
alternatives. As a result of the Executive Order 13650 Report for the 
President,\41\ EPA and other agencies will be considering various 
additional actions related to safer technologies and alternatives.
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    \38\ In this document, ``safer technology and alternatives'' 
refer to risk reduction strategies developed through an analysis 
using a hierarchy of controls.
    \39\ http://www.epa.gov/emergencies/docs/chem/gdcregionalguidance.pdf.
    \40\ See 61 FR 31700.
    \41\ Chemical Facility Safety and Security Working Group, 
Executive Order 13650 Report to the President--Actions to Improve 
Chemical Facility Safety and Security--A Shared Commitment, May 
2014; https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.
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    In July of 2012, a coalition representing 54 organizations and 
individuals petitioned EPA to use its rulemaking authority under CAA 
section 112(r)(7)(A), ``to require the use of inherently safer 
technologies, where feasible, by facilities that use or store hazardous 
chemicals.'' The petitioners also requested that ``pending completion 
of a rulemaking under section CAA 112(r)(7)(A), EPA revise its guidance 
concerning the enforcement of the Clean Air Act's general duty clause, 
section 112(r)(1), 42 U.S.C. 7412(r)(1), to make clear that the duty to 
prevent releases of extremely hazardous substances includes the use, 
where feasible, of safer technologies to minimize the presence and 
possible release of hazardous chemicals.''\42\ While EPA shares the 
petitioner's goal of preventing hazardous chemical releases and 
minimizing their risk to communities, the Agency requests additional 
information on possible approaches to promoting risk reduction through 
safer technology and alternatives.
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    \42\ https://www.documentcloud.org/documents/404584-petition-to-epa-to-prevent-chem-disasters-filed.html, at 10.
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    A July 2010 Department of Homeland Security (DHS) report prepared 
by CCPS \43\ described inherently safer technology (IST) as a 
philosophy and an iterative process, including eliminating a hazard, 
reducing a hazard, substituting a less hazardous material, using less 
hazardous process conditions, and designing a process to reduce the 
potential for, or consequences of, human error, equipment failure, or 
intentional harm. It stated that there is no clear boundary between IST 
and other strategies, that ISTs are relative and can only be described 
as inherently safer when compared to a different technology, including 
a description of the hazard or set of hazards being considered, their 
location, and the potentially affected population. Because an option 
may be inherently safer with regard to some hazards and inherently less 
safe with regard to others, the decision process must consider the 
entire life cycle, the full spectrum of hazards and risks, and the 
potential for transfer of risk from one impacted population to another. 
This report also noted that there is currently no consensus on either a 
quantification method for IST or a scientific assessment method for 
evaluation of IST options.
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    \43\ CCPS Final Report: Definition for Inherently Safer 
Technology in Production, Transportation, Storage, and Use, July 
2010.
---------------------------------------------------------------------------

    The CCPS has also published a guideline book \44\ intended to 
provide

[[Page 44621]]

tools and guidance on approaches to implementing inherent safety. Among 
other information, the book contains an extensive checklist intended to 
assist industrial facilities with reviewing existing hazards and their 
safeguards, evaluating the feasibility of inherently safer 
alternatives, and documenting the results of this analysis.
---------------------------------------------------------------------------

    \44\ American Institute of Chemical Engineers, Center for 
Chemical Process Safety, Inherently Safer Chemical Processes: A Life 
Cycle Approach, Second Edition, New York, Wiley, 2009.
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    A 2012 National Academy of Sciences report \45\ found that while 
inherently safer process assessments can be valuable components of 
process safety management, inherently safer process assessments will 
not always result in a clear, well-defined, and feasible path forward. 
Although one process alternative may be inherently safer with respect 
to one hazard--toxicity of byproducts, for example--the process may 
present other hazards, such as an increased risk of fire or more severe 
environmental impacts. Choosing between options for process design 
involves considering a series of tradeoffs and developing appropriate 
combinations of inherent, passive, active, and procedural safety 
systems to manage all hazards.
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    \45\ http://dels.nas.edu/resources/static-assets/materials-based-on-reports/reports-in-brief/MIC-Summary-Final.pdf
---------------------------------------------------------------------------

    There are some state and local governments that have included 
inherent safety requirements in their regulations. An IST Review Rule 
was adopted under the New Jersey TCPA program in May 2008. It requires 
IST reviews of all facilities covered by the TCPA by evaluating the 
four IST principles: Minimization, substitution, moderation, and 
simplification. The rule includes a checklist developed under the 
direction of the New Jersey Domestic Security Preparedness Task Force. 
The New Jersey Department of Environmental Protection recommends three 
methods for IST analysis: \46\ (1) Reviewing and completing a checklist 
containing a number of practical inherent safety considerations, (2) 
avoiding a particular hazard at a part of the process by employing a 
particular inherently safety strategy and (3) integrating IST into the 
facility's PHA study. A facility must determine an identified 
alternative's feasibility, and must provide written justification based 
on both qualitative and quantitative evaluations of environmental, 
human health and safety, legal, technological, and economic factors if 
it decides not to implement it. For IST alternatives implemented, an 
implementation schedule must be provided. A January, 2010 report 
prepared by the New Jersey Department of Environmental Protection to 
summarize the Department's review of 85 IST reports indicated that 
approximately 48% of facilities reported that they had implemented or 
scheduled to implement IST measures as a result of conducting the IST 
review.\47\
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    \46\ See: http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf; http://www.njwec.org/PDF/Factsheets/CS_IST_FactSheet.pdf.
    \47\ See: http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_SUMWEB.pdf.
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    California's Contra Costa County's Industrial Safety Ordinance \48\ 
requires stationary sources to consider IST in the development and 
analysis of mitigation systems resulting from a process hazard analysis 
for each covered process, and in the design and review of new processes 
and facilities. The stationary source must select and implement 
inherently safer systems to the greatest extent feasible, documenting 
in detail a determination that an inherently safer system is not 
feasible. A February, 2013 report prepared by Contra Costa County 
Health Services indicated that 4 of 7 facilities covered under the 
ordinance's IST provision implemented at least one inherently safer 
measure within the previous year.\49\
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    \48\ See: http://cchealth.org/hazmat/pdf/iso/2006_iso_official_code_complete.pdf.
    \49\ See: http://cchealth.org/hazmat/pdf/iso/iso-report.pdf.
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    The CSB has released reports for two recent accidents that the 
Board indicated could have been avoided if safer technologies had been 
employed. CSB found that the use of a safer material, such as high-
chromium steel, would have prevented the accelerated corrosion and 
failure of carbon steel involved in the equipment rupture at the Tesoro 
Refinery in Anacortes, Washington in 2010, which resulted in an 
explosion and fire that killed seven employees.\50\ CSB also cited the 
failure to use more corrosion resistant high-chromium steel as a factor 
in the 2012 Chevron Refinery accident in Richmond, CA which released 
hydrocarbons that ignited, endangering 19 employees.\51\
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    \50\ See: http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf.
    \51\ See: http://www.csb.gov/assets/1/19/Chevron_Interim_Report_Final_2013-04-17.pdf.
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    An additional complication to assessing safer technologies and 
alternatives is the varying amount and quality of information available 
regarding their implementation by industry. While some facilities have 
converted to processes considered to be inherently safer, other 
facilities may not have sufficient information available to effectively 
assess the impacts from changing existing processes to ones considered 
inherently safer. The differences that exist among chemical facilities, 
in terms of chemical process, facility layout, and ability to finance 
implementation, may challenge mandatory implementation of safer 
technologies and alternatives at regulated entities.
    EPA is planning the following steps to advance safer technologies 
and alternatives:
     Publishing a joint alert with OSHA illustrating the 
concepts, principles and examples of safer technology and alternatives 
to make industry more aware of this information, while providing 
sources of information for further investigation and review,
     Publishing a voluntary guidance document with OSHA for 
operators on how to reduce risks by employing safer technology and 
alternatives, by offering a more thorough examination of alternative 
measures and safety techniques, including examples of safer technology 
and alternatives or practices,
     Based on the evaluation of feedback from the alert, 
guidance, and this RFI, EPA would consider proposing an amendment to 
the RMP regulations that requires:
    [cir] An analysis and documentation of safer technologies and 
alternatives
    [cir] Integration of the safer technologies and alternatives 
analysis into the PHA
    [cir] Implementation of safer technologies and alternatives where 
feasible; EPA would not make any determination regarding the specific 
analysis, technology, design, or process selection by chemical facility 
owners or operators.
    EPA requests information on the following questions:
    a. Should EPA require a safer alternatives options analysis either 
as a new prevention program element, as part of the existing PHA/Hazard 
Review element, or as a separate new requirement under CAA section 
112(r)?
    b. How should safer alternatives be defined if it were to be a 
requirement under CAA section 112(r) regulations? What specifically 
should a safer alternatives analysis require and how would this differ 
from what is already required under other provisions of the RMP?
    c. How should industries determine if a safer alternative exists 
for their particular process? What safer alternative chemicals are 
available for the listed RMP chemicals and for ammonium nitrate?
    d. What should facilities consider when determining if such 
technologies, when identified, are effective, available, and 
economically justified for their particular process or facility? Can 
the RMP national database, Lessons Learned

[[Page 44622]]

Information System \52\ or other federal databases be structured to 
promote the exchange of information both within industry and with other 
stakeholders on potentially safer technologies?
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    \52\ https://www.llis.dhs.gov/topics/chemical-facility-safety-and-security.
---------------------------------------------------------------------------

    e. If EPA were to require facilities to undertake an evaluation of 
the potential to incorporate safer alternatives, what minimum criteria 
should this evaluation be required to meet? How would the evaluation 
determine if a particular alternative is feasible, cost effective and 
results in less risk? What requirements or incentives, if any, should 
there be for implementation of identified safer alternatives? How 
should any such requirements be structured and enforced?
    f. Should EPA require facilities to use a safer alternatives 
evaluation method such as the CCPS Inherently Safer Technology 
Checklist? \53\
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    \53\ CCPS, Inherently Safer Chemical Processes: A Life Cycle 
Approach, Second Edition (2009), Appendix A.
---------------------------------------------------------------------------

    g. How should EPA and facilities address the risk tradeoffs that 
could result when changing a process to incorporate safer alternatives?
    h. Should EPA consider requirements similar to those used by the 
State of New Jersey or Contra Costa County, California, and if so, why? 
What have been the benefits of such programs in risk reduction or 
process safety for the facilities covered under these requirements? 
What have been the limitations or drawbacks of these programs?
    i. If EPA were to develop regulatory requirements for safer 
alternatives, which facilities should be subject to those requirements? 
Should all RMP facilities be subject to such requirements, or only 
``high risk'' facilities, such as refineries and large chemical plants? 
How would ``high risk'' be defined? Are there particular processes or 
chemicals that should be targeted or prioritized for implementation of 
such requirements?
    j. What barriers exist for industry to adopt safer alternatives? 
What incentives can be used by government to have facilities implement 
safer alternatives? Should the Agency provide special recognition to 
companies that implement safer alternatives?
    k. What are other options (other than regulatory requirements) 
exist to encourage facilities to investigate, develop or implement 
safer alternatives and how can EPA further these efforts?
    l. If RMP facilities are required to perform safer alternative 
options analyses and implementation plans, should EPA require that the 
analyses and/or implementation plans be submitted to the Agency? Should 
EPA have any role in approving such analyses or plans? In lieu of an 
approval, can EPA promote safer alternatives through reporting and the 
dissemination of information on potentially applicable practices?
    m. If RMP facilities are required to consider safer alternative 
options, what role should local communities have in these analyses? 
Should facilities be required to disclose these analyses or 
recommendations resulting from such analyses to local authorities or 
the public prior to the selection of options? Are there any other 
disclosure options that will ensure that decisions on implementing 
safer technologies are made with transparency? Are there any means of 
oversight other than disclosure that would ensure that safer 
alternatives analyses are thorough and implementation decisions are 
appropriate?
    n. What would be the economic impacts of requiring facilities to 
analyze safer alternative options? Are there any special circumstances 
involving small entities that EPA should consider?
2. Emergency Drills To Test a Source's Emergency Response Program or 
Plan
    Under Subpart E of 40 CFR part 68, RMP-covered facilities are 
required to coordinate emergency response actions with local emergency 
planning and response agencies. RMP facilities with Program 2 and 
Program 3 processes must also develop and implement an emergency 
response program in accordance with Sec.  68.95 if facility personnel 
will respond to accidental releases. As part of the emergency response 
program, an emergency response plan must be maintained at the 
stationary source; the program must include procedures for the use of 
emergency response equipment and for its inspection, testing, and 
maintenance; training for all employees in relevant procedures; and 
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. For those Program 2 and Program 3 
facilities at which facility employees will not respond to accidental 
releases, coordination with community emergency planners and responders 
is required and an appropriate mechanism must be in place to notify 
responders when there is a need for a response.
    Exercising response plans is critical to ensure that response 
personnel understand their roles, local emergency responders are 
familiar with the hazards at the facility, and that the emergency 
response plan is appropriate and up to date. It ensures that personnel 
are properly trained and can be used to identify future training needs. 
Other EPA and Federal agency programs require exercises and drills as 
an element of their emergency response programs. For example, under the 
Oil Pollution Prevention regulation (40 CFR part 112), Facility 
Response Plan (FRP) holders are required to conduct drills and 
exercises, including evaluation procedures (Sec.  112.21). Exercises at 
FRP facilities may follow the National Preparedness for Response 
Exercise Program (PREP) Guidelines \54\ which were developed to provide 
a mechanism for compliance with EPA, U.S. Coast Guard (USCG), and U.S. 
Department of the Interior (DOI) exercise requirements for oil 
pollution response. The PREP guidelines include both internal and 
external exercise components. Internal exercises include notification 
exercises, emergency procedures exercises, spill management team 
tabletop exercises, and equipment deployment exercises. External 
exercises include area exercises, that include members of the response 
community, and government-initiated unannounced exercises.
---------------------------------------------------------------------------

    \54\ A copy of the National Preparedness for Response Exercise 
Program (PREP) Guidelines, August 2002, can be accessed on the USCG 
Web site at http://www.uscg.mil/vrp/faq/oil.shtml under ``Additional 
References.''
---------------------------------------------------------------------------

    Another example are exercises that the U.S. Nuclear Regulatory 
Commission (NRC), in conjunction with the Federal Emergency Management 
Agency (FEMA) and State and local government perform at nuclear power 
plants. The exercises evaluate both on-site and off-site emergency 
preparedness capabilities. The NRC also requires Research and Test 
Reactor (RTR) emergency plans to address the necessary provisions for 
coping with radiological emergencies at each facility in accordance 
with 10 CFR 50.54(q) and Appendix E to 10 CFR 50. Operators of RTRs are 
required to train personnel and perform emergency preparedness 
exercises in order to ensure the feasibility of the emergency 
preparedness plan.
    Finally, industry guidelines recommend conducting exercises and 
drills. The CCPS Guidelines for Risk Based Process Safety \55\ 
recommend periodically testing the adequacy of emergency response plans 
and level of

[[Page 44623]]

preparedness of responders, including contractors and local response 
agencies.
---------------------------------------------------------------------------

    \55\ Center for Chemical Process Safety, Guidelines for Risk 
Based Process Safety, American Institute of Chemical Engineers, New 
York, New York, 2007.
---------------------------------------------------------------------------

    In order to improve coordination with community responders and 
ensure that facility personnel have practice responding to accidental 
releases, EPA is considering requiring RMP-regulated facilities to 
perform exercises or drills as an element of the emergency response 
program identified under Subpart E of the RMP regulation.
    In considering this issue, EPA requests information on the 
following questions:
    a. Are RMP-regulated facilities currently exercising their 
emergency response plans? If so, are they doing these exercises to 
comply with other federal, state or local regulatory requirements? What 
references or guidelines were used to develop the exercise program?
    b. What should be the scope of an exercise/drill program? Should 
the exercise/drill program include internal (emergency response, 
notifications, and evacuation) and external elements (involving 
community and federal and state responders, as appropriate)? What 
elements should be exercised as part of the drill/exercise program? For 
example, should the program include communications, coordination, 
logistics, and evacuations/accounting for personnel, etc? What response 
scenarios should be considered for the exercise/drill program?
    c. How frequently should drills/exercises be performed?
    d. Who should be involved in the exercise program? How should the 
management team be engaged as part of the drills/exercises? How should 
contractors be included in the exercise/drill planning and when 
conducting exercises/drills? Who should be the designated official 
responsible for coordinating the exercises and drills conducted at the 
RMP facility? How should other federal, state and local agencies be 
included in the exercise/drill program?
    e. Should all RMP facilities be required to participate in some 
type of exercise/drill program or only those who are required to 
develop an emergency response program? Should Program 1 facilities (and 
Program 2/Program 3 facilities that do not respond to accidental 
releases with their own employees) be required to conduct external 
exercises with community responders and test notification procedures? 
Should Program 2 and Program 3 facilities whose employees respond to 
accidental releases conduct both internal and external exercises?
    f. How should lessons learned and recommendations be documented and 
addressed? What timeframe should be considered for completing such 
records? How long should records of exercises/drills be maintained?
    g. Should stationary source operators be required to document and 
address lessons learned and recommendations when they respond to an 
actual accidental release?
    h. Should information such as the date of the most recent exercise 
involving the emergency response plan be required to be reported to EPA 
in the facility's RMP?
    i. What would be the economic impacts and paperwork burden of 
requiring an exercise/drill program for all or a subset of RMP 
facilities? Would such a requirement substantially improve preparedness 
for dealing with emergency situations? Are there any special 
circumstances involving small entities that EPA should consider with 
respect to an exercise/drill program?
3. Automated Detection and Monitoring for Releases of Regulated 
Substances
    A process hazards analysis is intended not only to identify 
existing hazards, but also the likelihood that safety and mitigating 
systems, including detection and monitoring equipment, would function 
properly to eliminate or reduce the consequences that may occur as a 
result of those hazards. The RMP Program 3 Prevention Program requires 
regulated facilities to conduct a process hazard analysis (Sec.  
68.67). The rule specifically requires a facility's hazard analysis to 
address engineering and administrative controls applicable to the 
hazards and their interrelationships, such as appropriate application 
of detection methodologies to provide early warning of releases. 
Examples of acceptable detection methods identified in this requirement 
include process monitoring and control instrumentation with alarms, and 
detection hardware. Likewise, emergency response procedures can reduce 
the severity of a release and protect employees, emergency responders, 
and the public from harmful exposure to the regulated substances. RMP-
regulated facilities must have procedures or mechanisms in place for 
informing the public and local emergency response agencies about 
accidental releases. These process hazards analysis and emergency 
program elements, while addressing detection methodologies, early 
warnings, and incident notifications, include no specific requirements 
for automated detection and monitoring systems to be installed. The 
active use of such systems may enhance both the prevention of and the 
response to accidental releases. However, the Agency understands that 
the need for and appropriate deployment of such systems is likely to be 
highly site-specific, and that facilities may already have appropriate 
incentives to deploy such systems where warranted and cost-effective.
    The Agency recognizes that even equipment that is properly designed 
and maintained can sometimes fail. Automated detection and monitoring 
systems can be used not only to assess the effectiveness of existing 
control measures, but also to provide early warning of system upsets 
which could be acted upon to prevent a more serious or catastrophic 
incident. Linking these with alert systems and proper communications 
with the public and first responders may enhance emergency response 
efforts in the event of an incident, resulting in better protection of 
human health and the environment. For example, large increases in 
emissions due to a piping leak, a significant tear in a storage vessel 
seal, or other similar event can signal a process upset. Systems in 
place to detect leaks (or the conditions that might result in leaks) in 
a timely manner would allow for corrective measures to be taken more 
rapidly than if a facility relied solely on traditional monitoring and 
inspection methods. RMP inspection and enforcement history has shown 
this to be of concern, particularly for facilities that are not staffed 
on a full-time basis and which may also be located in close proximity 
to population centers or environmentally sensitive areas.
    While facilities may identify the benefits of installing automated 
detection and monitoring systems as they conduct their process hazards 
analysis, or as they develop their emergency response plan, the 
decision to invest in such equipment may be influenced by many factors. 
For example, automated detection and monitoring technologies may not be 
available for particular chemical hazards, or industry standards may 
not address their proper use. They may also be costly. Nevertheless, 
the Agency is requesting information on the need for new or expanded 
requirements for automated detection and monitoring systems that would 
supplement either the existing process hazard analysis and/or emergency 
response requirements. Specifically, EPA requests information on the 
following questions:
    a. Should facilities be required to install monitoring equipment or 
sensors to detect releases of RMP regulated substances, or the 
conditions that could lead to such a release? Should the systems 
provide for continuous

[[Page 44624]]

detection and monitoring? How should any such requirements be crafted 
to provide appropriate site-specific flexibility?
    b. Are there specific issues that need to be considered for 
unmanned and/or remote facilities?
    c. Should an automated mechanism to notify, alert and warn the 
local responders and surrounding public of an incident be considered as 
part of any detection and monitoring system requirement? If so, how 
should the potential for false alarms be addressed within such a 
requirement?
    d. How can a requirement for automated detection and monitoring 
systems be best coordinated with the community emergency response plan? 
What are the advantages/disadvantages between continuous monitoring 
conducted by automated systems in contrast to third-party alarm 
agencies?
    e. How would a requirement for appropriate detection thresholds be 
best established for activating alarms and/or alerts?
    f. How would the significance and appropriate protective response 
action of the alarms/alerts be best communicated to responders and the 
public (including shelter-in-place and evacuations)?
    g. What involvement should LEPCs and SERCs have in the development 
of the emergency response plan, particularly with respect to what 
actions are to be taken in the event of an incident where and alarm/
alert is activated?
    h. How frequently should monitoring equipment or sensors to detect 
releases of RMP-regulated substances be tested? How should these tests 
be documented? How long should records of such tests be maintained? 
Should automated monitoring records for periods of normal operations be 
maintained, so that past records may serve as an aid in determining 
what may have gone wrong prior to an accident (e.g., a gradual increase 
in emissions)? Should EPA specify requirements in this area, or are 
these aspects of program implementation best left to the facility?
    i. Leak detection and repair programs are common under the CAA's 
routine emission programs. Can these programs be integrated with the 
accidental release prevention program to reduce accidental releases and 
to simplify requirements for stationary sources subject to both the RMP 
and these other programs? Are there jurisdictional issues that prevent 
integration?
    j. What would be the economic impacts of specifying additional 
monitoring and detection requirements in the RMP? Are there any special 
circumstances involving small entities that EPA should consider with 
respect to such monitoring and detection requirements?
4. Additional Stationary Source Location Requirements
    EPA is considering whether to amend 40 CFR part 68 to provide more 
specific requirements to address stationary source siting. In 2005, a 
series of explosions occurred at the BP Texas City refinery during the 
restarting of a hydrocarbon isomerization unit. Fifteen workers were 
killed and 180 others were injured. Many of the victims were in or 
around work trailers located near an atmospheric vent stack. The CSB 
investigation identified the siting of the trailers as a key factor 
that led to the fatalities. The PSM standard and RMP rule both require 
that facility siting be addressed as one element of a PHA (see 29 CFR 
1910.11 9(e)(2) and (3)(v)), and 40 CFR 68.67(c)). While EPA has not 
provided any guidance on how to adequately address stationary source 
siting in the PHA. RMP facility owner/operators can refer to industry 
guidance on siting considerations. The following publications provide 
guidance on facility siting:
     American Petroleum Institute (API) Recommended Practice 
752, Management of Hazards Associated With Location of Process Plant 
Buildings, 3rd Edition, December 2009;
     API Recommended Practice 753, Management of Hazards 
Associated with Location of Process Plant Portable Buildings, First 
Edition, June 2007
     CCPS, Guidelines for Facility Siting and Layout (2003); 
and
     CCPS, Guidelines for Evaluating Process Plant Buildings 
for External Explosions and Fires, and Toxic Releases, 2nd Edition 
(2012).
    Both the siting of processes within a stationary source and the 
siting of the stationary source itself can affect the impact of an 
accidental release. Siting within a stationary source can impact the 
surrounding community not only by the proximity of the accidental 
release to off-site receptors adjacent to the facility boundary (e.g., 
people, infrastructure, environmental resources) but also by increasing 
the likelihood of a secondary ``knock-on'' release through compromising 
nearby processes.
    Siting of a stationary source itself may allow the potential impact 
of an accidental release to dissipate depending on the distance from 
the source to receptors. The lack of sufficient distance between the 
source boundary and neighboring residential areas was a significant 
factor in the severity of several major chemical accidents, including, 
among others, the Bhopal disaster and the recent West Fertilizer 
accident. Facility designers have long recognized the potential 
benefits of adding buffer or safety zones--controlled areas separating 
the public and other facilities from the consequences of process 
incidents--when selecting the location for new chemical facilities 
(see, e.g., CCPS (2003)). For existing facilities, owners have 
sometimes compensated nearby residents to relocate away from the 
facility boundary in order to create a buffer zone where one did not 
previously exist, or where adjacent residential areas had been 
developed after the facility itself was constructed.\56\
---------------------------------------------------------------------------

    \56\ See Matthews, Joe. ``Paying neighbors to move Mossville: 
Residents of this Louisiana town, like those in Wagner's Point here, 
faced a showdown with Condea Vista. Their experience is 
instructive.'' The Baltimore Sun 6 Dec. 1998, and Gallagher, John. 
``Marathon offers to buy out Detroit homeowners near refinery amid 
$2.2B expansion.'' The Detroit Free Press 2 Nov 2011.
---------------------------------------------------------------------------

    Should EPA amend the RMP rule to include more specific siting 
requirements as part of the PHA by, for example, establishing buffer or 
setback zone requirements for new covered stationary sources, or by 
establishing safety criteria for siting of occupancies inside the 
facility? Would such requirements provide significant incremental 
protection over current industry practice based on the references cited 
above? In considering this issue, EPA requests information on the 
following questions:
    a. Would additional specifics on stationary source siting and 
occupancy siting under the RMP minimize the impacts of chemical 
accidents to local communities? How should RMP stationary source siting 
requirements relate to OSHA PSM and other industry standards?
    b. What guidance should EPA consider in the development of 
stationary source siting requirements?
    c. What information should EPA consider in the development of 
stationary source buffer or setback zones for different risks? How 
should EPA address siting when limited space is available?
    d. What administrative processes and controls should be 
incorporated into stationary source siting requirements?
    e. What safety and process devices, instruments and controls should 
be incorporated into stationary source siting requirements?
    f. What criteria are appropriate for siting of occupancies (such as 
offices, control rooms, cafeterias, etc.) near an RMP-regulated 
process?

[[Page 44625]]

    g. How often should stationary source siting be evaluated for 
effectiveness? What criteria should be used?
    h. What documentation should be required for evaluating stationary 
source siting determinations?
    i. Is it appropriate to reflect the environmental burden of the 
surrounding community in siting criteria for either new facilities or 
expansions within an existing site? Is it appropriate to consider 
chronic burdens or only burdens associated with accidental releases?
    j. What challenges would the agency face in specifying uniform 
siting requirements for the wide variety of covered sites? What site 
specific factors would need to be addressed?
    k. If EPA mandated siting criteria, how should EPA account for 
local zoning codes when establishing such criteria? Would setting 
federal requirements overstep into the normal state and local zoning 
process, or would it act as a supplemental measure ensuring minimal 
safety standards across the country?
    l. What would be the economic impacts of specifying additional 
siting requirements? Are there any special circumstances involving 
small entities that EPA should consider with respect to siting 
requirements?
5. Compliance With Emergency Response Program Requirements in 
Coordination With Local Responders
    Subpart E of the RMP regulation offers owners and operators of RMP-
covered facilities with Program 2 or 3 processes two emergency response 
options. For facilities whose employees will respond to accidental 
releases of regulated substances, section 68.95 of the regulation 
requires owners or operators to implement an emergency response program 
that includes an emergency response plan, procedures for the use of 
emergency response equipment, training for employees, procedures to 
review and update the response plan, and other elements. These 
``responding'' facilities are also required to coordinate their 
emergency plan with local response authorities.
    For facilities whose employees will not respond to releases, the 
RMP regulation states that owners and operators of these sources need 
not comply with the provisions of section 68.95 provided that the 
source is included in the community emergency response plan (for 
sources with regulated toxic substances) or has coordinated response 
actions with the local fire department (for sources with only regulated 
flammable substances), and that appropriate notification mechanisms are 
in place to notify emergency responders when there is a need for a 
response.
    Subpart E can be read as offering owners or operators the choice of 
whether to be a responding or non-responding facility. RMP-regulated 
facilities indicate within their risk management plan whether or not 
they are a ``responding'' facility (i.e., by indicating compliance with 
mandatory elements of emergency response plans required in section 
68.95(a)(1)), and EPA has found that the majority of RMP facilities 
claim to be ``non-responding'' facilities. However, during facility 
inspections, EPA has often found that facilities are either not 
included in the community emergency plan or have not properly 
coordinated response actions with local authorities. This problem 
occurs with both responding and non-responding facilities, but it is 
particularly troublesome for non-responding facilities, because if the 
facility itself does not maintain the capability to respond to 
emergencies, and local authorities are not able to respond, then a 
proper response to an accidental release at the facility may not occur 
or may be significantly delayed. EPA requests comment on whether this 
problem could be addressed through better enforcement of existing 
requirements, and if so, how best to do this.
    In some cases, accidental releases have been made significantly 
worse due to poor emergency response planning and coordination. For 
example, following the August 2008 explosion and fire at the Bayer 
CropScience facility in Institute, West Virginia, poor coordination 
between the facility incident commander and local authorities prevented 
important information, including a shelter-in-place order, from being 
timely communicated to local authorities. Additionally, facility 
authorities initially prevented local responders from gaining access to 
the site of the incident.
    EPA is considering whether the Emergency Response provisions in 
Subpart E of the RMP regulation should be revised to state more 
explicitly that owners and operators of RMP-regulated facilities must 
comply with the emergency response program requirements of section 
68.95 unless local public responders both have the means and agree to 
respond to releases of regulated substances at the facility, and to 
describe what facility owners or operators must do to coordinate with 
local authorities on the development of community emergency response 
plans.
    EPA requests information on the following questions:
    a. Do you own or operate an RMP-regulated facility that relies on 
public authorities to respond to accidental releases of regulated 
substances at the facility? What steps do you take to ensure that 
public responders are prepared to properly respond to accidental 
releases at your facility? Should EPA clarify what steps RMP facilities 
should take in order to properly coordinate their emergency response 
plan with the community emergency response plan?
    b. If your facility uses its own employees or response contractors 
provided by the facility to respond to emergencies, what factors led to 
your decision to use your own employees or contractors to conduct 
emergency response operations? What steps have you taken to coordinate 
with local responders on emergency response planning?
    c. Are you a member of an LEPC, municipal fire department or 
municipal hazardous materials response team? If so, do you believe that 
``non-responding'' RMP facilities in your jurisdiction have generally 
provided the appropriate information and support to your organization 
to ensure an appropriate response to hazardous substance emergencies at 
those facilities? Is your organization capable of responding 
appropriately to such events at RMP facilities? How often do you visit 
RMP facilities in your jurisdiction? Do you conduct emergency drills at 
RMP facilities? Do you believe that RMP facilities should generally 
respond to emergencies using their own employees, or rely on public 
responders? Should EPA clarify what is necessary for RMP facilities to 
adequately coordinate their emergency response plan with the community 
emergency response plan? Would new regulations in this area 
significantly improve emergency response planning in your area?
    d. Are there certain substances or types of facilities that present 
particular response challenges for local authorities? If so, which 
substances or types of facilities? Should such facilities be required 
to prepare and implement comprehensive emergency response programs 
instead of relying primarily on public responders? Do public responders 
in your area have adequate existing authority to require this now?
    e. If public responders are not capable of responding to a 
particular type of chemical or release event at an RMP-regulated 
facility, should the owner or operator of the facility be required to 
provide for an effective response, either with the facility's own 
employees, response contractors, a mutual aid

[[Page 44626]]

agreement with nearby facilities, or some other means?
    f. What would be the economic impacts of expanding the emergency 
response requirements as discussed above? Are there any special 
circumstances involving small entities that EPA should consider with 
respect to modifying emergency response requirements?
6. Incident Investigation and Accident History Requirements
    Incident investigations and accident history reporting can provide 
valuable information about potential hazards and the steps needed to 
prevent future events. Many times, the cause of an incident is the 
result of a series of other problems that need to be addressed to 
prevent recurrences. For example, an operator's mistake may be the 
result of poor training, inappropriate procedures, or poor design of 
control systems; equipment failure may result from improper 
maintenance, misuse of equipment (e.g., operating at too high a 
temperature), or use of incompatible materials. Through incident 
investigation a facility owner or operator would determine not only the 
initiating event that led to the release, but more importantly its root 
cause(s). Accident history reporting provides an avenue to disseminate 
that information. Thorough investigations and reporting may help 
facilities identify and address root causes.
    The RMP's incident investigation requirements closely track those 
established in OSHA's PSM accident investigation requirements. 
Likewise, EPA's hazard assessment requirements include a five-year 
accidental release history, which has some overlap with similar OSHA 
process hazard analysis requirements. While most catastrophic releases 
affect workers first, there are incidents where workers are protected 
but the public and the environment may be threatened, e.g. emergency 
relief devices working as designed to vent hazardous atmospheres away 
from the workplace and into the air where they may be carried downwind. 
Although the PHA process may have recognized and addressed the 
potential off-site impact associated with safety measures that protect 
workers (e.g. an emergency vent scrubber system), the RMP requires that 
facilities consider such possibilities and integrate the protection of 
workers, the public, and the environment into one program. Thus, RMP 
facilities must investigate each significant incident which resulted 
in, or could reasonably have resulted in a catastrophic release. A 
catastrophic release is defined for purposes of the RMP as one where a 
major uncontrolled emission, fire, or explosion, involving one or more 
regulated substances presents an imminent and substantial endangerment 
to public health and the environment. Imminent and substantial 
endangerment includes off-site consequences such as death, injury, or 
adverse effects to human health or the environment, or the need for the 
public to shelter-in-place or be evacuated to avoid such consequences. 
In contrast, the accident history requirement includes a five-year 
record of only those accidents from covered processes that resulted in 
deaths, injuries, or significant property damage on-site, or known off-
site deaths, injuries, evacuations, sheltering in place, property 
damage, or environmental damage. Near-miss accidents or accidents with 
only the potential for consequences are not required to be included, 
and the accident history requirement applies only to covered processes.
    EPA has encouraged facilities to investigate all accidental 
releases. However, the focus of the current incident investigation and 
accident history reporting requirements is limited. EPA's experiences 
with RMP facility inspections and incident investigations show there 
have been incidents that were not investigated, even though under 
slightly different circumstances, the incident could have resulted in a 
catastrophic release. While these unplanned ``near miss'' events did 
not result in deaths, injuries, adverse health or environmental 
effects, or sheltering-in-place, only a fortunate break in the chain of 
events prevented a catastrophic release of a regulated substance from 
happening. For example, a runaway reaction that is brought under 
control by operators is a near miss that may need to be investigated to 
determine why the problem occurred, even if it does not directly 
involve a covered process. Similarly, fires and explosions near or 
within a covered process, any unanticipated release of a regulated 
substance, and process upsets that could have led to a release of a 
regulated substance may also be one step away from initiating a chain 
of events leading to a catastrophic release. Additionally, there have 
been some cases where the facility chose not to conduct an 
investigation because the owner/operator elected to decommission the 
process involved, or because the process was destroyed in the incident. 
While an investigation would have no impact on a decommissioned or 
destroyed process, other similar processes or operations at the 
facility, or at similar facilities, could potentially benefit from its 
findings. In other instances, facilities have failed to investigate 
serious releases because they determined there were no actual or 
potential off-site consequences. Investigating these types of incidents 
and including them as part of the RMP accident history report could 
provide facilities with important information on what problems could 
lead to an incident, and allow for the facility to address them before 
a catastrophic release occurs. Further, including some of these 
incidents as part of the accident history could also improve process 
safety at facilities with similar processes, where operators could 
learn from the shared information.
    Incident investigations may result in improved process safety 
through the dissemination of lessons learned and the implementation of 
recommended corrective actions. Conducting these investigations as soon 
as possible after an incident may yield better quality data and 
information, though time may also be required to collect, validate, and 
integrate data from a range of sources. EPA has discovered situations 
where incident investigations by regulated facilities have been 
indefinitely delayed. Delays could result in an increased risk of 
incident recurrence as root causes and the appropriate corrective 
actions are not necessarily promptly identified or implemented. The 
value of conducting incident investigations and communicating lessons 
learned in a timely manner was also recognized by the CSB. In 
recommendations to the Agency, the CSB called for RMP accident 
histories to be updated on a more timely basis in view of the valuable 
information they provide for chemical accident prevention and 
preparedness efforts by government, industry and the public.\57\ EPA 
agreed with the CSB recommendation and amended the RMP accident history 
requirements to require that facilities who have had an accident 
meeting the criteria for the five-year accident history to update their 
RMP accident history to include the new accident history information 
within six months of the date of the accident.
---------------------------------------------------------------------------

    \57\ Joint Chemical Safety Board, Occupational Safety and Health 
Administration, National Institute for Occupational Safety and 
Health, and EPA Roundtable on Developing Improved Metrics on 
Accidental Chemical Process Releases, November 14, 2002.
---------------------------------------------------------------------------

    The Agency is considering whether broadening the incident 
investigation and accident history requirements to include clear 
requirements to investigate near misses and determine root causes of 
accidents, near misses, and process upsets would promote

[[Page 44627]]

increased safety. The Agency is requesting information on the 
appropriateness of requiring root cause investigations of incidents, 
process upsets and near-misses, and of establishing specific time 
frames for incident investigations to be completed. Specifically, the 
Agency requests detailed information on the following questions:
    a. Are the RMP incident investigation requirements too narrowly 
focused? Would identifying a broader range of incidents requiring 
investigation (e.g., near misses) help prevent additional accidental 
releases? Please provide specific examples where possible. EPA requests 
information on alternative definitions or incident classifications that 
could be included within the rule's incident investigation 
requirements.
    b. Are there any data or information on process upsets, near misses 
or other incidents that were not required to be investigated, but where 
an investigation and resulting changes in management systems might 
prevent accidental releases?
    c. Does your facility routinely investigate incidents not required 
to be investigated under part 68? If so, please describe the types of 
incidents investigated, and the effects these investigations have had 
on facility operations.
    d. Would a specific time frame for incident investigations to be 
completed benefit overall safety? What should be the basis for 
establishing an appropriate timeframe requirement for an incident 
investigation to be completed? What are the challenges and limitations 
to completing an incident investigation within a specified timeframe?
    e. Are there benefits from requiring that investigations must be 
performed even in cases where the owner/operator elects to decommission 
the process involved, where the process is destroyed in the incident, 
or where a facility determines there were no actual or potential off-
site consequences? Would such a requirement provide a disincentive to 
decommission potentially risky processes?
    f. Would a modification of the definition of ``catastrophic 
release'' assist in addressing the concerns regarding the appropriate 
scope of incidents that require investigation?
    g. Would a modification of the accident history reporting 
requirements to reflect a broader range of incidents being investigated 
assist in disseminating lessons learned across industry?
    h. Should EPA require facilities that have incidents or near misses 
to conduct a full compliance audit under Sec.  68.58 and Sec.  68.79?
    i. Is it appropriate for facilities to share the results of 
accident investigations with the local community or alternatively a 
summary of the accident, and its root cause? Is there an appropriate 
role for the local community in conducting investigations?
    j. What would be the economic impact of broadening the RMP incident 
investigation requirements to require root cause investigations of near 
misses? Are there any special circumstances involving small entities 
that EPA should consider? Would small businesses have the capacity to 
investigate near miss incidents?
7. Worst Case Release Scenario Quantity Requirements for Processes 
Involving Numerous Small Vessels Stored Together
    Section 68.25(b) of the RMP rule requires the owner or operator to 
determine a worst-case release quantity. The regulation states that 
``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.'' Based on a review of past RMP submissions 
and facility inspections, EPA believes that in most cases the current 
requirements result in a reasonable estimate of worst case releases. 
However, for certain categories of facilities, like chemical 
warehouses, where large numbers of regulated chemical containers are 
stored closely together, the Agency has questions about whether a 
different approach would better characterize the potential process 
hazards and associated risks. This is of particular concern for those 
cases where each storage container may only contain a few pounds of a 
regulated substance, but there are numerous such containers stored in 
close proximity to one another.
    This type of situation occurred on June 24, 2005, where a fire 
involving propylene cylinders occurred at the St. Louis Praxair 
Distribution site. A small fire that began in one propylene cylinder 
spread to other nearby propylene cylinders and then to acetylene and 
propane cylinders. The exploding cylinders flew up to 800 feet in the 
air, started fires, and damaged property in the community. The fire 
consumed 8,000 cylinders, or almost the entire inventory of flammable 
gases at the facility. Similar accidents have occurred at Air Liquide 
in Phoenix, Arizona in June 1997, Airgas in Tulsa, Oklahoma in August 
2003, and Praxair in Fresno, California in July 2005. An October 2006 
accident in Apex, North Carolina, involving numerous small containers 
of flammable and toxic materials stored at a hazardous waste disposal 
facility caused a fire, multiple explosions, and the release of a toxic 
vapor cloud that resulted in the evacuation of 16,000 nearby residents.
    EPA seeks information on whether to revise section 68.25(b) of the 
RMP regulation to better account for processes involving numerous small 
vessels stored together, such as on pallets, cylinder racks, and in 
groups. EPA is looking for information on whether including the entire 
quantity in one location or one process, instead of just the single 
largest vessel or pipe, would better represent the true worst case 
scenario quantity, and thereby increase protection to human health and 
the environment and help prevent future accidents from occurring. EPA 
also requests comment on whether there are ways of grouping vessels or 
pipes short of including all the vessels or pipes at a facility that 
would be appropriate for worst case scenario analysis. EPA is also 
interested in receiving information on whether worst-case scenario 
requirements should account for the potential cascading effects of 
separate facilities that are interconnected (e.g., a manufacturer that 
provides product to an adjacent source through an interconnecting 
pipeline). Specifically, EPA requests information on the following 
questions:
    a. Should EPA revise Sec.  68.25(b) to require the owner or 
operator of any regulated process involving numerous small containers 
stored together to consider as the worst case release quantity the sum 
of the quantity of all containers in the process, or a subset of such 
containers, or the containers within one storage area of the process?
    b. Would revising the worst case scenario quantity determination 
requirement in this manner better represent the true worst case 
scenario for such processes?
    c. Would this change promote stronger process safety controls and 
help prevent accidents?
    d. In situations where numerous small containers are stored 
together, are there any kinds of protective barriers or other methods 
of storage that would reduce the likelihood of a release from one 
container causing additional releases from adjacent or nearby 
containers? Should such barriers or storage methods be incorporated 
into the rule's worst

[[Page 44628]]

case scenario requirements, and if so, how? Would revising Sec.  
68.25(b) cause any type of additional burden on facilities where large 
amounts of chemicals are stored together?
    e. If EPA were to revise Sec.  68.25(b) to take into account 
numerous small vessels being stored together, what types/kinds of 
vessels should be covered? Should there be any limits on the size of 
containers subject to the aggregation requirement? What would such 
limits be based on? Similarly, should there be a specific distance 
between vessels established in order to consider them as grouped 
together for purposes of worst case scenario calculations? What would 
that distance be based on?
    f. Should EPA revise Sec.  68.25 to require the owner or operator 
of a regulated process to consider the potential for worst case release 
scenarios to involve adjacent facilities or other nearby facilities 
that are interconnected through pipelines? Would this change raise any 
confidentiality or security issues? How would EPA adjust its worst case 
scenario modeling requirements to account for such a change?
    g. What would be the economic impacts of modifying the worst case 
scenario analysis requirements as discussed above? Are there any 
special circumstances involving small entities that EPA should consider 
with respect to worst case scenario analysis?
8. Public Disclosure of Information To Promote Regulatory Compliance 
and Improve Community Understanding of Chemical Risks
    EPA is seeking public comment on whether there are additional steps 
the Agency could take to improve compliance through increased 
information disclosure to the public and local authorities. For 
example, would requiring RMP-covered facilities to post on a company 
Web site unrestricted (i.e., non-off-site consequence analysis) RMP 
information, such as the facility's RMP executive summary, emergency 
contact information, identity of the LEPC, or links to the local 
emergency response plan and/or the facility's most recent EPCRA Tier II 
report, lead to improvements in facility safety and better regulatory 
compliance? Would disclosing a summary of the facility's compliance 
audit, PHA, or incident investigation reports to the LEPC result in 
improvements in emergency planning and response? Would such disclosures 
raise any concerns regarding facility security or proprietary business 
information?
    We note that the RMP rule was published in 1996 before many of the 
current information-sharing technologies were conceived. While the 
Agency has modernized mechanisms for reporting and handling risk 
management plans, we have made only minor adjustments to the RMP rule 
for new information technologies. We have not systematically reviewed 
the rule to see if enhanced facility and community interaction through 
the use of these technologies can promote safer operations, perhaps at 
a reduced cost of compliance and oversight.
    Ensuring that communities, local planners and local first 
responders have appropriate facility chemical hazard information is 
critical to the health and safety of the responders and the local 
community. In response to Executive Order 13650, EPA seeks to find ways 
to enhance information sharing and collaborative planning between 
chemical facility owners and operators, tribal and local emergency 
planning committees and first responders. EPA is interested in 
identifying ways to make RMP-regulated facility information more 
readily available to local responders and local communities without 
creating additional security concerns. EPA requests information on the 
following questions:
    a. Should EPA amend the RMP regulation to require RMP-regulated 
facilities to post chemical hazard-related information on their Web 
sites (if they have one) such as RMP chemical names, chemical 
quantities, executive summaries, links to LEPCs, community emergency 
plans, Safety Data Sheets (SDS) for hazardous chemicals present on 
site, EPCRA Tier 2 reports, release notification reports, accident 
history and cause and other similar information? What requirements 
should be considered for facilities that do not have a Web site?
    b. Would requiring facilities to make this information available on 
the company Web site promote improved regulatory compliance? What 
additional economic burden would be associated with such a requirement?
    c. Do RMP-regulated facility owners/operators have any safety or 
security concerns with posting the executive summary from the RMP, or 
linking to EPCRA reports and community response plans on the company 
Web sites? Please explain any concerns regarding specific elements of 
this information.
    d. Would posting the RMP executive summary on a Web site cause 
facility owner/operators to remove important information from the 
executive summary? Does EPA need to better define the contents of an 
executive summary in order to allay security concerns?
    e. Is there other information (web-based or otherwise) that would 
assist local communities, emergency planners, and responders in 
understanding facility risks that should be made publicly available? 
For example, would disclosure of the facility's PHA or compliance audit 
to local authorities such as the LEPC result in improved safety?
    f. Does your facility interact with community groups (e.g., a 
citizen advisory panel)? If so, what information do you provide to such 
groups?
    g. Are there other activities or measures that RMP-facility owner/
operators can use to ensure that communities, planners, and responders 
have access to appropriate information?
    h. Can the use of social media or other forms of community outreach 
be incorporated into hazard assessment, prevention, and response to 
leverage community involvement in oversight? For example, would 
increased public disclosure of RMP-related information, such as 
accidental releases, near misses, and subsequent safety enhancements, 
or increased community involvement in facility emergency response 
planning, lead to improvements in facility safety? Please identify 
aspects of the RMP rule where there are opportunities for community 
involvement.
9. Threshold Quantities and Off-Site Consequence Analysis Endpoints for 
Regulated Substances Based on Acute Exposure Guideline Level Toxicity 
Values
    EPA is considering the use of Acute Exposure Guideline Levels 
(AEGLs)\58\ developed by the National Advisory Committee (NAC) for 
AEGLs for Hazardous Substances (NAC/AEGL Committee) to recalculate RMP 
reporting thresholds and toxic endpoints for off-site consequence 
analyses in order to better reflect the potential for adverse effects 
of an accidental release upon a community.
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    \58\ http://www.epa.gov/oppt/aegl/.
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    EPA originally set the TQs for the RMP toxic substances using a 
ranking method similar to that used in developing the threshold 
planning quantities (TPQs) for the EPCRA EHSs. A factor for each toxic 
chemical based on its toxicity level of concern ``LOC'' and its 
potential to become airborne and disperse ``V'', was derived and used 
to develop a ranking factor equal to LOC divided by V. Chemicals with 
lower ranking factors were assigned lower thresholds. A low numerical 
LOC value

[[Page 44629]]

represents a high toxicity and a high value of V represents a high 
potential for air dispersion. Therefore, the ranking factor was 
designed such that lower LOC values or higher V values (or both) 
resulted in lower ranking factors. For example, the V for all gases is 
assigned a value of 1, which is higher than the calculated values of V 
for all liquids. For the RMP substances, thresholds were assigned based 
on order of magnitude ranges in the ranking factor, using TQ categories 
of 500 pounds, 1,000 pounds, 2,500 pounds, 5,000 pounds, 10,000 pounds, 
15,000 pounds and 20,000 pounds (59 FR 4478, January 31, 1994).
    The toxicity LOC was the maximum short term exposure concentration 
level in air for each chemical that would not lead to serious 
irreversible health effects in the general population when exposed for 
a relatively short duration. The Immediately Dangerous to Life and 
Health (IDLH) value developed by the National Institute of Occupational 
Safety and Health (NIOSH) or an approximation of the IDLH based on 
animal toxicity data was used as the basis for the LOC.
    The IDLH is defined as the maximum concentration from which one 
could escape within 30 minutes without any escape-impairing symptoms or 
any irreversible health effects. The IDLH was presented in the 1990 
edition of the NIOSH Pocket Guide to Chemical Hazards and was used 
where available to develop the LOC toxicity levels for RMP toxic 
substances. For substances without a published IDLH value, a value 
equivalent to the IDLH was derived from mammalian toxicity data using a 
methodology described in Appendix D of the Technical Guidance for 
Hazard Analysis, Emergency Planning for Hazardous Substances.\59\
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    \59\ USEPA/FEMA/DOT, Technical Guidance for Hazard Analysis, 
Emergency Planning for Hazardous Substances, December 1987, http://www2.epa.gov/sites/production/files/2013-08/documents/technical_guidance_for_hazard_analysis.pdf.
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    In some cases, revised or updated toxicity data were used, based on 
the December 1990 Registry of Toxic Effects of Chemical Substances 
(RTECS) rather than the toxicity data used to derive TPQs for EHSs.
    EPA is considering recalculating the current IDLH-based TQs for the 
following reasons:
     The IDLH is based upon response of healthy male worker-
population and does not take into account the exposure of more 
sensitive individuals, such as the elderly, pregnant women, children or 
people with various health problems.
     The IDLH is based upon a maximum 30-minute exposure period 
which may not reflect (may underestimate) actual exposures to 
accidental airborne releases.
     The IDLH may not reflect the concentration that could 
result in serious but reversible injury because IDLHs were designed 
only to protect workers against concentrations that would prevent death 
or irreversible health effects or would prevent other deleterious 
effects (e.g. disorientation or incoordination) that would prevent 
escape.
    EPA recognized the limitation of using the IDLH values when it 
developed the TPQs for the EHSs in 1986 and 1987, but the agency was 
only just beginning the development of more appropriate chemical 
emergency exposure levels for the general public. Therefore, EPA chose 
to continue using the IDLH because there were many more published IDLH 
values available than other potential exposure limits and because there 
was already a method available for deriving an IDLH equivalent from 
toxicity data.\60\
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    \60\ USEPA. June 21, 1992. Technical Background Document: 
Development of Threshold Quantities for List of Regulated Substances 
for Accidental Release Prevention, Document No. II-B-2, Docket No. 
A-91-74, page 7.
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    Due to the limitations outlined above, EPA is now considering the 
use of AEGLs to recalculate RMP TQs. AEGLs represent threshold exposure 
limits (exposure levels below which adverse health effects are not 
likely to occur) for the general public and are applicable to emergency 
exposures ranging from 10 minutes to 8 hours. AEGLs are developed by 
the National Advisory Committee (NAC) for AEGLs for Hazardous 
Substances (NAC/AEGL Committee), which was established to identify, 
review, and interpret relevant toxicologic and other scientific data 
and develop AEGLs for high-priority acutely toxic chemicals.\61\ AEGLs 
are developed for five exposure periods (10 and 30 minutes, 1 hour, 4 
hours, and 8 hours) and distinguished by varying degrees of severity of 
toxic effects. AEGLs are designed to protect the general population, 
including susceptible subpopulations, such as infants, children, the 
elderly, persons with asthma, and those with other illnesses, which are 
groups not generally considered in the development of workplace 
exposure levels. AEGLs have been developed or are now under development 
for 471 priority chemicals.
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    \61\ see: http://www.epa.gov/oppt/aegl/.
---------------------------------------------------------------------------

    A chemical may have up to three AEGLs values, each of which 
corresponds to a specific tier of health effects. The three AEGL tiers 
are defined as follows:
     AEGL-1 is the airborne concentration, expressed as parts 
per million or milligrams per cubic meter (ppm or mg/m\3\) of a 
substance above which it is predicted that the general population, 
including susceptible individuals, could experience notable discomfort, 
irritation, or certain asymptomatic nonsensory effects. However, the 
effects are not disabling and are transient and reversible upon 
cessation of exposure.
     AEGL-2 is the airborne concentration (expressed as ppm or 
mg/m\3\) of a substance above which it is predicted that the general 
population, including susceptible individuals, could experience 
irreversible or other serious, long-lasting adverse health effects or 
an impaired ability to escape.
     AEGL-3 is the airborne concentration (expressed as ppm or 
mg/m\3\) of a substance above which it is predicted that the general 
population, including susceptible individuals, could experience life-
threatening health effects or death.
    The use of AEGLs to recalculate RMP reporting thresholds would 
better reflect the potential for adverse effects of an accidental 
release upon individuals in a community compared to IDLHs because AEGLs 
take into account the potential exposure of more sensitive individuals, 
the potential for longer periods of exposure, and the potential for 
serious but reversible injuries.
    In situations where no AEGL exists for a chemical, EPA would use 
Emergency Response Planning Guidelines (ERPGs), if available, to 
recalculate reporting thresholds. ERPGs estimate the concentrations at 
which most people will begin to experience health effects if they are 
exposed to a hazardous airborne chemical for 1 hour. (Similar to IDLH 
values, however, sensitive members of the public--such as old, sick, or 
very young people--aren't covered by these guidelines and may 
experience adverse effects at concentrations below the ERPG values.) 
ERPGs are developed by the Emergency Response Planning committee of the 
American Industrial Hygiene Association (AIHA). ERPGs could be used to 
help protect the public when AEGLs aren't available and there has been 
a chemical release that is short-term in duration. There are about 145 
chemicals with ERPGs.\62\ A chemical may have up to three ERPG values, 
each of which corresponds to a specific tier of health effects.
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    \62\ http://response.restoration.noaa.gov/erpgs.

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[[Page 44630]]

    The three ERPG tiers are defined as follows:
     ERPG-3 is the maximum airborne concentration below which 
it is believed that nearly all individuals could be exposed for up to 1 
hour without experiencing or developing life-threatening health 
effects.
     ERPG-2 is the maximum airborne concentration below which 
it is believed that nearly all individuals could be exposed for up to 1 
hour without experiencing or developing irreversible or other serious 
health effects or symptoms which could impair an individual's ability 
to take protective action.
     ERPG-1 is the maximum airborne concentration below which 
it is believed that nearly all individuals could be exposed for up to 1 
hour without experiencing other than mild transient health effects or 
perceiving a clearly defined, objectionable odor.
    EPA previously used EPRG values in 1996 (61 FR 31668, June 20, 
1996) to establish toxic endpoints (i.e., air concentrations) for each 
RMP toxic chemical to be used when conducting the off-site consequence 
analysis (OCA). The endpoints chosen were the ERPG-2 values developed 
by AIHA; the toxic endpoint was the level of concern (LOC) from EPA's 
1987 Technical Guidance for Hazards Analysis for those substances that 
did not have an established ERPG-2, updated where necessary to reflect 
new toxicity data. EPA chose ERPG-2 values first because they were 
specifically developed by a scientific committee for emergency planning 
to protect the general public in emergency situations and are subject 
to peer review. EPA had rejected use of the ERPG-3, which is a lethal 
exposure level, because it is not protective enough of the public in 
emergency situations.
    One consequence however, of the agency using separate toxicity 
values for TQs (based upon IDLH) and toxic endpoints (based upon EPRG-
2) for the RMP regulations as a whole is some inconsistency in the 
representation of the relative toxicities of certain substances 
compared to others. For example, chlorine and sulfur dioxide have 
relatively similar ERPG-2 toxic endpoints, 0.0087 mg/L and 0.0078 mg/L, 
respectively, but chlorine is listed with a reporting threshold of 
2,500 pounds while sulfur dioxide has a reporting threshold of 5,000 
pounds. As gases, both chlorine and sulfur dioxide have the same air 
dispersion factor (V) of 1. The difference in thresholds is due to the 
use of 1990 IDLH values, with chlorine having an IDLH (0.087 mg/L or 30 
ppm), that suggests it is three times more toxic than sulfur dioxide 
(IDLH of 0.261 mg/L or 100 ppm). To remedy such issues, EPA is 
considering the use of AEGLs as the basis for determining both the RMP 
reporting thresholds and the toxic endpoints. Furthermore, in those 
cases where an AEGL is not available, using EPRG-2 values to calculate 
both the reporting threshold and toxic endpoint will also remove such 
inconsistencies. Finally, using AEGLs when available to recalculate 
current toxic endpoints will also take into account the potential 
exposure of more sensitive individuals, which is not addressed when 
using ERPG-2 values.
    With few exceptions, AEGL-2 values are significantly lower than LOC 
values for a given substance, and generally somewhat lower than the 
corresponding ERPG-2 value. However, this does not necessarily mean 
that TQs would always decrease. As indicated above, when originally 
developing TQs, EPA used the LOC value divided by the V factor for each 
chemical to develop a ranking index. Substituting AEGL-2 values for LOC 
values and recalculating the ranking index values would generally 
result in much lower index values. However, index values do not 
correlate directly to a TQ. Instead, a range of index values was 
assigned a TQ. For example, all substances with index values less than 
0.01 were assigned a TQ of 500 pounds, substances with index values 
greater than or equal to 0.01 and less than 0.05 were assigned a TQ of 
1000 pounds, substances with index values greater than or equal to 0.05 
and less than 0.1 were assigned a TQ of 2500 pounds, and so on, up to 
the maximum TQ value of 20,000 pounds. If EPA used the new index values 
to assign TQs based on these current ranges, then TQs for substances 
that currently have higher TQs would tend to drop, while TQs for 
substances with lower TQs would generally remain unchanged. Therefore, 
under this scenario, most substances would be grouped into the lower 
TQs.
    Alternatively, if EPA established TQs by redefining the index value 
ranges for each TQ according to the new range of index values alone 
(i.e., disregarding the old index ranges), then the change would have 
the effect of reshuffling substances into new TQs. In this scenario, 
incorporating AEGL values would likely result in reducing the TQ for 
some substances (those with the lowest AEGL-to-LOC ratio), while 
raising it (or causing no change) for others. As the purpose of 
assigning TQs according to a distribution of index values was to assign 
lower TQs to the more toxic and easily dispersed substances and higher 
TQs to less toxic and less easily dispersed substances, this approach 
may be more appropriate.
    Adopting AEGL-2 values in place of ERPG-2 values to establish new 
toxic endpoints would have a more direct effect. AEGL-2 values are 
often, but not always, lower than the existing toxic endpoints. Where 
the AEGL value is lower than the current toxic endpoint for a 
particular substance, the new toxic endpoint would likewise be lower, 
and vice versa. The practical effect of changing toxic endpoints would 
be to change the off-site consequence analysis distance to endpoint for 
a given substance and release quantity. For all processes containing 
substances with new lower toxic endpoints, larger worst case and 
alternative release scenario zones would result, whereas processes 
containing substances with new higher toxic endpoints would have 
smaller off-site consequence zones. If most toxic endpoints were to 
either decrease or remain the same, another result would likely be that 
fewer regulated processes would be eligible for Program 1.
    EPA requests information on the following questions regarding 
recalculating reporting thresholds and/or toxic endpoints using AEGLs 
(or EPRG values when AEGLs are not available):
    a. Would revising the RMP rule to incorporate AEGL-2 and ERPG-2 
values (when an AEGL is not available), as the basis for TQs and toxic 
endpoints make the RMP rule more protective of human health and the 
environment? Would it result in significant changes to the universe of 
RMP-regulated facilities due to potential changes in TQs? If so, what 
number and types of facilities would be most affected and what changes 
would occur?
    b. The IDLH values used for setting the existing TQs are based on 
an exposure period of 30 minutes. If the IDLH was not available, the 
acute toxicity data used to determine the equivalent IDLH varied 
depending on the chemical and actual study, and these numbers typically 
ranged from 1 to 8 hours. The ERPG-2 values used for the toxic 
endpoints represent an exposure period of 1 hour. Given that AEGLs are 
established with five different exposure periods (10 minutes, 30 
minutes, 1 hour, 4 hours, and 8 hours), which exposure time should be 
used if the AEGL is used to determine the TQs and/or toxic endpoints?
    c. What should be the hierarchy for developing an alternative or 
equivalent LOC when an AEGL value has not been established for a toxic 
substance? Should ERPG values be used instead if they exist? If no ERPG 
value exists, should an LOC based on the IDLH value

[[Page 44631]]

be used instead if it exists? If there is no IDLH value, how should the 
LOC be calculated for either the TQ or toxic endpoint? Is there an 
alternate method for establishing an equivalent LOC for those chemicals 
not having an AEGL or ERPG that will result in an appropriate TQ?
    d. Currently, RMP worst-cast scenarios can be based on 10-minute or 
60-minute release times. Because many AEGL-2 values are established for 
1-hour, 4-hour and 8-hour exposure periods, should requirements for 
determining the worst-case and alternative release scenarios also 
incorporate four and eight hour release times using the 4-hour and 8-
hour AEGL-2 values for a particular toxic chemical?
    e. Should EPA consider using AEGL-1 rather than AEGL-2 values for 
calculating reporting thresholds and toxic endpoints in order to 
address acute effects that are transient and reversible (such as 
discomfort and irritation)?
    f. What would be the economic impacts of recalculating TQs as 
discussed above? Are there any special circumstances involving small 
entities that EPA should consider with respect to recalculating TQs?
10. Program 3 NAICS Codes Based on RMP Accident History Data
    When developing the RMP, the Agency scaled the regulatory 
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 this end, processes subject to RMP 
requirements were divided into three tiers: Programs 1, 2, and 3 (see 
section I.C). 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. The 
Agency established the most stringent RMP requirements under Program 3 
for those industry sectors that represented a potentially higher risk 
of accidental releases.
    Industry accident records represent a reasonable criterion for 
identifying high risk sources. If an entire industry has a long history 
of accidental releases, it may indicate that the materials handled and 
handling conditions generate a higher potential for serious releases, 
or that the government or industry standards applicable to that 
industry area are not effectively minimizing risks. Additionally, 
accident history associated with industry sectors was identified by EPA 
as a better surrogate for underlying risk 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. Further, serious chemical accidents occur infrequently even at 
sources with poor process safety practices.
    Program 3 eligibility is based in part on the NAICS associated with 
the covered process.\63\ The specific codes identified for Program 3 
were based on an analysis of reported accident histories within 
industry areas, selecting those that evidenced a higher risk 
potential.\64\ EPA selected the industry sectors that showed a high 
frequency of the most serious accidents across a significant percentage 
of all sources within the sector to avoid mischaracterizing an industry 
based on isolated, problematic sources. Accounting for the number of 
reports from individual sources was intended to avoid selecting a 
sector because of a small number of sources with serious safety 
problems. The analysis included not only off-site impacts, but also 
accidental releases that caused death, hospitalizations, or injuries on 
site, as these may serve as an indicator of significant safety problems 
that could lead to releases with off-site impacts. Program 3 applies to 
processes not eligible for Program 1 and in NAICS 32211 (pulp mills), 
32411 (petroleum refineries), 32511 (petrochemical manufacturing), 
325181 (alkalies and chlorine), 325188 (all other inorganic chemical 
manufacturing), 325192 (other cyclic crude and intermediate 
manufacturing), 325199 (all other basic organic chemical 
manufacturing), 325211 (plastics and resins), 325311 (nitrogen 
fertilizer), and 32532 (pesticide and other agricultural chemicals). 
Program 3 also applies to all processes subject to the OSHA PSM 
standard, unless the process is eligible for Program 1.
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    \63\ The 1996 final RMP rule based Program 3 eligibility on the 
old Standard Industrial Classification (SIC) code system, which 
assigned four-digit codes to different industry sectors. However, in 
1997, the U.S. Government, in cooperation with the governments of 
Canada and Mexico, adopted a new industry classification system, the 
North American Industry Classification System (NAICS), to replace 
the SIC codes. NAICS codes are either five or six digits, depending 
on the degree to which the sector is subdivided. As a result, in 
1999 EPA revised RMP requirements whose applicability was originally 
based on SIC codes (64 FR 964, January 6, 1999). All ``SIC code'' 
references were replaced with ``NAICS code'' and the nine SIC codes 
subject to Program 3 prevention program requirements were replaced 
with ten NAICS codes.
    \64\ EPA Report: Development of Decision Criteria For Accident 
History by SIC Code Approach and 100 or More Employee Approach, EPA 
Docket Number HQ-OAR-2004-0365, February 28, 1995.
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    The RMP national database now contains nearly two decades of 
accident history reports from covered sources, and the Agency believes 
that these reports represent a more comprehensive picture of the 
relative accident risks associated with different industry sectors 
regulated under the rule than was available to the Agency prior to the 
rule's publication. Based on these accident reports, the ten NAICS 
codes most frequently associated with accidents in RMP-regulated 
processes are 32411 (petroleum refineries), 325199 (all other basic 
organic chemical manufacturing), 325188 (all other basic inorganic 
chemical manufacturing), 22131 (water supply and irrigation systems), 
42491 (farm supplies merchant wholesalers), 22132 (sewage treatment 
facilities), 325181 (alkalies and chlorine manufacturing), 311615 
(poultry processing), 49312 (refrigerated warehousing and storage), and 
32211 (pulp mills).\65\ The Agency is requesting information on the 
appropriateness of reevaluating the NAICS industry sectors originally 
identified to determine Program 3 applicability based on the collected 
RMP data. Specifically, EPA requests information on the following 
questions:
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    \65\ We note that for purposes of categorizing RMP processes 
based on accident frequency, some different NAICS codes represent 
essentially the same type of chemical process. For example, 
facilities in NAICS 311615 (poultry processing) and 49312 
(refrigerated warehousing and storage) generally become RMP-
regulated as a result of using large anhydrous ammonia refrigeration 
systems. Similarly, there are several NAICS codes for RMP-regulated 
processes that represent bulk storage of anhydrous ammonia by 
agricultural chemical distribution facilities. EPA could account for 
this by aggregating accidents from similar process types when 
updating Program 3 NAICS codes.
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    a. Should industry sectors represented in RMP data as those with 
the most accidental releases be used to update and replace the existing 
set of Program 3 NAICS codes with a new set?
    b. How can the RMP accident history data best be used to update the 
current list of NAICS codes that trigger Program 3 requirements? Should 
the agency take into account the number of sources in each sector, or 
the severity of reported accidents, or other factors, in selecting 
updated Program 3 NAICS codes? Is the methodology used to develop the 
SIC/NAICS code list applicable to the RMP accident history database?
    c. Would limiting the data analysis or the selection of NAICS codes 
to only those industry sectors represented in the RMP data provide a 
complete and accurate picture of high risk industry sectors?
    d. Should an analysis of the RMP data be combined with an analysis 
of other

[[Page 44632]]

current accident history databases to inform any revisions/updates? If 
so, what other databases should be used? How much weight should be 
given to the RMP data set in comparison to other sources?
    e. Should the original NAICS codes continue to be included? Would 
not including the NAICS codes historically identified under Program 3 
cause increase risks to those industry sectors by having them no longer 
subject to the more stringent measures?
    f. Should an analysis of accident history data be limited to a 
specific time frame?
    g. Would it cause confusion within the regulated community to 
change the list of NAICS codes for which Program 3 is required?
    h. What would be the economic impacts of modifying the list of 
NAICS codes for which Program 3 is required? Are there any special 
circumstances involving small entities that EPA should consider with 
respect to modifying the list of covered NAICS codes?
11. The ``Safety Case'' Regulatory Model
    The ``safety case'' regulatory model \66\ is a framework for 
regulating high-risk industries where owners or operators of industrial 
facilities are required to demonstrate to the regulator that they have 
reduced risks to a level that is ``as low as reasonably practicable'', 
or ALARP. In the safety case model, operators must present to 
regulators a structured argument, supported by a body of evidence that 
provides a compelling, comprehensible and valid case that a system is 
safe for a given application in a given operating environment. This 
regulatory approach is used in the chemical and refining industries by 
some countries outside the U.S., including the United Kingdom, 
Australia, Norway, and others, and is similar in practice to the U.S. 
regulatory regime for nuclear reactor facilities regulated by the NRC.
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    \66\ http://www.csb.gov/working-papers-on-the-safety-case-regulatory-model-and-its-attributes/.
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    In its December 2013 Draft Regulatory Report on the Chevron 
Richmond Refinery Pipe Rupture and Fire, the CSB advocates the safety 
case approach as a safety management framework for U.S. refineries.\67\ 
The CSB specifically recommends that the California legislature adopt 
the safety case approach for refineries in California, and that OSHA, 
as part of that Agency's response to Executive Order 13650, ``develop 
questions and evaluate issues raised from the findings and conclusions 
in this report concerning the safety case regime.'' As the CSB report 
was published after OSHA published its RFI under Executive Order 13650, 
OSHA was not able to include questions concerning the CSB's safety case 
recommendation within its RFI. However, because the OSHA PSM standard 
and EPA RMP regulation are closely linked, and together constitute the 
federal regulatory framework for chemical process safety management 
regulation in the U.S., EPA believes it is appropriate for the Agency 
to raise this issue within this RFI.
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    \67\ At its January 15, 2014, meeting, the Board refused to 
endorse this aspect of the draft report. The majority directed the 
CSB staff to revise the report within 120 days. http://www.contracostatimes.com/rss/ci_24922079.
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    Completely replacing the current RMP regulation (and PSM standard) 
with a safety case approach would require significant changes to the 
existing regulatory regime for chemical process safety in the United 
States. Nevertheless, EPA is requesting public comment on whether EPA 
and OSHA should consider these actions. As an alternative to a 
wholesale adoption of the safety case approach, EPA and/or OSHA could 
potentially implement selected aspects of the approach within the 
current regulatory framework. For example, EPA and OSHA could require 
owners and operators to submit a PHA or a similar document to EPA and 
OSHA, and require Agency approval of the PHA. Also, EPA and OSHA could 
limit the applicability of the safety case approach to selected 
categories of high-risk facilities, such as petroleum refineries.
    EPA requests information on the advantages and disadvantages of 
adopting a safety case approach to replace the RMP regulation and PSM 
standard, or alternatively, of incorporating aspects of the approach 
into current regulations or for selected categories of facilities. In 
particular, EPA requests information on the following questions:
    a. If you own or operate any RMP or PSM-covered facilities and also 
own or operate facilities in countries that use a safety case 
regulatory regime, please describe the process of developing and 
obtaining approval for your safety case. How long does development and 
approval of a safety case take for a large petroleum refinery or 
chemical processing facility? What are the advantages and disadvantages 
of the safety case approach in comparison to the existing U.S. 
regulatory regime for chemical process safety? Is there any evidence 
that the safety case approach reduces the frequency and severity of 
accidental releases and near misses? If so, please provide any 
information, data, or studies to EPA that demonstrate these effects. 
How expensive is it for facility owners to implement the safety case 
approach in comparison to implementing RMP or PSM? Do you already 
incorporate aspects of the safety case approach in your risk management 
program?
    b. The CSB Draft Regulatory Report on the Chevron Richmond Refinery 
Pipe Rupture and Fire \68\ highlights the NRC as a U.S. regulator that 
has established a safety case approach for licensing and oversight of 
commercial nuclear power plants in the United States. The NRC oversees 
approximately 100 nuclear reactor and 3000 nuclear materials facilities 
in the U.S.\69\; the NRC has nearly 4000 employees and an annual budget 
of over $1 billion.\70\ What additional resources would be required by 
EPA and OSHA in order to establish and oversee a safety case regulatory 
regime for RMP and PSM-covered facilities?
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    \68\ http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf.
    \69\ http://www.nrc.gov/info-finder.html.
    \70\ http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1100/v29/fy2014-cbj.pdf.
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    c. Is the safety case approach suitable for all RMP and PSM covered 
facilities, or, if adopted, should it be limited to only the most high-
risk facilities, such as petroleum refineries and other high-risk 
chemical processing facilities?
    d. What would be the economic impacts of moving to a safety case 
based regulatory regime for chemical facility safety? Are there any 
special circumstances involving small entities that EPA should consider 
with respect to safety case based approach?
12. Streamlining RMP Requirements
    In addition to the items listed above, EPA is interested in 
gathering information on any other areas within part 68 that should be 
modernized, strengthened, or clarified. In particular, EPA invites 
comment on any potential revisions to the RMP rule that would make it 
easier for regulated sources to comply with its requirements. EPA also 
requests information on the following questions:
    a. Are there steps that EPA could take to simplify the process of 
determining whether the RMP rule applies to particular facilities? Are 
there other potential revisions to the rule that would make it easier 
for regulated entities to comply with its provisions?
    b. Are there steps that EPA could take to simplify the RMP 
submission process? For example, are there advances in electronic 
reporting or information technology that EPA could use in order to make 
RMP submissions easier?

[[Page 44633]]

    c. Should EPA require that RMP submissions be certified by a senior 
corporate official, such as the Chief Executive Officer, Chief 
Financial Officer, Chief Operations Officer, or the equivalent to 
ensure corporate-wide awareness and accountability in the RMP 
submission?
    d. Is the three-tiered program level structure of the RMP 
regulation appropriate, or should EPA consider simplifying the rule to 
make only two program tiers, or only a single prevention program 
applicable to all facilities?
    e. Are the accident prevention program elements clearly defined? 
Should EPA further clarify any of the existing elements?
    f. Are the regulatory terms and definitions contained in section 
68.3 sufficiently clear? Are there additional terms that EPA should 
define in this section?

    Dated: July 24, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2014-18037 Filed 7-30-14; 8:45 am]
BILLING CODE 6560-50-P


