
[Federal Register Volume 81, Number 49 (Monday, March 14, 2016)]
[Proposed Rules]
[Pages 13637-13712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05191]



[[Page 13637]]

Vol. 81

Monday,

No. 49

March 14, 2016

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; Proposed Rule

  Federal Register / Vol. 81 , No. 49 / Monday, March 14, 2016 / 
Proposed Rules  

[[Page 13638]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2015-0725; FRL-9940-94-OLEM]
RIN 2050-AG82


Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA), in response to 
Executive Order 13650, is proposing to amend its Risk Management 
Program regulations. The proposed revisions include several changes to 
the accident prevention program requirements including an additional 
analysis of safer technology and alternatives for the process hazard 
analysis for some Program 3 processes, third-party audits and incident 
investigation root cause analysis for Program 2 and Program 3 
processes, enhancements to the emergency preparedness requirements, 
increased public availability of chemical hazard information, and 
several other changes to certain regulatory definitions and data 
elements submitted in risk management plans. These proposed amendments 
seek to improve chemical process safety, assist local emergency 
authorities in planning for and responding to accidents, and improve 
public awareness of chemical hazards at regulated sources.

DATES: 
    Comments. Comments and additional material must be received on or 
before May 13, 2016. Under the Paperwork Reduction Act (PRA), comments 
on the information collection provisions are best assured of 
consideration if the Office of Management and Budget (OMB) receives a 
copy of your comments on or before April 13, 2016.
    Public Hearing. The EPA will hold a public hearing on this proposed 
rule on March 29, 2016 in Washington, DC.

ADDRESSES: Comments. Submit comments and additional materials, 
identified by docket EPA-HQ-OEM-2015-0725 to the Federal eRulemaking 
Portal: http://www.regulations.gov. Follow the online instructions for 
submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Public Hearing. A public hearing will be held in Washington, DC on 
March 29, 2016 at William J. Clinton East Building, Room 1153 (Map 
Room), 1201 Constitution Ave. NW., Washington, DC 20460. The hearing 
will convene at 9:00 a.m. through 8:00 p.m. The sessions will run from 
9:00 a.m. to 12:00 Noon, with a break between 12:00 Noon and 1:00 p.m., 
continuing from 1:00 p.m. to 4:30 p.m., with a break from 4:30 to 5:30 
p.m., and continuing from 5:30 p.m. to 8:00 p.m. Persons wishing to 
preregister may be assigned a time according to this schedule. The 
evening session beginning at 5:30 p.m. will be extended one hour after 
all scheduled comments have been heard to accommodate those wishing to 
make a comment as a walk-in registrant. Please register at https://rmp-proposed-rule.eventbrite.com to speak at the hearing. The last day to 
preregister in advance to speak at the hearing is March 24, 2016. 
Additionally, requests to speak will be taken the day of the hearing at 
the hearing registration desk, although preferences on speaking times 
may not be able to be fulfilled. If you require the service of a 
translator or special accommodations such as audio description, we ask 
that you pre-register for the hearing, on or before March 21, 2016, to 
allow sufficient time to arrange such accommodations.
    The hearing will provide interested parties the opportunity to 
present data, views or arguments concerning the proposed action. The 
EPA will make every effort to accommodate all speakers who arrive and 
register. Because this hearing is being held at U.S. government 
facilities, individuals planning to attend the hearing should be 
prepared to show valid picture identification to the security staff in 
order to gain access to the meeting room. Please note that the REAL ID 
Act, passed by Congress in 2005, established new requirements for 
entering federal facilities. If your driver's license is issued by 
Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine, 
Massachusetts, Minnesota, Montana, New York, Oklahoma or the state of 
Washington, you must present an additional form of identification to 
enter the federal building. Acceptable alternative forms of 
identification include: Federal employee badges, passports, enhanced 
driver's licenses and military identification cards. In addition, you 
will need to obtain a property pass for any personal belongings you 
bring with you. Upon leaving the building, you will be required to 
return this property pass to the security desk. No large signs will be 
allowed in the building, cameras may only be used outside of the 
building and demonstrations will not be allowed on federal property for 
security reasons.
    The EPA may ask clarifying questions during the oral presentations, 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing. Verbatim 
transcripts of the hearing and written statements will be included in 
the docket for the rulemaking. The EPA will make every effort to follow 
the schedule as closely as possible on the day of the hearing; however, 
please plan for the hearing to run either ahead of schedule or behind 
schedule.

FOR FURTHER INFORMATION CONTACT: James Belke, United States 
Environmental Protection Agency, Office of Land and Emergency 
Management, 1200 Pennsylvania Ave. NW. (Mail Code 5104A), Washington, 
DC 20460; telephone number: (202) 564-8023; email address: 
belke.jim@epa.gov, or: Kathy Franklin, United States Environmental 
Protection Agency, Office of Land and Emergency Management, 1200 
Pennsylvania Ave. NW. (Mail Code 5104A), Washington, DC 20460; 
telephone number: (202) 564-7987; email address: 
franklin.kathy@epa.gov.
    Electronic copies of this Notice of Proposed Rulemaking (NPRM) and 
related news releases are available on EPA's Web site at http://www.epa.gov/rmp. Copies of this NPRM are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. We use multiple 
acronyms and terms in this preamble. While this list may not be 
exhaustive, to ease the reading of this preamble and for reference 
purposes, the EPA defines the following terms and acronyms here:

ACC American Chemistry Council

[[Page 13639]]

ACUS Administrative Conference of the United States
AFPM American Fuel & Petrochemical Manufacturers
AMWA Association of Metropolitan Water Agencies
AN ammonium nitrate
ANSI American National Standards Institute
API American Petroleum Institute
ASTM American Society for Testing and Materials
AUC Allied Universal Corp
AWWA American Water Works Association
AXPC American Exploration & Production Council
BSEE Bureau of Safety and Environmental Enforcement
BTMU Bank of Tokyo Mitsubishi
CAA Clean Air Act
CAAA Clean Air Act Amendments
CARB California Air Resources Board
CAS Chemical Abstracts Service
CBI confidential business information
CCHS Contra Costa County Health Services
CCPS Center for Chemical Process Safety
CEM European Committee for Standardization
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CGA Compressed Gas Association
CI Chlorine Institute
CO2 Carbon dioxide
COS Center for Offshore Safety
CPCD Coalition to Prevent Chemical Disasters
CPSC Consumer Product Safety Commission
CRA Corn Refiners Association
CSAG Chemical Safety Advocacy Group
CSB Chemical Safety and Hazard Investigation Board
CSD Center for Science and Democracy
CSISSFRRA Chemical Safety Information, Site Security and Fuels 
Regulatory Relief Act
DHS Department of Homeland Security
DOI Department of the Interior
EPA Environmental Protection Agency
EPCRA Emergency Planning & Community Right-To-Know Act
FCC Federal Communications Commission
FDA Food and Drug Administration
FEMA Federal Emergency Management Agency
FOIA Freedom of Information Act
FPC Formosa Plastics Corporation
FR Federal Register
FRP facility response plan
GHG greenhouse gas
GHS Globally Harmonized System of Classification and Labelling of 
Chemicals
GPA Gas Processors Association
HAZOP hazard and operability study
HF hydrofluoric acid
IPAA Independent Petroleum Association of America
ISD inherently safer design
ISO industrial safety ordinance
ISOM isomerization
ISS inherently safer strategies
IST inherently safer technology
LEPC local emergency planning committee
LPG liquefied petroleum gas
MACT maximum achievable control technology
MIC methyl isocyanate
MKOPSC Mary Kay O'Connor Process Safety Center
MOC management of change
NACD National Association of Chemical Distributors
NAICS North American Industrial Classification System
NAM National Association of Manufacturers
NAS National Academy of Sciences
NASTTPO National Association of SARA Title III Program Officials
NIST National Institute of Standards and Technology
NJDEP New Jersey Department of Environmental Protection
NOPA National Oilseed Processors Association
NPRM Notice of Proposed Rulemaking
NRC Nuclear Regulatory Commission
NSPS New Source Performance Standards
NTTAA National Technology Transfer Advancement Act
NYDFS New York State Department of Financial Services
OCA offsite consequences analysis
OCS outer continental shelf
OHMERC Oklahoma Hazardous Materials Emergency Response Commission
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PCAOB Public Company Accounting Oversight Board
PE professional engineer
PHA process hazard analysis
PRA Paperwork Reduction Act
PREP preparedness for response exercise program
PSI process safety information
PSM process safety management
PSSAP Process Safety Site Assessment Program
PVC polyvinyl chloride
PwC PricewaterhouseCoopers
RAGAGEP recognized and generally accepted good engineering practices
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
RFI request for information
RMP Risk Management Plan
SARA Superfund Amendments and Reauthorization Act
SBAR Small Business Advocacy Review
SBREFA Small Business Regulatory Enforcement Fairness Act
SDS safety data sheet
SDWA Safe Drinking Water Act
SEC Securities and Exchange Commission
SEMS Safety and Environmental Management Systems
SER small entity representative
SERC state emergency response commission
SOCMA Society of Chemical Manufacturers and Affiliates
SOP standard operating procedure
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TEPC tribal emergency planning committees
TERC tribal emergency response commission
TPA Texas Pipeline Association
TQ threshold quantity
TSCA Toxic Substances Control Act
UMRA Unfunded Mandates Reform Act
USCG United States Coast Guard
UST underground storage tank
USW United Steel Workers
VCM vinyl chloride monomer
VCS voluntary census standards

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

I. General Information
    A. Executive Summary
    B. Does this action apply to me?
II. Background
III. Additional Information
    A. What actions are not addressed in this rule?
    B. What is the agency's authority for taking this action?
IV. Prevention Program Requirements
    A. Incident Investigation and Accident History Requirements
    B. Third-Party Compliance Audits
    C. Safer Technology and Alternatives Analysis (STAA)
    D. Stationary Source Location and Emergency Shutdown
V. Emergency Response Preparedness Requirements
    A. Emergency Response Program Coordination With Local Responders
    B. Facility Exercises
VI. Information Availability Requirements
    A. Proposed Public Disclosure Requirements to LEPCs or Emergency 
Response Officials
    B. Proposed Revisions to Requirements for Information 
Availability to the Public
    C. Alternative Options
VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule 
Technical Corrections
    A. Deletions From Subpart G
    B. Revisions to Subpart G
    C. Additions to Subpart G
    D. Proposed Amendments and Technical Corrections
VIII. Compliance Dates
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

[[Page 13640]]

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action
    The purpose of this action is to improve safety at facilities that 
use and distribute hazardous chemicals. In response to catastrophic 
chemical facility incidents in the United States, including the 
explosion that occurred at the West Fertilizer facility in West, Texas, 
on April 17, 2013 that killed 15 people, President Obama issued 
Executive Order 13650, ``Improving Chemical Facility Safety and 
Security,'' on August 1, 2013.\1\
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    \1\ For more information on the Executive Order see https://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
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    Section 6(a)(i) of Executive Order 13650 requires that various 
Federal agencies develop options for improved chemical facility safety 
and security that identify ``improvements to existing risk management 
practices through agency programs, private sector initiatives, 
Government guidance, outreach, standards, and regulations.'' One agency 
program presently in existence is the Risk Management Program 
implemented by EPA under section 112(r) of the Clean Air Act (42 U.S.C. 
7412(r)). Section 6(c) of Executive Order 13650 requires the 
Administrator of EPA to review the chemical hazards covered by the Risk 
Management Program and expand, implement and enforce the Risk 
Management Program to address any additional hazards. As part of this 
effort to solicit comments and information from the public regarding 
potential changes to EPA's Risk Management Program regulations (40 CFR 
part 68), on July 31, 2014, EPA published a ``Request for Information'' 
notice or ``RFI'' (79 FR 44604).
    EPA believes that the Risk Management Program regulations have been 
effective in preventing and mitigating chemical accidents in the United 
States. However, EPA believes that revisions could further protect 
human health and the environment from chemical hazards through 
advancement of process safety management based on lessons learned. 
These revisions are a result of a review of the existing Risk 
Management Program and information gathered from the RFI and Executive 
Order listening sessions.
2. Summary of the Major Provisions of the Regulatory Action
    This action proposes to amend EPA's Risk Management Program 
regulations at 40 CFR part 68. These regulations apply to stationary 
sources (also referred to as ``facilities'') that hold specific 
``regulated substances'' in excess of threshold quantities. These 
facilities are required to assess their potential release impacts, 
undertake steps to prevent releases, plan for emergency response to 
releases, and summarize this information in a risk management plan 
(RMP) submitted to EPA. The release prevention steps vary depending on 
the type of process, but progressively gain specificity and rigor over 
three program levels (i.e., Program 1, Program 2, and Program 3).
    The major provisions of this proposed rule include several changes 
to the accident prevention program requirements, as well as 
enhancements to the emergency response requirements, and improvements 
to the public availability of chemical hazard information. Each of 
these proposed revisions is introduced in the following paragraphs of 
this section and described in greater detail in sections IV through VI, 
later in this document.
    Certain proposed provisions would apply to a subset of the 
processes based on program levels described in 40 CFR part 68 (or in 
one case, to a subset of processes within a program level). A full 
description of these program levels is provided in section II of this 
document.
a. Accident Prevention Program Revisions
    This action proposes three changes to the accident prevention 
program requirements. First, the proposed rule would require all 
facilities with Program 2 or 3 processes to conduct a root cause 
analysis as part of an incident investigation of a catastrophic release 
or an incident that could have reasonably resulted in a catastrophic 
release (i.e., a near-miss). This provision is intended to reduce the 
number of chemical accidents by requiring facilities to identify the 
underlying causes of an incident so that they may be addressed. 
Identifying the root causes, rather than isolating and correcting 
solely the immediate cause of the incident, will help prevent similar 
incidents at other locations, and will yield the maximum benefit or 
lessons learned from the incident investigation.
    Second, the proposed rule would require regulated facilities with 
Program 2 or 3 processes to contract with an independent third-party to 
perform a compliance audit after the facility has a reportable release. 
Compliance audits are required under the existing rule, but are allowed 
to be self-audits (i.e., performed by the owner or operator of the 
regulated facility). This provision is intended to reduce the risk of 
future accidents by requiring an objective auditing process to 
determine whether the owner or operator of the facility is effectively 
complying with the accident prevention procedures and practices 
required under 40 CFR part 68.
    The third proposed revision to the prevention program would add an 
element to the process hazard analysis (PHA), which is updated every 
five years. Specifically, owners or operators of facilities with 
Program 3 regulated processes in North American Industrial 
Classification System (NAICS) codes 322 (paper manufacturing), 324 
(petroleum and coal products manufacturing), and 325 (chemical 
manufacturing) would be required to conduct a safer technology and 
alternatives analysis (STAA) as part of their PHA, and to evaluate the 
feasibility of any inherently safer technology (IST) identified. The 
current PHA requirements include consideration of active, passive, and 
procedural measures to control hazards. The proposed modernization 
effort continues to support the analysis of those measures and adds 
consideration of IST alternatives. The proposed provision is intended 
to reduce the risk of serious accidental releases by requiring 
facilities in these sectors to conduct a careful examination of 
potentially safer technology and designs that they could implement in 
lieu of, or in addition to, their current technologies. Data compiled 
from RMPs suggest processes in these NAICS codes have a 
disproportionate share of reportable releases.
    At this time, EPA is not proposing any additional requirements 
either for location of stationary sources (related to their proximity 
to public receptors) or emergency shutdown systems. However, EPA seeks 
comment on whether such requirements should be considered for future 
rulemakings, including the scope of such requirements, or whether the 
Agency should publish guidance.
b. Emergency Response Enhancements
    This action also proposes to enhance the rule's emergency response 
requirements. Owners or operators of all facilities with Program 2 or 3 
processes would be required to coordinate with the local emergency 
response agencies at least once a year to ensure that resources and 
capabilities are in place to respond to an accidental release of a 
regulated substance. As a result of improved coordination between 
facility owners and operators and local emergency response officials, 
EPA believes that some facilities that are currently designated as non-
responding facilities may become responding

[[Page 13641]]

facilities (i.e., develop an emergency response program in accordance 
with Sec.  68.95).
    Additionally, all facilities with Program 2 or 3 processes would be 
required to conduct notification exercises annually to ensure that 
their emergency contact information is accurate and complete. This 
provision is intended to reduce the impact of accidents by ensuring 
that appropriate mechanisms and processes are in place to notify local 
responders when an accident occurs. One of the factors that can 
contribute to the severity of chemical accidents is a lack of effective 
coordination between a facility and local emergency responders. 
Increasing such coordination and establishing appropriate emergency 
response procedures can help reduce the effects of accidents.
    This action also proposes to require that all facilities subject to 
the emergency response program requirements of subpart E of the rule 
(or ``responding facilities'') conduct a full field exercise at least 
once every five years and one tabletop exercise annually in the other 
years. Responding facilities that have an RMP reportable accident would 
also have to conduct a full field exercise within a year of the 
accident. The purpose of this provision is to reduce the impact of 
accidents by ensuring that emergency response personnel understand 
their roles in the event of an incident, that local responders are 
familiar with the hazards at a facility, and that the emergency 
response plan is up-to-date. Improved coordination with emergency 
response personnel will better prepare responders to respond 
effectively to an incident and take steps to notify the community of 
appropriate actions, such as shelter-in-place or evacuation.
c. Enhanced Availability of Information
    This action proposes various enhancements to the public 
availability of chemical hazard information. The proposed rule would 
require all facilities to provide certain basic information to the 
public through easily accessible means such as a facility Web site. If 
no Web site exists, the owner or operator may provide the information 
at public libraries or government offices, or use other means 
appropriate for particular locations and facilities. In addition, a 
subset of facilities would be required, upon request, to provide the 
Local Emergency Planning Committee (LEPC), Tribal Emergency Planning 
Committee (TEPC) \2\ or other local emergency response agencies with 
summaries related to: Their activities on compliance audits (facilities 
with Program 2 and Program 3 processes); emergency response exercises 
(facilities with Program 2 and Program 3 processes); accident history 
and investigation reports (all facilities that have had RMP reportable 
accidents); and any ISTs implemented at the facility (a subset of 
Program 3 processes). The proposed rule would also require all 
facilities to hold a public meeting for the local community within a 
specified timeframe after an RMP reportable accident. This provision 
will ensure that first responders and members of the community have 
easier access to appropriate facility chemical hazard information, 
which can significantly improve emergency preparedness and their 
understanding of how the facility is addressing potential risks.
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    \2\ Note for the purposes of this document the term TEPC can be 
substituted for LEPC, as appropriate.
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    In addition to the major provisions described previously in this 
section, this action proposes revisions to clarify or simplify the RMP 
submission. These changes are intended to reduce the compliance burden 
on facilities and increase their understanding of the RMP requirements. 
We are also proposing technical corrections to various provisions of 
the rule.
3. Costs and Benefits
a. Summary of Potential Costs
    Approximately 12,500 facilities have filed current RMPs with EPA 
and are potentially affected by the proposed rule changes. These 
facilities range from petroleum refineries and large chemical 
manufacturers to water and wastewater treatment systems; chemical and 
petroleum wholesalers and terminals; food manufacturers, packing 
plants, and other cold storage facilities with ammonia refrigeration 
systems; agricultural chemical distributors; midstream gas plants; and 
a limited number of other sources, including Federal installations, 
that use RMP-regulated substances.
    Table 1 presents the number of facilities according to the latest 
RMP reporting as of February 2015 by industrial sector and chemical 
use.

                                Table 1--Number of Affected Facilities by Sector
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                                                                        Total
                Sector                         NAICS codes           facilities            Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental         924......................           1,923  Use chlorine and other
 quality programs (i.e., governments).                                              chemicals for treatment.
Agricultural chemical distributors/     111, 112, 115, 42491.....           3,667  Store ammonia for sale; some
 wholesalers.                                                                       in NAICS 111 and 115 use
                                                                                    ammonia as a refrigerant.
Chemical manufacturing................  325......................           1,466  Manufacture, process, store.
Chemical wholesalers..................  4246.....................             333  Store for sale.
Food and beverage manufacturing.......  311, 312.................           1,476  Use--mostly ammonia as a
                                                                                    refrigerant.
Oil and gas extraction................  211......................             741  Intermediate processing
                                                                                    (mostly regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).
Other.................................  44, 45, 48, 54, 56, 61,               248  Use chemicals for wastewater
                                         72.                                        treatment, refrigeration,
                                                                                    store chemicals for sale.
Other manufacturing...................  313, 326, 327, 33........             384  Use various chemicals in
                                                                                    manufacturing process, waste
                                                                                    treatment.
Other wholesale.......................  423, 424.................             302  Use (mostly ammonia as a
                                                                                    refrigerant).
Paper manufacturing...................  322......................              70  Use various chemicals in pulp
                                                                                    and paper manufacturing.
Petroleum and coal products             324......................             156  Manufacture, process, store
 manufacturing.                                                                     (mostly regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).
Petroleum wholesalers.................  4247.....................             276  Store for sale (mostly
                                                                                    regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).

[[Page 13642]]

 
Utilities.............................  221 (except 22131, 22132)             343  Use chlorine (mostly for
                                                                                    water treatment).
Warehousing and storage...............  493......................           1,056  Use mostly ammonia as a
                                                                                    refrigerant.
Water/wastewater Treatment Systems....  22131, 22132.............             102  Use chlorine and other
                                                                                    chemicals.
                                                                  ----------------
    Total.............................  .........................          12,542
----------------------------------------------------------------------------------------------------------------

    Table 2 presents a summary of the annualized costs estimated in the 
regulatory impact analysis.\3\ In total, EPA estimates annualized costs 
of $158.3 million at a 3% discount rate and $161.0 million at a 7% 
discount rate.
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    \3\ A full description of costs and benefits for this proposed 
rule can be found in the Regulatory Impact Analysis for Proposed 
Revisions to the Accidental Release Prevention Requirements: Risk 
Management Programs Under the Clean Air Act, Section 112(r)(7). This 
document is available in the docket for this rulemaking (Docket ID 
Number EPA-HQ-OEM-2015-0725).

                  Table 2--Summary of Annualized Costs
                        [Millions, 2014 dollars]
------------------------------------------------------------------------
                Provision                   3 (percent)     7 (percent)
------------------------------------------------------------------------
Third-party Audits......................            $5.0            $5.0
Incident Investigation/Root Cause.......             0.8             0.8
STAA....................................            34.8            34.8
Coordination............................             6.3             6.3
New Responders *........................            33.0            35.6
Notification Exercises..................             1.4             1.4
Facility Exercises......................            60.7            60.7
Information Sharing (LEPC)..............            11.7            11.7
Information Sharing (Public)............             4.0             4.0
Public Meeting..........................             0.4             0.4
Rule Familiarization....................             0.3             0.3
                                         -------------------------------
    Total Cost \+\......................           158.3           161.0
------------------------------------------------------------------------
* Reflects costs for some facilities to convert from ``non-responding''
  to ``responding'' as a result of improved coordination with local
  emergency response officials.
+ Totals may not sum due to rounding.

    The largest average annual cost of the proposed rule is the 
exercise costs for current responders ($60.7 million), followed by new 
responders (facilities that will comply with the emergency response 
program requirements of Sec.  68.95 as a result of local coordination 
activities or receiving a written request from the facility's LEPC) 
($35.6 million), STAA ($34.8 million), and information sharing (LEPC) 
($11.7 million). The remaining provisions impose average annual costs 
under $10 million each, including coordination ($6.3 million), third-
party audits ($5.0 million), information sharing (public) ($4.0 
million), notification exercises ($1.4 million), incident 
investigation/root cause analysis ($0.8 million), public meetings ($0.4 
million), and rule familiarization ($0.3 million).
b. Summary of Potential Benefits
    EPA anticipates that promulgation and implementation of this rule 
would result in a reduction of the frequency and magnitude of damages 
from releases. Accidents and releases from RMP facilities occur every 
year, causing fires and explosions; damage to property; acute and 
chronic exposures of workers and nearby residents to hazardous 
materials, and resulting in serious injuries and death. Although we are 
unable to quantify what specific reductions may occur as a result of 
these proposed revisions, we are able to present data on the total 
damages that currently occur at RMP facilities each year. The data 
presented is based on a 10-year baseline period, summarizing RMP 
accident impacts and, when possible, monetizing them. EPA expects that 
some portion of future damages would be prevented through 
implementation of a final rule. Table 3 presents a summary of the 
quantified damages identified in the analysis.

                                     Table 3--Summary of Quantified Damages
                                                 [2014 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Average/
                                                    Unit value     10-Year total   Average/ year     accident
----------------------------------------------------------------------------------------------------------------
                                                     On-site
----------------------------------------------------------------------------------------------------------------
Fatalities......................................      $8,583,113    $497,820,554     $49,782,055        $328,161
Injuries........................................          50,000     105,150,000      10,515,000          69,314
Property Damage.................................  ..............   2,054,895,236     205,489,524       1,354,578
                                                 ---------------------------------------------------------------

[[Page 13643]]

 
    On-site Total...............................  ..............   2,657,865,790     265,786,579       1,752,053
----------------------------------------------------------------------------------------------------------------
                                                     Offsite
----------------------------------------------------------------------------------------------------------------
Fatalities......................................      $8,583,113      $8,583,113        $858,311          $5,658
Hospitalizations................................          36,000       6,804,000         680,400           4,485
Medical Treatment...............................           1,000      14,807,000       1,480,700           9,761
Evacuations.....................................             181       6,992,327         699,233           4,609
Sheltering in Place.............................              91      40,920,849       4,092,085          26,975
Property Damage.................................  ..............      11,352,105       1,135,211           7,483
                                                 ---------------------------------------------------------------
    Offsite Total...............................  ..............      89,459,394       8,945,939          58,971
                                                 ---------------------------------------------------------------
        Total...................................  ..............   2,747,325,184     274,732,518       1,811,024
----------------------------------------------------------------------------------------------------------------

    EPA monetized both on-site and offsite damages. EPA estimated total 
average annual on-site damages of $265.8 million. The largest monetized 
average annual on-site damage was on-site property damage, which 
resulted in average annual damage of approximately $205.5 million. The 
next largest impact was on-site fatalities ($49.8 million) and injuries 
($10.5 million).
    EPA estimated total average annual offsite damages of $8.9 million. 
The largest monetized average annual offsite damage was from sheltering 
in place ($4.1 million), followed by medical treatment ($1.5 million), 
property damage ($1.1 million), fatalities ($0.9 million), evacuations 
($0.7 million), and hospitalizations ($0.7 million).
    In total, EPA estimated monetized damages from RMP facility 
accidents of $275 million per year. However, the monetized impacts omit 
many important categories of accident impacts including lost 
productivity, the costs of emergency response, transaction costs, 
property value impacts in the surrounding community (that overlap with 
other benefit categories), and environmental impacts. Also not 
reflected in the 10-year baseline costs are the impacts of non-RMP 
accidents at RMP facilities and any potential impacts of rare high 
consequence catastrophes. A final omission is related to the 
information provision. Reducing the probability of chemical accidents 
and the severity of their impacts, and improving information disclosure 
by chemical facilities, as the proposed provisions intend, would 
provide benefits to potentially affected members of society.
    Table 4 summarizes four broad social benefit categories related to 
accident prevention and mitigation including prevention of RMP 
accidents, mitigation of RMP accidents, prevention and mitigation of 
non-RMP accidents at RMP facilities, and prevention of major 
catastrophes. The table explains each and identifies ten associated 
specific benefit categories, ranging from avoided fatalities to avoided 
emergency response costs. Table 4 also highlights and explains the 
information disclosure benefit category and identifies two specific 
benefits associated with it: Improved efficiency of property markets 
and allocation of emergency resources.

     Table 4--Summary of Social Benefits of Proposed Rule Provisions
------------------------------------------------------------------------
                                                      Specific benefit
   Broad benefit category          Explanation           categories
------------------------------------------------------------------------
Accident Prevention.........  Prevention of future   Reduced
Accident Mitigation.........   RMP facility          Fatalities.
Non-RMP accident prevention    accidents.            Reduced
 and mitigation.              Mitigation of future   Injuries.
                               RMP facility          Reduced
Avoided Catastrophes........   accidents.            Property Damage.
                              Prevention and         Fewer
                               mitigation of         People Sheltered in
                               future non-RMP.       Place.
                               accidents at RMP      Fewer
                               facilities.           Evacuations.
                              Prevention of rare     Avoided
                               but extremely high    Lost Productivity.
                               consequence events.   Avoided
                                                     Emergency Response
                                                     Costs.
                                                     Avoided
                                                     Transaction Costs.
                                                     Avoided
                                                     Property Value
                                                     Impacts.*
                                                     Avoided
                                                     Environmental
                                                     Impacts.
Information Disclosure......  Provision of           Improved
                               information to the    efficiency of
                               public and LEPCs.     property markets.
                                                     Improved
                                                     resource
                                                     allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories such as
  reduced health and environmental impacts.

B. Does this action apply to me?

    This rule applies to those facilities (referred to as ``stationary 
sources'' under the CAA) that are subject to the chemical accident 
prevention requirements at 40 CFR part 68. This includes stationary 
sources holding more than a threshold quantity (TQ) of a regulated 
substance in a process. Table 5 below provides industrial sectors and 
the associated NAICS codes for entities potentially affected by this 
action. The Agency's goal is to provide a guide for readers to consider 
regarding entities that potentially could be affected by this action. 
However, this action may affect other entities not listed in this 
table. If you have questions regarding the applicability of this action 
to a particular entity, consult the person(s) listed in the 
introductory section of this action under the heading entitled FOR 
FURTHER INFORMATION CONTACT.

[[Page 13644]]



   Table 5--Industrial Sectors and Associated NAICS Codes for Entities Potentially Affected by Proposed Action
----------------------------------------------------------------------------------------------------------------
                 Sector                                                 NAICS Code
----------------------------------------------------------------------------------------------------------------
Administration of Environmental Quality  924.
 Programs.
Agricultural Chemical Distributors:
    Animal Production and Aquaculture..  112.
    Crop Production....................  111.
    Farm Supplies Merchant Wholesalers.  42491.
    Support Activities for Agriculture   115.
     and Forestry.
Beverage Manufacturing.................  3121.
Food Manufacturing.....................  311.
Chemical and Allied Products Merchant    4246.
 Wholesalers.
Chemical Manufacturing.................  325.
Oil and Gas Extraction.................  211.
Other \4\..............................  313, 326, 327, 33, 44, 45, 48, 54, 56, 61, 72.
Other Wholesale:
    Merchant Wholesalers, Durable Goods  423.
    Merchant Wholesalers, Nondurable     424.
     Goods.
Paper Manufacturing....................  322.
Petroleum and Coal Products              324.
 Manufacturing.
Petroleum and Petroleum Products         4247.
 Merchant Wholesalers.
Utilities..............................  221 (except 22131 and 22132 described below).
Warehousing and Storage................  493.
Water/Wastewater Treatment Systems:
    Sewage Treatment Facilities........  22132.
    Water Supply and Irrigation Systems  22131.
----------------------------------------------------------------------------------------------------------------

II. Background

    Recent catastrophic chemical facility incidents in the United 
States prompted President Obama to issue Executive Order 13650, 
``Improving Chemical Facility Safety and Security,'' on August 1, 
2013.\5\ The purpose of the Executive Order is to enhance the safety 
and security of chemical facilities and reduce risks associated with 
hazardous chemicals to owners and operators, workers, and communities. 
The Executive Order establishes the Chemical Facility Safety and 
Security Working Group (``Working Group''), co-chaired by the Secretary 
of Homeland Security, the Administrator of EPA, and the Secretary of 
Labor or their designated representatives at the Assistant Secretary 
level or higher, and composed of senior representatives of other 
Federal departments, agencies, and offices. The Executive Order 
requires the Working Group to carry out a number of tasks whose overall 
aim is to prevent chemical accidents, such as the explosion that 
occurred at the West Fertilizer facility in West, Texas, on April 17, 
2013.\6\ In addition to the tragedy at the West Fertilizer facility, a 
number of other incidents have demonstrated a significant risk to the 
safety of American workers and communities. On March 23, 2005, 
explosions at the BP Refinery in Texas City, Texas, killed 15 people 
and injured more than 170 people.\7\ On April 2, 2010, an explosion and 
fire at the Tesoro Refinery in Anacortes, Washington, killed seven 
people.\8\ On August 6, 2012, at the Chevron Refinery in Richmond, 
California, a fire involving flammable fluids endangered 19 Chevron 
employees and created a large plume of highly hazardous chemicals that 
traveled across the Richmond, California, area.\9\ Nearly 15,000 
residents sought medical treatment due to the release. On June 13, 
2013, a fire and explosion at Williams Olefins in Geismar, Louisiana, 
killed two people and injured many more.\10\
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    \4\ For descriptions of NAICS codes, see http://www.census.gov/cgi-bin/sssd/naics/naicsrch.
    \5\ For more information on the Executive Order see https://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
    \6\ CSB. January 2016. Final Investigation Report, West 
Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. 
REPORT 2013-02-I-TX. http://www.csb.gov/west-fertilizer-explosion-and-fire-/.
    \7\ U.S. Chemical Safety and Hazard Investigation Board (CSB). 
March 2007. Investigation Report: Refinery Explosion and Fire, BP, 
Texas City, Texas, March 23, 2005. Report No. 2005-04-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf.
    \8\ CSB. May 2014. Investigation Report: Catastrophic Rupture of 
Heat Exchanger, Tesoro Anacortes Refinery, Anacortes, Washington, 
April 2, 2010. Report No. 2010-08-I-WA. http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf.
    \9\ CSB. January 2014. Regulatory Report: Chevron Richmond 
Refinery Pipe Rupture and Fire, Chevron Richmond Refinery #4 Crude 
Unit, Richmond, California, August 6, 2012. Report No. 2012-03-I-CA. 
http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf.
    \10\ CSB. June 27, 2013. Testimony of Rafael Moure-Eraso, Ph.D. 
Chairperson, CSB Before the U.S. Senate Committee on Environment and 
Public Works, pg. 8. http://www.csb.gov/assets/1/19/CSB_Written_Senate_Testimony_6.27.13.pdf.
---------------------------------------------------------------------------

    Section 6 of the Executive Order is entitled ``Policy, Regulation, 
and Standards Modernization.'' This section, among other things, 
requires certain Federal agencies to consider possible changes to 
existing chemical safety and security regulations. To solicit comments 
and information from the public regarding potential changes to EPA's 
Risk Management Program regulations (40 CFR part 68), on July 31, 2014, 
EPA published an RFI (79 FR 44604). Information collected through the 
RFI has informed this proposal. Readers are encouraged to review the 
RFI, as this action will not reiterate the full discussion of all of 
its topics.
    EPA received a total of 579 public comments on the RFI. Several 
public comments were the result of various mass mail campaigns and 
contained numerous copies of letters or petition signatures. 
Approximately 99,710 letters and signatures were contained in these 
several comments. Discussion of RFI public comments pertaining to 
topics included in this proposal can be found below in section IV. 
Prevention Program Requirements, section V. Emergency Response 
Preparedness Requirements and section VI. Information Availability 
Requirements.
    EPA seeks comment on the proposed amendments. Any suggestions for 
alternative options should include an appropriate rationale and 
supporting data for the Agency to be able to consider it for a final 
action.

[[Page 13645]]

A. Overview of EPA's Risk Management Program Regulations

    Both EPA's 40 CFR part 68 RMP regulation \11\ and Occupational 
Safety and Health Administration's (OSHA) 29 CFR 1910.119 Process 
Safety Management (PSM) standard were authorized in the Clean Air Act 
Amendments of 1990 (1990 CAAA). This was in response to a number of 
catastrophic chemical accidents occurring worldwide that had resulted 
in public and worker fatalities and injuries, environmental damage, and 
other community impacts. OSHA published the PSM standard in 1992 (57 FR 
6356, February 24, 1992), as required by section 304 of the 1990 CAAA, 
using its authority under 29 U.S.C. 653.
---------------------------------------------------------------------------

    \11\ 40 CFR part 68 is titled, ``Chemical Accident Prevention 
Provisions,'' but is more commonly known as the ``RMP regulation,'' 
the ``RMP rule,'' or the ``Risk Management Program.'' This document 
uses all three terms to refer to 40 CFR part 68. The term ``RMP'' 
refers to the document required to be submitted under subpart F of 
40 CFR part 68, the Risk Management Plan. See http://www2.epa.gov/rmp for more information on the Risk Management Program.
---------------------------------------------------------------------------

    The 1990 CAAA added accidental release provisions under section 
112(r). The statute required EPA to develop a list of at least 100 
regulated substances for accident prevention and related thresholds 
(CAA section 112(r)(3) through (5)), and authorized EPA to issue 
accident prevention regulations (CAA section 112(r)(7)(A)). The statute 
also required EPA to develop ``reasonable regulations'' requiring 
facilities with over a TQ of a regulated substance to undertake 
accident prevention steps and submit a ``risk management plan'' to 
various local, state, and Federal planning entities (CAA section 
112(r)(7)(B)).
    EPA published the RMP regulation in two stages. The Agency 
published the list of regulated substances and TQs in 1994 (59 FR 4478, 
January 31, 1994) (the ``list rule'') \12\ and published the RMP final 
regulation, containing risk management requirements for covered 
sources, in 1996 (61 FR 31668, June 20, 1996) (the ``RMP 
rule'').13 14 Both the OSHA PSM standard and the EPA RMP 
rule aim to prevent or minimize the consequences of accidental chemical 
releases through implementation of management program elements that 
integrate technologies, procedures, and management practices. In 
addition to requiring implementation of management program elements, 
the RMP rule requires covered sources to submit (to EPA) a document 
summarizing the source's risk management program--called a Risk 
Management Plan (or RMP). The RMP rule required covered sources to 
comply with its requirements and submit initial RMPs to EPA by June 21, 
1999. Each RMP must be revised and updated at least once every five 
years from the date the plan was initially submitted.
---------------------------------------------------------------------------

    \12\ Documents and information related to development of the 
list rule can be found in the EPA docket for the rulemaking, docket 
number A-91-74.
    \13\ Documents and information related to development of the RMP 
rule can be found in EPA docket number A-91-73.
    \14\ 40 CFR part 68 applies to owners and operators of 
stationary sources that have more than a TQ of a regulated substance 
within a process. The regulations do not apply to chemical hazards 
other than listed substances held above a TQ within a regulated 
process.
---------------------------------------------------------------------------

    EPA later revised the list rule and the RMP rule. EPA modified the 
regulated list of substances by exempting solutions with less than 37% 
concentrations of hydrochloric acid (62 FR 45130, August 25, 1997). EPA 
also deleted the category of Department of Transportation Division 1.1 
explosives, and exempted flammable substances in gasoline used as fuel 
and in naturally occurring hydrocarbon mixtures prior to initial 
processing (63 FR 640, January 6, 1998).
    EPA subsequently modified the RMP rule five times. First, in 1999, 
EPA revised the facility identification data and contact information 
reported in the RMP (64 FR 964, January 6, 1999). Next, EPA revised 
assumptions for the worst case scenario analysis for flammable 
substances and clarified what the Agency means by chemical storage not 
incidental to transportation (64 FR 28696, May 26, 1999). After the 
Chemical Safety Information, Site Security and Fuels Regulatory Relief 
Act (CSISSFRRA) was enacted on August 5, 1999, EPA excluded regulated 
flammable substances when used as a fuel or held for sale as a fuel at 
a retail facility (65 FR 13243, March 13, 2000). Later, EPA restricted 
access to offsite consequence analysis (OCA) data for the public and 
government officials to minimize the security risks associated with 
posting the information on the Internet (65 FR 48108, August 4, 2000). 
Finally, EPA revised the RMP executive summary to remove a requirement 
to describe the OCA; revised reporting deadlines for RMP reportable 
accidents and emergency contact changes; and made other minor revisions 
to RMP facility contact information (69 FR 18819, April 8, 2004).
    The RMP rule establishes three ``program levels'' for regulated 
processes:
    Program 1 applies to processes that would not affect the public in 
the case of a worst-case release and that have had no accidents with 
specific offsite consequences within the past five years. Program 1 
imposes limited hazard assessment requirements, requires coordination 
with local response agencies, and requires submission of an RMP.
    Program 2 applies to processes not eligible for Program 1 or 
subject to Program 3, and imposes streamlined prevention program 
requirements, including safety information, hazard review, operating 
procedures, training, maintenance, compliance audits, and incident 
investigation elements. Program 2 also imposes additional hazard 
assessment, management, and emergency response requirements.
    Program 3 applies to processes not eligible for Program 1 and 
either subject to OSHA's PSM standard under Federal or state OSHA 
programs or classified in one of ten specified industry sectors 
identified by their 2002 NAICS codes listed at Sec.  68.10(d)(1). These 
industries were selected because they had a higher frequency of the 
most serious accidents as compared to other industry sectors. The ten 
NAICS codes and the industries they represent are 32211 (pulp mills), 
32411 (petroleum refineries), 32511 (petrochemical manufacturing), 
325181 (alkalies and chlorine manufacturing), 325188 (all other basic 
inorganic chemical manufacturing), 325192 (cyclic crude and 
intermediate manufacturing), 325199 (all other basic chemical 
manufacturing), 325211 (plastics material and resin manufacturing), 
325311 (nitrogenous fertilizer manufacturing), or 32532 (pesticide and 
other agricultural chemicals manufacturing).\15\ Program 3 imposes 
elements nearly identical to those in OSHA's PSM standard as the 
accident prevention program. The Program 3 prevention program includes 
requirements relating to process safety information (PSI), PHA, 
operating procedures, training, mechanical integrity, management of 
change (MOC), pre-startup review, compliance audits, incident 
investigations, employee participation, hot work permits, and 
contractors. Program 3 also imposes the same hazard assessment, 
management, and emergency response requirements that are required for 
Program 2.
---------------------------------------------------------------------------

    \15\ NAICS codes 325181 and 325188 are now combined and 
represented as 2012 revised NAICS code 325180 (other basic inorganic 
chemical manufacturing). NAICS code 325192 is now 2012 revised NAICS 
code 325194 (cyclic crude, intermediate, and gum and wood chemical 
manufacturing).
---------------------------------------------------------------------------

    On July 22, 2015, OSHA issued a revised interpretation to its PSM 
retail exemption at 29 CFR 119(a)(2)(i).\16\ This

[[Page 13646]]

interpretation now only allows facilities in NAICS codes 44 and 45, the 
retail trade, to be eligible for the retail exemption. As a result of 
this change, many agricultural chemical distributors who sell bulk 
anhydrous ammonia and some chemical warehouses, are no longer exempt 
from the PSM standard. This makes them subject to RMP Program 3 
requirements, whereas before most were covered under Program 2.
---------------------------------------------------------------------------

    \16\ See OSHA PSM Retail Exemption Policy https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29528.
---------------------------------------------------------------------------

    EPA believes the RMP rule has been effective in preventing and 
mitigating chemical accidents in the United States and protecting human 
health and the environment from chemical hazards. However, major 
incidents, such as the West, Texas, explosion, highlight the importance 
of reviewing and evaluating current practices and regulatory 
requirements, and applying lessons learned from other incident 
investigations to advance process safety where needed.

III. Additional Information

A. What actions are not addressed in this rule?

    Under section 6 of Executive Order 13650, ``Improving Chemical 
Facility Safety and Security,'' the Executive Order Working Group 
(chaired by EPA, OSHA, and Department of Homeland Security [DHS]) was 
tasked with enhancing safety at chemical facilities by identifying key 
improvements to existing risk management practices through guidance, 
policies, procedures, outreach, and regulations. As part of this task, 
the Working Group solicited public comment on potential options for 
improving chemical facility safety. Additionally, EPA gathered 
information from the public regarding potential changes to EPA's Risk 
Management Program regulations (40 CFR part 68) via a RFI (79 FR 44604, 
July 31, 2014). Using the results from these efforts as well as 
information collected through implementing the Risk Management Program, 
EPA is proposing revisions to the RMP rule to advance chemical facility 
safety. However, this proposed rule does not address all of the topics 
included in the RFI. For example, EPA is not proposing any revisions to 
the list of regulated substances and is therefore not addressing 
ammonium nitrate (AN) in this proposed rule. EPA may propose listing 
additional hazardous substances in a separate action.
    Currently AN is not listed as a regulated substance under the RMP 
rule or the OSHA PSM standard. Required safe handling and storage 
practices for AN are covered under OSHA's Explosives and Blasting 
Agents Standard (29 CFR 1910.109) and includes coverage of fertilizer 
grade AN in section 1910.109(i). Section 1910.109(k)(2) requires that 
manufacturing of explosives must meet requirements under OSHA's PSM 
standard (29 CFR 1910.119); this would include any explosive 
manufacturing process involving AN. OSHA is considering whether AN 
should be added to the Sec.  1910.119 Appendix A list of chemicals 
subject to the PSM standard, which could expand the standard's 
applicability to include processes at fertilizer mixers, distributors 
and wholesalers who store and handle AN. OSHA is also considering 
whether to make changes to the AN storage and handling requirements in 
their Explosives and Blasting Agents standard, which has requirements 
for AN stored with and without, explosives and blasting agents. DHS is 
considering potential modifications of its Chemical Facility Anti-
Terrorism Standards (CFATS) regulation, including reviewing the 
applicability and/or modification of screening TQs for chemicals of 
interest in Appendix A in 6 CFR part 27, which include AN (79 FR 48693, 
August 18, 2014).\17\ We plan to coordinate any potential change to the 
list of substances 40 CFR part 68 with the actions of these other 
agencies. Therefore, EPA is not presently proposing that AN be added to 
the list of substances subject to the RMP rule, but the Agency may 
elect to propose such a listing at a later date.
---------------------------------------------------------------------------

    \17\ CFATS. 79 FR 48693, August 18, 2014. http://www.regulations.gov/#!documentDetail;D=DHS-2014-0016-0001.
---------------------------------------------------------------------------

B. What is the agency's authority for taking this action?

    The statutory authority for this action is provided by section 
112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each of the portions 
of the Risk Management Program rule we propose to modify in this 
document are based on EPA's rulemaking authority under section 
112(r)(7) of the CAA (42 U.S.C. 7412(r)(7)). A more detailed discussion 
of the underlying statutory authority for the current requirements of 
the Risk Management Program rule appears in the action that proposed 
the Risk Management Program (58 FR 54190, 54191-93 [Oct. 20, 1993]). 
The prevention program provisions discussed below (auditing, incident 
investigation, and safer technologies alternatives analysis) address 
the ``prevention and detection of accidental releases.'' The emergency 
coordination and exercises provisions in this rule modify existing 
provisions that provide for ``response to such release by the owners or 
operators of the sources of such releases.'' (CAA 112(r)(7)(B)(i)). 
This paragraph calls for EPA's regulations to recognize differences in 
``size, operations, processes, class and categories of sources.'' In 
this document, we propose to maintain distinctions in prevention 
program levels and in response actions authorized by this provision. 
The information disclosure provisions discussed in this document 
generally assist in the development of ``procedures and measures for 
emergency response after an accidental release of a regulated substance 
in order to protect human health and the environment.'' This 
information disclosure ensures the emergency plans for impacts on the 
community are based on more relevant and accurate information than 
would otherwise be available and ensures that the public can become an 
informed participant in such emergency planning.

IV. Prevention Program Requirements

A. Incident Investigation and Accident History Requirements

1. Summary of Existing Investigation Requirements
    Currently, owners or operators of facilities with processes subject 
to Program 2 and Program 3 are required to investigate each incident 
which resulted in, or could reasonably have resulted in a catastrophic 
release (Sec. Sec.  68.60 and 68.81). The RMP rule defines a 
catastrophic release in Sec.  68.3 as a major uncontrolled emission, 
fire, or explosion, involving one or more regulated substances that 
presents an imminent and substantial endangerment to public health and 
the environment. Imminent and substantial endangerment includes offsite 
consequences such as death, injury, or adverse effects to human health 
or the environment, or the need for the public to shelter-in-place or 
be evacuated to avoid such consequences.
    Facility owners or operators are required to determine the factors 
that contributed to the incident and develop recommendations resulting 
from the investigation. The PHA (Sec.  68.67 (c)(2)) is required to 
address previous incidents which had a likely potential for 
catastrophic consequences. In the preamble to the existing final rule, 
EPA explained that while most catastrophic releases affect workers 
first, there are incidents where workers are protected but the public 
and the environment may be threatened (e.g., emergency relief devices 
are designed to vent hazardous atmospheres away from the workplace

[[Page 13647]]

and into the air where they may be carried downwind). The PHA should 
recognize and address the potential offsite impact associated with 
safety measures that protect workers (e.g., by installing a control 
device on an emergency vent). The RMP rule requires that facility 
owners and operators consider such possibilities and integrate the 
protection of workers, the public, and the environment into one 
program. Thus, RMP facility owners and operators must investigate each 
significant incident which resulted in, or could reasonably have 
resulted in a catastrophic release with on- or offsite consequences.
2. Catastrophic Release Definition
    In the 1996 final rule (61 FR 31687, June 20, 1996), EPA developed 
a definition of catastrophic release similar to the definition OSHA 
used in the PSM standard, with modifications to cover events that 
presented imminent and substantial endangerment to public health and 
the environment.\18\ This ensured that owners or operators of sources 
covered by both OSHA and EPA requirements investigated not only 
accidents that threatened workers, but also those that threatened the 
public and the environment. Because EPA modified OSHA's definition of 
catastrophic releases so that offsite impacts were covered, there has 
been confusion among some owners and operators of facilities subject to 
the RMP rule; some believe they should not have to investigate 
accidents involving only workers for the purposes of fulfilling 
requirements under the RMP rule. EPA recognized that the PHA process 
must address potential offsite impacts associated with safety measures 
that also protect workers, and that the final rule would ensure that 
all sources routinely consider such possibilities and integrate 
protection of workers, the public and the environment into one program. 
In similar fashion, EPA believes that incident investigation was not 
intended to be and should not be limited to only those incidents with 
offsite impacts.
---------------------------------------------------------------------------

    \18\ The OSHA definition of catastrophic release is similar to 
the current definition of the term in the RMP rule. However, OSHA's 
definition pertains to incidents that present serious danger to 
employees in the workplace. (see 29 CFR 1910.119(b) for the full 
definition)
---------------------------------------------------------------------------

    Learning from accident causes identified from incident 
investigations involving only workers can also lead to preventing 
incidents with further impacts to the surrounding community and 
therefore, findings and recommendations from all incidents, regardless 
of who is impacted, should be addressed. In the preamble to the 1996 
final RMP rule (61 FR 31711, June 20, 1996), EPA emphasized that ``any 
incident with the potential for catastrophic consequences in the 
workplace will also have had the potential for catastrophic 
consequences offsite.'' Thus, facility owners or operators should be 
investigating incidents even if they only impacted workers, as these 
could have potentially been an accident impacting the public or the 
environment.
    EPA has not defined or clarified the term ``imminent and 
substantial endangerment'' but did make revisions in the 1996 final RMP 
rule in order to better define accidents to be reported under the RMP 
accident history requirements. To make the requirement less vague and 
less subject to a wide variety of interpretations, the final rule 
required that accident history shall include all accidental releases 
from covered processes ``that resulted in deaths, injuries, or 
significant property damage on site, or known offsite deaths, injuries, 
evacuations, sheltering in place, property damage, or environmental 
damage.'' EPA also provided a definition for ``offsite'' and 
``injury.''
    EPA is proposing to modify the definition of catastrophic release 
to be identical to the description of accidental releases required to 
be reported under the accident history reporting requirements in Sec.  
68.42. The proposed definition, in Sec.  68.3, replaces ``that presents 
imminent and substantial endangerment to public health and the 
environment'' with impacts that resulted in deaths, injuries, or 
significant property damage on-site, or known offsite deaths, injuries, 
evacuations, sheltering in place, property damage, or environmental 
damage. This better defines the impacts for incidents requiring 
investigations that caused or could have caused these impacts and 
clarifies EPA's intent, rather than leaving it open for interpretation. 
This is consistent with the accident impacts that must be reported 
under the 5-year accident history, which EPA considered relevant to 
include in 1996 ``because it may reflect safety practices at the 
source'' and because ``accidental releases from covered processes which 
resulted in deaths, injuries, or significant property damage on-site, 
involve failures of sufficient magnitude that they have the potential 
to affect offsite areas.'' \19\
---------------------------------------------------------------------------

    \19\ EPA. May 24, 1996. Risk Management Plan Rule, Summary and 
Response to Comments. Volume 1, pp. 3-11 and 17-4. Docket No. A-91-
73, Document No. IX-C-1.
---------------------------------------------------------------------------

    As required by section 609(b) of the RFA, the EPA convened a Small 
Business Advocacy Review (SBAR) Panel to obtain advice and 
recommendations from small entity representatives (SERs) that would 
potentially be subject to the rule's requirements. As part of the SBAR 
Panel process, some SERs indicated that EPA's proposed modification of 
the definition of catastrophic release would in effect expand that 
definition, and thereby require investigation of incidents that did not 
fall under the previous definition. SERs noted that EPA's current 
definition includes releases that present an imminent and substantial 
endangerment to public health and the environment, and that such 
releases represent only ``major'' accidents, and not smaller releases 
that endanger only workers or on-site property. As noted above, EPA's 
view is that accidents with only on-site impacts warrant investigation 
because they have the potential to affect offsite areas. Additionally, 
since such accidents already clearly fall within the accident history 
reporting criteria, regulated sources would already need to investigate 
them, even without the incident investigation provisions, in order to 
determine the accident history information required under Sec.  68.42, 
which includes data (e.g., initiating event and contributing factors) 
that could only be determined through an investigation. Therefore, EPA 
believes that redefining the term catastrophic release to include the 
categories of accidents that require reporting under the accident 
history provisions clarifies, rather than expands, that definition. 
Nevertheless, EPA seeks comment on the proposed revision to the 
catastrophic release definition, whether it expands the scope of the 
current definition instead of clarifying it, and whether the definition 
should be limited to loss of life; serious injury; significant damage; 
or loss of offsite property.
3. Root Causes
    The cause of an incident is often the result of a series of other 
problems that need to be addressed to prevent recurrences. For example, 
an operator's mistake may be the result of poor training, inappropriate 
procedures, or poor design of control systems; and equipment failure 
may result from improper maintenance, misuse of equipment (e.g., 
operating at too high a temperature), or use of incompatible materials. 
These types of causes are commonly referred to as causal factors (also 
known as contributing causes, contributory causes, contributing

[[Page 13648]]

factors, or critical factors). The Center for Chemical Process Safety 
(CCPS) defines a causal factor as a major unplanned, unintended 
contributor to the incident (a negative occurrence or undesirable 
condition), that if eliminated would have either prevented the 
occurrence, or reduced its severity or frequency.\20\ These are factors 
that facilitate the occurrence of an incident such as physical 
conditions and management practices. Causal or contributing factors 
usually have underlying reasons why they occurred, which are known as 
root causes.
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    \20\ CCPS. March 2003. Guidelines for Investigating Chemical 
Process Incidents, 2nd ed., pp.3, 62, 181, 434. CCPS, American 
Institute of Chemical Engineers, New York, NY. John Wiley and Sons.
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    Most root causes are associated with weaknesses, defects or 
breakdowns in management systems.\21\ Identifying root causes provides 
the mechanism for understanding the interaction and impact of system 
management failures, so that the root causes can be addressed and the 
maximum benefit is obtained from an incident investigation. CCPS 
defines a root cause as a fundamental, underlying, system-related 
reason why an incident occurred that identifies a correctable 
failure(s) in management systems. There is typically more than one root 
cause for a process safety incident. Correcting only the immediate 
cause of an incident (e.g., operator error) may prevent the identical 
incident from occurring at the same location, but may not prevent 
similar incidents. Instead, identifying and addressing incident 
contributing factors and their root causes helps eliminate or 
substantially reduce the risk of reoccurrence of the incident and other 
similar incidents. The current Risk Management Program incident 
investigation requirements under Sec. Sec.  68.60 and 68.81 do not 
explicitly require root causes to be determined and reported, rather 
they only require ``the factors that contributed to the incident.'' 
Facility owners and operators that conduct incident investigations that 
only identify ``factors that contributed to the incident'' may miss 
identifying the underlying, system-related reason why an incident 
occurred (which would be revealed in a root cause analysis). Thus EPA 
is proposing to require a root cause analysis to ensure that facilities 
determine the underlying causes of an incident to reduce or eliminate 
the potential for additional accidents resulting from deficiencies of 
the same process safety management system.
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    \21\ EPA recognizes that some root causes could be events that 
management systems could not have prevented or protected against. 
The analytic techniques used to identify root causes account for 
such events.
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4. Lack of Root Cause Analysis for Prior Incidents
    Below are examples of incident investigations that identified 
similar prior incidents within the same facility or company where root 
causes for the prior incidents were not analyzed and determined. This 
resulted in missed opportunities to address the proper causes of the 
incidents, share the lessons learned and prevent further similar 
incidents.
    On January 21, 1997, at a Tosco refinery, effluent piping on a 
hydrocracker reactor ruptured, causing an explosion and fire, killing 
one operator and injuring 46 other Tosco and contractor personnel. The 
accident was caused by an uncontrolled temperature excursion in the 
reactor resulting in an excessively high temperature that caused the 
pipe to rupture.\22\ Operators did not follow prescribed emergency 
depressurizing procedures for extremely high temperature occurrences 
and attempted to control the temperature by other means. Investigations 
of prior incidents involving unsafe temperature excursions were 
inadequate and not all these excursions were documented. Failure to 
investigate these ``near-misses'' resulted in a missed opportunity to 
determine why operators were not following prescribed emergency 
depressurizing procedures and to develop solutions to address the 
cause. After the 1997 accident, the company designed the depressurizing 
system to activate automatically when the reactor temperature exceeded 
safe operating limits.
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    \22\ EPA. November 1998. EPA Chemical Accident Investigation 
Report, Tosco Avon Refinery, Martinez, CA. EPA 550-R-98-009. http://nepis.epa.gov/Exe/ZyPDF.cgi/10003A2E.PDF?Dockey=10003A2E.PDF.
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    On September 10, 1997, an explosion occurred in a resins production 
unit at Georgia-Pacific Resins, Inc. in Columbus, Ohio, causing the 
death of one worker, four injuries, extensive damage to the plant, and 
sheltering in place for nearby residents, a vocational school and 
businesses.\23\ Three firefighters received first-degree burns. An 
accident investigation determined that raw materials and a catalyst 
were charged too quickly to a reactor, causing a runaway reaction 
generating too much heat and pressure, which caused the reactor to 
explode. Prior to the accident, the facility had recently experienced a 
near miss involving similar circumstances.\24\ An operator added 
chemicals to a batch resin process at too high a rate. Other alert 
operators noted the procedural deviation and were able to prevent an 
accident. The company investigated the accident and disciplined the 
operator, but took no other actions.
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    \23\ EPA, Office of Solid Waste and Emergency Response. August 
1999. How to Prevent Runaway Reactions, Case Study: Phenol-
Formaldehyde Reaction Hazards. EPA 550-F99-004. http://archive.epa.gov/emergencies/docs/chem/web/pdf/gpcasstd.pdf.
    \24\ Belke, James C (EPA). 1997. Recurring Causes of Recent 
Chemical Accidents. http://psc.che.tamu.edu/wp-content/uploads/recurring-causes-of-recent-chemical-accidents.pdf.
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    An accident on June 22, 1997, at a Shell olefins plant involved a 
release of flammable gases from a structural failure and drive shaft 
blowout from a 36 inch diameter failed check (non-return) valve, 
resulting in a massive explosion and fire causing extensive damage to 
the facility, damage to nearby residential property, several worker 
injuries, and sheltering in place for nearby residents. An EPA/OSHA 
accident investigation determined that these check valves were not 
appropriately designed and manufactured for the heavy-duty service to 
which they were subjected in the olefins production unit.\25\ Similar 
problems with the check valves had occurred previously at the facility 
and at other facilities owned by the company, but the occurrences were 
not adequately investigated and did not identify all the factors 
involved in the valves' failure. The other valve failure occurrences 
did not result in as severe consequences as the 1997 event and were 
treated as maintenance failures, not incidents or accidents. Thus, the 
lessons that could have been learned from these prior failures were not 
adequately identified, shared, and implemented.
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    \25\ EPA and OSHA. June 1998. EPA/OSHA Joint Chemical Accident 
Investigation Report, Shell Chemical Company, Deer Park, TX. EPA 
550-R-98-005. http://nepis.epa.gov/Exe/ZyPDF.cgi/100039YA.PDF?Dockey=100039YA.PDF.
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    On April 8, 1998, at a Morton International chemical plant, a 
runaway reaction in a process kettle caused an overpressure of the 
vessel, blew off the top hatch, and spewed a stream of gas and liquid 
through the roof of the building and down onto the surrounding 
community. Residents in a 100 city-block area were confined to their 
homes. Nine workers were injured, two with severe burns. The U.S. 
Chemical Safety Board (CSB) determined that Morton could have corrected 
safety problems in the process if they had conducted investigations 
into any of the eight prior instances when process temperatures 
exceeded

[[Page 13649]]

the normal range.\26\ Process and design changes resulting from such 
investigations could have prevented the 1998 explosion.
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    \26\ CSB. 2000. Investigation Digest: Morton International 
Explosion, Paterson, NJ, April 8, 1998. http://www.csb.gov/assets/1/19/Morton_Digest.pdf.
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    On April 23, 2004, an explosion and fire at the Formosa Plastics 
Corporation (FPC USA), Illiopolis, Illinois, (Formosa-IL) polyvinyl 
chloride (PVC) manufacturing facility killed five and severely injured 
three workers. The explosion and fire destroyed most of the reactor 
facility and adjacent warehouse and ignited PVC resins stored in the 
warehouse. Smoke from the smoldering fire drifted over the local 
community, and as a precaution, local authorities ordered an evacuation 
of the community for two days. CSB determined that this incident 
occurred when an operator drained a full, heated, and pressurized PVC 
reactor and bypassed a pressure interlock.\27\ The safeguards to 
prevent bypassing the interlock were insufficient for the high risk 
associated with this activity. Two similar incidents at FPC USA PVC 
manufacturing facilities highlighted problems with safeguards designed 
to prevent inadvertent discharge of an operating reactor. The FPC USA 
Environmental Health & Safety group had received reports of both 
incidents, but did not recognize a key similarity: Operators could 
mistakenly go to the wrong reactor and bypass safeguards to open a 
reactor bottom valve.
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    \27\ CSB. March 2007. Investigation Report: VCM Explosion, 
Formosa Plastics Corp., Illiopolis, Illinois, April 23, 2004. Report 
No. 2004-10-I-IL. http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf.
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    On March 23, 2005, at the BP Texas City Refinery in Texas City, 
Texas, explosions and fires killed 15 people and injured another 180, 
required shelter-in-place for 43,000 people, damaged nearby houses, and 
resulted in financial losses exceeding $1.5 billion. The incident 
occurred during the startup of an isomerization (ISOM) unit when a 
raffinate splitter tower was overfilled and pressure relief devices 
opened, resulting in a flammable liquid geyser from a blowdown stack 
that was not equipped with a flare. The release of flammables led to an 
explosion and fire. All of the fatalities occurred in or near office 
trailers located close to the blowdown drum. A CSB investigation found 
that in the years prior to the incident, eight serious releases of 
flammable material from the ISOM blowdown stack had occurred, and most 
ISOM startups experienced high liquid levels in the splitter tower.\28\ 
The investigation identified root causes of the accident involving 
senior leadership failures including:
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    \28\ CSB. March 2007. Investigation Report: Refinery Explosion 
and Fire, BP, Texas City, Texas, March 23, 2005. Report No. 2005-04-
I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf.
---------------------------------------------------------------------------

     Ineffective safety culture leadership and oversight;
     ineffective evaluation of safety implications or 
organization, personnel, and policy changes; and
     inadequate resources to prevent major accidents.
    Root causes identified involving plant management failures 
included:
     Lack of an effective reporting and learning culture 
(incidents were often ineffectively investigated);
     use of outdated plant policies and procedures;
     poor design of the ISOM unit;
     inadequate supervision of operators;
     inadequate training of operators; and
     ineffective consideration of human factors regarding 
training, staffing, and work schedules for operators.
    The ineffective investigation of previous incidents resulted in a 
failure to identify, or act upon, lessons from incidents and near-
misses. This includes a failure to incorporate relevant safety lessons 
from a British government investigation \29\ of incidents at BP's 
Grangemouth, Scotland, refinery, which were relevant to the Texas City 
refinery.
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    \29\ Health and Safety Executive (United Kingdom) and Scottish 
Environment Protection Agency. August 18, 2003. Major Incident 
Investigation Report--BP Grangemouth Scotland, 29th June-10th May, 
2000. A Public Report Prepared on Behalf of the Competent Authority. 
http://www.hse.gov.uk/comah/bpgrange/images/bprgrangemouth.pdf.
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    On August 23, 2010, the Millard Refrigerated Service warehouse in 
Theodore, Alabama, had a release of approximately 32,000 pounds of 
anhydrous ammonia from a cracked pipe, when refrigeration equipment 
malfunctioned. The ammonia travelled directly over a shipyard in 
Mobile, Alabama, where more than 800 people were working, causing 152 
people to be treated at hospitals, four of whom were admitted into 
intensive care units. An EPA investigation of the incident revealed 
that Millard failed to adequately address a well-known risk for ammonia 
production systems called hydraulic shock, which can cause catastrophic 
equipment failures.\30\ EPA also discovered that Millard had two prior 
smaller ammonia releases in April 2007 and January 2010 caused by 
hydraulic shock. Company investigations of those incidents failed to 
identify and correct this problem, which could have prevented the 
catastrophic release that occurred in August 2010.
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    \30\ EPA. May 29, 2015. USA vs. Millard Refrigerated Services, 
LLC, U.S. District Court for the Southern District of Alabama, Civil 
Action No. 15-186. pp. 9-11, and 19-20. Case 1:15-cv-00186-WS-M 
Document 5. http://www2.epa.gov/sites/production/files/2015-06/documents/millard-cp.pdf. See also http://www2.epa.gov/enforcement/millard-refrigerated-services-llc-clean-air-act-caa-settlement.
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5. Current Use of Root Cause Analysis
    Root cause analysis of accidents is an accepted safe management 
practice used by many industries. The American Chemistry Council (ACC) 
noted that root cause analysis is conducted routinely under a number of 
voluntary programs, including Responsible Care.\31\ The Texas Pipeline 
Association (TPA) stated that a requirement to perform a root cause 
analysis was not needed because it is a common industry practice.\32\ 
However, the Compressed Gas Association (CGA) stated that they 
supported modifying current regulations to include a requirement that 
root cause analyses be conducted for incidents but not for near misses 
or process upsets because defining a ``near miss'' or ``process upset'' 
is extremely difficult and will likely vary by industry, process, 
locations and the like.\33\ EPA addresses the difficulty of defining 
the term ``near miss'', in section IV.A.7. Near Misses.
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    \31\ ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0694 on Risk Management Program RFI, p. 43 of 189.
    \32\ TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0617 on Risk Management Program RFI, p. 8.
    \33\ CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0633 on Risk Management Program RFI, p. 6
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    ACC also notes that there are a number of recognized industry 
resources to aid incident investigations of root causes. For example, 
CCPS offers several resources, including the ``Guidelines for 
Investigating Chemical Process Incidents,'' 2nd edition, which provides 
valuable, practical reference tools, and focuses on process-related 
incidents with real or potential catastrophic consequences.\34\ ACC 
further notes that there are a number of companies that provide 
excellent root cause failure analysis training.
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    \34\ CCPS 2003. Center for Chemical Process Safety, Guidelines 
for Investigating Chemical Process Incidents, 2nd Edition, NY: 
AIChE.
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    California's Contra Costa County Health Services (CCHS) and the 
city of Richmond, California, each have incident investigation 
regulations in their Industrial Safety Ordinances (ISO) similar to 
those in Sec.  68.81 and, in

[[Page 13650]]

addition, require a root cause analysis for each major chemical 
accident.35 36
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    \35\ Contra Costa County Board of Supervisors. 2006. 
California's Contra Costa County ISO, pp. 5, 12-13, 17-19. http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
    \36\ A major chemical accident is defined in the ISO as one 
meeting a level 2 or 3 incident classification as determined by the 
county or one resulting in: One or more fatalities; at least three 
persons hospitalized for at 24 hours; on- and/or offsite property 
damage (including clean-up and restoration activities) initially 
estimated at $500,000 or more; or a vapor cloud of flammables and/or 
combustibles that is more than 5,000 pounds.
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    New Jersey's Toxic Catastrophe Prevention Act (TCPA) requires 
investigation of all extraordinarily hazardous substance accidents or 
potential catastrophic events. The TCPA requirements have the same 
incident investigation requirements found in Sec.  68.81, but the TCPA 
investigation report requires additional information beyond the 
requirements in Sec.  68.81.\37\ The TCPA investigation report must 
include:
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    \37\ New Jersey Department of Environmental Protection (NJDEP) 
TCPA. March 29, 2012. NJDEP. Title 7, Chapter 31 TCPA Program 
Consolidated Rule Document, p. 62. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf.

     Time and location of the chemical accident or potential 
catastrophic event;
     A description of the chemical accident or potential 
catastrophic event in chronological order, providing all the 
relevant facts;
     The identity, amount, and duration of the chemical 
release if these facts can be reasonably determined based on the 
information obtained through the investigation;
     The consequences, if any, of the chemical accident or 
potential catastrophic event, including the number of evacuees, 
injured, and fatalities, and the impact on the community;
     The factors that contributed to the chemical accident 
or potential catastrophic event that includes an identification of 
basic and contributory causes, either direct or indirect; and
     The names and position titles of the investigators.

    Once the incident scenario is understood and contributory causes 
identified, this information may be used to determine the incident's 
root causes which are the underlying systemic reasons related to a 
failure in a management system.
    EPA believes that providing the following information is vital for 
understanding the nature of the incident and should be included in the 
incident investigation report:

     The chronological order of details of the incidents,
     the chemical identity,
     amount and duration of the release,
     the impacts of the release, and
     basic and contributory causes, either direct or 
indirect.

Some facility owners or operators may already include this information 
in incident investigation reports prepared to comply with the RMP rule; 
however, EPA is proposing that Sec. Sec.  68.60 and 68.81 be revised to 
require this information to ensure clarity and consistency among 
reports.
    To better address causes of incidents and further reduce the 
occurrence of catastrophic releases, EPA is proposing to require that 
for all Program 2 and Program 3 process incidents that resulted in, or 
could reasonably have resulted in, a catastrophic release, the owner or 
operator determine and identify the factors that contributed to the 
incident, including immediate and contributory causes, either direct or 
indirect, and root causes. EPA is proposing to define ``root cause'' 
(see Sec.  68.3 for the proposed definition).
    Root causes shall be determined by conducting a root cause analysis 
for each incident using a recognized method or approach. CCPS' 
``Guidelines for Investigating Chemical Process Incidents'' discusses 
incident investigation approaches and techniques and root cause 
analysis methods.\38\ OSHA plans to develop a fact sheet on existing 
resources that explain how to conduct root cause analyses so the 
regulated community can better understand the causes of incidents and 
can increase its capability to effectively prevent future 
occurrences.\39\
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    \38\ CCPS. March 2003. Guidelines for Investigating Chemical 
Process Incidents, 2nd ed.
    \39\ Chemical Facility Safety and Security Working Group. May 
2014. Executive Order 13650 Report to the President--Actions to 
Improve Chemical Facility Safety and Security--A Shared Commitment, 
p. 47. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.
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    In order that lessons learned from incident investigations be 
applied, EPA is proposing to modify the hazard review requirement in 
Sec.  68.50(a)(2) and the PHA requirement in Sec.  68.67(c)(2) to 
require the owner or operator to address findings from all incident 
investigations required under Sec. Sec.  68.60 and 68.81, respectively. 
EPA is also proposing to require that for incident investigations 
conducted by Program 2 sources, an incident investigation team be 
established and consist of at least one person knowledgeable in the 
process involved and other persons with appropriate knowledge and 
experience to thoroughly investigate and analyze the incident. This 
requirement is already part of Program 3 incident investigation 
requirements, and is a necessary component for investigations that 
would include analysis of root causes.
    EPA seeks comment on the proposed amendments of the incident 
investigation requirements to require root cause investigations for 
each incident which resulted in, or could reasonably have resulted in, 
a catastrophic release and on the proposed definition for root cause. 
EPA seeks comment on whether a root cause analysis is appropriate for 
every RMP reportable accident and near miss. Should EPA eliminate the 
root cause analysis, or revise to limit or increase the scope or 
applicability of the root cause analysis requirement? If so, how should 
EPA revise the scope or applicability of this proposed requirement? EPA 
also seeks comment on proposed amendments to require consideration of 
incident investigation findings, in the hazard review (Sec.  68.50) and 
PHA (Sec.  68.67) requirements. Finally, EPA seeks comment on the 
proposed additional requirement in Sec.  68.60 to require personnel 
with appropriate knowledge of the facility process and knowledge and 
experience in incident investigation techniques to participate on an 
incident investigation team.
6. Decommissioned Processes
    EPA has encountered some cases where a facility chose not to 
conduct an incident investigation because the owner or operator elected 
to decommission the process involved, or because the process was 
destroyed in the incident. While an investigation would have no impact 
on a decommissioned or destroyed process, other similar processes or 
operations at the facility, or at similar facilities, could potentially 
benefit from its findings.
    CCHS and two industry associations commented that there are lessons 
that can be learned from requiring investigations to be performed, even 
in cases where the owner or operator elects to decommission the process 
involved or where the process is destroyed in the 
incident.40 41 Therefore, EPA is proposing to revise 
Sec. Sec.  68.60 and 68.81 to clarify that incident investigations are 
required even if the process involving the regulated substance is 
destroyed or decommissioned following or as the result of an incident. 
EPA is also proposing to revise Sec.  68.190, which addresses updates 
to the RMP, to

[[Page 13651]]

require that prior to any de-registration of a process or stationary 
source that is no longer subject to the Risk Management Program rule, 
the owner or operator must report any accidents subject to the 
requirements of Sec.  68.42 and conduct incident investigations as 
required under Sec. Sec.  68.60 and/or 68.81. EPA seeks comment on the 
proposed revisions to require an owner or operator to meet applicable 
reporting and incident investigation requirements prior to de-
registering a process.
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    \40\ CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0546 on Risk Management Program RFI, p. 12.
    \41\ Independent Petroleum Association of America (IPAA) AXPC. 
October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0584 on Risk 
Management Program RFI, p. 33.
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7. Near Misses
    The current incident investigation provisions require facilities 
with Program 2 and/or 3 processes to investigate incidents that could 
reasonably have resulted in a catastrophic release. These types of 
incidents are sometimes characterized as ``near misses'' but there is 
confusion about what this term means. Several commenters on the Risk 
Management Program RFI, including the Society of Chemical Manufacturers 
and Affiliates (SOCMA),\42\ American Petroleum Institute (API),\43\ Gas 
Processors Association (GPA),\44\ National Oilseed Processors 
Association (NOPA), & Corn Refiners Association (CRA),\45\ and American 
Fuel & Petrochemical Manufacturers (AFPM),\46\ stated that they 
interpret the current requirements as including near misses. Other 
commenters (ACC,\47\ TPA,\48\ CGA,\49\ DPC Industries, Inc.,\50\ and 
Allied Universal Corp [AUC]) \51\ urged EPA to not require 
investigations of near misses because the term is vague, inherently 
situation-specific and not reducible to a singular definition. CCPS 
defines a near miss as an event in which an accident causing injury, 
death, property damage, or environmental impact, could have plausibly 
resulted if circumstances had been slightly different.\52\
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    \42\ SOCMA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0560 on Risk Management Program RFI, p. 9.
    \43\ API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0624 on Risk Management Program RFI, p. 32.
    \44\ GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0626 on Risk Management Program RFI, p. 12.
    \45\ NOPA & CRA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0328 on Risk Management Program RFI, pp. 30-31.
    \46\ AFPM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0665 on Risk Management Program RFI, pp. 46-47.
    \47\ ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0694 on Risk Management Program RFI, PDF pp. 44-45 of 189.
    \48\ TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0617 on Risk Management Program RFI, pp. 7-8.
    \49\ CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0633 on Risk Management Program RFI, p. 6.
    \50\ DPC Industries, Inc. October 29, 2014. Comment No. EPA-HQ-
OEM-2014-0328-0649 on Risk Management Program RFI, p. 4.
    \51\ AUC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0646 on Risk Management Program RFI, p. 3.
    \52\ CCPS. March 2003. Guidelines for Investigating Chemical 
Process Incidents, 2nd ed., p. 61.
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    EPA itself may have contributed to the confusion over the meaning 
of the term ``near miss.'' In the 1993 proposed RMP rule (58 FR 54200, 
October 20 1993), EPA indicated that investigation of near misses could 
provide facilities with important information on problems that should 
be addressed before a significant accidental release occurs. EPA 
considered a near miss as a mishap that did not result in a release for 
some reason, such as employee actions or luck. However, in the primary 
interpretive guidance document for the RMP rule, ``General Guidance on 
Risk Management Programs for Chemical Accident Prevention (40 CFR part 
68)'' (RMP Guidance), originally published in 1999, EPA indicated that 
while the owner or operator ``must investigate each incident which 
resulted in, or could have resulted in, a catastrophic release of a 
regulated substance,'' the owner or operator was not required to 
investigate ``minor accidents or near misses:''

    You should also consider investigating minor accidents or near 
misses because they may help you identify problems that could lead 
to more serious accidents; however, you are not required to do so 
under part 68.\53\
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    \53\ See General Guidance on Risk Management Programs for 
Chemical Accident Prevention (40 CFR part 68), EPA-550-B-04-001, 
April 2004, page 6-26. http://www2.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general.

Here, EPA intended to differentiate between incidents, which ``could 
have resulted in a catastrophic release,'' and ``minor accidents and 
[minor] near misses,'' which are unlikely to have led to a catastrophic 
release.
    EPA's experiences with RMP facility inspections and incident 
investigations show there have been incidents that were not 
investigated, even though under slightly different circumstances, the 
incident could have resulted in a catastrophic release. While these 
events did not result in deaths, injuries, adverse health or 
environmental effects, or sheltering-in-place, if circumstances had 
been slightly different, a catastrophic release could have occurred. 
For example, a runaway reaction that is brought under control by 
operators is a near miss that may need to be investigated to determine 
why the problem occurred, even if it does not directly involve a 
covered process both because it may have led to a release from a nearby 
covered process or because it may indicate a safety management failure 
that applies to a covered process at the facility. Similarly, fires and 
explosions near or within a covered process, any unanticipated release 
of a regulated substance, and some process upsets could potentially 
lead to a catastrophic release.
    Facilities regulated under New Jersey's TCPA program are required 
to investigate each regulated chemical (``extraordinarily hazardous 
substance''), involved in an accident or potential catastrophic 
event.\54\ The NJDEP notes that ``potential catastrophic event'' means 
an incident that could have reasonably resulted in a catastrophic 
release of a regulated chemical which includes incidents in which no 
regulated chemical was released or no regulated chemical was released 
beyond a permitted level, or in other words, a near miss. Facilities 
report accidents and potential catastrophic events annually to New 
Jersey. NJDEP notes that each year, less than fifty percent of the 
facilities reported that they had one or more incidents.\55\ Most of 
the incidents reported involved the release of a regulated chemical. 
The number of near misses reported averaged less than 1 per facility.
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    \54\ NJDEP TCPA. March 29, 2012. NJ Title 7, Chapter 31 TCPA 
Program Consolidated Rule Document, p. 2. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf.
    \55\ NJDEP. October 21, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0338 on Risk Management Program RFI, p. 16.
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    In its comments on the Risk Management Program RFI, GPA reasoned 
that requiring a root cause analysis for minor near misses would be 
burdensome and costly and would discourage employees and contractors 
from reporting near misses because of the burden of conducting a 
rigorous investigation.\56\ Similarly, some commenters, such as API 
thought that process upsets should not be included in incident 
investigation requirements because there is no standard definition; 
process upsets vary across a wide range from product quality/efficiency 
issues to ones that represent near-miss situations; and learning from 
process upset events that do potentially challenge process safety 
systems can be accomplished via other means. According to API, 
including all process upsets would overburden the root cause analysis/

[[Page 13652]]

investigation resources within a facility.\57\
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    \56\ GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0626 on Risk Management Program RFI, p. 14.
    \57\ API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0624 on Risk Management Program RFI, p. 32.
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    CCPS's ``Process Safety Leading and Lagging Metrics--You Don't 
Improve What You Don't Measure'' explains that a near miss has three 
essential elements.\58\ These include:
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    \58\ CCPS. January 2011. Process Safety Leading and Lagging 
Metrics--You Don't Improve What You Don't Measure, p. 36. CCPS, 
American Institute of Chemical Engineers, New York, NY. John Wiley 
and Sons. http://www.aiche.org/sites/default/files/docs/pages/CCPS_ProcessSafety_Lagging_2011_2-24.pdf.
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     An event occurs, or a potentially unsafe situation is 
discovered;
     the event or unsafe situation had reasonable potential to 
escalate, and
     the potential escalation would have led to adverse 
impacts.

The CCPS document and the CCPS ``Guidelines for Investigating Chemical 
Process Incidents'' contain many examples of near misses, which can be 
an actual event or discovery of a potentially unsafe situation.\59\ 
Examples of incidents that should be investigated include some process 
upsets, such as: Excursions of process parameters beyond pre-
established critical control limits; activation of layers of protection 
such as relief valves, interlocks, rupture discs, blowdown systems, 
halon systems, vapor release alarms, and fixed vapor spray systems; and 
activation of emergency shutdowns.
---------------------------------------------------------------------------

    \59\ CCPS. March 2003. Guidelines for Investigating Chemical 
Process Incidents, 2nd ed., p. 68.
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    Near misses should also include any incidents at nearby processes 
or equipment outside of a regulated process if the incident had the 
potential to cause a catastrophic release from a nearby regulated 
process. An example would be a transformer explosion that could have 
impacted nearby regulated process equipment causing it to lose 
containment of a regulated substance. Near misses could also include 
process upsets such as activation of relief valves, interlocks, 
blowdown systems or rupture disks.
    Because it is difficult to prescribe the various types of incidents 
that may occur in RMP-regulated sectors that should be considered near 
misses, and therefore be investigated, EPA is not proposing a 
regulatory definition. Instead, EPA will rely on facility owners or 
operators to decide which incidents to investigate, based on the 
seriousness of the incident, the process(es) involved, and the specific 
conditions and circumstances involved. In the 1996 Response to Comments 
on the final rule, EPA acknowledged that

the range of incidents that reasonably could have resulted in a 
catastrophic release is very broad and cannot be specifically 
defined.\60\ EPA decided to leave it up to the discretion of the 
owner or operator to determine whether an incident could reasonably 
have resulted in a catastrophic release and to investigate such 
incidents.
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    \60\ EPA. May 24, 1996. Risk Management Plan Rule, Summary and 
Response to Comments. Volume 1, p. 16-4. Docket No. A-91-73, 
Document No. IX-C-1.

The intent is not to include every minor incident or leak, but focus on 
serious incidents that could have resulted in a catastrophic release, 
although EPA acknowledges this will require subjective judgment.
    Finally, EPA expects that lessons learned from near miss incident 
investigations be considered when conducting a hazard review or PHA. 
Therefore, the proposed amendments to Sec. Sec.  68.50(a)(2) and 
68.67(c)(2) would require the hazard review and the PHA to include 
findings from all incident investigations required under Sec. Sec.  
68.60 and 68.81. This includes incidents that could reasonably have 
resulted in a catastrophic release (i.e., a near miss).
    EPA seeks comment on the guidance and examples provided of a near 
miss. Is further clarification needed in this instance? Should EPA 
consider limiting root cause analyses only for incidents that resulted 
in a catastrophic release?
8. Investigation Timeframe
    EPA believes incident investigations will result in improved 
process safety through the dissemination of lessons learned and the 
implementation of recommended corrective actions. Conducting these 
investigations as soon as possible after an incident may yield better 
quality data and information, although it may take time to collect, 
validate, and integrate data from a range of sources. EPA has 
discovered situations where owners or operators of regulated facilities 
indefinitely delayed completing incident investigations. Therefore, in 
the Risk Management Program RFI, EPA considered whether incident 
investigations should be required to be completed within a certain 
amount of time. In their comments on the RFI, Mary Kay O'Connor Process 
Safety Center (MKOPSC) \61\ stated that the timeframe requirement for 
an incident investigation to be completed should be based on the 
following factors: The consequence, the complexity of the incident, the 
process, the substance, and the investigation team's experience, 
knowledge and members. ACC \62\ and API \63\ noted that the time to 
complete an investigation is highly dependent on the complexity of the 
accident and the process and can require assistance from outside 
process experts that may not immediately be available. CCHS commented 
that a specific timeframe for incident investigations to be completed 
would benefit overall safety and noted that most incidents can be 
investigated within six months.\64\ However, CCHS stated that it may be 
appropriate that a specific time be required that could be changed by 
documented justification. As to timeframes, some of the refineries in 
Contra Costa County, California, have corporate requirements to 
complete all investigations within 30 to 60 days. Exceptions can be 
granted for large events. CCHS noted that there are challenges and 
limitations to completing an incident investigation within a specified 
timeframe. Other RFI commenters, such as TPA,\65\ GPA,\66\ and JR 
Simplot,\67\ noted that having a specific timeline to complete an 
investigation could cause facilities to focus more on complying with a 
deadline at the expense of using the appropriate level of rigor and 
getting the right answer. EPA's own experience with accident 
investigation has shown that a major accident investigation can take up 
to a year or more. Taking into consideration the need for completion of 
an investigation while allowing the proper time to determine the 
correct root causes, EPA is proposing to require that facility owners 
or operators complete an incident investigation report within 12 months 
of an incident that resulted in, or could reasonably have resulted in, 
a catastrophic release. For very complex incident investigations that 
cannot be completed within 12 months, EPA is allowing an extension of 
time if the implementing agency approves, in writing. EPA believes that 
12 months is long enough to complete most complex accident 
investigations but will allow facilities more time if they consult with 
their

[[Page 13653]]

implementing agency and receive approval for an extension of time.
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    \61\ MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0543 on Risk Management Program RFI, p. 144.
    \62\ ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0694 on Risk Management Program RFI, p. 44.
    \63\ API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0624 on Risk Management Program RFI, p. 32.
    \64\ CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0546 on Risk Management Program RFI, p. 12.
    \65\ TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0617 on Risk Management Program RFI, p. 9.
    \66\ GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0626 on Risk Management Program RFI, p. 13.
    \67\ JR Simplot. October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0667 on Risk Management Program RFI, p. 31.
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    EPA notes that the Agency's own requirements under the Petroleum 
Refinery maximum achievable control technology (MACT) and New Source 
Performance Standards (NSPS) regulations already require root cause and 
corrective action analyses for certain release events (see 40 CFR parts 
63.648(j)(6) and (j)(7)), and 60.103a(d)) with a more stringent 
timeframe (i.e., 45 days) for completing these analyses than the 12 
months specified in this proposed rule. RMP-regulated facilities that 
are also required to meet the MACT and NSPS root cause analysis 
requirements must continue to meet the timeframes specified under those 
rules as applicable. However, root cause analyses conducted to meet 
those requirements may also be used to comply with the root cause 
analysis requirements proposed herein, provided the analysis meets the 
requirements of Sec.  68.60 or Sec.  68.81, as applicable.
    EPA seeks comment on the appropriateness of establishing a specific 
timeframe for incident investigations to be completed and what that 
timeframe should be. As an alternative, EPA considered whether the 
incident investigation should be completed prior to restart of the 
affected process, if the incident resulted in a process shutdown, to 
ensure that the causes of an incident have been addressed. EPA seeks 
comment on whether to add this condition to the incident investigation 
requirements or whether there are other options to ensure that unsafe 
conditions that led to the incident are addressed before a process is 
re-started. EPA also seeks comment on whether the different root cause 
analysis timeframes specified under the MACT and NSPS and proposed 
herein will cause any difficulties for sources covered under both 
rules, and if so, what approach EPA should take to resolve this issue.
9. Accident History Reporting
    Thorough investigations and reporting may help facilities identify 
and address root causes. Accident history reporting provides an avenue 
to disseminate lessons learned. Local communities are interested in 
whether facilities are investigating incidents and taking steps to 
prevent future accidents. EPA believes it is important to determine and 
report results of root cause analysis for accidents with reportable 
impacts in the RMP accident history. Therefore, EPA has proposed that 
information on root causes analyzed as part of an incident 
investigation be included in the RMP accident history in Sec.  68.42. 
Because there can be numerous potential incident root causes identified 
for a single incident, and in order to simplify reporting for the RMP 
accident history, EPA believes that the root cause information should 
be reported as root cause categories.
    Various methods for identifying root causes have been published. 
Some methods involve the use of root cause trees which show root cause 
categories for different PSM systems, where each category can be 
associated with many specific root cause deficiencies.68 69 
One root cause system uses the following list of root cause categories: 
Procedures; Training; Communications; Administrative/Management System; 
Personal Performance; Human Factors Engineering; Immediate Supervision; 
Equipment Design; Equipment/Records; Equipment Reliability/Maintenance; 
and Equipment Installation/Fabrication. Another uses a slightly 
different list: Procedures, Training, Quality Control, Communications, 
Management System, Human Engineering and Immediate Supervision. EPA 
will modify its on-line reporting system for RMPs (RMP*eSubmit) to 
incorporate an appropriate list of root cause categories for RMP 
facility incident investigations of RMP reportable accidents based on 
these categories.
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    \68\ Paradies, Mark, Unger, Linda and Busch, David. 1996. 
TapRooT[supreg] Root Cause TreeTM & User's Manual, Rev. 
4. Systems Improvements, Inc., Knoxville, TN.
    \69\ ABS Group Inc. 1999. Root Cause MapTM and Root 
Cause Analysis Handbook, A Guide to Effective Incident 
Investigation. ABS Group, Inc., Risk & Reliability Division, 
Knoxville, TN.
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    Because EPA is proposing that the incident investigation be 
required to be completed within 12 months, root causes may not be known 
until 12 months after an accidental release. Section 68.195(a) 
currently requires that the accident history information in Sec.  68.42 
be submitted within six months of the release. Because EPA is proposing 
to add accident root cause categories to Sec.  68.42, EPA is also 
proposing in Sec.  68.195(a)(2) that the root cause categories be 
submitted in the RMP within 12 months of the release.
    EPA seeks comment on the appropriateness of requiring root cause 
reporting as part of the accident history requirements of Sec.  68.42, 
as well as the categories that should be considered and the timeframe 
within which the root cause information must be submitted.
10. Proposed Revisions to Regulatory Text
a. Definitions (Sec.  68.3)
    EPA is proposing to add a definition of ``root cause'' and modify 
the definition of ``catastrophic release'' in Sec.  68.3.
b. Five-Year Accident History (Sec.  68.42)
    EPA is proposing to amend paragraph (b) by adding a new 
subparagraph (b)(10) to require of incident investigation root cause 
categories to be reported. Current subparagraphs (b)(10) and (b)(11) 
will become subparagraphs (b)(11) and (b)(12), respectively.
c. Hazard Review (Sec.  68.50)
    EPA is proposing to amend subparagraph (a)(2) by adding a phrase at 
the end to require the owner or operator to consider findings from 
incident investigations. This is similar to the revision proposed for 
Program 3 facilities in Sec.  68.67(c)(2).
d. Incident Investigation (Sec. Sec.  68.60 and 68.81)
    EPA is proposing to revise Sec.  68.60, which is applicable to 
Program 2 processes, and Sec.  68.81, which is applicable to Program 3 
processes, by revising paragraph (a) to add subparagraphs (a)(1) and 
(a)(2) to better clarify the scope of incidents that must be 
investigated. Subparagraph (a)(1) applies to an incident that resulted 
in a catastrophic release and clarifies that the owner or operator must 
investigate the incident even if the process involving the regulated 
substance is destroyed or decommissioned. Subparagraph (a)(2) applies 
to a near-miss, which is an incident that could reasonably have 
resulted in a catastrophic release. EPA is also removing the phrase 
``of a regulated substance'' from paragraph (a) because it is 
duplicative. The definition of catastrophic release refers to releases 
of regulated substances.
    EPA is also proposing to add a new paragraph (c) to Sec.  68.60 
requiring that an incident investigation team be established and 
consist of at least one person knowledgeable in the process involved 
and other persons with appropriate knowledge and experience to 
thoroughly investigate and analyze the incident. This is similar to the 
requirement in Sec.  68.81(c) for Program 3 processes. Current 
paragraphs (c) through (f) would become paragraph (d) through (g).
    EPA is also proposing to make changes to the new paragraph (d) in 
Sec.  68.60 and current paragraph (d) in Sec.  68.81 to revise the 
incident

[[Page 13654]]

investigation report requirements. EPA is proposing to change the word 
``summary'' to ``report'' and require facility owners or operators to 
complete incident investigation reports within 12 months unless the 
implementing agency approves, in writing, an extension of time.
    Furthermore, EPA is proposing to amend and add new subparagraphs in 
the new paragraph (d) in Sec.  68.60 and current paragraph (d) in Sec.  
68.81 requiring additional elements in an incident investigation 
report. EPA is proposing to:

     Revise paragraph (d)(1) to require the time and 
location of the incident in the investigation report;
     Revise paragraph (d)(3) to specify that the description 
of the incident be in chronological order and provide all relevant 
facts;
     Add new paragraph (d)(4) to require that the 
investigation report include the name and amount of the regulated 
substance involved in the release or near miss and the duration of 
the event;
     Add paragraph (d)(5) to require a description of the 
consequences, if any, of the incident;
     Add paragraph (d)(6) to require a description of 
emergency response actions taken;
     Renumber current paragraph (d)(4) to (d)(7) and require 
additional criteria related to the factors contributing to the 
incident, including the initiating event, direct and indirect 
contributing factors, and root causes. Add language to new paragraph 
(d)(7) to require that root causes must be determined through the 
use of a recognized method.
     Renumber the current paragraph (d)(5) to (d)(8) and add 
language to require a schedule for addressing recommendations 
resulting from the investigation to be included in the investigation 
report.

    Finally, EPA is proposing to amend the current paragraph (f) which 
would be the new paragraph (g) to add the word incident before 
investigation and change ``summaries'' to ``reports'' for consistency.
e. Process Hazard Analysis (PHA) (Sec.  68.67)
    EPA is proposing to add subparagraph (c)(2) to require the owner or 
operator to address findings from incident investigations, as well as 
any other potential failure scenarios (e.g., incidents that occurred at 
other similar facilities and or processes, failure mechanisms 
discovered in literature or from other sources of information). This is 
similar to the revision for Program 2 facilities in Sec.  68.50(a)(2).
f. Updates (Sec.  68.190)
    EPA is proposing to amend paragraph (c) to require that the owner 
or operator report any accidents covered by Sec.  68.42 and conduct 
incident investigations required under Sec. Sec.  68.60 and/or 68.81 
prior to de-registering a process or stationary source that is no 
longer subject to the RMP rule.
11. Alternative Options
    EPA considered limiting these requirements to the original universe 
of Program 3 processes that existed before OSHA changed its PSM retail 
exemption. Accidents occur at a higher frequency in these processes as 
compared to processes covered in Program 2. However, with the shift of 
many Program 2 processes into Program 3 due to OSHA's revised policy on 
the PSM retail facility exemption, most of the accidents at remaining 
Program 2 processes occur at publicly owned water and wastewater 
treatment facilities that are not in Program 3 because they are not 
subject to OSHA PSM. State and local government employees at facilities 
in states under Federal OSHA authority are not covered by the OSHA PSM 
standard unlike state and local government employees at facilities in 
states with OSHA approved State Plans. These processes pose the same 
risk as the publicly owned water/wastewater treatment processes that 
are in Program 3. EPA decided that there was little justification for 
limiting the proposed requirements to the changed universe of Program 3 
processes after the OSHA retail exemption change; there are fewer than 
six RMP reportable accidents a year at remaining Program 2 processes. 
Although the alternative would be slightly less burdensome on the 
regulated community, it would also likely prevent fewer accidents than 
the proposed approach. EPA seeks comment on the alternative approach 
and whether there are any other alternative options that EPA should 
consider prior to issuing a final action.

B. Third-Party Compliance Audits

    In addition to strengthening the incident investigation 
requirements, EPA is proposing to strengthen the RMP rule's compliance 
audit provisions to require independent third-party compliance audits 
after an accident or findings of significant non-compliance by an 
implementing agency for stationary sources with Program 2 and/or 
Program 3 processes. Incident investigations often reveal that these 
facilities have deficiencies in some prevention program requirements 
related to that process. Compliance audits entail a systematic 
evaluation of the full prevention program for all covered processes. As 
described below, in some cases, self-auditing may be insufficient to 
prevent accidents, determine compliance with the RMP rule's prevention 
program requirements, and ensure safe operation. Stationary sources 
that have had accidents and/or substantial non-compliance with Risk 
Management Program requirements pose a greater risk to the surrounding 
communities. EPA therefore believes it is appropriate to require such 
stationary sources to undergo objective auditing by competent and 
independent third-party auditors. Such independent third-party auditing 
can assist the owners and operators, EPA (or the implementing agency), 
and the public to better determine whether the procedures and practices 
developed by the owner and/or operator under subparts C and/or D of the 
RMP rule (i.e., the prevention program requirements) are adequate and 
being followed.
    EPA and the CSB have cited poor compliance audits as a contributing 
factor to the severity of past chemical accidents. The CSB identified a 
lack of rigorous compliance audits as a contributing factor behind the 
March 23, 2005 explosion and fire at the BP Texas City Refinery in 
Texas City, Texas.\70\ This explosion and fire killed 15 people, 
injured another 180, led to a shelter-in-place order that required 
43,000 people to remain indoors, and damaged houses as far away as 
three-quarters of a mile from the refinery.
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    \70\ CSB. March 2007. Investigation Report: Refinery Explosion 
and Fire, BP, Texas City, Texas, March 23, 2005. Report No. 2005-04-
I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf.
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    A CSB investigation of the July 2009 fire and explosion at the 
Citgo Corpus Christi Refinery found that Citgo had never conducted a 
safety audit of hydrofluoric acid (HF) alkylation operations at either 
of its U.S. refineries equipped with HF alkylation units pursuant to 
recommendations in API Recommended Practice 751, Safe Operation of HF 
Alkylation Units.\71\ The CSB recommended that within 60 days, Citgo 
complete a third-party audit of all Citgo HF alkylation unit operations 
in the United States (Corpus Christi, Texas and Lemont, Illinois) in 
accordance with API Recommended Practice 751. The CSB also specified 
qualifications for the selected lead auditor including extensive 
knowledge of HF hazards, HF alkylation units, and API 751.
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    \71\ CSB. December 9, 2009. Urgent Recommendations to Citgo. 
http://www.csb.gov/csb-issues-urgent-recommendations-to-citgo-finds-inadequate-hydrogen-fluoride-water-mitigation-system-during-corpus-christi-refinery-fire-last-july/.
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    The CSB found that facility PSM audits failed to detect PSI and 
operating procedure deficiencies that contributed to the November 2003 
chlorine release at DPC Enterprises, L.P. in Glendale,

[[Page 13655]]

Arizona.\72\ The CSB recommended that DPC use a qualified, independent 
auditor to evaluate DPC's PSM and Risk Management Programs against best 
practices and implement audit recommendations in a timely manner at all 
DPC chlorine repackaging sites.
---------------------------------------------------------------------------

    \72\ CSB. February 2007. Investigation Report: Chlorine Release, 
DPC Enterprises, L.P., Glendale, Arizona, November 17, 2003. Report 
No. 2004-02-I-AZ. http://www.csb.gov/assets/1/19/DPC_Report.pdf.
---------------------------------------------------------------------------

    The CSB also found numerous auditing deficiencies following the 
January 2008 explosion at Bayer CropScience, LP, in Institute, West 
Virginia.\73\ The CSB recommended that Bayer commission an independent 
human factors and ergonomics study of all Institute site PSM and Risk 
Management Program covered process control rooms to evaluate the human-
control system interface, operator fatigue, and control system 
familiarity and training.
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    \73\ CSB. January 2011. Investigation Report: Pesticide Chemical 
Runaway Reaction Pressure Vessel Explosion, Bayer CropScience LP, 
Institute, West Virginia, August 28, 2008. Report No. 2008-08-I-WV. 
http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf.
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    EPA has required third-party audits in enforcement settlement 
agreements. For example, EPA found multiple occasions of noncompliance 
with the Risk Management Program requirements at Tyson Foods, Inc. 
facilities through a series of inspections and information requests. 
Dating back to October 2006, violations included failures to follow the 
general industry standards to test or replace safety relief valves, 
improperly co-located gas-fired boilers and ammonia machinery, as well 
as failures to abide by the RMP rule's prevention program and reporting 
requirements. As part of a 2014 consent decree, Tyson Foods, Inc. 
agreed, in addition to paying a penalty of $3.95 million, to conduct 
pipe-testing and third-party audits of its ammonia refrigeration 
systems to improve compliance with Risk Management Program requirements 
at all 23 of the company's facilities in four Midwestern states.\74\
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    \74\ Consent Decree, United States v. Tyson Foods, Inc., et al., 
E.D. Miss., April 4, 2013. http://www2.epa.gov/enforcement/tyson-foods-inc.
---------------------------------------------------------------------------

    In March 2015, EPA Region 1 issued an administrative order on 
consent to Mann Distribution LLC and 3134 Post Road LLC (Respondents) 
regarding Resource Conservation and Recovery Act (RCRA) and CAA 
112(r)(1) (the ``general duty clause'') violations found during an 
April 4, 2013 inspection at a chemical distribution facility in 
Warwick, Rhode Island.\75\ Like the Risk Management Program 
requirements, section 112(r)(1) of the CAA addresses safe operation and 
prevention of accidental releases. Unsafe conditions found during the 
inspection included, among other things, failure to have a fire 
suppression system, failure to inspect a fire alarm, co-location of 
incompatible chemicals, and many RCRA generator violations. The 
facility also had a prior history of non-compliance. The order requires 
Respondents to implement an independent third-party inspection program, 
in addition to imposing other compliance requirements.
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    \75\ Finding of Violation and Administrative Order on Consent, 
In the Matter of Mann Distribution LLC and 3134 Post LLC, Docket 
Nos. RCRA-01-2015-0028 and CAA-01-2015-0029, March 17, 2015.
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    The proposed independent third-party compliance audit requirements 
include a definition of ``third-party audit'' in Sec.  68.3; 
modifications to existing Sec. Sec.  68.58 and 68.79 to specify when a 
third-party audit must be performed; and the requirements for third-
party auditors and third-party audits in new Sec. Sec.  68.59 and 
68.80. EPA is proposing to require third-party compliance audits to be 
conducted at stationary sources following an accident meeting the five-
year accident history criteria in Sec.  68.42(a). EPA is also proposing 
a provision to allow an implementing agency to require a third-party 
audit be performed at a facility under certain circumstances that 
suggest a heightened risk for an accident. These circumstances are: 
Non-compliance with the Prevention Program requirements of subpart C 
(Program 2) or subpart D (Program 3), including non-compliance with the 
competency, independence, or impartiality criteria of Sec.  68.59(b) or 
Sec.  68.80(b) regarding a previous third-party audit. All other 
stationary sources with Program 2 and Program 3 processes will continue 
to follow the current compliance audit requirements of Sec. Sec.  68.58 
and 68.79.
    Sections 68.58 and 68.79 of the RMP regulation (Program 2 and 
Program 3 Compliance Audits) require owners or operators of stationary 
sources with processes subject to Program 2 or Program 3 requirements 
to audit compliance with the provisions of subpart C (Program 2 
Prevention Program requirements) or subpart D (Program 3 Prevention 
Program requirements) at least every three years. The purpose of the 
compliance audits is to verify that the procedures and practices 
developed under subparts C and D of the RMP rule are adequate and being 
followed. These compliance audit provisions are similar to language to 
that is found in 29 CFR 1910.119(o) of the OSHA PSM standard. Sections 
68.58 and 68.79 of the RMP regulation and 1910.119(o) of the OSHA PSM 
standard require that the compliance audit be conducted by at least one 
person knowledgeable in the process, that audit findings be addressed 
promptly, and that a report be generated documenting the findings of 
the audit.
    Currently, neither EPA nor OSHA requires employers to use 
independent third-parties in conducting compliance audits. However, 
third-party compliance auditors exist, both the RMP rule and the PSM 
standard permit their use, and they are utilized by some of the Risk 
Management Program and PSM regulated community, both voluntarily, and 
pursuant to enforcement settlement agreements.
    EPA discussed the potential to use independent third-party auditors 
for Risk Management Program compliance audits, in the preamble of the 
1996 final RMP rule, as an issue for further consideration.\76\ The 
preamble endorsed the concept of using third parties, citing the 
following reasons: To assist in rule compliance and oversight, provided 
that any third-party proposal not weaken the compliance 
responsibilities of facility owners or operators; offer cost savings 
and benefits to the industry, community, and implementing agencies that 
significantly exceed the cost of implementing the approach; lead to a 
net increase in process safety, particularly for smaller, less 
technically sophisticated facilities; and promote cost-effective Agency 
prioritization of oversight resources. At the time, EPA did not require 
the use of third-party auditors because the Agency believed that 
several key issues, including qualification criteria, certification 
procedures, liability, and others, needed to be investigated. Based on 
EPA's research of other third-party audit programs as well as the 
Agency's own experience with third-party auditors in the context of 
enforcement settlements, the Agency is proposing third-party audit 
requirements for the rule's accident prevention program.
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    \76\ Accidental Release Prevention Requirements: Risk Management 
Programs Under CAA Section 112(r)(7), 61 FR 31705, June 20, 1996. 
http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/pdf/96-14597.pdf.
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    Third-party audits are required by other Federal programs in 
appropriate existing rules, and rules currently in development, to 
ensure safe operations. The Administrative Conference of the United 
States (ACUS) ``Third-Party Programs Final Report'' (October 22, 2012) 
describes a variety of third-party programs in Food and Drug 
Administration (FDA), Consumer Product Safety Commission, and Federal 
Communications Commission

[[Page 13656]]

regulations.\77\ Further examples follow. 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 offshore 
oil and natural gas drilling and production facilities. BSEE's SEMS 
standard, 30 CFR part 250, subpart S, requires audits conducted by an 
independent third-party, subject to approval by BSEE, or by designated 
and qualified personnel if the employer implements procedures to avoid 
conflicts of interest. BSEE's SEMS II revisions to the standard require 
that, by June 4, 2015, the team lead for compliance audits must be 
independent and represent an accredited audit service provider. In the 
preamble to its SEMS II final rule, BSEE discussed its third-party-
auditing requirements as follows:
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    \77\ McCallister, Lesley. October 22, 2012. Third-Party Programs 
Final Report (2012). http://www.acus.gov/report/third-party-programs-final-report.

    Consistent audits performed by well trained and experienced 
auditors are critical to ensuring that SEMS programs are 
successfully implemented and maintained on the [Outer Continental 
Shelf] OCS. As a result, we are adopting industry best practices 
related to SEMS audits and auditor qualifications. Industry is 
already voluntarily adopting these practices in many deepwater 
operations. We believe that the application of these requirements to 
all OCS operations will result in more robust and consistent SEMS 
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audits. (78 FR 20430, April 5, 2013.)

    Independent third-party audits or other forms of compliance 
verification are also required by a variety of EPA rules to promote 
compliance with regulatory standards. One example of an EPA regulatory 
program with built-in third-party verification is the EPA CAA wood 
stoves rule.\78\ Additionally, EPA is developing a rule for a third-
party certification framework for the formaldehyde standards for 
composite wood products in accordance with the Formaldehyde Standards 
for Composite Wood Products Act in which Congress mandated that EPA 
promulgate rules that include a third-party testing and certification 
program.\79\
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    \78\ Standards of Performance for New Residential Wood Heaters, 
New Residential Hydronic Heaters and Forced-Air Furnaces, 80 FR 
13671, March 16, 2015. http://www.gpo.gov/fdsys/pkg/FR-2015-03-16/pdf/2015-03733.pdf.
    \79\ Formaldehyde; Third-Party Certification Framework for the 
Formaldehyde Standards for Composite Wood Products, 78 FR 34796, 
June 10, 2013. http://www.gpo.gov/fdsys/pkg/FR-2013-06-10/pdf/2013-13254.pdf. See also the Formaldehyde Standards for Composite Wood 
Products Act https://www.gpo.gov/fdsys/pkg/BILLS-111s1660enr/pdf/BILLS-111s1660enr.pdf.
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    Third-party verification and certification approaches are also 
employed in a variety of state regulatory settings. Examples include 
the CAA Title II vehicle inspection, maintenance, and emissions 
programs in authorized states,\80\ California's mandatory greenhouse 
gas (GHG) reporting program,\81\ and Massachusetts Underground Storage 
Tank (UST) third-party inspection program.\82\
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    \80\ See, e.g., Missouri Dept. of Nat. Resources and Missouri 
State Highway Patrol, First Annual Oversight Report of the 
Decentralized Gateway Vehicle Inspection Program (2008). http://www.dnr.mo.gov/gatewayvip/docs/enforcementrpt.pdf.
    \81\ Cal. Code of Regs. Accreditation Requirements for 
Verification Bodies, Lead Verifiers, and Verifiers of Emissions Data 
Reports and Offset Project Data Reports. tit. 17 Sec.  95132(b)(4) 
(2010); see also Cal. Code of Regs. tit. 17 Sec.  95132(b)(1) 
(describing the firm requirement of having a lead verifier); Cal. 
Code of Regs. tit. 17 Sec.  95132(b)(2) (2010) (describing the lead 
verifier requirements) and Cal. Code of Regs. tit. 17 Sec.  
95132(b)(1). https://govt.westlaw.com/calregs/Document/I047B3A909A3011E4A28EDDF568E2F8A2?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29.
    \82\ MassDEP. 2015. UST Inspection Program. http://www.mass.gov/eea/agencies/massdep/toxics/ust/third-party-ust-inspection-program.html.
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    There are advantages to third-party auditing, particularly with 
strong auditor competence and independence criteria. According to the 
CCPS, ``Third-party auditors (typically, consulting companies who can 
provide experienced auditors) potentially provide the highest degree of 
objectivity.'' \83\ ACUS, in its ``Recommendation on Agency Use of 
Third-Party Programs to Assess Regulatory Compliance'' (December 6, 
2012) (Recommendation), found that, when well-designed and implemented 
per the Recommendation, ``[s]everal broad reasons support the growing 
use of third-party programs in Federal regulation.'' Specifically, ACUS 
found that
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    \83\ CCPS. March 2007. Guidelines for Risk Based Process Safety. 
http://www.aiche.org/ccps/resources/publications/books/guidelines-risk-based-process-safety.

. . . Federal regulatory agencies are faced with assuring the 
compliance of an increasing number of entities and products without 
a corresponding growth in agency resources. Third-party programs may 
leverage private resources and expertise in ways that make 
regulation more effective and less costly. In comparison with other 
regulatory approaches, third-party programs may also enable more 
frequent compliance assessment and more complete and reliable 
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compliance data.

A leading scholar on regulatory third-party programs likewise found 
that, when well-designed and implemented, ``third-party verification 
could furnish more and better data about regulatory compliance'' while 
providing additional compliance and resource savings benefits.\84\
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    \84\ Lesley K. McAllister. Jan. 2012. Regulation by Third-Party 
Verification. 53 B.C. L. Rev. 1, 21-26. http://lawdigitalcommons.bc.edu/bclr/vol53/iss1/1/ iss1/1/.
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    An ``independent third-party'' is a private auditor, inspector, or 
other type of verifier external to the facility. ``Independent third-
party'' excludes the regulated entity, which is the first party (e.g., 
the stationary source and its parent company and subsidiaries), second 
parties within the firm's industry or business community with whom the 
regulated entity has a supply-chain relationship, and third parties 
that are not independent of the first party, which may include 
contractors, consultants, or purchasers of the facility's goods or 
services.\85\ An independent third-party program should not be confused 
with a second party program in which a regulated source employs a 
contractor or consultant, even when the contractor is a separate legal 
entity from the regulated facility and highly qualified. If a regulated 
source provides direct or indirect control over the contractor or 
consultant preparing the audit report, including controlling the 
report's scope or findings, or has other non-audit relationships with 
the auditor, then the auditor is not a true independent third-party. 
This is important because when developing a third-party audit program, 
auditor independence can be critical to the success of the program.
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    \85\ Lesley K. McAllister. Jan. 2012. Regulation by Third-Party 
Verification. 53 B.C. L. Rev. 1, 22-23 at p. 37.
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    Third-party compliance audit programs should also establish 
criteria and standards for auditor independence. As documented in the 
ACUS Recommendation on Agency Use of Third-Party Programs to Assess 
Regulatory Compliance (December 6, 2012),\86\ the ACUS Third-Party 
Programs Final Report (October 22, 2012), and the McAllister law review 
article, auditor independence is critical to ensuring accurate and 
reliable independent third-party auditing.\87\
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    \86\ ACUS; Administrative Conference Recommendation 2012-7; 
Agency Use of Third-Party Programs to Assess Regulatory Compliance 
(Adopted December 6, 2012) at 3-4. https://www.acus.gov/recommendation/agency-use-third-party-programs-assess-regulatory-compliance.
    \87\ See, e.g., Lesley K. McAllister. Jan. 2012. Regulation by 
Third-Party Verification. 53 B.C. L. Rev. 1, pp. 3, 39-40.
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    The literature on designing independent third-party programs 
includes peer-reviewed empirical studies emphasizing the importance of

[[Page 13657]]

establishing criteria and features for auditor independence to promote 
accurate audit reports, including those summarized briefly below. While 
it is not necessary that all audits be conducted only by independent 
third parties, when independent third-party auditing is necessary and 
appropriate, the literature indicates that, without sufficient 
safeguards to ensure auditor independence, auditors are more likely to 
provide lenient or biased audit reports that can fail to accurately 
identify problems and violations by the regulated entity.
    One such study is a randomized control design field experiment in 
the State of Gujarat in India.\88\ This study revealed weaknesses in 
the existing third-party regulatory audit system and the potential for 
a series of market-based alterations to dramatically improve auditor 
accuracy. In India, Gujarat Pollution Control Board regulates more than 
20,000 industrial plants. From the universe of audit-eligible plants 
located in two populous and heavily polluted industrial regions, the 
researchers identified a study sample of 473 randomly-selected plants, 
stratified by region. Half of the plants were randomly assigned into a 
control group. The other half of the plants, also randomly assigned, 
were informed by the State of changes to their audit regulation that 
included the following: Plants would be randomly assigned auditors they 
were required to use (i.e., they could no longer choose their own 
auditors); auditors would be paid from a central pool rather than by 
the plant for which they worked; auditor fees were set in advance at a 
flat rate (high enough to cover pollution measurement and give the 
auditor a modest profit); a random sample of each auditor's pollution 
readings would be verified with follow-up visits to the audited plants 
by an independent technical agency; in year two of the experiment, the 
third-party auditors were informed that their pay would be linked to 
their reporting accuracy as measured by the technical agency's follow-
up visits. The researchers found that, under the status quo system, the 
third-party auditors systematically reported false pollution levels 
just below the applicable regulatory standard (also known as strategic 
misreporting) but the experimental changes significantly improved the 
truthfulness of the third-party auditors' reports, even for auditors 
operating in both markets who audited firms in both the control and 
treatment groups. Also, and importantly, once the plants understood 
that their auditors would henceforth be reporting more accurately to 
the State, they reduced their actual pollution emissions.
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    \88\ Esther Duflo et al., Truth-Telling By Third-Party Auditors 
And The Response of Polluting Firms: Experimental Evidence From 
India, 128 Q. J. of Econ. 4 at 1499-1545 (2013).
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    A pair of 2013 studies of independent third-party vehicle emission 
testing in New York also considered factors impacting third-party 
independence. This research was based on millions of emission test 
results from thousands of test facilities.\89\ The authors' findings 
include that there is a relationship between testing facilities' 
opportunities to ``cross sell'' other products and services to car 
owners and the test results. The researchers found that, in pursuit of 
customer loyalty, facilities with more cross-selling opportunities were 
incentivized to ``pass'' cars that facilities with fewer cross-selling 
opportunities would not.\90\
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    \89\ Victor Manuel Bennett, et al. August 2013. Customer-Driven 
Misconduct How Competition Corrupts Business Practices. Management 
Science Vol. 59, No. 8, pp. 1725-1742. http://www.hbs.edu/faculty/Pages/item.aspx?num=43347 and Lamar Pierce and Michael W. Toffel. 
Sept.-Oct. 2013. The Role of Organizational Scope and Governance in 
Strengthening Private Monitoring. Organization Science Vol. 24, No. 
5, pp. 1558-1584.
    \90\ Lamar Pierce and Michael W. Toffel. Sept.-Oct. 2013. The 
Role of Organizational Scope and Governance in Strengthening Private 
Monitoring. Organization Science Vol. 24, No. 5, at 1575. http://www.hbs.edu/faculty/Publication%20Files/11-004.pdf.
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    Further evidence suggests that many, if not most, of some types of 
financial audits are flawed due to insufficient auditor competence, 
independence, and/or lack of public transparency. Third-party auditing 
is a linchpin of financial reporting. But when the Public Company 
Accounting Oversight Board (PCAOB) released its third annual report on 
audits of broker-dealers registered with the Securities and Exchange 
Commission (SEC), the PCAOB found audit deficiencies in portions of 70 
of the 90 audits. Independence problems were found in 21 on the 90 
audits where, contrary to SEC rules, firms helped with the bookkeeping 
or preparation of the financial statements they audited.\91\
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    \91\ PCAOB. Aug. 18, 2014. Third Progress Report on PCAOB 
Inspections of Broker and Dealer Auditors Shows Continued High 
Number of Findings. http://pcaobus.org/Inspections/Documents/BD_Interim_Inspection_Program_2014.pdf.
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    In 2014, the New York State Department of Financial Services 
(NYDFS) fined PricewaterhouseCoopers (``PwC'') Regulatory Advisory 
Services $25 million, suspended it for 24 months from accepting 
consulting engagements at regulated financial institutions, and 
required it to implement a series of reforms after PwC improperly 
altered a report submitted to regulators on sanctions and anti-money 
laundering compliance at Bank of Tokyo Mitsubishi (BTMU). Under 
pressure from BTMU executives who received an advance draft of its 
report to review, PwC edited the report, and in the final version of 
the report which was sent to regulators, a number of key provisions 
were deleted or otherwise significantly edited.\92\
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    \92\ Press Release: NYDFS Announces PwC Regulatory Advisory 
Services Will Face 24-Month Consulting Suspension; Pay $25 Million; 
Implement Reforms After Misconduct During Work At BTMU. Aug. 18, 
2014. http://www.dfs.ny.gov/about/press/pr1408181.htm.
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    These recommendations, studies, and reports emphasize the 
importance of designing independent third-party programs to embody 
auditor independence by building in appropriate criteria and processes 
for third-party independence. They identify a range of available design 
elements to promote such independence. EPA consulted this literature in 
developing today's proposed independent third-party compliance auditing 
program.
    Industry recognizes the benefits of third-party auditing programs 
and have established programs and standards for third-party audits for 
some types of operations, many of which are also subject to the RMP 
rule.\93\ These programs also demonstrate industry's understanding 
that, in appropriate circumstances, third-party auditing can provide 
benefits and results above those available through self-auditing alone. 
In addition, these programs and standards illustrate the range and 
variety of structural design elements that can be, and are, employed in 
third-party programs to address auditor competence and independence, 
auditor certification, the audit process, auditor reporting, 
recordkeeping, and the public disclosure of audit results and 
associated information.
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    \93\ EPA has not formally evaluated these programs and standards 
or their outcomes. This discussion is not a formal Agency review or 
endorsement of them.
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    Some industry groups, such as SOCMA and the Center for Offshore 
Safety (COS), require certain types of third-party audits for their 
members. SOCMA members are U.S. companies engaging in the manufacturing 
or handling of synthetic and organic chemicals. Active members have a 
mandatory requirement to participate in ChemStewards[supreg], a program 
intended to promote continuous performance improvement in batch 
chemical manufacturing. The program offers a three-tiered approach to 
participation. Each tier includes a third-party verified

[[Page 13658]]

management system.\94\ The COS strategy for promoting safety and 
protection of the environment includes third-party auditing and 
certification of the COS member company's SEMS and accreditation of the 
organizations (Audit Service Providers) providing the audit services. 
The third-party audits are intended to ensure that COS member companies 
are implementing and maintaining SEMS throughout their deepwater 
operations.\95\
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    \94\ SOCMA. 2015. See http://www.socma.com/ChemStewards/.
    \95\ COS. 2013. See http://www.centerforoffshoresafety.org/auditInfo.html.
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    ACC members are required to participate in a Responsible Care 
management system described by ACC as including, identifying, and 
acting to address potential hazards and risks associated with their 
products, processes, distribution and other operations. One of 
Responsible Care's program elements is a product safety code consisting 
of eleven management practices through which chemical manufacturers are 
encouraged to evaluate, demonstrate and continuously improve their 
product safety performance while making information about chemical 
products available to the public.\96\ Responsible Care also has a 
process safety code consisting of seven management practices through 
which chemical manufacturers commit to safe operation of their chemical 
processes. According to ACC,
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    \96\ ACC. 2013. Responsible Care Product Safety Code. http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Product-Safety-Code.

the Responsible Care Process Safety Code differs from regulatory 
standards that, by necessity, focus on process safety at an 
individual facility. ACC contends that the Process Safety Code is 
more universal--it addresses issues across a division or 
corporation, and includes a company commitment to set process safety 
expectations, define accountability for process safety performance 
and allocate adequate resources to achieve performance 
expectations.\97\
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    \97\ ACC. 2013. Responsible Care Process Safety Code. http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Process-Safety-Code.

The Responsible Care management system process includes mandatory 
certification, by auditors described by ACC as accredited and 
independent, to ensure the program participants have a structure and 
system in place to measure, manage and verify performance.\98\
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    \98\ Certification must be renewed every three years, and 
companies can choose one of two certification options. RCMS[supreg] 
certification in intended to verify that a company has implemented 
the Responsible Care Management System. RC14001[supreg] 
certification combines Responsible Care and ISO 14001 certification. 
See http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Management-System-and-Certification and http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Process-Safety-Code/Responsible-Care-Process-Safety-Code-PDF.pdf.
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    The API, in collaboration with industry partners, has developed a 
Process Safety Site Assessment Program (PSSAP). According to API, the 
program is intended to provide for the assessment of API member sites' 
process safety systems by third-party teams of independent, industry-
qualified process safety expert assessors. Using industry-developed 
protocols, API describes the process safety site assessments as 
evaluating the quality of written programs and effectiveness of field 
implementation for the following process safety areas that will be 
evaluated: Process Safety Leadership; MOC; Mechanical Integrity 
(focused on fixed equipment); Safe Work Practices; Operating Practices; 
Facility Siting; Process Safety Hazards; and HF Alkylation/RP 751. The 
assessment teams produce reports that identify observations that site 
personnel should consider further but do not provide written 
recommendations.\99\
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    \99\ API. 2015. PSSAP. http://www.api.org/certification-programs/process-safety-site-assessment-programs.
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1. Applicability of Third-Party Audit Requirements
    Currently, there are approximately 12,000 stationary sources with 
Program 2 and/or Program 3 processes. The proposed rule would not 
require all of these RMP facilities to use third-party auditors when 
conducting compliance audits under subpart C or D. Instead, EPA is 
proposing that owners or operators be required to perform third-party 
compliance audits at their facilities only under the following two 
conditions.
    Under the first condition, a third-party compliance audit would be 
required in lieu of an internal compliance audit if there has been an 
accidental release from an RMP facility meeting the five-year accident 
history criteria as described in Sec.  68.42(a). The existing five-year 
accident history criteria include accidental releases from covered 
processes that resulted in deaths, injuries, or significant property 
damage on-site; or deaths, injuries, property damage, evacuations, 
sheltering in place, or environmental damage offsite. EPA and other 
implementing agencies would learn about accidents meeting the five-year 
accident history criteria because such accidents must be included 
within a facility's RMP within six months of the accident, in 
accordance with Sec.  68.195(a). Following such an accident, the RMP 
facility's owner or operator would be required to engage a third-party 
auditor to conduct a compliance audit for the source. Pursuant to 
Sec. Sec.  68.58(h) and 68.79(h), the third-party audit and associated 
report shall be completed, and submitted to the implementing agency 
pursuant to Sec.  68.59(c)(3) or Sec.  68.80(c)(3) as follows, unless a 
different timeframe is specified by the implementing agency: within 12 
months of when the third-party audit is required pursuant to Sec.  
68.58(f) and/or (g) or Sec.  68.79(f) and/or (g); or within three years 
of completion of the previous compliance audit, whichever is sooner.
    The second condition is if an implementing agency has made a 
determination that a third-party audit at an RMP facility is necessary, 
based on information about the facility or a prior third-party audit at 
the facility. Information about an RMP facility that would lead to such 
a determination could be obtained from sources including an inspection 
of a facility by the implementing agency's representatives. Relevant 
information to support the determination may include evidence of 
significant non-compliance with the prevention program requirements of 
subpart C or D of part 68. Significant non-compliance includes 
deficiencies relating to a previous third-party audit (i.e., failure to 
meet the competency, independence, or impartiality criteria of Sec.  
68.59(b) or Sec.  68.80(b)).
    If such a determination is made, the implementing agency must 
provide a written notice to the owner or operator of the facility 
stating the reasons for the determination that a third-party audit must 
be performed. The proposed rule provides for an opportunity for the 
owner or operator to provide information and data to the implementing 
agency and to consult with the implementing agency about the need to 
perform a third-party audit at the facility source before the 
implementing agency representatives make a final determination. EPA 
seeks comment on these proposed third-party audit applicability 
requirements.
2. Alternative Options for Third-Party Audit Applicability Criteria
    EPA considered requiring third-party compliance audits for a larger 
universe of regulated facilities. We considered whether to require 
third-party

[[Page 13659]]

compliance audits for all facilities with processes subject to Program 
3 requirements at least every three years. We also considered whether 
to require third-party compliance audits for all facilities with 
processes subject to Program 2 or Program 3 requirements every three 
years. However, because EPA views facilities that have had accidents or 
significant non-compliance as presenting higher risks to surrounding 
communities, the Agency is proposing to limit the applicability of this 
provision to these facilities.
    EPA seeks comments and suggestions on the proposed third-party 
audit applicability requirements and whether to eliminate or further 
limit applicability of this provision. For example, EPA could consider 
limiting the provision to only Program 3 facilities that have had 
accidents or to only facilities that have had major accidents with 
offsite impacts. EPA seeks comments on this alternative approach and to 
define and characterize ``major accidents with offsite impacts.'' 
Alternatively, EPA could revise this provision to reduce its impact on 
small businesses. When providing suggested alternatives, please include 
suggestions for how to improve compliance with auditing provisions.
    EPA also seeks comment on whether there are other criteria that 
could require RMP facilities to perform third-party compliance audits. 
For example, a third-party audit could be required if an owner or 
operator of a facility were to learn or know of a condition or 
conditions at its facility suggesting a concern for, or potential risk 
of, future accidents. Such conditions would need to be objective and 
reasonably ascertainable by the facility owners or operators, the 
implementing agency, and the public.
    EPA also seeks comment on the benefits and costs of proposing 
additional requirements for third-party compliance audits and 
recommendations for appropriate conditions suggesting a concern for, or 
potential risk of, future accidents.
3. Proposed Third-Party Audit Requirements
a. Compliance Audit (Sec. Sec.  68.58 and 68.79)
    In order to prevent accidents and ensure compliance with part 68 
requirements, EPA is proposing to require certain RMP facilities to 
perform third-party audits. The proposed changes to Sec. Sec.  68.58 
and 68.79 would add this requirement for both Program 2 and Program 3 
processes, under certain conditions.
    EPA proposes new paragraphs Sec. Sec.  68.58(f) and 68.79(f) which 
describe when a third-party audit is required. Pursuant to these 
paragraphs, the next required compliance audit for an RMP facility 
shall be a third-party audit when one of the following conditions 
apply: (1) An accidental release, meeting the criteria in Sec.  
68.42(a), from a covered process has occurred; or (2) an implementing 
agency requires a third-party audit based on non-compliance with the 
requirements of this subpart, including when a previous third-party 
audit failed to meet the competency, independence, or impartiality 
criteria of Sec.  68.59(b) or Sec.  68.80(b). The purpose is to help 
reduce the risk of future accidents by requiring an objective auditing 
process to determine whether the owner or operator of the facility is 
effectively complying with the prevention program requirements of part 
68.
    EPA proposes new paragraphs Sec. Sec.  68.58(g) and 68.79(g), 
Implementing agency notification and appeals, which describe the 
procedure for when a third-party audit is required by an implementing 
agency. Pursuant to these paragraphs, if an implementing agency makes a 
preliminary determination that a third-party audit is necessary, the 
implementing agency will provide written notice to the facility owner 
or operator stating the reasons for the implementing agency's 
determination. The owner or operator has an opportunity to provide 
information to, and to consult with, the implementing agency. The 
implementing agency then provides a final determination to the owner or 
operator. If the final determination requires a third-party audit, the 
owner or operator shall comply with the requirements of Sec.  68.59 
and/or Sec.  68.80, but also may choose to appeal the final 
determination. After the appeal is considered, the implementing agency 
will provide a written, final decision on the appeal to the owner or 
operator.
    EPA proposes new paragraphs Sec. Sec.  68.58(h) and 68.79(h), which 
describe the schedule for conducting third-party audits. The audit and 
associated report shall be completed, and submitted to the implementing 
agency as follows, unless a different timeframe is specified by the 
implementing agency: (1) Within 12 months of when any third-party audit 
is required; or (2) within three years of completion of the previous 
compliance audit, whichever is sooner.
b. Third-Party Audits (Sec. Sec.  68.59 and 68.80)
    EPA is proposing new Sec. Sec.  68.59 and 68.80, which include the 
requirements for both third-party audits, and third-party auditors.
    Sections 68.59(a) and 68.80(a) state that owners or operators shall 
engage a third-party auditor to evaluate compliance with the provisions 
of this subpart in accordance with the requirements of this section 
when the criteria of Sec.  68.58(f) or Sec.  68.79(f) are met.
    EPA is proposing, in Sec. Sec.  68.59(b) and 68.80(b), that owners 
and operators of RMP facilities subject to these requirements determine 
and document the competency, independence, and impartiality of their 
auditors. These sections require that the facility owners or operators 
be responsible for self-determining and documenting that their third-
party auditors are competent and independent pursuant to the criteria 
listed in Sec.  68.59(b)(1) through (3) or Sec.  68.80(b)(1) through 
(3), by requiring specific provisions and safeguards in their contracts 
and relationships with their third-party auditors.
    EPA seeks comment as to whether the requirement that owners and 
operators of RMP facilities be responsible for determining and 
documenting the competency, independence, and impartiality of their 
auditors is appropriate.
Alternative Option for Third-Party Auditor Selection and Accreditation
    EPA also considered an alternative approach, such as requiring 
auditors to have accreditation from a recognized auditing body or EPA. 
Most independent third-party regulatory compliance verification 
programs require the qualifying third-parties to apply for and receive 
accreditation from a qualified external party to ensure competency and 
independence. Such an external accreditation approach can add rigor to 
the process of confirming the competence and independence of the 
auditors but it also adds procedures and costs. Therefore, while EPA is 
not proposing that the Agency itself will accredit third-party 
auditors, EPA seeks comment on whether to require additional 
accreditation criteria and how to best establish and structure an 
accreditation program within the context of the RMP rule.
Auditor Competence
    Third-party compliance verification programs should establish 
criteria and standards for auditor competence. Typically, such criteria 
and standards combine specified minimum levels of education, knowledge, 
experience, and training. EPA is proposing to require in proposed 
Sec. Sec.  68.59(b)(1)(i) through (iv) and 68.80(b)(1) (i) through (iv) 
that third-party auditors be:


[[Page 13660]]


     Knowledgeable with the requirements of part 68;
     experienced with the facility type and processes being 
audited and the applicable recognized and generally accepted good 
engineering practices (RAGAGEP);
     trained or certified in proper auditing techniques; and
     be a licensed Professional Engineer (PE), or include a 
licensed PE on the audit team.

    EPA is proposing to require a PE as part of the audit team in an 
attempt to identify competent auditors that also have an ethical 
obligation to perform unbiased work. EPA seeks comment on whether these 
criteria are appropriate and sufficient to ensure third-party auditors 
are competent to perform high-quality compliance audits. EPA also seeks 
comment on whether the proposal to require that a third-party auditor, 
or a member of the audit team, be a licensed PE is appropriate and 
whether there are enough licensed PEs to conduct third-party audits for 
the universe of facilities that may become subject to these 
requirements. Are there other qualifications who might be appropriate 
for RMP auditors in lieu of a PE?
    As part of the SBAR Panel process, SERs suggested to the SBAR Panel 
that EPA consider substituting other qualified personnel such as: 
degreed chemists, degreed chemical engineers, Certified Safety 
Professionals (CSP), Certified Industrial Hygienists (CIH), Certified 
Fire Protection Specialists (CFPS), Certified Hazardous Materials 
Managers (CHMM), Certified Professional Environmental Auditors (CPEA) 
or Certified Process Safety Auditors (CPSA). SERs indicated that these 
credentials also include ethical obligations to provide sound 
independent advice. EPA also seeks comment regarding potentially 
relevant and applicable consensus standards and protocols that might 
apply to the audits and be built and/or incorporated by reference into 
the rules. These may include relevant and applicable American National 
Standards Institute, American Society for Testing and Materials 
International, European Committee for Standardization, International 
Organization for Standardization (ISO), and National Institute of 
Standards and Technology (NIST) standards.
Auditor Independence and Impartiality
    Proposed Sec. Sec.  68.59(b)(2)(i) through (vi) and 68.80(b) (2)(i) 
through (vi) set forth the independence and impartiality requirements 
for third-party auditors and audit teams. These include that third-
party auditors:

     Act impartially when performing all third-party audit 
activities;
     receive no financial benefit from the outcome of the 
audit, apart from payment for the auditing services;
     not have conducted past research, development, design, 
construction services, or consulting for the owner or operator 
within the last 3 years; \100\
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    \100\ For purposes of this requirement, consulting does not 
include performing or participating in third-party audits pursuant 
to Sec.  68.59 or Sec.  68.80.
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     not provide other business or consulting services to 
the owner or operator, including advice or assistance to implement 
the findings or recommendations in an audit report, for a period of 
at least 3 years following submission of the final audit report;
     Ensure all personnel involved in the audit sign and 
date a conflict of interest statement; and
     ensure all personnel involved in the audit do not 
accept future employment with the owner or operator of the facility 
for a period of at least 3 years following submission of the final 
audit report. For purposes of this requirement, employment does not 
include performing or participating in third-party audits pursuant 
to Sec.  68.59 or Sec.  68.80.

    As part of the SBAR Panel process, SERs raised concerns about the 
extent of the independence criteria and suggested this might limit the 
availability of qualified auditors. Specifically, SERs asked how to 
apply the independence criteria to a company that employs personnel who 
previously worked for or otherwise engaged in consulting services with 
the facility. Audit firms with personnel who, before working for the 
firm, performed services for the owner or operator as an employee, 
contractor or consultant, meet the rule's independence criteria when 
such personnel do not participate on, manage, or advise the audit 
teams. Additionally, employees of an auditing firm are not prohibited 
from accepting future employment with the owner/operator as long as 
they were not directly involved in performing or managing the audit.
    Another concern raised by SERs is ensuring that third-party 
auditors do not pose a terrorism concern or release information that 
could compromise facility security or CBI. EPA agrees that chemical 
facility security is a priority and seeks comments on the impacts a 
third-party auditor may have on a facility's security and whether there 
is a need to specify security protections or whether existing non-
disclosure and contractual agreements should handle this independently.
    EPA seeks comment on whether the proposed auditor independence 
criteria are appropriate and sufficient. If not, we seek comment on how 
best to adjust the criteria for maximum auditing effectiveness and 
efficiency, including comments or suggestions on how to provide more 
flexibility in the auditor independence criteria, or whether to 
eliminate the requirement for independence. EPA also seeks comments on 
whether the proposed 3-year timeframe to separate the audit from other 
business arrangements with the owner or operator is appropriate.
    Furthermore, EPA is requesting comment on whether the proposed 
auditor independence criteria should be modified so as to not exclude a 
retired employee from auditing a former employer's facility if the 
employee's sole continuing financial attachment to the owner or 
operator is an employer-financed or employer-managed retirement plan. 
While EPA is concerned such attachments could provide the auditor with 
incentives to ensure the facilities they audit are not financially 
negatively impacted by their audits, it could also, as a practical 
matter, limit the available pool of otherwise qualified and competent 
auditors. EPA seeks comment on the potential magnitude of such 
incentives and how to address this concern in the rule.
    Finally, EPA requests comment on whether to propose streamlined 
independence criteria for small facilities (i.e., based on the size of 
the facility) including comments or suggestions on how to streamline 
the requirements.
Auditor Policies and Procedures
    Proposed Sec. Sec.  68.59(b)(3) and 68.80(b)(3), if finalized, 
would require that owner or operators of RMP regulated facilities 
ensure that third-party auditors have written policies and procedures 
to ensure that all personnel comply with the competency, independence, 
and impartiality requirements of these sections. EPA seeks comment on 
these proposed provisions.
Alternative Options for Auditor Qualifications
    EPA considered including alternative options in the proposed rule 
for owners and operators of stationary sources who cannot, despite best 
efforts, find a third-party auditor meeting all of the independence 
criteria. Two specific options were considered.
    Under the first option, owners and operators of RMP facilities, in 
addition to self-selecting their third-party auditors pursuant to the 
specified independence criteria, would also self-determine when it is 
impossible or impractical to hire such auditors and self-select their 
alternative auditors.

[[Page 13661]]

Under this option, the owner or operator would be required to inform 
the implementing agency and the public of the alternative auditors, 
which could be accomplished by providing and/or publicly posting 
information on the alternative auditors and how they were selected. The 
information could describe the steps taken to identify auditors meeting 
all of the rule's independence criteria, the identities and 
competencies of the alternative auditors, the regulatory independence 
criteria that the alternative auditors were unable to meet and why, and 
any steps taken to address or limit the impacts of the auditors' lack 
of independence on the outcomes and reliability of their audits.
    Under the second option, owners and operators who, despite best 
efforts, could not find auditors meeting all the rule's independence 
criteria would be authorized to identify specific alternative auditors 
to the implementing agency and petition it for approval to engage those 
auditors. This approach would include a requirement for auditors not 
fully satisfying the rule's independence criteria to prepare and 
implement Conflict of Interest Mitigation Plans similar to those 
required by the California Air Resources Board (CARB) under its 
Regulation for the Mandatory Reporting of GHG Emissions,\101\ with 
associated reporting, recordkeeping, and due process procedures. Under 
this option, if, despite best efforts, an owner or operator cannot find 
a third-party auditor meeting all of the criteria in Sec.  68.59(b) or 
Sec.  68.80(b), the owner or operator would be required to request 
approval, in writing, to the implementing agency to use an alternative 
third-party auditor. The implementing agency would then be required, 
within a specified timeframe, to approve or disapprove the proposed 
request and provide notice of its decision to the owner or operator. 
The owner or operator's request to use an alternative third-party 
auditor would include a description of the owner or operator's efforts 
to find an independent third-party auditor, identification of the 
proposed alternative third-party auditor (including the same 
information required pursuant to this rule for a fully qualified 
auditor), identification of the specific independence requirements the 
proposed alternative third-party auditor meets and does not meet, and 
an organizational chart of the proposed alternative third-party auditor 
and related entities with brief descriptions of the primary nature of 
the work each performs.
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    \101\ CARB. July 23, 2015. Verification of GHG Emissions Data 
Reports. http://www.arb.ca.gov/cc/reporting/ghg-ver/ghg-ver.htm.
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    The owner or operator's request to use an identified alternative 
third-party auditor would also include a Conflict of Interest 
Mitigation Plan demonstrating the steps the auditor would take to 
mitigate its inability to fully meet the independence requirements in 
Sec.  68.59(b) or Sec.  68.80(b). These steps could include ensuring 
that any individual or organizational component of the auditor with 
conflicts of interest or impartiality concerns is removed from the 
audit and/or isolated from the individuals or organizational component 
conducting the audit, an explanation of how and why the amount and 
nature of work previously performed should not be deemed to undermine 
the auditing team's credibility and lack of bias, and descriptions of 
any other adjustments or circumstances taken to address actual or 
potential sources for conflicts of interest, with an appropriate 
certification signed and dated by a senior owner or operator official.
    If, pursuant to this option, the implementing agency approves the 
alternative third-party auditor, it would provide written notice to the 
owner or operator and, upon receipt of the approval, the owner or 
operator may engage the alternative auditor to conduct the audit under 
this section. If the implementing agency does not approve the 
identified alternative auditor, the implementing agency would provide a 
written notice to the owner or operator stating the reasons for the 
decision. Within a specified timeframe after receipt of such written 
notice, the owner or operator would be required to submit the name of 
another proposed auditor for the implementing agency's consideration. 
In the alternative, the owner or operator would be able to appeal the 
implementing agency's decision pursuant to the applicable agency's 
processes.
    EPA considered but did not propose other third-party auditor 
independence safeguards than those included in proposed Sec.  
68.59(b)(2) or Sec.  68.80(b)(2). Examples include mandating the random 
assignment of auditors, paying them from a central pool of auditing 
funds, or requiring mandatory periodic auditor rotation after a 
specified period of time. Nor has EPA proposed provisions requiring 
owners and operators to provide advance notice to the implementing 
agency of third-party auditor site visits to enable the implementing 
agency to accompany and observe the third-party auditors on such 
visits.\102\ EPA seeks comment on these alternative approaches.
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    \102\ Compare proposed 40 CFR 770.7(a)(3)(iv) of EPA's proposed 
Toxic Substances Control Act (TSCA) formaldehyde in wood products 
third-party program proposed rule: ``(3) Responsibilities. EPA 
recognized Laboratory ABs must fulfill the requirements in 
paragraphs (b)(3)(i) through (xiii) of this section: . . . (iv) Upon 
request, allow EPA representatives to accompany its assessors during 
an on-site assessment to observe the audit of a TPC.'' Formaldehyde; 
Third-Party Certification Framework for the Formaldehyde Standards 
for Composite Wood Products, 78 FR 34796, June 10, 2013. http://www.gpo.gov/fdsys/pkg/FR-2013-06-10/pdf/2013-13254.pdf.
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    EPA further seeks comment on whether there are any other 
alternative approaches to third-party auditor qualifications EPA should 
consider prior to issuing a final action. For example, EPA could, in 
the final rule, allow for audits to be performed by auditors with some 
potential conflicts of interest (e.g., employees of parent company, 
affiliates, vendors/contractors that participated in developing the 
facility's RMP, etc.) and/or allow a person employed at the facility 
who is a registered PE to conduct the audit. If such approaches are 
adopted in the final rule, the Agency could seek to place appropriate 
restrictions on auditors and auditing using third parties with less 
than full independence from their client facilities in an effort to 
increase confidence that the auditors will act appropriately when 
performing their activities under the RMP rule. The purposes of such 
provisions could include ensuring that auditor personnel who assess a 
facility's compliance with the RMP rule do not receive any financial 
benefit from the outcome of their auditing decisions, apart from their 
basic salaries or remuneration for having conducted the audits. EPA 
also specifically requests commenters to identify any supportive 
literature or data as EPA is presently not aware of literature or data 
showing that such provisions are effective in counteracting biases due 
to lack of impartiality or independence.
    There may be other options, in addition to the approaches taken in 
the proposed third-party compliance auditing program or identified 
above, that can also increase owner or operator flexibility without 
compromising audit accuracy. EPA seeks comment on such alternative 
auditor/auditing approaches.
    If non-independent or limited independence third-party auditing, 
second-party auditing, or enhanced self-auditing is authorized, EPA 
seeks comment on how best to structure such auditing to maximize 
auditor independence and accurate auditing outcomes given the lack of 
complete

[[Page 13662]]

independence. EPA also seeks suggestions for what steps a facility 
should be required to take if third-party auditors who meet the 
proposed independence and competence criteria are not available. If RMP 
facilities are allowed, in the final rule, to use enhanced self-
auditing in lieu of independent third-party auditing, examples of the 
types of restrictions that could be placed on such self-auditing to 
potentially improve auditor impartiality and auditing outcomes appear 
in the U.S. and CARB v. Hyundai Motor Company, et al. Consent 
Decree.\103\
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    \103\ U.S District Court of DC November 11, 2014. Decree of 
Consent U.S California Air Resources Board v. Hyundai et al. http://www2.epa.gov/sites/production/files/2014-11/documents/hyundai-kia-cd.pdf.
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Third-Party Audit Report
    Proposed Sec. Sec.  68.59(c) and 68.80(c), if finalized, would 
require owners or operators of stationary sources to ensure that their 
third-party auditors prepare and submit audit reports. Proposed 
Sec. Sec.  68.59(c)(1) and 68.80(c)(1), if finalized, would include 
requirements for the scope and content of these reports, including a 
statement to be signed by the third-party auditor certifying that the 
third-party audit was performed in accordance with the requirements of 
subpart C or D. Proposed Sec. Sec.  68.59(c)(1) and 68.80(c)(1), if 
finalized, would also require that the final third-party audit reports 
must identify any adjustments made by the third-party auditor to any 
draft third-party audit reports provided to the owners or operators for 
their review or comment. EPA believes that these provisions are 
important to minimize third-party compliance audit bias. EPA's intent 
in allowing for owners and operators to receive and comment on draft 
third-party compliance audit reports with these additional requirements 
is to promote factual and informative final third-party compliance 
audit reports without compromising their accuracy and independence. EPA 
seeks comment, however, on whether we should also require draft third-
party compliance audit reports to be submitted to the implementing 
agency at the same time, or before, such reports are provided to the 
owners and operators and whether such a requirement would be further 
effective in minimizing potential third-party compliance audit bias.
    Proposed Sec. Sec.  68.59(c)(2) and 68.80(c)(2), if finalized, 
would include requirements for the retention of reports and records by 
the third-party auditors. Proposed Sec. Sec.  68.59(c)(3) and 
68.80(c)(3), if finalized, would require the audit report to be 
submitted to the implementing agency at the same time, or before, it is 
provided it to the owner or operator. Finally, EPA is proposing in 
Sec. Sec.  68.59(c)(4) and 68.80(c)(4) that the audit report and 
related records cannot be claimed as attorney-client communications or 
as attorney work products even if the auditors are themselves, or are 
managed by or report to, attorneys. With respect to the attorney work 
product privilege, the audit report and related records are produced to 
document compliance rather than in anticipation of litigation, just 
like a monitoring report required by an air emission rule would not be 
produced in anticipation of litigation. With respect to the attorney-
client communication privilege, the third-party auditor is arms-length 
and independent of the stationary source being audited. The auditor 
lacks an attorney-client relationship with counsel for the audited 
entity. Therefore, neither the audit report nor the records related to 
the audit report provided to the third-party auditor are attorney-
client privileged (including documents originally prepared with 
assistance or under the direction of the audited source's attorney). 
EPA seeks comment on these proposed requirements including any legal 
concerns that may result from the provision that limits attorney-
related privileges.
Other Owner or Operator Obligations
    Proposed Sec. Sec.  68.59(d)(1) and 68.80(d)(1), if finalized, 
would require owners or operators, as soon as possible, but no later 
than 90 days after receiving the final audit report, to determine an 
appropriate response to each of the findings in the audit report, and 
develop and provide to the implementing agency a findings response 
report. This findings response report would include: A copy of the 
final audit report; an appropriate response to each of the audit report 
findings; a schedule for promptly addressing deficiencies; and a 
statement, signed and dated by a senior corporate officer, certifying 
that appropriate responses to the findings in the audit report have 
been identified and deficiencies were corrected, or are being 
corrected, consistent with the requirements of subpart C or D of 40 CFR 
part 68. The requirement to determine appropriate responses to findings 
is similar to existing compliance audit requirements that require the 
owner or operator to ``promptly determine and document an appropriate 
response to each of the findings of the compliance audit.'' EPA seeks 
comment on these proposed requirements and whether we should provide 
flexibility on the timeframe for developing the findings response 
report.
    EPA also considered prescribing a timeframe within which 
deficiencies must be corrected, rather than rely on ``promptly'' 
address deficiencies. However, EPA was unable to identify an 
appropriate timeframe given the variety of possible site-specific 
actions that an owner or operator may take to address audit findings. 
EPA seeks comment on whether to keep this approach or substitute a 
specific number of days and, if the latter, what is a reasonable time 
period to specify and why.
    Proposed Sec. Sec.  68.59(d)(2) and 68.80(d)(2), if finalized, 
would require the owner or operator to implement the schedule and 
address deficiencies identified in the audit findings response report, 
and document the action taken to address each deficiency, along with 
the date completed. Proposed Sec. Sec.  68.59(d)(3) and 68.80(d)(3), if 
finalized, would require the owner or operator to provide a copy of 
documents required under paragraphs (d)(1) and (d)(2) to the owner or 
operator's audit committee of the Board of Directors, or other 
comparable committee, if one exists. EPA seeks comment on these 
proposed requirements.
    Proposed Sec. Sec.  68.59(e) and 68.80(e), if finalized, would 
require the owner or operator to retain records at the stationary 
source, including: the two most recent third-party audit reports, 
related findings response reports, documentation of actions taken to 
address deficiencies, and related records; and copies of all draft 
third-party audit reports. The owner or operator shall provide draft 
third-party audit reports, or other documents, to the implementing 
agency upon request. For proposed Sec.  68.59(e) (Program 2 third-party 
audit recordkeeping provision), these requirements, if finalized, would 
not apply to any documents that are more than five years old (for 
Program 3 third-party audit records, as for the existing Program 3 
compliance audits, the owner or operator would be required to retain 
records to support the two most recent audits). EPA seeks comment on 
these proposed requirements.

C. Safer Technology and Alternatives Analysis (STAA)

1. Meaning of STAA
    Safer technology and alternatives refer to risk reduction 
strategies developed through analysis using a hierarchy of process risk 
management strategies (or hierarchy of controls), which consists of 
those which are inherent, passive,

[[Page 13663]]

active, and procedural.\104\ This philosophy can be applied initially 
to all design phases and then continuously throughout a process's life 
cycle by identifying and assessing hazards and developing a control 
strategy. STAA includes concepts known as IST or inherently safer 
design (ISD), which are those strategies that permanently reduce or 
eliminate the hazards associated with materials and operations used in 
a process. IST, ISD, and inherent safety are interchangeable terms that 
are used in the literature and in the field. The four major inherently 
safer strategies are:
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    \104\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley.

     Minimization-using smaller quantities of hazardous 
substances;
     Substitution-replacing a material with a less hazardous 
substance;
     Moderation-using less hazardous conditions or a less 
hazardous form, or designing facilities that minimize the impact of 
a release of hazardous material or energy; and
     Simplification-design facilities to eliminate 
unnecessary complexity and make operating errors less likely.

The hierarchy establishes that inherently safer options (e.g., 
minimization, substitution, moderation, and simplification) are 
preferable and occupy the top of the hierarchy. Passive strategies 
(process and equipment design) are preferable to active ones such as 
engineering controls (automatic digital or mechanical system controls), 
which are preferable to procedures or administrative options (controls 
requiring human action). However, risk reduction of a process hazard 
may also be achieved by using a combination of strategies, known as 
layers of protection. EPA is proposing to require analysis of safer 
technology and alternatives as part of the PHA for a subset of Program 
3 processes.
2. Inherently Safer Technology (IST)
    A July 2010 DHS report prepared by the CCPS described IST as a 
philosophy and an iterative process, including eliminating a hazard, 
reducing a hazard, substituting a less hazardous material, using less 
hazardous process conditions, and designing a process to reduce the 
potential for, or consequences of, human error, equipment failure, or 
intentional harm.\105\ It stated that there is no clear boundary 
between IST and passive, active, and procedural risk management 
strategies. CCPS further stated that ISTs are relative and can only be 
described as inherently safer when compared to a different technology, 
including a description of the hazard or set of hazards being 
considered, their location, and the potentially affected population. 
Because an option may be inherently safer with regard to some hazards 
and inherently less safe with regard to others, the decision process 
must consider the entire life cycle, the full spectrum of hazards and 
risks, and the potential for transfer of risk from one impacted 
population to another. This report also noted that there is currently 
no consensus on either a quantification method for IST or a scientific 
assessment method for evaluation of IST options. The report states that 
risk can be reduced by many methods, including ISD, but those methods 
must include the full spectrum of risk reduction approaches (passive, 
active, and procedural risk management systems). Few technologies will 
be inherently safer with respect to all hazards, and other approaches 
will usually be required to manage the full range of hazards and risks. 
As an example, the report points out that an IST with respect to a 
catastrophic release hazard may conflict with methods to minimize other 
hazards, such as theft or diversion of materials, contamination of 
product, or degradation of infrastructure. It may not address other 
hazards at all, or it may create new hazards.
---------------------------------------------------------------------------

    \105\ CCPS. July 2010. Final Report: Definition for IST in 
Production, Transportation, Storage, and Use. Prepared by: CCPS, 
American Institute of Chemical Engineers, New York, New York for 
Chemical Security Analysis Center, Science & Technology Directorate, 
U.S. DHS Aberdeen Proving Ground, MD. http://www.aiche.org/ccps/documents/definition-inherently-safer-technology.
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3. EPA's Past Approach to STAA
    The RMP rule already embodies most aspects of the hierarchy of 
controls. For example, Sec.  68.67 (PHA) requires owners and operators 
of Program 3 processes to address process hazards using engineering and 
administrative controls. In most cases, the rule's requirements for 
compliance with RAGAGEP should ensure that equipment and processes are 
properly designed, using appropriate passive, active, and procedural 
controls. The RMP rule also encourages passive and active mitigation 
for releases by allowing a source to account for such mitigation 
techniques in its OCA (see Sec. Sec.  68.25 and 68.28). However, the 
rule does not contain any explicit requirement for owners and operators 
to address the first tier of the hierarchy of controls--i.e. inherent 
safety.
    Although the current rule does not include IST requirements, EPA 
has recognized the importance of considering IST for improving process 
safety. The preamble of the 1995 supplemental NPRM for the Risk 
Management Program recognized ``that there are many opportunities to 
make processes inherently safer without large scale adoption of new 
technologies (60 FR 13533, March 13, 1995). EPA also noted in the 
preamble to the 1996 final RMP rule, ``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). The structure of the 
applicability provisions of the RMP rule, with TQs, encourages 
minimizing the presence of regulated substances in processes and 
encourages sources to continue to examine and adopt viable alternative 
processing technologies, system safeguards, or process modifications to 
make new and existing processes and operations inherently safer. EPA's 
existing guidance on the ``general duty clause'' in CAA section 
112(r)(1) states that, ``The owners and operators should try to 
substitute less hazardous substances for extremely hazardous substances 
or minimize inventories when possible. This is usually the most 
effective way to prevent accidents and should be the priority of a 
prevention program.'' \106\
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    \106\ EPA, Office of Solid Waste and Emergency Response and 
Office of Enforcement and Compliance Assurance. May 2000. Guidance 
for Implementation of the General Duty Clause, CAA Section 
112(r)(1). EPA 550-B00-002. http://www2.epa.gov/rmp/guidance-implementation-general-duty-clause-clean-air-act-section-112r.
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    In the 1996 final RMP rule, EPA decided not to mandate IST 
analysis, stating that ``EPA does not believe that a requirement that 
owners or operators conduct searches or analyses of alternative process 
technologies for new or existing processes will produce significant 
additional benefits.'' (61 FR 31688, June 20, 1996). However, since 
1996 EPA has seen that advances in ISTs and safer alternatives are 
becoming more widely available and are being adopted by some companies. 
Voluntary implementation of some ISTs has been identified through 
surveys and studies and potential opportunities have been identified 
through EPA inspections and CSB incident investigations. EPA now 
believes that there is a benefit in requiring that some facilities 
evaluate whether they can improve risk management of current hazards 
through potential implementation of ISTs or risk management measures 
that are more robust and reliable than ones currently in use at the 
facility. While EPA believes that facilities should look for additional 
opportunities to increase safety, we believe that the facility owners 
or operators are in the best position to identify which changes are

[[Page 13664]]

feasible to implement for their particular process. As a result, EPA is 
not proposing to require that a facility implement a particular 
technology or design.
    In addition, in CAA section 112(r) enforcement cases, facility 
owners or operators have occasionally entered into consent agreements 
involving implementation of safer alternatives. For example, a food 
processor in San Francisco had a release of anhydrous ammonia from its 
refrigeration system in 2009, resulting in evacuation of the facility 
and several neighboring businesses and hospitalization of 17 people. As 
part of a consent decree, the facility owner or operator converted the 
anhydrous ammonia refrigeration system to a safer technology that uses 
glycol and less ammonia, along with implementing other safety measures 
and system upgrades.\107\ Following community complaints and a 2011 EPA 
inspection, the owner or operator of a fertilizer facility chose to 
remove a total of 99,000 pounds of anhydrous ammonia from the facility, 
thus reducing the risk to the surrounding population.\108\ In another 
case, the owner or operator of a dairy company agreed to reduce the 
anhydrous ammonia inventory and improve release detection equipment at 
two facilities after two anhydrous ammonia releases in 2005 and 2007 
(the latter causing nine people to spend a night in the hospital) and 
after EPA identified CAA violations.\109\ The owner or operator of a 
Connecticut metal finishing facility that used chlorine gas for 
treatment of cyanide waste agreed to implement a project to eliminate 
the use of chlorine by substituting liquid sodium hypochlorite after 
EPA found violations of accident prevention regulations.\110\ A release 
from one of the chlorine cylinders at the facility could potentially 
have impacted offsite public receptors in a densely populated 
area.\111\ Thus, EPA's historic approach to STAA under CAA section 
112(r) has resulted in chemical plant operators introducing safer 
technology and alternatives through implementation of existing rule 
provisions that address most of the hierarchy of controls, but the 
Agency has not mandated the use or analysis of IST alternatives.
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    \107\ EPA News Release. January 31, 2012. South San Francisco 
Food Processing Factory Will Pay Nearly $700,000 in Penalties, Spend 
$6 Million to Update Refrigeration System Safety. http://yosemite.epa.gov/opa/admpress.nsf/0/1c6b8ee238fd17d185257996005b892f.
    \108\ EPA News Release. August 14, 2013. Abilene Products Co., 
Inc., Agrees to $90,660 Settlement for Violations of CAA at Abilene, 
Kan., Fertilizer Facility. http://yosemite.epa.gov/opa/admpress.nsf/0/8BB676093B7826FF85257BC7006B3E4C.
    \109\ EPA News Release. October 1, 2012. Settlement with Suiza 
Dairy Corporation for Violations at facilities in Puerto Rico will 
make facilities safer, benefit nearby communities. http://yosemite.epa.gov/opa/admpress.nsf/0/319D803456BF7B0885257A8A005A4238.
    \110\ EPA Region 1. January 20, 2014. Consent Agreement and 
Final Order--In the Matter of: Metal Finishing Technologies, LLC 
Docket Number: CAA-01-2013-0073. http://yosemite.epa.gov/OA/RHC/
EPAAdmin.nsf/Filings/3A95FA64BDE7026C85257C8600214551/$File/
CAFO%20CAA-01-2013-0073.pdf.
    \111\ EPA Region 1. September 30, 2013. Administrative 
Complaint--In the Matter of: Metal Finishing Technologies, LLC 
Docket Number: CAA-01-2013-0073. http://yosemite.epa.gov/OA/RHC/
EPAAdmin.nsf/Filings/1BE4A3485C3E1E6B85257C1C0021490D/$File/CAA-01-
2013-0073%20Complaint.pdf.
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4. Public Input on STAA
    Public feedback and input to the Working Group established to 
oversee Executive Order 13650, showed there was broad agreement among 
facility owners and operators, plant workers, community members, and 
environmental and union organizations of the benefits of implementing 
safer alternatives where feasible. There was, however, no consensus 
about the role of government in the implementation of safer 
technologies and alternatives. Industry representatives are wary about 
process design and operational decisions, including choices of IST, 
being imposed through regulations. Process design and operational 
decisions are technically complex and often difficult to regulate. 
Conversely, many labor and environmental justice representatives 
believe the Federal government should have a larger role in encouraging 
IST, with particular emphasis on the opportunity to reduce the 
vulnerability of residents and workers from incidents.\112\
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    \112\ Chemical Facility Safety and Security Working Group. May 
2014. Executive Order 13650 Report to the President--Actions to 
Improve Chemical Facility Safety and Security--A Shared Commitment. 
EPA, the Department of Labor (DOL), DHS, the Department of Justice 
(DOJ), the Department of Agriculture (DOA), and the Department of 
Transportation. Washington, DC. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.
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a. Pending Petition on IST
    In July of 2012, a coalition representing 54 organizations and 
individuals petitioned EPA to use its rulemaking authority under CAA 
section 112(r)(7)(A), ``to require the use of IST, where feasible, by 
facilities that use or store hazardous chemicals.'' The petitioners 
also requested that pending completion of such rulemaking, that EPA 
should:

    revise its guidance concerning the enforcement of the CAA 
general duty clause, section 112(r)(1), 42 U.S.C. 7412(r)(1), to 
make clear that the duty to prevent releases of extremely hazardous 
substances includes the use, where feasible, of safer technologies 
to minimize the presence and possible release of hazardous 
chemicals.\113\
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    \113\ Greenpeace et al. July 25, 2012. Petition to Prevent 
Chemical Disasters from Rick Hind of Greenpeace, Richard Moore of 
Los Jardines Institute and Scott Nelson of Public Citizen sent to 
EPA Administrator Lisa Jackson, EPA, Washington, DC, 
www.documentcloud.org/documents/404584-petition-to-epa-to-prevent-chem-disasters-filed.html.
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    The petitioners stated that many Americans remain at risk of injury 
or death from the unforeseen release of harmful chemicals from nearby 
industrial parks, water treatment plants, etc., and that the DHS CFATS, 
which impose security measures on facilities presenting a high risk of 
vulnerability to releases of hazardous substances, do not cover water 
treatment facilities, many of which use and store significant 
quantities of chlorine gas.
    The petitioners cited specific threats or accidents as examples of 
risks that, in their view, should have been addressed by taking steps 
to eliminate or minimize extremely hazardous substances \114\ where 
feasible. Examples they cited include a 2009 explosion at a refinery in 
Corpus Christi, Texas, that resulted in the release of more than a ton 
of hydrogen fluoride, with a much larger release being narrowly 
avoided.\115\ A 2008 explosion and fire at a Bayer CropScience facility 
in West Virginia narrowly missed causing a breach in piping on the top 
of an aboveground tank of methyl isocyanate (MIC), which the 
petitioners claimed, if breached, would have resulted in a deadly 
release of the same chemical responsible for the Bhopal, India 
disaster.\116\ They also

[[Page 13665]]

identified a 2007 propane explosion and fire at a refinery in Texas 
that resulted in the release of nearly three tons of chlorine gas, with 
deaths and injuries avoided only by prompt evacuation of workers. The 
CSB, which reported the chlorine release as 5,332 pounds, recommended 
the refinery replace chlorine used as a biocide in cooling water 
treatment with inherently safer materials, such as sodium hypochlorite, 
at all its refineries.\117\ The petitioners also cited several examples 
where readily available IST approaches have already been used, such as 
substitution of liquid bleach or ultraviolet light for chlorine in 
water disinfection 118 119 and the use of alternatives to 
replace HF in gasoline refining.\120\
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    \114\ This not intended to specifically reference the extremely 
hazardous substances listed under Sec.  302 of EPCRA. Section 
112(r)(1) of the CAA provides a purpose and general duty to prevent 
the accidental release and to minimize the consequence of any 
release of any regulated substances promulgated by EPA under Sec.  
112(r)(3) (40 CFR part 130) and for ``any other extremely hazardous 
substance.'' Although the term ``any other extremely hazardous 
substance'' is not defined, the legislative history of the 1990 CAAA 
indicate that the term would include any agent ``which may or may 
not be listed or otherwise identified by any Government agency which 
may as the result of short-term exposures associated with releases 
to the air cause death, injury or property damage due to its 
toxicity, reactivity, flammability, volatility, or corrosivity.'' 
See: http://www2.epa.gov/sites/production/files/2013-10/documents/gdcregionalguidance.pdf.
    \115\ Petitioners are referring to an accident at the CITGO 
Refinery in Corpus Christi, Texas. For more information on this 
accident, see CSB. December 9, 2009. CITGO Refinery HF Release and 
Fire, Corpus Christi, Texas. Final Report, Urgent Recommendation. 
http://www.csb.gov/citgo-refinery-hydrofluoric-acid-release-and-fire/.
    \116\ CSB. January 2011. Investigation Report: Pesticide 
Chemical Runaway Reaction Pressure Vessel Explosion, Bayer 
CropScience, LP, Institute, West Virginia, August 28, 2008. Report 
No. 2008-08-I-WV, pp. 88-89, http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf.
    \117\ CSB. July 9, 2008. Investigation Report: LPG Fire at 
Valero-McKee Refinery, Sunray, Texas, February 16, 2007. Report No. 
2007-05-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportValeroSunray.pdf.
    \118\ Orum, Paul and Rushing, Reece. March 2, 2010. Leading 
Water Utilities Secure Their Chemicals. Center for American 
Progress, Washington, DC. https://www.americanprogress.org/issues/security/news/2010/03/02/7538/leading-water-utilities-secure-their-chemicals/.
    \119\ M. McCoy. November 9, 2009. Clorox to Stop Using Chlorine. 
Chemical & Engineering News.http://cen.acs.org/articles/87/i45/Clorox-Stop-Using-Chlorine.html.
    \120\ Morris, J. and Hamby, C. May 19, 2014. Use of toxic acid 
puts millions at risk. Center for Public Integrity. Washington, 
DC.http://www.publicintegrity.org/2011/02/24/2118/use-toxic-acid-puts-millions-risk.
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b. National Academy of Sciences (NAS) and CSB Investigation Findings
    A 2012 report from the NAS that examined the 2008 Bayer CropScience 
accident in West Virginia and community concerns surrounding MIC (and 
other highly toxic materials), found that inherently safer process 
assessments can be valuable components of PSM that can help facility 
personnel consider the full range of options in process design.\121\ 
The NAS report found that while Bayer and previous owners of the site 
incorporated some considerations of IST, these companies ``did not 
perform systematic and complete inherently safer process assessments on 
the processes for manufacturing MIC or the carbamate pesticides at the 
Institute site.'' Thus, large amounts of MIC, phosgene, and other toxic 
materials were produced or stored at the site for decades.
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    \121\ NAS. 2012. Summary--The Use and Storage of MIC at Bayer 
CropScience. pp. 3, 7. http://dels.nas.edu/resources/static-assets/materials-based-on-reports/reports-in-brief/MIC-Summary-Final.pdf.
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    The NAS also found that industry as a whole lacks a common 
understanding of what is needed to identify inherently safer processes 
and accurately quantify their benefits, including the potential for 
reduced emergency preparedness costs. The NAS panel noted that the goal 
of ISD is not only to prevent an accident, but also to reduce the 
consequences of an accident should one occur, thus allowing emergency 
preparedness planners to focus on more readily manageable scenarios.
    NAS found that inherently safer process assessments will not always 
result in a clear, well-defined, and feasible path forward. Although 
one process alternative may be inherently safer with respect to one 
hazard--toxicity of byproducts, for example--the process may present 
other hazards, such as an increased risk of fire or more severe 
environmental impacts. Choosing between options for process design 
involves considering a series of tradeoffs and developing appropriate 
combinations of inherent, passive, active, and procedural safety 
systems to manage all hazards.
    A 2011 analysis of 63 CSB accident investigation reports, studies 
and bulletins by Canadian university researchers identified over 200 
examples of recommendations for risk reduction measures from the 
hierarchy of controls that apply to the prevention of accidents or 
consequence mitigation. Thirty-six percent of the examples involved 
inherent safety, 8% involved passive engineered safety, 14% involved 
active engineered safety and 42% involved procedural safety. ISD items 
were observed to be equally split among the four primary ISD principles 
of minimization, substitution, moderation and simplification.\122\
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    \122\ Paul R. Amyotte, Dustin K. MacDonald, Faisal I. Khan. 
September 2011. An analysis of CSB investigation reports concerning 
the hierarchy of controls. Process Safety Progress. Volume 30, Issue 
3, pp. 261-265. http://onlinelibrary.wiley.com/doi/10.1002/prs.10461/abstract.
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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.\123\ One recommendation 
from this CSB accident investigation was that EPA should revise the RMP 
rule to require the documented use of inherently safer systems analysis 
and the hierarchy of controls to the greatest extent feasible when 
facilities are establishing safeguards for identified process hazards. 
CSB also cited the failure to use more corrosion resistant high-
chromium steel as a factor in the 2012 Chevron Refinery accident in 
Richmond, California, which released hydrocarbons that ignited, 
endangering 19 employees.\124\
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    \123\ CSB. May 2014. Investigation Report: Catastrophic Rupture 
of Heat Exchanger, Tesoro Anacortes Refinery, Anacortes, Washington, 
April 2, 2010. Report 2010-08-I-WA. http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf.
    \124\ CSB. January 2014. Regulatory Report: Chevron Richmond 
Refinery Pipe Rupture and Fire, Chevron Richmond Refinery #4 Crude 
Unit, Richmond, California, August 6, 2012. Report No. 2012-03-I-CA. 
http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf.
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c. State and Local IST Programs
    Some state and local governments have included inherent safety 
requirements in their regulations. An IST Review Rule was adopted under 
the New Jersey TCPA program in May 2008.\125\ It requires IST reviews 
of all facilities covered by the TCPA by evaluating, at a minimum, the 
four IST principles: minimization, substitution, moderation, and 
simplification. NJDEP defined ``IST'' to mean ``the principles or 
techniques that can be incorporated in a covered process to minimize or 
eliminate the potential for an Extraordinarily Hazardous Substance 
release.'' \126\
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    \125\ NJDEP. March 29, 2012. NJDEP Title 7, Chapter 31 TCPA 
Program Consolidated Rule Document. Pages 17, 66 -68. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf.
    \126\ NJDEP uses the term ``Extraordinarily Hazardous 
Substance'' to describe the substances that are subject to the NJ 
TCPA.
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    The rule includes a checklist developed under the direction of the 
New Jersey Domestic Security Preparedness Task Force. The NJDEP allows 
any available IST analysis method to be used to perform the IST review, 
but discusses two methods which are commonly used: (1) Integrating IST 
into the facility's PHA study and (2) reviewing and completing a 
checklist containing a number of practical inherent safety 
considerations.\127\ The NJDEP also requires an IST review report that 
includes:
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    \127\ NJDEP, Bureau of Release Prevention. January 15, 2015. 
Guidance for TCPA, IST Review, Rev. 1. http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf.

     Information on the review team (name, position, 
qualifications, etc.);
     IST analysis method used;
     IST already present in the process;
     Additional IST identified;
     IST to be implemented, and a schedule for their 
implementation; and

[[Page 13666]]

     A list of IST determined to be infeasible.

A facility owner or operator must determine an identified alternative's 
feasibility, and must provide written justification based on both 
qualitative and quantitative evaluations of environmental, human health 
and safety, legal, technological, and economic factors if it decides 
not to implement it. The ACC noted that NJDEP's definition of inherent 
safety allowed ``add-on'' safety equipment and included routine safety 
improvements that are not part of the inherent safety concept as 
defined by CCPS and others.\128\ NJDEP visited every regulated facility 
and reviewed the IST report with the facility staff. A January 2010 
report prepared by the NJDEP to summarize the Department's review of 85 
IST reports indicated that approximately 48% of facilities reported 
that they had implemented or scheduled to implement IST measures as a 
result of conducting the IST review.\129\
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    \128\ ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0694 on Risk Management Program RFI, pg. 25.
    \129\ NJDEP. January 15, 2010. IST Implementation Summary. 
http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_SUMWEB.pdf.
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    California's Contra Costa County's ISO \130\ and the City of 
Richmond, California's ISO \131\ require owners and operators of 
stationary sources to consider ISS in the development and analysis of 
mitigation systems resulting from a PHA for each covered process, and 
in the design and review of new processes and facilities. Contra Costa 
County's CC ISO defined ISS as
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    \130\ Contra Costa County CA. 2006. ISO Code, Title 4--Health 
and Safety, Division 450--Hazardous Materials and Wastes, Chapter 
450-8--Risk Management. Contra Costa County, California pp. 5, 21-
22. http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
    \131\ The Richmond ISO is identical to the Contra Costa County 
ISO except it does not include the 2006 amendments made to the 
Contra Costa ISO which require a safety culture assessment, a human 
factors program, management of change for maintenance, health and 
safety positions, and a security vulnerability analysis. CCHS. July 
26, 2011.ISO. City of Richmond Annual Performance Review and 
Evaluation Report. CCHS, Contra Costa County, CA. http://cchealth.org/hazmat/pdf/iso/iso_report_richmond.pdf.

    ``ISD strategies'' as discussed in the latest edition of the 
CCPS publication, ``Inherently Safer Chemical Processes,'' \132\ and 
to mean feasible alternative equipment, processes, materials, lay-
outs, and procedures meant to eliminate, minimize, or reduce the 
risk of a major chemical accident or release by modifying a process 
rather than adding external layers of protection. Examples include, 
but are not limited to, substitution of materials with lower vapor 
pressure, lower flammability, or lower toxicity; isolation of 
hazardous processes; and use of processes which operate at lower 
temperatures and/or pressures.
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    \132\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley.

    The Contra Costa County ISO requires that the stationary source 
must select and implement ISS to the greatest extent feasible and as 
soon as administratively practicable. If a stationary source concludes 
that implementation of an ISS is not feasible, the stationary source 
must document the basis for this conclusion in meaningful detail. 
Contra Costa County requires the documentation to include sufficient 
evidence to demonstrate to CCHS's satisfaction that implementing the 
ISS is not feasible and the reasons for this conclusion. A claim that 
implementation of an ISS is not feasible cannot be based solely on 
evidence of reduced profits or increased costs. A February 2013 report 
prepared by CCHS on their ISO program indicated that 4 of 7 facilities 
covered under the ordinance's ISS provision implemented at least one 
inherently safer measure within the previous year.\133\ The February 
2014 CCHS ISO report \134\ indicated that 3 of the 7 facilities 
reported three or more ISS implemented during the last reporting year. 
In the city of Richmond, California, as of July 2011, the two 
facilities covered by the Richmond ISO had implemented 62 safer 
alternative measures involving ISSs.\135\ In June 2014, the Contra 
Costa County ISO requirements were expanded to require evaluation and 
documentation of ISS analysis for new projects and processes and for 
existing processes, whenever major changes resulting from incident 
investigation recommendations, root cause analysis, or MOC review 
indicate that change could reasonably result in a major chemical 
accident or release.
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    \133\ CCHS. February 26, 2013. Annual Performance Review and 
Evaluation-ISO.
    \134\ CCHS. December 9, 2014. Annual Performance Review and 
Evaluation-ISO. http://cchealth.org/hazmat/pdf/iso/iso-report.pdf.
    \135\ CCHS. July 26, 2011. ISO. City of Richmond Annual 
Performance Review and Evaluation Report. http://cchealth.org/hazmat/pdf/iso/iso_report_richmond.pdf.
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d. Industry and Trade Association Input
    Numerous trade associations (ACC,\136\ SOCMA,\137\ Independent 
Petroleum Association of America [IPAA] and American Exploration & 
Production Council [AXPC],\138\ API,\139\ Association of Metropolitan 
Water Agencies [AMWA],\140\ National Association of Chemical 
Distributors [NACD],\141\ National Association of Manufacturers 
[NAM],\142\ CGA,\143\ Chlorine Institute [CI],\144\ AFPM,\145\ Chemical 
Safety Advocacy Group [CSAG] \146\), one company, Axiall 
Corporation,\147\ and the Mary Kay O'Connor Process Safety Center 
[MKOPSC],\148\) noted in their comments on EPA's RFI, that IST is only 
one of many approaches that may be employed to achieve risk reduction. 
They also noted that identification and evaluation of a safer 
alternative is not an off-the-shelf concept, but requires a holistic 
and often complex evaluation involving various factors. The commenters 
also indicated that IST decisions must be process-, site-, and hazard-
specific, technically and economically feasible, and avoid shifting 
risk. These commenters stated that a regulatory program focused 
exclusively on eliminating a safety hazard would overlook other 
important considerations and risks that must be factored into an 
evaluation of a process change. They further contended that improper 
implementation of a seemingly safer alternative may lead to undesired 
consequences. The commenters argued that because an option may be 
inherently safer with regard to some hazards and inherently less safe 
with regard to others, decisions about the optimum strategy for

[[Page 13667]]

managing risks from all hazards are required.
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    \136\ ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0694 on Risk Management Program RFI, PDF pp. 16-28 of 189.
    \137\ SOCMA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0560 on Risk Management Program RFI, pp. 3-6.
    \138\ IPAA and AXPC. October 29, 2014. Comment No. EPA-HQ-OEM-
2014-0328-0584 on Risk Management Program RFI, pp. 21-24.
    \139\ API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0624 on Risk Management Program RFI, pp. 24-26.
    \140\ AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0639 on Risk Management Program RFI, pp. 1-7.
    \141\ NACD. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0614 on Risk Management Program RFI, pgs. 6-7.
    \142\ NAM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0625 on Risk Management Program RFI, pg. 2.
    \143\ CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0633 on Risk Management Program RFI, pg. 4.
    \144\ CI. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0642 on Risk Management Program RFI, pgs. 7-8.
    \145\ AFPM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0665 on Risk Management Program RFI, pgs. 35-38.
    \146\ CSAG. October 29, 2013. Comment No. EPA-HQ-OEM-2014-0328-
0691 on Risk Management Program RFI, pgs. 38-21.
    \147\ Axiall Corp. October 29, 2013. Comment No. EPA-HQ-OEM-
2014-0328-0549 on Risk Management Program RFI, pg. 5.
    \148\ MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0543 on Risk Management Program RFI, pgs. 101-108.
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    In their comments on the RFI, AMWA \140\ also stated that decisions 
to select the most appropriate water treatment methods are best made by 
water utility managers based on a variety of factors. Most importantly, 
they stated, these managers should also determine which chemical will 
most effectively make water safe for public consumption and achieve 
compliance with the requirements of the Safe Drinking Water Act.\149\ 
According to AMWA, allowing Federal officials to ``second-guess'' these 
local decisions--with a focus on minimizing potential terror attack 
consequences offsite, rather than ensuring the appropriate treatment 
and safety of drinking water--could lead to inadequately treated water 
and even detriments to public health. AMWA also stated that if 
utilities were simply instructed to consider whether an alternative 
might be appropriate for them, the costs could be relatively small. 
But, in AMWA's view, if this analysis were required to include numerous 
prescribed steps, calculations and justifications for subsequent 
decisions, then costs could quickly escalate beyond what is reasonable 
and affordable.
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    \149\ AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0639 on Risk Management Program RFI, pgs. 4-5.
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    MunicpalH2O, a Risk Management Program/PSM compliance consultant 
for the water/wastewater treatment industry, commented that 
implementing these changes is very expensive and cost prohibitive. The 
commenter suggested that if a new requirement is placed on regulated 
water and wastewater facilities to perform an analysis of safer 
technology and alternatives, those facilities that have previously 
completed an analysis of safer technology and alternatives for their 
operation should be allowed to utilize their already completed analysis 
and be exempt from any future requirement in this area.\150\
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    \150\ MunicipalH2O. October 28, 2103. Comment No. EPA-HQ-OEM-
2014-0328-0588 on Risk Management Program RFI, pgs. 6-7.
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    The American Water Works Association (AWWA) stated that it has 
found that options often classified as inherently safer may in fact 
have impacts that counter other Federal initiatives associated with the 
nation's transportation systems, energy consumption, and carbon dioxide 
emissions.\151\ Because of these risk tradeoffs, critical factors and 
variables, AWWA maintained that the choice of disinfectant should lie 
with qualified local officials, who are best acquainted with the 
specifics of their local situation.
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    \151\ AWWA. October 29, 2013. Comment No. EPA-HQ-OEM-2014-0328-
0648 on Risk Management Program RFI, pgs. 3-5.
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    NACD stated that requiring manufacturers to hold smaller quantities 
of hazardous materials on site would exhaust their limited inventories 
faster.\141\ The commenter also indicated that distributors would need 
to deliver hazardous chemicals to these facilities more frequently, 
thereby significantly increasing the number of miles driven to deliver 
the same amount of product and ultimately increasing and shifting risk 
to the public roadways. In addition, NACD suggested there is a higher 
risk of incident during product loading and unloading, and that more 
shipments would increase the number of times chemicals must be loaded 
and unloaded, thereby increasing risk. NACD also stated that fixed-site 
risks are more manageable than those with a transportation component.
5. Proposed Revisions to Regulatory Text
    Based on the considerations discussed above, EPA is proposing to 
modify the PHA provisions in Sec.  68.67 to require analysis of 
potential safer technology and alternatives that would include, in the 
following order of preference: IST or ISD, passive measures, active 
measures, and procedural measures. EPA is limiting the proposed 
provisions to Program 3 processes in the petroleum and coal products 
manufacturing (NAICS 324), chemical manufacturing (NAICS 325), and 
paper manufacturing (NAICS 322) sectors for reasons discussed in 
section IV.C.6. STAA Applicability.
    EPA is also proposing to require owners or operators to evaluate 
the feasibility of implementing any IST or ISD considered. EPA believes 
a feasibility analysis of any considered IST or ISD is necessary to 
ensure the facility owner or operator seriously considers whether IST 
or ISD modifications could further reduce risks and prevent accidents 
at the facility.
    EPA is proposing to use the term ``feasibility'' to describe this 
analysis because it is already widely used in the context of IST. 
However, this term has a distinct meaning under the Occupational Safety 
and Health Act, where the courts look to whether a safety measure is 
capable of being done.\152\ In the enforcement context, feasibility 
means that technical know-how about materials and methods is available 
or adaptable to specific circumstances, which when applied creates a 
reasonable possibility that employee exposure to occupational hazards 
will be reduced, and that the firm is financially able to implement the 
measure without severe adverse economic effect.\153\ Because of the 
potential for confusion, OSHA has indicated that it would be unable to 
adopt the term feasible, as defined in this notice, under its PSM 
standard if OSHA considers similar revisions involving IST. EPA seeks 
comment on whether it would be better if EPA used another term, such as 
``practicability'' for this analysis.
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    \152\ See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 
509 (1981); Seaworld of Florida, LLC v. Perez, 748 F.3d 1202, 1215 
(D.C. Cir. 2013).
    \153\ OSHA CPL 02-00-159, Field Operations Manual 3-22 (2015); 
Avcon, Inc., 23 O.S.H. Cas. (BNA) 1440, 1454 n.24 (O.S.H.R.C. Apr. 
5, 2011).
---------------------------------------------------------------------------

    EPA is not proposing to require sources affected by this provision 
to implement an evaluated IST or ISD. The decision to implement such 
measures must consider the numerous factors related to processes, 
facilities, and society at large. Improper implementation of a 
seemingly safer alternative may lead to undesired consequences. While 
EPA believes that sources should look for additional opportunities to 
increase safety, we believe that the facility owners or operators are 
in the best position to identify which changes are feasible to 
implement for their particular process. This decision should be based 
on a careful analysis and take into account: The chemicals present and 
their associated hazards; the operations and process conditions 
involved; consequences to workers, nearby populations and the 
environment; and the types of equipment used that are specific to the 
facility's process. The analysis may consider the potential to shift 
risk between populations, locations, environmental media (air, water 
land), etc.
a. Definitions (Sec.  68.3)
    EPA is proposing to add several definitions that relate to a STAA 
in Sec.  68.3. EPA is adding these definitions to describe risk 
reduction strategies that the owner or operator may use when 
considering safer technology and alternatives.
    First, EPA is proposing a definition for inherently safer 
technology or design (see Sec.  68.3 for the proposed definition). The 
proposed definition includes risk management measures that would 
replace or reduce the use of regulated substances or make operating 
conditions less hazardous or less complex. Adopting the use of IST or 
ISD

[[Page 13668]]

eliminates or reduces hazards by using different materials and/or 
process conditions which would make accidental releases less likely, or 
the impacts of such releases less severe.
    Second, EPA is proposing a definition for ``passive measures'' (see 
Sec.  68.3) that relies on measures that reduce a hazard without human, 
mechanical, or other energy input. Examples of passive measures include 
pressure vessel designs, dikes, berms, and blast walls.
    The third risk reduction measure that EPA is proposing to define is 
``active measures.'' These involve engineering controls that rely on 
mechanical, or other energy input to detect and respond to process 
deviations. Examples of active measures include alarms, safety 
instrumented systems, and detection hardware (such as hydrocarbon 
sensors).
    Lastly, ``procedural measures'' would include policies, operating 
procedures, training, administrative controls, and emergency response 
actions to prevent or minimize incidents (see Sec.  68.3). Examples of 
procedural measures may include administrative limits on process vessel 
fill levels, procedural steps taken to avoid releases, etc.
    In order to evaluate the ISTs and ISDs considered, EPA is proposing 
to define ``feasible'' to include consideration of economic, 
environmental, legal, social, and technological factors when 
determining if the IST or ISD can be accomplished in a successful 
manner within a reasonable period of time (see Sec.  68.3). 
Environmental factors could include consideration of risks transferred 
elsewhere if a new risk reduction measure is adopted. EPA requests 
comment on these proposed definitions. Furthermore, EPA requests 
comment on whether the term ``feasible'' is appropriate to characterize 
the viability of IST alternatives being considered. Is there another 
term, such as ``practicable,'' that may be more appropriate?
b. Process Hazard Analysis (PHA) (Sec.  68.67)
    EPA is proposing to modify the PHA provisions by adding paragraph 
(c)(8) to Sec.  68.67, to require that the owner or operator of a 
facility with Program 3 processes in NAICS codes 322, 324, and 325 
address safer technology and alternative risk management measures 
applicable to eliminating or reducing risk from process hazards. EPA is 
proposing to add paragraph (c)(8)(i) to specify that the analysis 
include, in the following order of preference: IST or design, passive 
measures, active measures, and procedural measures. The owner or 
operator may evaluate a combination of risk management measures to 
reduce risk.
    EPA is also proposing to add paragraph (c)(8)(ii) to require that 
the owner or operator determine the feasibility of the IST or ISD 
considered. The results of the feasibility analysis must be documented 
as part of the current PHA requirements in Sec.  68.67(e), which 
requires the owner or operator to document actions to be taken and 
resolution of recommendations. EPA seeks comment on whether the 
proposed requirements to document feasibility are adequate or if these 
requirements should be modified to require a more extensive 
documentation of feasibility. For example, EPA could require that the 
source document the basis for this conclusion in meaningful detail 
(similar to California's Contra Costa County's ISO \154\ requirements).
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    \154\ Contra Costa County CA. 2006. ISO Code, Title 4--Health 
and Safety, Division 450--Hazardous Materials and Wastes, Chapter 
450-8--Risk Management. Contra Costa County, California pp. 5, 21-
22. http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
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    The PHA must be updated and revalidated every five years in 
accordance with paragraph Sec.  68.67(f) and as such, this provides the 
owner or operator opportunities to evaluate the feasibility of IST or 
ISD considered since the last PHA review. EPA believes that five-year 
revalidation will give the owner or operator the opportunity to 
identify new risk reduction strategies, as well as revisit strategies 
that were previously evaluated to determine whether they are now 
feasible. EPA seeks comment on these proposed revisions. Additionally, 
EPA requests comment on whether to require STAA documentation be 
submitted to EPA and/or the implementing agency.
6. STAA Applicability
    EPA is proposing to limit the applicability of the STAA provisions 
to sources in the petroleum and coal products manufacturing (NAICS 
324), chemical manufacturing (NAICS 325), and paper manufacturing 
(NAICS 322) sectors for two reasons. First, EPA believes that while 
most sectors regulated under 40 CFR part 68 could identify safer 
technology and alternatives, sources involved in complex manufacturing 
operations have the greatest range of opportunities to identify and 
implement safer technology, particularly in the area of inherent 
safety. These sources generally produce, transform, and consume large 
quantities of regulated substances under sometimes extreme process 
conditions and using a wide range of complex technologies. Therefore, 
such sources can often consider the full range of inherent safety 
options, including minimization, substitution, moderation, and 
simplification, as well as passive, active, and procedural measures. 
This contrasts with regulated sources that simply sell or distribute a 
particular regulated substance, such as bulk anhydrous ammonia. 
Although such sources may also have opportunities to identify and 
implement IST, the existence of such sources is predicated on handling 
and distributing a specific regulated substance. Therefore, their 
opportunities to implement certain IST strategies such as substitution 
or minimization may be limited. Similarly, sources involving relatively 
simpler chemical processes may have opportunities to implement chemical 
substitution strategies but may be limited in their ability to apply 
moderation and simplification strategies.
    Second, EPA notes that RMP facilities in the three selected sectors 
have been responsible for a relatively large number of accidents, 
deaths, injuries, and property damage.\155\ EPA compared the number of 
RMP accidents that occurred between January 1, 2004, and December 31, 
2013, reported by twelve industry sectors to the number of facilities 
in each sector. Each sector was comprised of industries based on 
similar operations involving the RMP substances and complexity. The 
twelve sectors were: Petroleum and coal products manufacturing (NAICS 
325), paper manufacturing (NAICS 322), chemical manufacturing (NAICS 
324), food and beverage manufacturing (NAICS 311, 312), other 
manufacturing (all other NAICS 31-33), agricultural chemical 
distributors (NAICS 11, 42491), chemical/petroleum wholesalers (NAICS 
4246, 4247), other wholesalers (all other NAICS 423, 424), warehouses 
(NAICS 493), water supply/wastewater treatment (NAICS 22131, 22132, 
924), oil/gas extraction (NAICS 211) and all other (NAICS 211 (except 
22131 and 22132), 44, 45, 48, 54, 56, 61, 72). The sector accident 
rates (number of accidents divided by the number of facilities in each 
sector) ranged from 1.08 to 0.04. Three sectors have significantly 
higher accidents rates as compared to other sectors: 1.08 (petroleum 
and coal products manufacturing), 0.66 (paper manufacturing) and 0.36 
(chemical manufacturing). The petroleum and coal products manufacturing 
accident rate

[[Page 13669]]

was 6-27 times higher, the paper manufacturing accident rate was about 
4-6 times higher, and the chemical manufacturing accident rate was 2-9 
times higher than other sectors. Therefore, implementation of safer 
technology and alternatives by these facilities in the pulp/paper 
manufacturing, chemical manufacturing, and petroleum refining sectors 
may prevent serious accidental releases in the future.
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    \155\ EPA. January 27, 2016. Technical Background Document for 
Notice of Proposed Rulemaking: Risk Management Programs under the 
Clean Air Act, Section 112(r)(7).
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    EPA seeks comment on whether the proposal to limit the STAA 
provisions to Program 3 regulated processes in NAICS 322, 324, and 325 
is appropriate. EPA also seeks comment on whether the Agency should 
further limit applicability of the STAA provisions (e.g., to apply only 
during the design stage of new processes or facilities, or only to 
certain processes). As part of the SBAR Panel process, SERs cited 
limitations with flexibility to evaluate alternatives for custom 
formula blends and compliance with FDA approval requirements and, 
therefore, requested that EPA consider eliminating this provision and/
or exempting batch toll manufacturers from this requirement. EPA seeks 
comment on these alternatives.
    Finally EPA seeks comment on whether there are other sectors that 
should be subject to the proposed STAA provision. For example, should 
EPA require RMP regulated water supply/wastewater treatment facilities 
to analyze safer technology and alternatives and document feasibility 
of the alternatives?
7. Guidance on Evaluating Safer Technologies and Alternatives
    Some owners or operators have already made process changes 
considered to be inherently safer, but others may not have sufficient 
information available to effectively assess whether their existing 
processes can incorporate inherently safer measures. To assist owners 
or operators with evaluating options for safer alternatives, EPA and 
OSHA developed a chemical safety alert in June 2015 illustrating the 
concepts, principles and examples of safer technology and alternatives 
to make industry more aware of this information, while providing 
sources of information for further investigation and review.\156\
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    \156\ EPA and OSHA. June 2015. Chemical Safety Alert: Safer 
Technology and Alternatives. EPA 550-F-15-503. s http://www.epa.gov/rmp/chemical-safety-alert-safer-technology-and-alternatives.
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    EPA and OSHA have said owners or operators may use any available 
methodology or guidance to conduct their STAA, such as approaches 
discussed by CCPS (e.g., Hazard and Operability Study (HAZOP), What-
If?, Checklist, Consequence-based methods),\157\ the NJ TCPA IST 
guidance materials,\158\ the Inherently Safer Systems Checklist 
provided by Contra Costa Hazardous Materials Program,\159\ or the 
information on OSHA's Web page, ``Transitioning to Safer Chemicals: A 
Toolkit for Employers and Workers.'' \160\ CCPS provides guidelines for 
what should be provided in an inherent safety analysis and provides 
example rationales for why inherent safety review recommendations were 
rejected.\161\ Examples for why inherent safety review recommendations 
may not be feasible, include when the recommendation:
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    \157\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley.
    \158\ NJDEP, Bureau of Release Prevention. January 15, 2015. 
Guidance for TCPA, IST Review. http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf. See also NJWEC. May 5, 2008. New Rule 
for IST Review by NJDEP. http://www.njwec.org/PDF/Factsheets/CS_IST_FactSheet.pdf.
    \159\ Contra Costa Hazardous Materials Program. June 15, 2011. 
ISS Checklist (extracted from IST Checklist found in the CCPS 
Inherently Safer Chemical Processes, 2nd ed., with incorporation of 
additional considerations). http://cchealth.org/hazmat/pdf/iso/attachment_c.pdf.
    \160\ OSHA. Transitioning to Safer Chemicals, a Toolkit for 
Employers and Workers. https://www.osha.gov/dsg/safer_chemicals/index.html.
    \161\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed. American Institute of Chemical Engineers, 
CCPS. New York, Wiley, 2009. Pgs. 200-202.

     Is in conflict with existing Federal, state and local 
laws.
     Is in conflict with RAGAGEP.
     Is economically impractical, such that the process unit 
would stop being fiscally feasible. This can include consideration 
of:
     Capital investment;
     Product quality;
     Total direct manufacturing costs;
     Operability of the plant; and/or
     Demolition and future clean-up and disposal cost.
     Would have a negative social impact. Some examples 
could include an unacceptable visual or noise impact on the 
community, or increased traffic congestion.
     May violate a license agreement that cannot be 
modified, and so must remain in effect.
     May decrease the hazard, but would increase the overall 
risk.
     Provides less risk reduction than an alternative 
recommendation.
8. Alternative Options
    As an alternative option, EPA seeks comment on whether to require 
facility owners or operators to implement any of the feasible options 
identified in the facility's analysis. This option would rely on the 
owner or operator to select the specific technology or design to 
implement. EPA seeks comment on the factors EPA should consider when 
determining whether to require implementation of feasible options.
    EPA evaluated the NJDEP \125\ and CCHS \134\ IST analysis programs 
as possible models to use in the Risk Management Program requirements. 
EPA seeks comment on whether we should include the following in our 
proposed STAA provisions:

     Aspects of the NJDEP's program, such as more prescribed 
documentation of STAA; or
     Other aspects of CCHS's program, such as requiring ISS 
analysis during the design of new processes, for PHA 
recommendations, or for major changes from an incident investigation 
recommendations, root cause analysis or MOC review that could 
reasonably result in a major chemical accident or release.

    Finally, EPA seeks comment on whether either EPA or a third-party 
should create a ``clearinghouse'' of safer technology and alternatives 
that allow source owners or operators to share useful information and/
or consult to identify technologies to evaluate for their process. We 
note that the concept of a clearinghouse has drawn support in comments 
on the RFI from state and local officials, labor and environmental 
stakeholders, academics, and industry representatives.\162\ One 
mechanism of collecting relevant information could be the National 
Working Group on Chemical Safety and Security's best practices Web 
site,\163\ which collects and shares chemical safety and security best 
practices, including safer alternatives. Alternatively, EPA could 
require submission of STAA analyses,

[[Page 13670]]

or information from those analyses, directly to EPA, and develop its 
own Web site. The information shared on such a Web site may include 
practicable risk reduction measures that could be applied at various 
facilities to mitigate threats to the public, worker, health, 
environment, and facility during the production, transport, and use of 
chemicals.
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    \162\ AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0639 on Risk Management Program RFI, p. 3; BlueGreen Alliance. 
October 27, 2014. Comment No. EPA-HQ-OEM-2014-0328-0579 on Risk 
Management Program RFI. p. 6. www.bluegreenalliance.org; BWD. 
October 24, 2014. Comment No. EPA-HQ-OEM-2014-0328-0654 on Risk 
Management Program RFI. p. 3. Beaver Water District (BWD), Lowell, 
Arkansas; CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0546 on Risk Management Program RFI, p. 8; CPCD. October 29, 2014. 
Comment No. EPA-HQ-OEM-2014-0328-0644 on Risk Management Program 
RFI, pgs. 16, 18-19; MKOPSC. October 29, 2014. Comment No. EPA-HQ-
OEM-2014-0328-0543 on Risk Management Program RFI, p. 105; Tickner, 
J. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0688 on Risk 
Management Program RFI. p. 6. University of Massachusetts, Lowell, 
Massachusetts; TURI. October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0539 on Risk Management Program RFI. Toxics Use Reduction 
Institute (TURI), University of Massachusetts, Lowell, 
Massachusetts. p. 5; United Steelworkers. October 29, 2014. Comment 
No. EPA-HQ-OEM-2014-0328-0547 on Risk Management Program RFI, p. 5.
    \163\ OSHA. 2014. Executive Order 13650 Best Practices. https://www.osha.gov/chemicalexecutiveorder/LLIS/index.html.
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D. Stationary Source Location and Emergency Shutdown

    Serious accidents often highlight numerous safety concerns and 
emphasize the need to consider existing regulations, industry 
standards, recommended practices and guidance to reduce risks of future 
incidents. Two issues of particular importance include the location of 
stationary sources and their emergency shutdown capabilities.
1. Stationary Source Location
    The location of stationary sources, and the location and 
configuration of regulated processes and equipment within a source, can 
significantly affect the severity of an accidental release. The 
location of the stationary source in relation to public and 
environmental receptors may exacerbate the impacts of an accidental 
release, such as blast overpressures or concentrations of toxic gases, 
or conversely may allow such effects to dissipate prior to reaching 
receptors. The lack of sufficient distance between the source boundary 
and neighboring residential areas was a significant factor in the 
severity of several major chemical accidents, including, among others, 
the Bhopal disaster \164\ and the recent West Fertilizer accident. In 
the Bhopal disaster, most of the deaths and injuries occurred in a 
residential area that had grown up next to the plant. In the West 
Fertilizer accident, an apartment complex and a nursing home located 
approximately 450 feet and 600 feet, respectively, from the source of 
the explosion were heavily damaged, resulting in three public 
fatalities (a total of 15 people were killed in the explosion). The 
explosion also caused over 260 injuries, as well as damage to over 350 
homes and three schools located near the plant.\165\
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    \164\ Lees, Frank P. 1996. Loss Prevention in the Process 
Industries, Volume 3, 2nd ed. Appendix 5 Bhopal. Butterworth-
Heinemann, Oxford, Great Britain.
    \165\ CSB. January 2016. Final Investigation Report, West 
Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. 
Report 2013-02-I-TX, pp. 13, 30, 49, 53, 54. http://www.csb.gov/west-fertilizer-explosion-and-fire-/.
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    Facility designers have long recognized the potential benefits of 
adding buffer or safety zones (i.e., controlled areas separating the 
public and other facilities from the consequences of process incidents) 
when selecting the location for new chemical facilities. For existing 
facilities, owners have sometimes compensated nearby residents to 
relocate away from the facility boundary in order to create a buffer 
zone where one did not previously exist, or where adjacent residential 
areas had been developed after the facility itself was constructed.
    The selection of locations of processes and process equipment 
within a stationary source can impact the surrounding community not 
only by the proximity of the accidental release to offsite receptors 
near the facility boundary (e.g., people, infrastructure, environmental 
resources) but also by increasing the likelihood of subsequent releases 
from other nearby processes compromised by the initial release. The 
1984 disaster at the PEMEX liquefied petroleum gas (LPG) tank farm in 
San Juan Ixhuatepec, Mexico, illustrates the potential for such 
effects. In this accident, an LPG pipeline rupture resulted in a large 
ground fire that spread to nearby LPG storage vessels, initiating a 
series of massive explosions. The cascading explosions and fires 
ultimately destroyed the entire facility and many nearby residences, 
resulting in over 500 fatalities and thousands of severe injuries.\166\
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    \166\ Lees, Frank P. 1996. Loss Prevention in the Process 
Industries, Volume 3, 2nd ed. Appendix 4 Mexico City. Butterworth-
Heinemann, Oxford, Great Britain.
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    In the United States in 2007, a large fire at the Valero McKee 
refinery in Sunray, Texas, resulted in the release of chlorine gas and 
sulfuric acid from an adjacent process, which prevented responders from 
entering the area and extinguishing the fire for more than two 
days.\167\
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    \167\ CSB. July 9, 2008. Investigation Report: LPG Fire at 
Valero-McKee Refinery, Sunray, Texas, February 16, 2007. Report No. 
2007-05-I-TX. http://www.csb.gov/valero-refinery-propane-fire/.
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    At West Fertilizer, the Risk Management Program-regulated anhydrous 
ammonia process was located near the AN storage area. Although the AN 
explosion did not cause any catastrophic failure of the ammonia storage 
vessels, the potential for a release existed. A 1994 explosion 
involving AN solution at Terra Industries in Port Neal, Iowa, which 
killed four workers, also damaged on-site ammonia tanks, creating an 
ammonia cloud that resulted in the evacuation of 2,500 people.\168\
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    \168\ EPA, Region 7, Emergency Response and Removal Branch 
(Kansas City, KS). January 1996. Chemical Accident Investigation 
Report: Terra Industries, Inc., Nitrogen Fertilizer Facility, Port 
Neal, Iowa (January 1996). http://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf.
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    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 owners or operators can refer to industry guidance on siting 
considerations. The following publications provide guidance on facility 
siting:

     API Recommended Practice 752, Management of Hazards 
Associated With Location of Process Plant Buildings, 3rd Edition, 
December 2009;
     API Recommended Practice 753, Management of Hazards 
Associated with Location of Process Plant Portable Buildings, First 
Edition, June 2007;
     CCPS Guidelines for Evaluating Process Plant Buildings 
for External Explosions, Fires, and Toxic Releases, Second Edition, 
2012; and
     CCPS Guidelines for Facility Siting and Layout (2003).

    The first three references listed above focus on providing guidance 
and best practices on establishing the location of occupied buildings 
within a facility, but generally do not address the potential risks to 
offsite receptors associated with the location of the facility or 
processes within the facility, nor do they consider the potential for 
releases caused by natural hazards that may occur in particular 
locations. The CCPS Guidelines for Facility Siting and Layout address 
both external factors influencing site selection, as well as factors 
internal to the source that could influence site layout and equipment 
spacing.
    At this time, EPA is not proposing any additional requirements for 
location of stationary sources. EPA seeks comment on whether such 
requirements should be considered for future rulemakings, including the 
scope of such requirements, or whether the Agency should publish 
guidance.
2. Emergency Shutdown
    In addition to properly locating stationary sources in relation to 
surrounding receptors, and locating processes within sources so as to 
minimize the possibility of cascading release events, accidents such as 
these highlight the importance of being able to quickly and safely shut 
down processes

[[Page 13671]]

where accidental releases are occurring or may imminently occur. The 
RMP regulation requires owners and operators of stationary sources to 
develop and implement written operating procedures for the safe and 
timely emergency shutdown of Program 2 and Program 3 processes, to 
ensure operator training for these procedures, and for maintaining the 
mechanical integrity of emergency shutdown systems. However, the 
regulation does not explicitly require that all covered processes must 
include emergency shutdown systems.
    EPA encourages owner and operators of stationary sources to 
consider location of stationary sources and process equipment and the 
adequacy of emergency shutdown systems at their facilities to determine 
if changes are necessary to both reduce risks of an accidental release 
and ensure that procedures are in-place to mitigate those effects. 
Emergency shutdown or putting a process into a safe operation mode in 
the event of an emergency is a preventive safeguard to address 
hazard(s) identified as part of hazard review or PHA. Thus, the hazard 
review required under Sec.  68.50 or the PHA required under Sec.  68.67 
should identify the use of this safeguard, when appropriate.
    At this time, EPA is not proposing any additional requirements for 
emergency shutdown systems. However, EPA seeks comment on whether such 
requirements should be considered for future rulemakings, including the 
scope of such requirements, or whether the Agency should publish 
guidance.

V. Emergency Response Preparedness Requirements

A. Emergency Response Program Coordination With Local Responders

    Subpart E of the RMP rule, the emergency response provisions, 
applies to facilities with Program 2 or 3 processes. These provisions 
require owners or operators of regulated facilities with Program 2 or 3 
processes to coordinate with local response authorities and in some 
cases develop an emergency response program in accordance with Sec.  
68.95 to address how the owner or operator of the facility will respond 
to accidental releases.\169\ The rule requires the owner or operator to 
prepare and implement an emergency response program to protect public 
health and the environment, unless the stationary source is included in 
the community emergency response plan developed under section 303 of 
Emergency Planning & Community Right-to-Know Act (EPCRA) (for sources 
with regulated toxic substances) and has coordinated response actions 
with the local fire department (for sources with only regulated 
flammable substances). An owner or operator that needs to develop an 
emergency response program (i.e., be a ``responding'' facility), will 
need to include the following elements in that program:
---------------------------------------------------------------------------

    \169\ Owners or operators of stationary sources with Program 1 
processes are required to coordinate emergency response procedures 
with local emergency planning and response organizations under Sec.  
68.10(b)(3)). This proposal would not affect that requirement.

     An emergency response plan;
     Procedures for the use of emergency response equipment 
and for its inspection, testing, and maintenance;
     Training for employees; and
     Procedures to review and update the emergency response 
plan to reflect changes at the stationary source and ensure that 
employees are informed of changes.

The emergency response plan must also be coordinated with local 
response authorities.
    An owner or operator of a facility who is relying on local 
responders to respond to an accidental release (i.e., a ``non-
responding'' facility) when the stationary source has been included in 
the community emergency response plan developed under section 303 of 
EPCRA (for sources with regulated toxic substances) or has coordinated 
response actions with the local fire department (for sources with only 
regulated flammable substances, and without regulated toxic substances) 
is not required to develop an emergency response program. However, the 
owner or operator must also ensure that appropriate notification 
mechanisms are in place to notify emergency responders when there is a 
need for a response.
    Risk Management Program regulated facilities must indicate within 
their RMP whether or not they are a responding facility (i.e., by 
indicating compliance with mandatory elements of emergency response 
plans required in Sec.  68.95(a)(1)). Our review of the RMP*Info 
database has indicated that the majority of RMP facilities claim to be 
non-responding facilities.\170\ However, during facility inspections, 
EPA has often found that facilities either are not included in the 
community emergency plan or have not properly coordinated response 
actions with local authorities.171 172 173 State and local 
response officials echoed this concern during listening sessions 
conducted under Executive Order 13650, and in feedback provided to EPA 
in conjunction with the RFI.174 175 This problem occurs with 
both responding and non-responding facilities, but it is particularly 
troublesome for non-responding facilities, because if the facility 
itself does not maintain the capability to respond to emergencies, and 
local authorities are not able to respond, then a proper response to an 
accidental release at the facility may not occur or may be 
significantly delayed. Also, when local responders are unfamiliar with 
the hazards of the facility, they may not be prepared to safely 
respond.
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    \170\ EPA. January 27, 2016. Technical Background Document for 
Notice of Proposed Rulemaking: Risk Management Programs under the 
Clean Air Act, Section 112(r)(7).
    \171\ EPA Press Release. July 20, 2011. National Chemical 
Company will Upgrade Facilities and Pay Fine to Settle Clean Air 
Violations. http://yosemite.epa.gov/opa/admpress.nsf/1e5ab1124055f3b28525781f0042ed40/9884f5d5e5e6368c852578d300642a3e!OpenDocument.
    \172\ EPA Press Release. February 13, 2013. Koch Nitrogen 
Company to Pay $380,000 Civil Penalty for CAA Violations at 
Facilities in Iowa and Kansas. http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/a9537cb213c0371985257b1100738628!OpenDocument.
    \173\ EPA Press Release. May 27, 2014. EPA Moves to Improve 
Emergency Planning at Facilities in NJ and NY; Inspections Focus on 
Information on Chemical Hazards Needed by First Responders during 
Emergency Responses. http://yosemite.epa.gov/opa/admpress.nsf/0/C6DB6A8A0918857F85257CE5005FEE24.
    \174\ Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-
2014-0328-0679 on Risk Management Program RFI, PDF pp. 5-6, NASTTPO, 
Denver, CO.
    \175\ Elder, M., October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0641 on Risk Management Program RFI, Oklahoma Hazardous 
Materials Emergency Response Commission (OHMERC).
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    Poor coordination between chemical facilities and local emergency 
responders has been identified as a factor contributing to the severity 
of chemical accidents. For example, following the August 2008 explosion 
and fire at the Bayer CropScience facility in Institute, West Virginia, 
the CSB found that lack of effective coordination between facility and 
local responders prevented responding agencies from receiving timely 
information updates about the continually changing conditions at the 
scene, prevented a public shelter-in-place order from reaching the 
local community, and may have resulted in toxic exposure to on-scene 
public emergency responders. Additionally, facility authorities 
initially prevented local responders from gaining access to the site of 
the incident.\176\
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    \176\ CSB. January 2011. Investigation Report: Pesticide 
Chemical Runaway Reaction Pressure Vessel Explosion, Bayer 
CropScience, LP, Institute, West Virginia, August 28, 2008. Report 
No. 2008-08-I-WV, http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf.
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    The April 17, 2013 accident at West Fertilizer resulted in the 
deaths of 12

[[Page 13672]]

first responders. During its investigation of the accident, the CSB 
found that the LEPC did not include the facility in the community 
emergency response plan.\177\
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    \177\ CSB. January 2016. Final Investigation Report, West 
Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. 
Report 2013-02-I-TX, pgs. 201-203. http://www.csb.gov/west-fertilizer-explosion-and-fire-/.
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    Another example is the August 2002 accidental chlorine release at 
the DPC Enterprises facility in Festus, Missouri, that resulted in 
sixty-three people from the surrounding community seeking medical 
evaluation at the local hospital for symptoms of respiratory distress. 
The CSB investigation found that the DPC emergency response plan did 
not provide clear guidance on when facility emergency response 
personnel should respond to a release or when response by an offsite 
community hazardous materials response team is required. The CSB also 
found that coordination between local emergency planning and response 
entities and DPC was insufficient to ensure that the emergency plan 
would provide for timely community notification and mitigation of the 
release.\178\
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    \178\ CSB. May 2003. Investigation Report: Chlorine Release, DPC 
Enterprises, L.P., Festus, Missouri, August 14, 2002. Report No. 
2002-04-I-MO. http://www.csb.gov/assets/1/19/DPC_Report.pdf.
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    CAA section 112(r) clearly anticipated that the Risk Management 
Program regulation would require regulated stationary sources to 
develop an emergency response program and provide for a response to 
releases of regulated substances. Section 112(r)(7)(B)(ii) states that 
the regulations shall require the owner or operator to ``provide a 
prompt emergency response to any such releases in order to protect 
human health and the environment,'' and that the RMP shall include:

a response program providing for specific actions to be taken in 
response to an accidental release of a regulated substance so as to 
protect human health and the environment, including procedures for 
informing the public and local agencies responsible for responding 
to accidental releases, emergency health care, and employee training 
measures.

    Accordingly, in the preamble discussion of the 1996 final RMP rule, 
EPA explained that the option to be a non-responding facility was 
contingent on local community responders' ability to appropriately 
respond to the stationary source's hazards.

    The final rule also provides relief for sources that are too 
small to respond to releases with their own employees; these sources 
will not be required to develop emergency response plans provided 
that procedures for notifying non-employee emergency responders have 
been adopted and that appropriate responses to their hazards have 
been addressed in the community emergency response plan developed 
under EPCRA (42 U.S.C. 11003) for toxics or coordinated with the 
local fire department for flammables. (61 FR 31673, 31698, June 20, 
1996.)
    EPA recognizes that some sources will only evacuate their 
employees in the event of a release. For these sources, EPA will not 
require the development of emergency response plans, provided that 
appropriate responses to their hazards have been discussed in the 
community emergency response plan developed under 42 U.S.C. 11003 
for toxics or coordinated with the local fire department for 
flammables. (61 FR 31681, June 20, 1996.)
    Because many sources covered by this rule may be too small to 
handle emergency response themselves, EPA has provided, in this new 
section, the actions they must take if they will not respond to 
releases. Specifically, for sources with regulated toxic substances, 
the source must be addressed in the community emergency response 
plan developed under EPCRA section 303. Sources with regulated 
flammable substances must coordinate response actions with the local 
fire department. These sources must also establish a mechanism to 
contact local emergency responders. Sources that do not meet these 
requirements must comply with EPA's emergency response program 
requirements. (61 FR 31712, June 20, 1996.)

    EPA also explained this point in the RMP Guidance: \179\
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    \179\ General Guidance on Risk Management Programs for Chemical 
Accident Prevention (40 CFR part 68), EPA-550-B-04-001, April 2004, 
p. 8-1. http://www2.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general.

    If your employees will not respond to accidental releases of 
regulated substances, you need not comply with the emergency 
response plan and program requirements provided you coordinate with 
local response agencies to ensure that they will be prepared to 
---------------------------------------------------------------------------
respond to an emergency at your facility.

These excerpts from the 1996 final rule and RMP Guidance indicate that 
from its inception, the RMP rule has required that owners and operators 
of regulated sources must either meet the full emergency response 
program requirements of Sec.  68.95 or ensure that local responders are 
capable of responding to releases at the source. In spite of this fact, 
the history of poor emergency response coordination during accidental 
releases, EPA's findings during compliance inspections, and recent 
feedback provided to EPA's RFI and during Executive Order 13650 
listening sessions indicate that many regulated sources have not 
provided for an adequate emergency response.
1. Proposed Revisions to Emergency Response Coordination Requirements
    EPA proposes to amend the rule requirements to clarify the 
obligations of the owner or operator of the stationary source to 
coordinate emergency response with local authorities. In order to 
provide clarity, EPA is proposing to reorganize subpart E to address 
the applicability provisions for responding and non-responding sources 
in Sec.  68.90, describe required coordination activities in new Sec.  
68.93, and include a new requirement in Sec.  68.95 for owners or 
operators of responding stationary sources to review and update their 
emergency response program at least annually.
    EPA is proposing to reorganize Sec.  68.90 to specifically describe 
the applicability of the emergency response program requirements for 
non-responding and responding facilities in paragraphs (a) and (b), 
respectively.
    The proposed revisions to Sec.  68.90 paragraph (a) describe the 
applicability provisions for non-responding facilities. The owner or 
operator of a stationary source need not comply with the emergency 
response program requirements in Sec.  68.95 provided that after 
conducting coordination activities required under the proposed Sec.  
68.93, the local response authorities and the owner or operator of the 
stationary source determine that local public emergency response 
capabilities are adequate to respond to accidental releases at the 
stationary source; appropriate mechanisms are in place to notify 
emergency responders when an accident occurs; and the LEPC or 
equivalent local response authorities have not requested in writing 
that the owner or operator develop an emergency response program for 
the stationary source in accordance with Sec.  68.95.
    Section 68.90 paragraph (b) describes applicability provisions for 
responding facilities. The owner or operator of the stationary source 
would be required to comply with the emergency response program 
requirements of Sec.  68.95 when the outcome of the annual coordination 
activities with local response authorities required under Sec.  68.93 
indicates that local public emergency response capabilities are not 
adequate to respond to accidental releases of regulated substances at 
the stationary source. If, as a result of the annual coordination, the 
facility owner or operator must develop an emergency response program 
in accordance with Sec.  68.95, the owner or operator should develop 
the program as soon as reasonably practicable. The owner or operator 
would also be required to comply with Sec.  68.95 upon

[[Page 13673]]

receiving a written request to do so from the LEPC, local fire 
department, or other local emergency response officials having 
jurisdiction.
    EPA believes that it is appropriate to provide a mechanism for the 
local emergency response officials to request that the owner or 
operator of the stationary source comply with the emergency response 
program requirements of Sec.  68.95 because it is the presence of the 
source and its attendant hazards that create a risk to the surrounding 
community of accidental releases. Therefore, in the event that the 
outcome of the coordination activities with local response authorities 
indicates that local public emergency response capabilities are not 
adequate, the ultimate burden of providing for an appropriate response 
to releases of regulated substances from the source should rest with 
the owner or operator. This philosophy is consistent with the general 
duty clause of CAA section 112(r)(1), which among other things requires 
the owner or operator to minimize the consequences of accidental 
releases that do occur.
    EPA is proposing to add Sec.  68.93 to clarify emergency response 
coordination activities and require that these activities be documented 
and occur annually. Section 68.93 would require the owner or operator 
of a stationary source with a Program 2 or 3 process to coordinate with 
local response authorities to ensure that appropriate resources and 
capabilities are in place to respond to an accidental release of a 
regulated substance. As part of the coordination, the owner or operator 
and the local response authorities would work together to determine who 
will respond if an incident occurs, and what would be an appropriate 
response. Paragraph (a) would require coordination to occur at least 
annually, and more frequently if necessary, to address changes at the 
source; in the source's emergency action plan; in local authorities' 
response resources and capabilities; or in the local community 
emergency response plan. Paragraph (b) would require the owner or 
operator to document coordination with local authorities, including the 
names of individuals involved and their contact information (phone 
number, email address, and organizational affiliations), dates of 
coordination activities, and the nature of coordination activities. The 
proposed paragraph (c) specifies who should be involved in the 
coordination for both stationary sources with regulated toxic and 
flammable substances. If a stationary source involves a regulated toxic 
substance, then the source must be included in the community emergency 
response plan developed under EPCRA.
    EPA also proposes to revise Sec.  68.95 to ensure that notification 
procedures include notifications to Federal, Tribal, and state agencies 
and to require that emergency response plans be updated at least 
annually. Specifically, EPA is revising Sec.  68.95(a)(1)(i) to add a 
reference to Federal and state agencies. EPA is also proposing to 
revise Sec.  68.95(a)(4) to specify that the owner or operator review 
and update the program annually or more frequently if necessary (e.g., 
to incorporate lessons learned from incident investigations, or if 
changes occur in emergency notification systems, local responder 
organizations, stationary source hazards, or other critical emergency 
response planning information). EPA is also proposing to revise Sec.  
68.95(c) to replace local emergency planning committee with the acronym 
LEPC.
    Additionally, EPA is proposing to revise Sec.  68.3 to add LEPC for 
local emergency planning committee. The term is used throughout the 
rule and means the LEPC as established under 42 U.S.C. 11001(c).
    Finally, EPA is proposing to revise Sec.  68.12 (General 
requirements) to be consistent with these proposed coordination 
requirements. EPA is proposing revisions to Program 2 requirements 
under Sec.  68.12(c) in which EPA would renumber paragraph Sec.  
68.12(c)(4) and (c)(5) as Sec.  68.12(c)(5) and (c)(6). New paragraph 
Sec.  68.12(c)(4) would specify the owner or operator's requirements to 
coordinate response actions with local emergency planning and response 
agencies as provided in Sec.  68.93. EPA is proposing similar revisions 
to Program 3 requirements under Sec.  68.12(d). EPA would renumber 
paragraph Sec.  68.12(d)(4) and (d)(5) as Sec.  68.12(d)(5) and (d)(6). 
New paragraph Sec.  68.12(d)(4) would specify the owner or operator's 
requirements to coordinate response actions with local emergency 
planning and response agencies as provided in Sec.  68.93.
    EPA believes that these proposed amendments clarify existing 
obligations and prevent situations where neither regulated stationary 
sources nor local authorities are prepared to appropriately respond to 
accidental releases at the source. EPA recognizes that an appropriate 
response--even for responding facilities--may sometimes involve 
evacuation of facility employees, evacuation or sheltering of nearby 
residents, and implementation of other defensive measures to prevent 
harm to workers, responders, and the public. However, planning for such 
situations should occur in advance, so that either the source or local 
responders are prepared to implement response measures that are 
appropriate to the hazards of the stationary source.
    If local public responders are not capable of responding to 
accidental releases at a stationary source, the owner or operator can 
continue to satisfy the applicable requirements of subpart E (Emergency 
Response) in a number of different ways beyond training and equipping 
the source's own employees to respond to releases. For example, EPA has 
observed situations where stationary source owners or operators 
supplement their on-site response capability using response 
contractors, or via mutual aid agreements with other nearby sources. In 
the RMP Guidance, EPA explained that this may be the most appropriate 
course of action to comply with the emergency response requirements of 
subpart E, particularly for small sources with few employees: \180\
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    \180\ See General Guidance on Risk Management Programs for 
Chemical Accident Prevention (40 CFR part 68), EPA-550-B-04-001, 
April 2004, page 8-1. http://www2.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general.

    EPA recognizes that, in some cases (particularly for retailers 
and other small operations with few employees), it may not be 
appropriate for employees to conduct response operations for 
releases of regulated substances. For example, it would be 
inappropriate, and probably unsafe, for an ammonia retailer with 
only one full-time employee to expect that a tank fire could be 
handled without the help of the local fire department or other 
emergency responder. EPA does not intend to force such facilities to 
develop emergency response capabilities. At the same time, you are 
responsible for ensuring effective emergency response to any 
releases at your facility. If your local public responders are not 
capable of providing such response, you must take steps to ensure 
that effective response is available (e.g., by hiring response 
---------------------------------------------------------------------------
contractors).

    Such arrangements would continue to be acceptable to the Agency as 
a means to meet a facility's emergency response program obligations. 
Alternatively, stationary source owners or operators can work with 
local emergency response officials to identify gaps in local responder 
capabilities, and assist local authorities in supplementing those 
capabilities, as appropriate, by providing the equipment or training 
needed to allow local public responders to prepare for and carry out an 
appropriate response to accidental releases at the source. Close and 
ongoing coordination between stationary source owners or operators and 
local responders will allow such capability gaps to be quickly 
identified and corrected and appropriate response

[[Page 13674]]

plans to be developed. Coordination will also assist local responders 
in complying with other Federal, state, and local emergency 
preparedness, planning, and response requirements, such as planning 
requirements under EPCRA, training requirements under the OSHA 
Hazardous Waste Operations and Emergency Response standard (29 CFR 
1910.120), and other applicable requirements.
    As part of the SBAR Panel process, SERs expressed frustration with 
the requirement to coordinate with local emergency response officials 
because some LEPCs are not active or do not have sufficient resources 
to fully implement EPCRA requirements. SERs requested clarification on 
how to comply with coordination requirements when facility owners or 
operators make good faith efforts to coordinate with local emergency 
response officials who do not respond to coordination attempts. EPA 
recommends that these coordination attempts be documented and 
maintained at the facility. However, if the LEPC is inactive and has 
not developed a community emergency response plan or has not included 
the facility in the plan (for toxic substances), or the owner or 
operator is unable to coordinate response actions with the local fire 
department (for flammable substances), then the owner or operator must 
develop an emergency response program in accordance with Sec.  68.95.
    EPA seeks comment on this approach. Will the proposed amendments 
contribute to improvements in emergency response planning and 
coordination? Are there additional practices that EPA should consider 
that significantly improve planning and coordination? Should EPA 
further clarify what is necessary for RMP facility owners or operators 
to adequately coordinate their emergency response program with local 
authorities? Should coordination activities and emergency plan updates 
be required annually, or is some other frequency appropriate? How 
should disagreements between local authorities and the source owner or 
operator concerning which party should provide for an emergency 
response to releases of regulated substances at the source be resolved? 
When an LEPC makes a written request for the owner or operator to 
comply with the emergency response program requirements of Sec.  68.95, 
should the LEPC be required to provide a rationale for the request that 
meets certain criteria, to ensure that the request is reasonable? If 
so, what criteria should be established?
2. Alternative Options
    EPA considered an alternative that would require owners and 
operators of all stationary sources with Program 2 or Program 3 
processes to comply with the full emergency response program 
requirements of Sec.  68.95. Under this option, RMP facilities would 
still be required to perform the annual local coordination and to 
document activities described previously. However, it would eliminate 
the flexibility of the current rule and require all Program 2 and 
Program 3 facilities to be ``responding'' facilities. EPA did not 
propose this approach because it does not consider the existing 
capabilities of local responders and shifts to the regulated stationary 
sources the burden associated with developing and maintaining an 
appropriate and effective emergency response capability from local 
responders in communities that may have adequate capabilities. 
Additionally, EPA believes that this approach would place an 
unnecessary burden on small facilities.
    EPA seeks comment on this alternative approach and whether there 
are any other alternative options that EPA should consider prior to 
issuing a final action.

B. Facility Exercises

    Exercising an emergency response plan is critical to ensure that 
response personnel understand their roles, that local emergency 
responders are familiar with the hazards at the facility, and that the 
emergency response plan is appropriate and up-to-date. It ensures that 
personnel are properly trained and lessons learned from exercises can 
be used to identify future training needs.
    Poor emergency response procedures during some recent accidents 
have highlighted the need for facilities to conduct periodic emergency 
response exercises. For example, the CSB's investigation of the April 
2004 vinyl chloride monomer (VCM) explosion at the FPC USA in 
Illiopolis, Illinois, found that the facility's failure to rehearse a 
response to a large VCM release made the consequences of the accident 
significantly worse, and likely contributed to the deaths of operators 
at the facility.\181\ The CSB found that after the VCM release began, 
and despite knowingly working directly over a toxic and highly 
flammable VCM cloud, two operators did not put on protective breathing 
apparatus, activate emergency alarms, or evacuate the facility, 
contrary to emergency response actions outlined in facility emergency 
procedures. These operators consequently died as a result of injuries 
received during the ensuing explosion.
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    \181\ CSB. March 2007. Investigation Report: VCM Explosion, 
FPC., Illiopolis, Illinois, April 23, 2004; Report No. 2004-10-I-IL. 
http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf.
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    Failure to conduct emergency exercises involving local authorities 
may also have resulted in injuries and fatalities to local responders. 
As previously indicated, 12 local responders died as a result of 
injuries received during the West Fertilizer explosion, and the CSB 
investigation report findings show that inadequate emergency planning 
contributed to the severity of the accident and that responders were 
not sufficiently aware of the risks at the facility.\182\ According to 
accident history information obtained from EPA's RMP national database, 
accidents occurring between 2004 and 2014 resulted in at least 44 
responder injuries and 2 additional fatalities.\183\ The 2002 accident 
involving a chlorine release at DPC Enterprises in Festus, Missouri, 
resulted in 66 people seeking medical attention at the local hospital, 
including 63 members of the community surrounding the facility. The 
CSB's investigation found that DPC's emergency response plan had 
inadequate procedures for training and drills, and that these 
deficiencies resulted in DPC's inadequate preparation for a large 
uncontrolled chlorine release.\184\ In 2003, another DPC Enterprises 
facility in Glendale, Arizona, had an accident involving a large 
chlorine release. In that accident, 11 Glendale police officers 
responding to the accident were exposed to chlorine and required 
medical treatment. The CSB's investigation found that police officers 
responding to the accident to assist in evacuation of nearby residents 
entered the hazardous area without any respiratory protection. The CSB 
recommended that the Glendale fire and police departments schedule 
periodic hazardous materials incident drills to ensure safe and 
effective responses to future hazardous materials incidents.\185\
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    \182\ CSB. January 2016. Final Investigation Report: West 
Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. 
Report No. 2013-02-I-TX, pp. 14, 116-117, 200-204, 241-242. http://www.csb.gov/west-fertilizer-explosion-and-fire-/.
    \183\ EPA. January 27, 2016. Technical Background Document for 
Notice of Proposed Rulemaking: Risk Management Programs under the 
Clean Air Act, Section 112(r)(7).
    \184\ CSB. May 2003. Investigation Report: Chlorine Release, DPC 
Enterprises, L.P., Festus, Missouri, August 14, 2002. Report No. 
2002-04-I-MO. http://www.csb.gov/assets/1/19/DPC_Report.pdf.
    \185\ CSB. February 2007. Investigation Report: Chlorine 
Release, DPC Enterprises, L.P., Glendale, Arizona, November 17, 
2003. Report No. 2004-02-I-AZ. http://www.csb.gov/assets/1/19/DPC2-_Final.pdf.

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[[Page 13675]]

    On April 12, 2004, a runaway chemical reaction at MFG Chemical, 
Inc., in Dalton, Georgia, resulted in the release of toxic vapor clouds 
of allyl alcohol and allyl chloride into the surrounding community. The 
accident resulted in the evacuation of more than 200 families and 
medical treatment for 154 people, including 15 responders. The CSB 
found that MFG did not train or equip employees to conduct emergency 
mitigation actions, and that local emergency response agencies did not 
adequately prepare for responding to emergencies involving hazardous 
chemicals. The CSB recommended that the facility obtain equipment and 
provide emergency response training to employees, and that local 
agencies conduct drills for emergencies at fixed facilities.\186\
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    \186\ CSB. April 2006. Investigation Report: Toxic Chemical 
Vapor Cloud Release, MFG Chemical, Inc., Dalton, Georgia, April 12, 
2004. Report No. 2004-09-I-GA. http://www.csb.gov/assets/1/19/MFG_Report.pdf.
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    Other EPA and Federal agency programs require exercises as an 
element of their emergency response programs. For example, under the 
Oil Pollution Prevention regulation (40 CFR part 112), facilities 
subject to the Facility Response Plan (FRP) provisions are required to 
conduct exercises, including evaluation procedures (Sec.  112.21). FRP 
facility owners and operators are encouraged to follow the National 
Preparedness for Response Exercise Program (PREP) Guidelines,\187\ 
which were developed to provide a mechanism for compliance with EPA, 
U.S. Coast Guard (USCG), and U.S. Department of the Interior (DOI) 
exercise requirements for oil pollution response. The PREP guidelines 
include both internal and external exercise components. Internal 
exercises include notification exercises, emergency procedure 
exercises, spill management team tabletop exercises, and equipment 
deployment exercises. External exercises include area exercises that 
include members of the response community, and government-initiated 
unannounced exercises.
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    \187\ USCG, EPA, and DOI. August 2002. National PREP Guidelines. 
http://www.au.af.mil/au/awc/awcgate/uscg/prep_gid.pdf.
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    Other examples include exercises that the U.S. Nuclear Regulatory 
Commission (NRC), in conjunction with the Federal Emergency Management 
Agency, requires commercial nuclear power plant operators to perform 
with state and local governments. These exercises evaluate both on-site 
and offsite emergency response capabilities. The NRC requires all 
nuclear reactor emergency plans to address the necessary provisions for 
coping with radiological emergencies at each facility in accordance 
with 10 CFR 50.54(q), Appendix E to 10 CFR 50, and for commercial 
nuclear power reactors only, 10 CFR 50.47(b). Reactor operators are 
required to train personnel and perform emergency preparedness 
exercises in order to test the adequacy of the plans, ensure personnel 
are familiar with their duties, and maintain response capabilities.
    Some state and local regulations also require emergency response 
exercises. For example, the New Jersey TCPA, which incorporates the 
requirements of 40 CFR part 68, contains certain additional provisions 
imposed under state law, including a requirement for regulated 
facilities to perform at least one emergency response exercise per 
calendar year. Non-responding facilities are required to invite at 
least one outside responding agency designated in the emergency 
response plan to participate in the exercise, and employees of the 
facility are required to perform their assigned responsibilities for 
all emergency response exercises. Owners or operators of all other 
facilities are required to perform at least one full scale emergency 
response exercise in which the emergency response team as well as 
containment, mitigation, and monitoring equipment are deployed at a 
strength appropriate to demonstrate the adequacy and implementation of 
the plan.\188\
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    \188\ NJDEP, Title 7, Chapter 31 Toxic Catastrophe Prevention 
Act Program, Consolidated Rule Document, Section 7:31-5.2; http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_no%20fonts.pdf.
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    In comments received from the Agency's recent RFI, the National 
Association of Superfund Amendments and Reauthorization Act (SARA) 
Title Three Program Officials (NASTTPO), which represents members of 
State Emergency Response Commissions (SERCs), Tribal Emergency Response 
Commissions (TERCs), and LEPCs, has encouraged EPA to require RMP 
facilities to conduct exercises that include local first responders and 
realistic accident scenarios.\189\
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    \189\ Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-
2014-0328-0679 on Risk Management Program RFI, PDF pg 5-6, NASTTPO, 
Denver, CO.
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    In addition to specific Federal and state requirements for 
conducting exercises and the NASTTPO comments, industry guidelines 
recommend conducting exercises. The CCPS Guidelines for Risk Based 
Process Safety recommend periodically testing the adequacy of emergency 
response plans and level of preparedness of responders, including 
contractors and local response agencies.\190\
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    \190\ CCPS. 2007. Guidelines for Risk Based Process Safety. 
American Institute of Chemical Engineers, CCPS, NY, Wiley. pp. 513, 
524-526, 538-540.
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    In the original proposed RMP rule (58 FR 54190, October 20, 1993), 
EPA had included within the emergency response program provisions a 
proposed requirement for regulated sources to conduct emergency 
exercises. In the final RMP rule (61 FR 31668, June 20, 1996), EPA 
decided not to finalize this requirement (and several other additional 
emergency response program provisions), for two reasons. First, the 
Agency decided to limit the emergency response program requirements to 
the minimum requirements contained in CAA section 112(r)(7) in order to 
avoid inconsistency with other emergency response planning regulations. 
Second, the Agency indicated that the additional requirements were 
already addressed in other Federal regulations and therefore, sources 
were already doing them. However, EPA's experience with implementing 
the RMP rule over nearly two decades, along with incidents such as 
those described above, indicate that many regulated sources do not 
regularly conduct emergency exercises that involve local response 
authorities. The Agency now believes that adding this provision to the 
regulation will likely reduce the severity of some accidents that do 
occur.
1. Proposed Exercise Program Requirements
    In order to further improve coordination with community responders 
and ensure that both facility personnel and local responders have 
practice responding to accidental releases at RMP facilities, EPA is 
proposing to require most regulated facilities to perform exercises as 
an element of the emergency response program identified under subpart 
E. Proposed Sec.  68.96 would require both responding and non-
responding RMP facilities with any Program 2 or 3 process to perform 
emergency exercises.
a. Notification Exercises
    EPA proposes a new paragraph Sec.  68.96(a) to require facilities 
with any Program 2 or Program 3 process to annually perform an exercise 
of the source's emergency notification system. This exercise would 
include contacting the Federal, Tribal, state, and local public 
emergency response authorities, and other external responders that 
would respond to accidental releases at the source. The purpose of 
these notifications is to ensure facility

[[Page 13676]]

personnel understand how to initiate the notification system and to 
test the emergency contact information to ensure it is up-to-date. As 
part of the notification exercise, the individual making the 
notifications should clearly indicate that the call is part of an 
exercise to test the notification system. The owner or operator would 
be required to document these notification exercises and maintain a 
written record of each exercise conducted for a period of five years. 
The owner or operator would also be required to provide copies of the 
report to local response officials, and to make the report available to 
the public in accordance with Sec. Sec.  68.205 and 68.210.
    As non-responding facilities will rely on local authorities to 
respond to accidental releases at the source, EPA believes that the 
proposed facility notification exercises will be an important 
supplement to the existing requirement for local emergency plan 
exercises under EPCRA section 303(c)(9), which requires local emergency 
plans to include methods and schedules for exercising the plan. 
Responding facilities will be required to meet additional field and 
tabletop exercise requirements below, which in many cases will also 
involve the participation of local authorities. Notifications to 
Federal, state, and local officials conducted as part of the field or 
tabletop exercise may also serve to meet the annual notification 
exercise requirements provided that the owner or operator documents 
these notification exercises.
    EPA is also proposing to modify Sec.  68.95(a)(1)(i) to clarify 
that the emergency response program should include procedures for 
performing appropriate notifications to Federal and state emergency 
response agencies, as well as the public and local emergency response 
agencies, about accidental releases. This could include, for example, 
any required notifications to the National Response Center, as required 
by section 103(a) of CERCLA, and/or notifications to the SERC as 
required by section 304 of EPCRA.
b. Responding Facility Field and Tabletop Exercises
    EPA is proposing a new paragraph Sec.  68.96(b) to require 
responding facilities to develop and implement an emergency response 
exercise program that uses the emergency response plan required under 
Sec.  68.95(a)(1). EPA is proposing to require two types of exercises--
field exercises and tabletop exercises. The owner or operator would be 
required to coordinate with local public emergency response officials 
in planning and conducting exercises, and invite local officials to 
participate in exercises. However, participation in an exercise by 
local responders is not required for a facility to comply with the 
exercise provisions.
i. Field Exercises
    Field exercises involve the actual performance of emergency 
response functions during a simulated accidental release event. Field 
exercises involve mobilization of firefighters and/or hazardous 
materials response teams, activation of an incident command structure, 
deployment of response equipment, evacuation or sheltering of facility 
personnel as appropriate, and notification and mobilization of law 
enforcement, emergency medical, and other response personnel as 
determined by the scenario and the source's emergency response 
plan.\191\
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    \191\ EPA. May 1988. Guide to Exercises in Chemical Emergency 
Preparedness Programs, OSWER 88006.
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    Section 68.96(b)(1) would require the owner or operator to conduct 
an emergency response field exercise involving the simulated accidental 
release of a regulated substance at least once every five years and 
within one year of any accidental release meeting the criteria in Sec.  
68.42(a). If the facility is required to conduct a field exercise as a 
result of an RMP reportable accident, then this would effectively reset 
the timeframe for when the next five-year field exercise is due.
    EPA is proposing that the scope of the field exercises would 
include tests of:

     Procedures for informing the public and the appropriate 
Federal, state, and local emergency response agencies about an 
accidental release;
     procedures and measures for emergency response after an 
accidental release of a regulated substance including evacuations 
and medical treatment;
     communications systems;
     mobilization of facility emergency response personnel;
     coordination with local emergency responders;
     equipment deployment, and
     other actions identified in the source's emergency 
response plan, as appropriate.
ii. Tabletop Exercises
    Tabletop exercises are discussion-based exercises without the 
actual deployment of response equipment. During tabletop exercises, 
responders typically assemble in a meeting location and simulate 
procedural and communications steps for response to a simulated 
accidental release, as determined by the scenario and the source's 
emergency response plan.
    In Sec.  68.96(b)(2) EPA is proposing to require the owner or 
operator to annually conduct an emergency tabletop exercise involving 
the simulated accidental release of a regulated substance, except 
during years when field exercises are conducted. The scope of a 
tabletop exercise would include tests of:

     Procedures for informing the public and the appropriate 
Federal, state, and local emergency response agencies about an 
accidental release;
     procedures and measures for emergency response after an 
accidental release of a regulated substance including evacuations 
and medical treatment;
     identification of facility emergency response personnel 
and responsibilities;
     coordination with local emergency responders;
     procedures for the use of emergency response equipment, 
and other actions identified in the source's emergency response 
plan, as appropriate.
c. Exercise Reports & Program Updates
    EPA is proposing in Sec.  68.96(b)(3) to require the owner or 
operator to evaluate each exercise and prepare a written report within 
90 days of the exercise. The report would include:

     A description of the exercise scenario;
     names and associations of each exercise participant;
     an evaluation of the results of the exercise including 
lessons learned;
     recommendations for improvement or revisions to the 
emergency exercise program and emergency response program; and
     a schedule to promptly address and resolve 
recommendations.

    The report would also include an evaluation of the adequacy of 
coordination with local emergency response authorities, and other 
external responders, as appropriate. Section 68.96(b)(3) would also 
require the owner or operator to update the emergency exercise program 
and emergency response program at least annually, and more frequently 
if necessary to incorporate recommendations and lessons learned from 
emergency response exercises, incident investigations, or other 
available information. The owner or operator would also be required to 
provide schedules of exercises and copies of exercise reports to local 
response officials, and to make exercise reports available to the 
public in accordance with Sec. Sec.  68.205 and 68.210. Exercise 
reports would be maintained for five years.
d. Updates to Sec.  68.12 (General Requirements)
    EPA is proposing to revise Sec.  68.12 (General Requirements) to be 
consistent

[[Page 13677]]

with these proposed exercise requirements. EPA is proposing to revise 
the Program 2 and Program 3 requirements under Sec.  68.12 by 
renumbering paragraph Sec.  68.12(c)(4) as Sec.  68.12(c)(5) (for 
Program 2) and Sec.  68.12(d)(4) as Sec.  68.12(d)(5) (for Program 3), 
adding a reference to exercise requirements, and correcting citations 
to subpart E.
    EPA is aware that while not all facilities regulated under the RMP 
rule conduct emergency exercises, many do, and the Agency believes that 
exercises conducted in accordance with other Federal, state, or local 
requirements, or exercises conducted in conjunction with a facility's 
trade association membership or code of practice, etc., may be used to 
satisfy the new requirements to the extent those exercises address the 
specific regulatory provisions contained herein.
    EPA seeks comment on this approach. Are there additional exercise 
provisions that EPA should consider to improve the ability of RMP 
facility personnel and local authorities to respond to accidental 
releases? Are annual exercises sufficient or should EPA consider 
alternative frequencies? What information regarding exercises would be 
most helpful to the public while maintaining a balance for security?'' 
Some SERS expressed concern that local emergencies could force a 
facility to postpone an exercise. EPA seeks comments on how best to 
address emergency postponement and rescheduling of exercises. EPA also 
seeks comment on whether to eliminate the requirement for tabletop and 
field exercises.

2. Alternative Options

    EPA considered two alternative approaches to requiring emergency 
exercises. The first alternative option would also require responding 
and non-responding facilities to conduct an annual emergency 
notification system exercise. However, under this option responding 
facilities would additionally be required to conduct only annual 
tabletop exercises; emergency field exercises would not be required. 
This alternative option would be a lower cost option for responding 
facilities, as field deployment of the source's equipment and personnel 
would not be required. However, it may also result in less realistic 
and less effective emergency exercises.
    The second alternative approach considered by EPA would contain the 
same provisions for notification exercises as in the proposed option, 
but would require responding facilities to conduct field exercises 
annually, instead of tabletop exercises. This approach would be similar 
to the New Jersey TCPA emergency exercise provisions, and provide for a 
comprehensive test of all systems under the emergency exercise program 
for responding facilities. However, the costs of this approach would be 
significantly higher than the proposed approach.
    EPA seeks comment on these alternative approaches and whether there 
are any other alternative options that EPA should consider prior to 
issuing a final action.

VI. Information Availability Requirements

    Ensuring that communities, local planners, local first responders, 
and the public have appropriate chemical facility hazard-related 
information is critical to the health and safety of the responders and 
the local community. Throughout the many public meetings and outreach 
efforts related to Executive Order 13650, LEPCs, first responders, and 
members of the public stated that chemical facility information and 
data-sharing efforts need significant improvement.\192\ Specifically, 
LEPCs and first responders want to have access to the most relevant 
chemical hazard and risk information for their needs, in a user-
friendly format, to better support planning and preparedness efforts. 
Community residents, operators of community facilities (such as 
daycares and nursing homes) and organizations consistently noted that 
they need basic information regarding chemical risks at facilities, 
presented in a clear and consistent manner, so that they can 
effectively participate in preparedness and planning to address such 
issues as effective emergency notification procedures, evacuation, and 
sheltering in place. In response to these issues, EPA is proposing ways 
to enhance information sharing and collaboration between chemical 
facility owners and operators, tribal and local emergency planning 
committees, first responders, and the public, in a manner that balances 
security and proprietary considerations. Some public commenters 
responding to EPA's RMP RFI elaborated the need for more public access 
to information about the RMP facilities. The Center for Science and 
Democracy (CSD) stated that public access to information is key to 
enabling communities to hold facility owners and operators accountable 
for reducing risks as much as possible, and for being prepared should 
an accident occur. According to CSD, facility owners and operators 
should be responsible for ensuring that appropriate measures are in-
place to handle an emergency and should be fully communicating with 
local authorities on the development of community emergency response 
plans that include chemical facilities.\193\
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    \192\ Chemical Facility Safety and Security Working Group. May 
2014. Executive Order 13650 Report to the President--Actions to 
Improve Chemical Facility Safety and Security--A Shared Commitment, 
pgs. 93-94. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.
    \193\ CSD. October 20, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0424 on Risk Management Program RFI, pgs. 2-3.
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    NASTTPO requested EPA consider providing information on emergency 
planning and exercises, audit reports, and RMP Executive summaries that 
include information such as accident histories, and names of RMP-
regulated substances.\194\
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    \194\ Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-
2014-0328-0679 on Risk Management Program RFI, PDF p. 2, 4, & 6, 
NASTTPO, Denver, CO.
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    Oklahoma Hazardous Materials Emergency Response Commission (OHMERC) 
also commented and requested posting of chemical information including 
an RMP summary along with Tier2 information on a company Web site at a 
minimum. They also requested making the following information available 
to LEPCs: The facility emergency response plan, accident history, along 
with OCA.\195\
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    \195\ Elder, M., October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0641 on Risk Management Program RFI, p. 3, OHMERC.
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    The MKOPSC stated that most of the information is already available 
online and from LEPCs and need not be provided on a Web site. But 
MKOPSC noted that LEPCs can utilize the information to understand the 
risk in the communities and involve local facilities, local officials, 
SERCs, local citizens and EPA to have dialogues to improve regulatory 
compliance and promote safety. MKOSPSC also believes it is also 
important to let the public understand how the facilities address the 
hazard present in their community and keep the risk at or below the 
``acceptable level.'' When local citizens have adequate information and 
knowledge, facility owners and operators may be motivated to 
continuously improve their safety in response to community pressure and 
oversight.\196\
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    \196\ MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-
0328-0543 on Risk Management Program RFI, pgs. 162, 165.
---------------------------------------------------------------------------

    CCHS noted that requiring facility owners or operators to make this 
information available on the company Web site would promote improved 
regulatory compliance, because the more willing a facility is to be 
open and

[[Page 13678]]

transparent the greater that company is willing to address issues that 
relate to safety.\197\ The United Steel Workers (USW) stated that 
making unrestricted RMP information publicly available would increase 
compliance, as it enables communities to hold facilities accountable 
and gives facilities greater incentive to strengthen safety measures 
and to comply with regulations.\198\ The Coalition to Prevent Chemical 
Disasters (CPCD) believes that schools located within vulnerability 
zones of RMP facilities need to have chemical disaster drills in place, 
but that many schools are unaware of any risks. In CPCD's view, not 
informing communities about chemical risks reduces their ability to 
prepare for potential disasters involving specific chemical releases. 
CPCD argues that first responders need to know what chemicals they are 
facing and what emergency equipment to use. CPCD believes that 
information, such as compliance audits and incident investigation 
reports, should be disclosed to LEPCs and that with this information, 
active LEPCs can better include local communities in emergency planning 
and training.\199\ CPCD made reference to testimony made six years 
prior to the West disaster by a former CSB chairperson about her 
concern for:
---------------------------------------------------------------------------

    \197\ CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0546 on Risk Management Program RFI pg. 13.
    \198\ USW. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0547 on Risk Management Program RFI, pg. 6.
    \199\ CPCD. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-
0644 on Risk Management Program RFI, pgs. 36-37.

a lack of chemical emergency preparedness that our investigations 
have found among many communities where accidents strike. Preventing 
accidents and mitigating their impact requires an active partnership 
between communities and industrial facilities. If that partnership 
is missing, the stage is set for a potentially severe impact on the 
community.\200\
---------------------------------------------------------------------------

    \200\ CSB. July 10, 2007. CSB News Release: CSB Chairman Merritt 
Describes the Lessons from Five Years of Board Investigations to 
Senate Committee, Urges Additional Resources and Clearer Authorities 
for Federal Safety Efforts. http://www.csb.gov/csb-chairman-merritt-describes-the-lessons-from-five-years-of-board-investigations-to-senate-committee-urges-additional-resources-and-clearer-authorities-for-federal-safety-efforts/.

    Poor communication between facility personnel and first responders, 
as well as poor communication between facility personnel and 
communities, has been shown to contribute to the severity of chemical 
accidents. One example is the Bayer CropScience explosion that occurred 
---------------------------------------------------------------------------
in Institute, West Virginia, in 2008. According to the CSB,

    The Bayer fire brigade was at the scene in minutes, but Bayer 
management withheld information from the county emergency response 
agencies that were desperate for information about what happened, 
what chemicals were possibly involved . . . The Bayer incident 
commander, inside the plant, recommended a shelter in place; but 
this was never communicated to 911 operators. After a few hours of 
being refused critical information, local authorities ordered a 
shelter in place, as a precaution.\201\
---------------------------------------------------------------------------

    \201\ CSB. January 20, 2011. CSB issues report on 2008 Bayer 
Cropscience explosion: Finds multiple deficiencies led to runaway 
chemical reaction; recommends states create chemical plant oversight 
regulation. http://www.csb.gov/csb-issues-report-on-2008-bayer-cropscience-explosion-finds-multiple-deficiencies-led-to-runaway-chemical-reaction-recommends-state-create-chemical-plant-oversight-regulation/.

Improper communication between the facility and the first responders 
during the accident led to a delay in implementing a public shelter-in-
place order for the local community, and may have resulted in toxic 
exposure to on-scene public emergency responders.
    After a release of HF from the Citgo Refinery in Corpus Christi, 
Texas, in July 2009, nearby residents complained of headaches, nausea, 
and respiratory issues, though Citgo claimed that the toxic cloud 
stopped at the plant fence line. According to reports, neighbors could 
see the flames and smoke coming from the refinery, but they were unable 
to get information on the accident and potential risks to their 
community.\202\
---------------------------------------------------------------------------

    \202\ Morris, Jim and Chris Hamby, Center for Public Integrity. 
February 24, 2011; Updated May 19, 2014. Fueling Fears--Use of toxic 
acid puts millions at risk. http://www.publicintegrity.org/2011/02/24/2118/use-toxic-acid-puts-millions-risk.
---------------------------------------------------------------------------

    The previous examples and public comments demonstrate the need for 
better communication of the potential risks associated with accidental 
releases at stationary sources. However, in making information more 
readily available EPA must also recognize and balance the associated 
security concerns because the public sharing of certain specific 
facility information and any associated vulnerabilities has the 
potential to aid terrorists in planning an attack. The RMP rule was 
published in 1996, before many computer-based and other information-
sharing methods were widely used. At the time of initial publication of 
the rule, EPA expected information to be disclosed to the public 
through disclosure of the entire RMP. After the CSISSFRRA was enacted 
on August 5, 1999, EPA restricted access to OCA data for the public and 
government officials to minimize the security risks associated with 
posting the information on the internet (65 FR 48108, August 4, 2000). 
Governmental officials continue to have electronic access to OCA 
information, subject to certain restrictions, while the public may view 
OCA information only at Federal Reading Rooms around the country and 
only for a limited number of RMPs at any one time. The non-OCA portions 
of the RMPs are available from EPA to the public either through Freedom 
of Information Act (FOIA) request, by inspection at Federal Reading 
Rooms, or from a person's SERC, LEPC, or related state or local 
government agencies.\203\
---------------------------------------------------------------------------

    \203\ See 40 CFR part 1400: Accidental Release Prevention 
Requirements; Risk Management Programs Under the CAA Section 
112(r)(7); Distribution of OCA Information (65 FR 48108, August 4, 
2000). http://www.gpo.gov/fdsys/pkg/FR-2000-08-04/pdf/00-19785.pdf.
---------------------------------------------------------------------------

    EPA is proposing to require certain information to be made 
available, upon request, to LEPCs and emergency response officials to 
help them to understand the potential risks at RMP regulated 
facilities, as well as to aid them in emergency planning and response 
activities. EPA is also proposing to amend the information sharing 
provisions for the public to make existing information more easily 
accessible to neighboring communities to encourage them to prepare for 
an emergency. EPA also believes that the revisions will likely 
contribute to the prevention of future chemical accidents. Cognizant of 
the spirit and intent of the CSISSFRRA, the proposed revisions do not 
disclose the substance or form of information subject to restriction 
under CAA 112(r)(7)(H) or 40 CFR part 1400.
    EPA has two objectives for improving public information sharing 
provisions of the RMP rule. The first is to ensure that local emergency 
response and planning officials have the information they need to 
prepare for an emergency response to an accidental release at a 
stationary source. This includes determining what information is 
appropriate to improve community emergency response plans and ensure 
the safety of the local responders and the community. EPA must also 
determine the appropriate frequency for updating this information to 
avoid overwhelming local planners while ensuring information is 
current. While developing emergency response plans, LEPCs and facility 
owners or operators should also involve local citizens to help them 
understand the appropriate actions they should take in the event of an 
accidental release. This may reduce public panic and enable residents 
to act quickly and appropriately to protect themselves.
    The second objective is to help improve public awareness of risks 
in their communities and provide information on where they can learn 
more about preparedness and

[[Page 13679]]

community emergency response plans. Any publicly available information 
should be in a format that is easily accessible. The goal is to 
encourage residents to learn about community emergency response plans 
and understand what actions they need to take during an emergency to 
protect themselves.
    EPA is proposing to add provisions for sharing information, upon 
request, with LEPCs and/or emergency response officials and revise the 
existing provisions for sharing information with the public. EPA is 
also proposing that facility owners and operators conduct public 
meetings within 30 days of an RMP reportable accident to discuss 
chemical hazards present at facilities and provide information on 
accidental releases. These meetings can provide opportunities for 
facilities to engage the public to address concerns following an 
accidental release and explain how facilities will prevent future 
accidents.

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

    EPA is proposing to add requirements to subpart H--Other 
Requirements that apply to all facilities regulated under the RMP rule, 
including facilities with Program 1 processes. EPA proposes to add 
Sec.  68.205 to require owners and operators to provide information to 
local emergency responders and LEPCs upon request. If information 
required under this proposal is already available to the public on a 
company Web site, the owner or operator may comply by providing the Web 
site link to the first responders and LEPC. Paragraph Sec.  68.205(a) 
would require that the RMP be accessible to local emergency responders 
and LEPCs in the exact same manner as the current requirement under 
Sec.  68.210(a). A reference to 42 U.S.C. 7414(c), which covers 
information and reports (such as the RMP) required under section 42 
U.S.C. 7412, is included to show the authority under which the non-OCA 
portion of an RMP shall be available to the public, except for any 
information that would divulge methods or processes entitled to 
protection of CBI or trade secrets. This reference is already part of 
the current Sec.  68.210(a). A reference to 40 CFR part 1400 has been 
added to address the disclosure restrictions under CSISSFRRA (i.e., 
restrictions on the disclosure of OCA information). EPA is not changing 
its policy regarding OCA information. The reference to 40 CFR part 1400 
only clarifies the statutory obligations that relate to securing this 
information.
    Under paragraph Sec.  68.205(b), EPA would require the owner or 
operator to develop summaries of specific chemical hazard information 
for all of their regulated processes and provide this information, upon 
request, to the LEPC or local emergency response officials as part of 
their emergency response coordination efforts. The facility should make 
information available in a manner that is understandable and avoids 
technical jargon. The information should be conveyed without revealing 
CBI or trade secret information. The information must adequately 
explain the findings, results, or analysis being provided.
    The specific information that must be provided to LEPCs or 
emergency response officials upon request is outlined below:
    Information on Regulated Substances. Information related to the 
names and quantities of regulated substances at the source (paragraph 
Sec.  68.205(b)(1)). This only applies to regulated substances held in 
a process above the TQ.
    Accident History Information. The facility's accident history 
information required under Sec.  68.42 (paragraph Sec.  68.205(b)(2)).
    Compliance Audit Reports. Summaries of compliance audit reports 
required under Sec. Sec.  68.58 and 68.59 (for Program 2 processes), or 
Sec. Sec.  68.79 and 68.80 (for Program 3 processes), as applicable 
(paragraph Sec.  68.205(b)(3)). The audit report summary shall include:

     The date of the report;
     The name and contact information of the auditor and the 
facility contact person;
     A brief description of the audit findings;
     An appropriate response to each of the findings; and
     A schedule for addressing each of the findings.

    Incident Investigation Reports. Summaries of incident investigation 
reports required under Sec.  68.60(d) (for Program 2 processes) or 
Sec.  68.81(d) (for Program 3 processes), as applicable (paragraph 
Sec.  68.205(b)(4)). The incident investigation report summary shall 
include:

     A description of the incident and events leading up to 
it, including a timeline;
     A brief description of the process involved;
     The names and contact information of personnel on the 
investigation team;
     The direct cause, contributing cause, and root cause of 
the incident;
     The on-site and offsite impacts;
     The emergency response actions taken;
     Any recommendations; and
     A schedule for implementing recommendations, as 
applicable.

    Inherently Safer Technologies (IST). For each process in NAICS 
codes 322, 324, and 325, a summary of the IST or ISD identified in 
accordance with Sec.  68.67(c)(8) that the owner or operator has 
implemented or plans to implement (paragraph Sec.  68.205(b)(5)). The 
owner or operator shall update this summary as part of the calendar 
year submission if any of the summary information has been revised as a 
result of the safer technology analysis that is conducted as part of 
the update to the PHA prepared in accordance with Sec.  68.67(f). The 
calendar year submission should also identify whether any revisions 
were incorporated. The IST/ISD summary shall include, at a minimum:

     The RMP process ID and process description, if 
provided, of the process affected;
     A brief description of the IST or ISD and which type of 
measure best characterizes it: Minimization, substitution, 
modernization, or simplification;
     The names of the regulated substance(s) whose hazard, 
potential exposure, or risk was or will be reduced as a result of 
the implementation and whether the substance is listed as toxic or 
flammable. If the chemicals affected are a mixture of flammable 
substances, the name ``flammable mixture'' may be used, instead of 
the individual flammable substance names; and
     The dates of implementation or planned implementation.

    Exercises. Information on emergency response exercises conducted 
under Sec.  68.96, including, at a minimum, schedules for upcoming 
exercises, reports for completed exercises, and other related 
information (paragraph Sec.  68.205(b)(6)).
    EPA believes that summary information on findings from incident 
investigations, compliance audits, exercises, and IST employed can 
demonstrate to local emergency response officials how a facility is 
improving its management of chemical risks and assist local emergency 
planners to understand and better prepare for these risks when 
developing community emergency response plans. Furthermore, EPA 
believes that disclosing information related to IST can help responders 
and planners to prioritize and allocate response resources. For 
example, IST implementation information may be relevant for emergency 
response personnel who are maintaining response capabilities to address 
a specific hazard that would no longer apply once an IST is implemented 
(such as by substituting a less hazardous chemical for an RMP-regulated 
substance).
    Table 6 below summarizes the information to be developed under 
Sec.  68.205(b) and identifies the applicable program level for each 
provision. The owner or operator need only provide

[[Page 13680]]

upon the LEPC's request information developed for this provision that 
is applicable to the program-level for each regulated process at the 
facility. For example, owners or operators of Program 2 processes must 
provide information on regulated substances in accordance with Sec.  
68.205(b)(1), accident history information in accordance with Sec.  
68.205(b)(2), compliance audit report summaries to LEPC or emergency 
response officials in accordance with Sec.  68.205(b)(3), incident 
investigation report summaries in accordance with Sec.  68.205(b)(4), 
and exercise schedules and report summaries in accordance with Sec.  
68.205(b)(6). Owners and operators of Program 3 processes must provide 
all of the above information, as well as the IST information required 
under Sec.  68.205(b)(5). Owners and operators of Program 1 processes 
would be required to provide only information on regulated substances 
in accordance with Sec.  68.205(b)(1) and accident history information 
in accordance with Sec.  68.205(b)(2).

                  Table 6--LEPC Disclosure Information
------------------------------------------------------------------------
                                                        Program level(s)
Information to be provided, upon request, to LEPCs or   applicability--
    emergency response officials in Sec.   68.205.      program 1, 2, or
                                                               3
------------------------------------------------------------------------
(b)(1) Information on regulated substances...........            1, 2, 3
(b)(2) Accident history information..................            1, 2, 3
(b)(3) Compliance audit report summaries.............               2, 3
(b)(4) Incident investigation report summaries.......               2, 3
(b)(5) IST summary...................................                * 3
(b)(6) Exercise schedules and report summaries.......               2, 3
------------------------------------------------------------------------
* Applies only to Program 3 facilities in NAICS codes 322, 324, and 325.

    Submission Dates and Updates. According to Sec.  68.205(c), EPA is 
proposing that the owner or operator update summary information every 
calendar year, including all applicable information that was revised 
since the last submission, and provide this information upon request.
    Classified Information. EPA is proposing to add Sec.  68.205(d) to 
address protection of classified information from disclosure. This 
provision is identical to the current Sec.  68.210(b).
    Confidential Business Information. EPA is proposing to add the 
acronym CBI to Sec.  68.3 and to add Sec.  68.205(e) to describe the 
process for claiming and handling CBI. EPA is proposing that an owner 
or operator asserting a CBI claim for information requested by an LEPC 
or local emergency response official under this section should submit a 
sanitized version to the LEPC or emergency response officials, and 
submit to EPA both the sanitized version and a version containing the 
CBI along with a substantiation of the CBI claim at the time it is 
asserted. This process for assertion and substantiation of CBI claims 
is the same as that required in Sec. Sec.  68.151 and 68.152 for 
information contained in the RMP. As provided under Sec.  68.151(b)(3), 
an owner or operator of a stationary source may not claim five-year 
accident history information as CBI. As provided in Sec.  68.151(c)(2), 
an owner or operator of a stationary source asserting that a chemical 
name is CBI shall provide a generic category or class name as a 
substitute in its submission.
    An owner or operator should be aware that anything they send to 
their LEPC in accordance with Sec.  68.205(e) becomes public 
information. For any information claimed as CBI when submitted to EPA 
and later submitted to the LEPC, the CBI claim regarding such 
information is waived. Therefore, if an owner or operator wants to 
maintain the confidentiality of information, when submitting such 
information to the LEPC, they should submit a sanitized version.
    With these proposed requirements, EPA intends to ensure that LEPCs 
and emergency response officials have information on chemical hazards 
at regulated facilities and are better prepared to understand and 
prepare for risks to the communities and emergency responders. EPA 
encourages local emergency response officials to coordinate with owners 
or operators of regulated facilities and participate in emergency 
response exercises as time and resources allow. LEPC and local 
emergency response officials should use the information identified in 
Sec.  68.205(b) to assist in revising the community emergency response 
plan developed under 42 U.S.C 11003 and related purposes.
    EPA seeks comment on this approach. Will the proposed requirements 
improve the community emergency planning and preparedness? Is there 
additional information that should be shared with LEPCs or emergency 
response officials? For example, should EPA require the full safer 
technologies and alternatives analysis to be submitted to the LEPC? EPA 
also seeks comment on whether to require less information to be shared 
(e.g., limit incident investigation information to incidents with 
offsite impacts). Some SERs suggested that information be limited to a 
one page summary of each significant chemical hazard and suggested 
including only the following elements: The name of the substance, its 
properties, its location, and recommended firefighting and emergency 
response measures. EPA seeks comment on this narrowed approach. Should 
EPA require owners or operators to periodically submit information to 
the LEPC or local responders, and if so, what timeframe should EPA 
consider? Is the proposed timeframe for updating information sufficient 
to ensure information is up-to-date? Should EPA require information to 
be updated only after the source receives a request from an LEPC or 
local emergency response official? If so, how much time is sufficient 
to allow development and submission of summaries following requests for 
information under this proposed provision? Should EPA specify a 
standard format for summary information in order to make it easier for 
local officials to interpret the information (e.g., specify a summary 
template for information on regulated substances, compliance audits 
reports, incident investigation reports, IST)?

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

    Under paragraph Sec.  68.210(a), EPA is proposing to add a 
reference to 40 CFR part 1400 to address CSISSFRRA disclosure 
restrictions (i.e., for OCA information). EPA is not changing its 
policy regarding OCA information. The reference to 40 CFR part 1400 
only clarifies the statutory obligations that relate to securing this 
information.
    EPA is proposing to redesignate the current paragraph Sec.  
68.210(b) that addresses the non-disclosure of

[[Page 13681]]

classified information by the Department of Defense or other Federal 
agencies or their contractors as Sec.  68.210(e).
    EPA is proposing a new paragraph (b) to require the owner or 
operator of a stationary source to distribute certain chemical hazard 
information for all regulated processes to the public in an easily 
accessible manner. EPA is proposing to require the owner or operator to 
distribute the following information, as applicable:

     Names of regulated substances held in a process above 
TQs;
     Safety Data Sheets (SDSs) for all regulated substances 
held above TQs at the facility;
     The facility's accident history required under Sec.  
68.42;
     Information concerning the source's compliance with 
Sec.  68.10(b)(3) or the emergency response provisions of subpart E, 
including:
    [cir] Whether the source is a responding stationary source or a 
non-responding stationary source;
    [cir] Name and phone number of local emergency response 
organizations with which the source last coordinated emergency 
response efforts, pursuant to Sec.  68.180; and
    [cir] For sources subject to Sec.  68.95, procedures for 
informing the public and local emergency response agencies about 
accidental releases.
     Information on emergency response exercises required 
under Sec.  68.96, including schedules for upcoming exercises, 
reports for completed exercises as described in Sec.  68.96(b)(3), 
and any other related information; and
     LEPC contact information, including LEPC name, phone 
number, and Web site address as available.

    EPA believes that providing this information to the general public 
will allow people that live or work near a regulated facility to 
improve their awareness of risks to the community and to be prepared to 
protect themselves in the event of an accidental release. EPA also 
thinks that requiring facilities to provide summary information on the 
facility's emergency response plans and emergency exercises to the 
public, will provide assurance to the community that the facility is 
adequately prepared to properly handle a chemical emergency, should it 
arise. An additional benefit of sharing exercise schedules is to avoid 
unnecessary public alarm when exercises are conducted.
    The facility owner or operator can make all the required 
information available to the public in a variety of ways. For example, 
the owner or operator could comply by making the information available 
on the facility or company Web site, if one is available. If the 
facility doesn't have a Web site, the owner or operator could establish 
one. Alternatively, there are free or low cost internet platforms, file 
sharing services, and social media tools that are designed to share 
information with the public. As another option, the facility could make 
the information available in hard copy at publicly accessible locations 
such as a public library or a local government office. If the facility 
has the means to handle public visitors, it could choose to make the 
information available at the facility location. The facility could 
alternatively provide the information by email, upon request. EPA 
encourages the facility owner or operator to coordinate information 
distribution with the LEPC or local emergency response officials to 
determine the best way to reach public stakeholders.
    EPA seeks comment on this approach. Is there additional information 
that should be shared with the public? For example, should EPA require 
the STAA proposed under Sec.  68.67(c)(8), or a summary of that 
analysis, be shared with the public? Alternatively, should EPA further 
limit the information elements proposed? For example, how should EPA 
limit the disclosure of information in exercise reports that might 
reveal security vulnerabilities about the facility or emergency 
responders? Should EPA not require disclosure of names of individuals 
involved in exercises or facility security vulnerabilities revealed by 
the exercise? Is there an alternative way to improve community 
preparedness for safety purposes while balancing the security concerns 
to limit a terrorist's ability to use the information for an attack? Is 
there other information that community residents and operators of 
community facilities (such as schools, nursing homes, daycares) need in 
order to participate in emergency preparedness planning, particularly 
as it relates to effective incident notification, sheltering in place, 
and evacuation? EPA also seeks comment on the feasibility of these 
various options for providing information to the public and requests 
suggestions for other ways that the data could be made available. 
Lastly, EPA seeks comment on any challenges facility owners or 
operators would have in providing the information or challenges public 
stakeholders would have in obtaining the information. In order to 
inform the public of the location of the information, EPA is proposing 
to require under Sec.  68.160(b) that the facility report in their RMP 
the location or means of public access to the information proposed to 
be disclosed under this subsection.
    Submission Dates and Updates. EPA is proposing that the owner or 
operator shall update and submit information required under Sec.  
68.210(b) every calendar year, including all applicable information 
that was revised since the last update.
    Confidential Business Information. In Sec.  68.210(f), an owner or 
operator asserting CBI shall submit a sanitized version of the 
information required under this section to the public. Assertion of 
claims of CBI and substantiation of CBI claims shall be in the same 
manner as required in Sec. Sec.  68.151 and 68.152 for information 
contained in the RMP required under subpart G. As provided in Sec.  
68.151(c)(2), an owner or operator of a stationary source asserting 
that a chemical name is CBI shall provide a generic category or class 
name as a substitute. If an owner or operator has already claimed CBI 
for a portion of the RMP, then that claim still applies for the 
disclosure elements here. The owner or operator should provide a 
sanitized version as described in the RMP*eSubmit User's Manual.\204\
---------------------------------------------------------------------------

    \204\ See EPA. March 2014. RMP*eSubmit User's Manual. http://www2.epa.gov/rmp/rmpesubmit-users-manual.
---------------------------------------------------------------------------

    EPA seeks comment on this approach. Will the proposed requirements 
improve the knowledge sharing between regulated facilities and the 
public? Is there additional information that should be shared with the 
public stakeholders? Should EPA only require information to be shared 
upon request by the public? Alternatively, should EPA further limit the 
information we are proposing to be required, such as requiring only a 
one page summary that addresses chemical hazard information and 
emergency response measures? EPA could alternatively eliminate some of 
the required information elements or further limit information, such as 
by limiting accident history information to only those with offsite 
impact. Some SERs asked whether the existing RMP data or the RMP 
executive summary available to the public through existing sources 
(FOIA, Federal Reading rooms or other public sources who have compiled 
the data) are adequate to meet the information needs of the public.
    Public Meetings. When the CSISSFRRA was enacted in 1999, it 
included a section that required owners or operators of all facilities 
regulated under the RMP rule to hold a public meeting within 180 days 
of enactment.\205\ The purpose of the public meeting was to describe 
and discuss the local implications of the RMP on the community. Two or 
more stationary

[[Page 13682]]

sources were allowed to conduct a joint meeting, while small businesses 
were allowed to instead post a summary of their OCA information no 
later than 180 days after enactment.
---------------------------------------------------------------------------

    \205\ Chemical Safety Information, Site Security and Fuels 
Regulatory Relief Act, Public Law 106-40, August 5, 1999. See http://www.gpo.gov/fdsys/pkg/STATUTE-113/pdf/STATUTE-113-Pg207.pdf.
---------------------------------------------------------------------------

    In paragraph Sec.  68.210(d) EPA is proposing to require regulated 
facilities that have any accident meeting the five-year accident 
history criteria of Sec.  68.42 to hold a public meeting within 30 days 
after the accident. This provides an opportunity for the owner or 
operator of the RMP facility to inform the community about the accident 
including, at a minimum, the information reportable under Sec.  68.42. 
This includes information on:

     When the accident occurred;
     The nature of the accident including initiating event 
and contributing factors if known;
     Chemicals involved and quantities released;
     Weather conditions, if known;
     On-site and offsite impacts;
     Emergency response notifications; and
     Operational or process changes that resulted, thus far, 
from investigation of the release.

    EPA expects that, in some cases, sources will have completed the 
incident investigation required under Sec.  68.60 or Sec.  68.81 prior 
to holding the public meeting. This would allow the owner or operator 
to share appropriate information about the accident with the local 
community. However, in some cases, such as for complex, protracted 
investigations, the source may need to hold a public meeting prior to 
completing the incident investigation. In such cases, the owner or 
operator should consider holding a second public meeting after 
completing the incident investigation. Additionally, a public meeting 
must be held after accidents that destroy a process or stationary 
source or cause the process or source to be subsequently 
decommissioned. Stationary sources may combine public meetings with 
LEPC meetings or other events as long as those events/meetings are 
available for public participation.
    Public meetings must also address other relevant chemical hazard 
information such as that described in Sec.  68.210(b) and any other 
appropriate information that may improve safety and emergency 
preparedness activities in the community. The facility representative 
should describe the risks that are associated with the facility, and 
what the facility is doing to protect the public from those risks. In 
addition, the facility personnel should relay information that would 
assist the public to prepare for accidental releases. For example, at 
the meeting, the facility representative should discuss the process for 
public emergency notification, procedures for sheltering in place or 
evacuating, and where to obtain further updates on the status of an 
emergency incident. The discussion should also address how the public 
can access community emergency response plans and identify what the 
community may expect to see during a field exercise.
    As part of the SBAR Panel process, several SERs questioned the 
value of having any public meetings and noted that, when held in the 
past, public meetings were not well attended. Some SERs suggested 
altering the requirement to allow for the request of a public meeting 
if an LEPC or community felt it was necessary. Additionally, SERs 
expressed concern about the requirement to hold public meetings 30 days 
after an accident; the SER suggestions included expanding the timeframe 
from 60 days to 9 months. SERs also indicated that many small business 
may still be handling the aftermath of accidents, conducting incident 
investigations, and arranging audits in this time period, with limited 
attention to devote to educating the public.
    EPA seeks comment on the proposed approach and whether there are 
other options that EPA should consider for public meetings. For 
example, should EPA require regular public meetings rather than only 
after an accident subject to reporting requirements under Sec.  68.42? 
Should EPA require public meetings upon request by LEPCs, emergency 
responders or the public? Alternatively, should the public meeting 
requirement be restricted to an RMP reportable accidents with offsite 
impacts? Instead of requiring a public meeting after RMP reportable 
accidents, should EPA require owners and operators to meet only with 
LEPCs and emergency responders? If EPA finalizes the requirement to 
hold post-accident public meetings, should EPA extend the required 
timeframe to hold the meeting beyond 30 days (e.g. to 90 days), in 
order to give the owner or operator more time to learn about accident 
causal factors and prepare for a public meeting? If so, what extended 
timeframe should EPA choose and should EPA require the implementing 
agency to approve any extensions?

C. Alternative Options

    EPA considered an option to require all facilities to hold public 
meetings at least once every five years (and within 30 days after an 
accident) to share chemical hazard information described under Sec.  
68.210(b) and any other appropriate information that may improve safety 
and emergency preparedness activities in the community. However, EPA 
did not propose this requirement as our preferred option because of 
concerns raised by the SBAR Panel process that periodic public meetings 
are often sparsely attended.
    EPA also considered limiting the requirement for periodic and post-
accident public meetings to only Program 2 and Program 3 facilities; 
however, EPA did not propose this option as our preferred option 
because even though accidents at Program 1 facilities should not have 
significant public impacts, some communities near these facilities may 
still be interested in understanding the risks at the facility and the 
procedures and controls that are in place to limit offsite impacts. 
Additionally, if a Program 1 facility does have an RMP reportable 
accident with offsite impacts, EPA believes they should be held to the 
same standard as other facilities and be required to hold a public 
meeting within 30 days of the incident to provide additional 
information on the accidental release. Nevertheless, EPA is interested 
in receiving public feedback on whether EPA should consider requiring 
periodic public meetings and whether the requirement should be limited 
to Program 2 and Program 3 facilities.
    EPA is also considering an option for supporting the public 
disclosure provisions with a ``score card'' or a ``grade'' system that 
could be provided by an independent third-party. The score or grade 
would be made available to the LEPCs and public to demonstrate the 
facility's compliance with the RMP rule. This method could be used 
either instead of or in addition to what EPA is proposing. EPA requests 
information and recommendations on how to develop such a program, 
including the types of scoring criteria that should be used and any 
other issues that the Agency should consider when developing such a 
system.
    EPA seeks comment on these alternative approaches and whether there 
are any other alternative options that EPA should consider for future 
actions.

VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule 
Technical Corrections

    A stationary source subject to the RMP rule is required to submit a 
RMP in a method and format specified by the EPA, pursuant to Sec.  
68.150(a). The CAA and 40 CFR subpart G require that the RMP indicate 
compliance with the regulations at 40 CFR part 68 and also

[[Page 13683]]

include information regarding the hazard assessment, prevention 
program, and emergency response program. The RMP also includes 
stationary source registration information, such as name, location and 
contact information. The EPA may review RMPs for information gathering, 
inspection preparation, errors in submissions, and changes requiring a 
correction or re-submission of the RMP. The CAA requires that RMPs be 
made available to states, local entities responsible for planning or 
responding to accidental releases at the source, the CSB, and the 
public. As a result, the information provided in an RMP is intended to 
be easily understood, thus encouraging the public, local entities, and 
governmental agencies to interact with stationary sources on issues 
related to accident prevention and preparedness.
    The RMP format consists of a combination of check-off boxes, yes/no 
answers, numerical entries, and write-in information pertaining to the 
data best describing the various elements of the risk management 
program at a source. The nine sections of an RMP are: Registration 
Information; Toxics Worst Case; Toxics Alternative Release; Flammables 
Worst Case; Flammables Alternative Release; Accident History; 
Prevention Program: Program Level 3; Prevention Program: Program Level 
2; and Emergency Response. Data elements in these sections address 
compliance with each of the rule elements. Some sections may not be 
applicable to all stationary sources, as some sections apply only to 
processes with certain program levels, and some apply only to certain 
types of regulated substances (toxics or flammables). The RMP also 
includes an Executive Summary, which allows stationary sources to 
provide a brief description of the source's prevention and preparedness 
activities as they relate to covered processes, in a format that is 
easy to understand.
    Based on feedback received from the regulated community and EPA's 
own experience, EPA is proposing to revise several data elements in 
subpart G and to make technical corrections to the RMP rule. The 
following sections provide an overview of the proposed revisions.

A. Deletions From Subpart G

    EPA is proposing to delete data elements that do not effectively 
assist the Agency in evaluating compliance with the RMP rule. EPA is 
also proposing to delete some data elements because the information can 
be obtained through improved coordination with Federal, state, and 
local agencies resulting from Executive Order 13650, such as 
information currently required by Sec. Sec.  68.160(b)(13) (the date of 
the last safety inspection of the stationary source by a Federal, 
state, or local government agency) and 68.160(b)(19) (OSHA Voluntary 
Protection Program status). EPA is proposing to delete other data 
elements because we believe an on-site inspection or formal information 
request are better ways to evaluate compliance with these Risk 
Management Program requirements (for example, some data elements 
pertaining to training, contractor safety, and maintenance/mechanical 
integrity). By removing several RMP data elements, EPA expects that the 
regulated community will find it easier to comply with subpart G 
requirements. In addition to burden relief for the regulated community, 
EPA expects that removing several RMP data elements will reduce the 
number of errors in RMPs submitted to the Agency.

B. Revisions to Subpart G

    EPA is proposing to revise existing provisions in subpart G as 
follows:

     Modernize requirements to include electronic contact 
information if it exists, such as email addresses and Web site 
homepages;
     Revise provisions to remove a portion of select data 
elements that would be better evaluated during an on-site inspection 
or information request;
     Provide consistency with RMP*eSubmit;
     Provide more consistency in the data collected for 
similar data elements in the Program 2 and Program 3 prevention 
programs; and
     Replace data elements that were not effective in 
demonstrating a stationary source's compliance with the rule, with 
one that will demonstrate compliance.

    Data elements that require a date to demonstrate compliance can 
become irrelevant during the typical five-year RMP resubmission cycle. 
An example is a stationary source that submitted an RMP to the EPA on 
January 8, 2015, that included an annual operating procedures review 
date of January 1, 2015, in its RMP in accordance with Sec.  68.175(f). 
Assuming the stationary source will not have any changes that would 
require a resubmission of the RMP and the stationary source will not 
voluntarily correct the RMP with newer annual standard operating 
procedure (SOP) review dates, the January 1, 2015, annual SOP review 
date does not provide compliance information for years 2016-2019. As a 
result, the annual SOP review date in this example only provides 
compliance information for 2015. Because the dates of most recent 
review or update of a process safety element in an RMP do not always 
reflect compliance with regulatory requirements, EPA is proposing to 
replace most of these dates with the RMP Certifying Official's 
attestation that the stationary source complies with each Risk 
Management Program requirement.
    Data elements for which the last review or revision dates are being 
replaced include:

     For Program 2 and Program 3: Safety information, 
operating procedures, training programs, maintenance procedures, 
changes triggering review of any of the previous data elements or 
the hazard review/PHA;
     For Program 3 only: MOC, pre-startup review, employee 
participation plans, hot work permit procedures, contractor safety 
procedures and performance; and,
     For sources with Emergency Response Programs: Emergency 
response plans and emergency response training of employees.

    EPA will still require the date of the most recent hazard review or 
PHA or their update (required every 5 years), date of most recent 
compliance audit (required every 3 years), and date of most recent 
incident investigation (required only when an incident occurs). These 
data elements are not updated as frequently as the other program 
elements, and are therefore more likely to indicate current compliance 
with regulatory requirements.

C. Additions to Subpart G

    In addition to removing and revising several RMP data elements, EPA 
is proposing to add several RMP data elements in subpart G based on the 
proposed rule requirements discussed in this document. This includes 
new data elements to address compliance with:

     Third-party audit requirements,
     Root cause analysis requirements as part of incident 
investigations;
     IST analysis requirements in the PHA;
     Emergency response preparedness requirements including 
information on local coordination and emergency response exercises; 
and
     Information sharing provisions.

    By adding these data elements to the RMP requirements in subpart G 
EPA will be able to evaluate a stationary source's compliance with 
these proposed rule requirements once they are finalized.

D. Proposed Amendments and Technical Corrections

1. Proposed Revisions to Sec.  68.160 (Registration)
    EPA is proposing to delete and reserve:

     Sec.  68.160(b)(13)--The date of the last safety 
inspection of the stationary source by

[[Page 13684]]

a Federal, state, or local government agency and the identity of the 
inspecting agency; and
     Sec.  68.160(b)(19)--OSHA Voluntary Protection Program 
status (Optional).

    EPA is proposing to revise:

     Sec.  68.160(b)(1) by removing the method for obtaining 
latitude and longitude (but keep the rest of Sec.  68.160(b)(1));
     Sec.  68.160(b)(4) by requiring an email address for 
the owner or operator, if that person has an email address, rather 
than making it optional;
     Sec.  68.160(b)(5) by removing ``position'' and 
requiring an email address for the person with overall 
responsibility for RMP elements and implementation, if that person 
has an email address (rather than making it optional);
     Sec.  68.160(b)(9) by adding ``equivalent'' to clarify 
that the number of full-time employees means full-time equivalent 
employees to be consistent with RMP*eSubmit;
     Sec.  68.160(b)(12) by adding the phrase ``and if so'' 
to clarify that if the stationary source has a CAA Title V operating 
permit, then the RMP plan must include the permit number;
     Sec.  68.160(b)(14) by requiring an email address for 
the contractor who prepared the RMP (if any), if the contractor has 
an email address;
     Sec.  68.160(b)(15) by requiring an email address for 
the source or parent company, if the source or parent company has an 
email address;
     Sec.  68.160(b)(16) by requiring a source internet 
address, if the source has an internet address;
     Sec.  68.160(b)(17) by requiring a phone number at the 
source for public inquiries, if the source has a public inquiries 
phone number;
     Sec.  68.160(b)(18) by requiring the name, phone 
number, email address, and internet address for the LEPC, if the 
LEPC has such information available; and
     Sec.  68.160(b)(20) by changing facility to stationary 
source in subparagraphs (b)(20)(ii) and (b)(20)(iv).

    EPA is proposing to add the following RMP data elements that relate 
to the information sharing provisions being proposed in this document:

     Sec.  68.160(b)(21) would require an attestation that 
chemical hazard-related information is available to the LEPC or 
emergency response officials, as set forth in Sec.  68.205;
     Sec.  68.160(b)(22) would require an attestation that 
chemical hazard-related information is available to the public, as 
set forth in Sec.  68.210; and
     Sec.  68.160(b)(23) would require the date of most 
recent public meeting, as set forth in Sec.  68.210(d).
2. Proposed Revisions to Sec.  68.170 (Prevention Program/Program 2)
    EPA is proposing to delete the requirement in Sec.  68.170(k) which 
identify the date of the most recent change that triggered a review or 
revision of safety information, the hazard review, operating or 
maintenance procedures, or training.
    EPA is proposing to revise:

     Sec.  68.170(a) by changing the reference to paragraph 
(k) to paragraph (j) because we are proposing to delete paragraph 
(k).
     Sec.  68.170(d) by reorganizing into subparagraphs 
(d)(1) and (d)(2). EPA is proposing to replace the date of the most 
recent review or revision of the safety information with an 
attestation that the safety information requirements, in Sec.  
68.48, are implemented. EPA is also proposing to move the 
requirement to list all Federal and state regulations, industry 
specific and established company or stationary source design codes 
and standards that are applicable, and the requirement to identify 
those followed, into subparagraph (d)(2).
     Sec.  68.170(e) by reorganizing the date of completion 
of the most recent hazard review or hazard review update to Sec.  
68.170(e)(1) and removing from Sec.  68.170(e)(1), the requirement 
to identify an expected date of completion of any changes resulting 
from the hazard review;
     Sec.  68.170(f) by replacing the date of the most 
recent review or revision of operating procedures with an 
attestation that the operating procedures requirements, in Sec.  
68.52, are implemented;
     Sec.  68.170(g) by replacing the date of the most 
recent review or revision of training programs with an attestation 
that training requirements, in Sec.  68.54, are implemented. EPA is 
also proposing to delete the requirements to identify the types of 
training provided and competency testing used in subparagraphs 
(g)(1) and (g)(2);
     Sec.  68.170(h) by replacing the date of the most 
recent review or revision of maintenance procedures and the date of 
the most recent equipment inspection or test and the equipment 
inspected or tested with an attestation that the maintenance 
requirements, in Sec.  68.56, are implemented;
     Sec.  68.170(i) by reorganizing into subparagraphs. EPA 
would add an attestation that the compliance audit requirements of 
Sec.  68.58 are implemented in subparagraph (i)(1) and move the 
requirement to identify the date of the most recent compliance audit 
to subparagraph (i)(2). EPA would remove the requirement to identify 
the date of completion of any changes resulting from the compliance 
audit; and, in subparagraph (i)(3), add a requirement that the owner 
or operator identify whether the most recent compliance audit was a 
third-party audit, pursuant to Sec. Sec.  68.58 and 68.59; and
     Sec.  68.170(j) by reorganizing into subparagraphs. EPA 
would add an attestation that the incident investigation 
requirements, in Sec.  68.60, are implemented in subparagraph (j)(1) 
and move the date of the most recent incident investigation into 
subparagraph (j)(2). EPA would delete the requirement to identify 
the expected date of completion of any changes resulting from the 
investigation, and, in subparagraph (j)(3), would add a requirement 
that the plan indicate whether root cause analyses have been 
completed for all accidents and incidents that are subject to the 
requirements of Sec.  68.60.
3. Proposed Revisions to Sec.  68.175 (Prevention Program/Program 3)
    EPA is proposing to delete paragraph Sec.  68.175(p) because we are 
addressing the data elements for contractor safety procedures in 
paragraph (o).
    EPA is proposing to revise the following provisions:

     Sec.  68.175(a) by changing the reference to paragraph 
(p) to paragraph (o) because we are proposing to combine the data 
elements in paragraphs (p) and (o) that show compliance with the 
requirements for contractor safety procedures.
     Sec.  68.175(d) by reorganizing into subparagraphs 
(d)(1) and (d)(2). EPA is proposing to replace the date of the most 
recent review or revision of the safety information with an 
attestation that the PSI requirements, in Sec.  68.65, are 
implemented. EPA is also proposing to move the requirement to list 
all Federal and state regulations, industry-specific and established 
company or stationary source design codes and standards that are 
applicable, and the requirement to identify those followed, into 
subparagraph (d)(2);
     Sec.  68.175(e) by reorganizing existing requirements 
into subparagraphs (e)(1) and (e)(2) and adding new requirements 
addressing safer technology and alternatives in new subparagraph 
(e)(2). Subparagraph (e)(1) would apply to information on the PHA or 
PHA update and revalidation information. EPA would move the date of 
completion of the most recent PHA or update and require the plan 
identify the technique used to Sec.  68.170(e)(1)(i). EPA would 
delete the requirement to identify the expected date of completion 
of any changes resulting from the PHA. Additional PHA information 
would move to subparagraph (e)(1)(ii) through (vi). EPA would add 
subparagraph (e)(2) to address requirements for safer alternatives 
including: An attestation that the PHA address safer technology and 
risk management measures, as required in Sec.  68.67(c)(8); whether 
any IST or ISD were implemented and if so, the technology category 
that describes the IST or ISD (i.e., substitution, minimization, 
simplification, and/or moderation);
     Sec.  68.175(f) by replacing the date of the most 
recent review or revision of operating procedures with an 
attestation that the operating procedures requirements, in Sec.  
68.69, are implemented;
     Sec.  68.175(g) by replacing the date of the most 
recent review or revision of training programs with an attestation 
that training requirements, in Sec.  68.71, are implemented. EPA is 
also proposing to delete the requirements to identify the types of 
training provided and competency testing used in subparagraphs 
(g)(1) and (g)(2);
     Sec.  68.175(h) by replacing the date of the most 
recent review or revision of maintenance procedures and the date of 
the most recent equipment inspection or test and the equipment 
inspected or tested with an attestation that the mechanical 
integrity requirements, in Sec.  68.73, are implemented;
     Sec.  68.175(i) by replacing the date of the most 
recent change that triggered MOC

[[Page 13685]]

procedures and the date of the most recent review or revision of MOC 
procedures with an attestation that the MOC requirements, in Sec.  
68.75, are implemented;
     Sec.  68.175(j) by replacing the date of the most 
recent pre-startup review with an attestation that the pre-startup 
review requirement, in Sec.  68.77, are implemented;
     Sec.  68.175(k) by reorganizing into subparagraphs. EPA 
would add an attestation that the compliance audit requirements of 
Sec.  68.79 are implemented in subparagraph (k)(1) and move the 
requirement to identify the date of the most recent compliance audit 
to subparagraph (k)(2). EPA would remove the requirement to identify 
the expected date of completion of any changes resulting from the 
compliance audit; and, in subparagraph (k)(3), add a requirement 
that the owner or operator identify whether the most recent 
compliance audit was a third-party audit, pursuant to Sec. Sec.  
68.79 and 68.80;
     Sec.  68.175(l) by reorganizing into subparagraphs. EPA 
would add an attestation that the incident investigation 
requirements, in Sec.  68.81, are implemented in subparagraph (l)(1) 
and move the date of the most recent incident investigation into 
subparagraph (l)(2). EPA would delete the requirement to identify 
the expected date of completion of any changes resulting from the 
investigation; and, in subparagraph (l)(3), would add a requirement 
that the plan indicate whether root cause analyses have been 
completed for all accidents and incidents that are subject to the 
requirements of Sec.  68.81;
     Sec.  68.175(m) by replacing the date of the most 
recent review or revision of employee participation plans with an 
attestation that employee participation requirements, Sec.  68.83, 
are implemented;
     Sec.  68.175(n) by replacing the date of the most 
recent review or revision of hot work permit procedures with an 
attestation that the hot work permit requirements, in Sec.  68.85, 
are implemented; and
     Sec. Sec.  68.175(o) and 68.175(p) by replacing the 
date of the most recent review or revision of contractor safety 
procedures and the date of the most recent evaluation of contractor 
safety performance with an attestation in Sec.  68.175(o) that the 
contractor safety requirements, in Sec.  68.67, are implemented.
4. Proposed Revisions to Sec.  68.180 (Emergency Response Program)
    Subpart G Sec.  68.180 contains the emergency response program data 
elements that must be included in the RMP. Although the data elements 
in Sec.  68.180 are intended to help identify whether stationary source 
personnel will respond to an accidental release of a regulated 
substance, the existing data elements do not clearly distinguish 
between responding stationary sources and non-responding stationary 
sources. As a result, many non-responding stationary sources are 
submitting RMPs to the EPA with errors, because they appear to be 
answering questions that were only meant to be answered by responding 
sources. Consequently, the RMP data do not indicate with certainty, 
whether a stationary source is a responding or non-responding 
stationary source.
    The proposed revisions to add emergency response exercises and 
revise local coordination provisions of the rule are intended to 
improve coordination with local response authorities and to bolster 
emergency response capabilities and preparedness for accidental 
releases. Because of the proposed regulatory changes to subpart E- 
emergency response, and due to the difficulty in distinguishing between 
responding and non-responding facilities in subpart G Sec.  68.180, the 
EPA is proposing to completely revise and reorganize subpart G Sec.  
68.180 into the following three parts: Requirements for (1) all non-
responding and responding stationary sources, (2) non-responding 
stationary sources, and (3) responding stationary sources. The EPA 
believes that splitting subpart G Sec.  68.180 into three parts will 
aid facilities' understanding of the reporting requirements, reduce 
errors in submitted RMPs, and improve compliance with the RMP 
requirements. The proposed revisions to subpart G Sec.  68.180 will 
also improve EPA's ability to evaluate a facility's compliance with the 
proposed Emergency Response Program requirements.
    EPA is proposing to revise:

     Sec.  68.180(a) by deleting the phrase ``the following 
information.'' The text in subparagraphs (a)(1) through (a)(3) would 
be reorganized and/or replaced. Subparagraph (a)(1) would require 
the RMP to identify the name, organizational affiliation, phone 
number, and email address of local emergency planning and response 
organizations with which the stationary source last coordinated 
emergency response efforts, pursuant to Sec.  68.10(b)(3) or Sec.  
68.93. Subparagraph (a)(2) would require the RMP to identify whether 
coordination with the local emergency response organizations is 
occurring at least annually, pursuant to Sec.  68.93(a). 
Subparagraph (a)(3) would require the RMP to identify a list of 
Federal or state emergency plan requirements to which the stationary 
source is subject. EPA would delete subparagraphs (a)(4) through 
(a)(6);
     Sec.  68.180(b) by replacing the current text with a 
requirement to identify whether the facility is a responding or non-
responding stationary source, pursuant to Sec.  68.90. EPA would 
reorganize the paragraph into subparagraphs as follows:
    [cir] Subparagraph (b)(1) would apply to non-responding 
stationary sources. In subparagraphs (b)(1)(i) through (b)(1)(iii) 
the owner or operator would be required to identify whether the 
owner or operator has confirmed that local responders are capable of 
responding to accidental releases at the source, whether appropriate 
notification mechanisms are in place, and whether a notification 
exercise occurs at least annually.
    [cir] Subparagraph (b)(2) would apply to responding stationary 
sources. In subparagraphs (b)(2)(i) through (b)(2)(v) the owner or 
operator would be required to identify whether the LEPC or local 
response entity requested that the stationary source be a responding 
facility; whether the stationary source complies with requirements 
in Sec.  68.95; whether a notification exercises occurs at least 
annually, as required in Sec.  68.96(a); whether a field exercise is 
conducted every five years and after any RMP reportable accident, 
pursuant to Sec.  68.96(b)(1)(i); and whether a tabletop exercise 
occurs at least annually, except during the calendar year when a 
field exercise is conducted, as required in Sec.  68.96(b)(2)(i).

    EPA is proposing to delete Sec.  68.180(c), which requires the 
owner or operator to list other Federal or state emergency plan 
requirements to which the stationary source is subject.
5. Technical Corrections
a. Proposed Revisions to Sec.  68.10 (Applicability)
    EPA is proposing to correct a typographical error in Sec.  
68.10(b)(2). Section 68.10(b)(2) uses the term public receptor and 
indicates that public receptor is defined in Sec.  68.30; however the 
term public receptor is defined in Sec.  68.3, not Sec.  68.30. The 
proposed rule language corrects this typographical error.
b. Proposed Revisions to Sec.  68.48 (Safety information)
    EPA is proposing to remove the word ``material'' from the term 
Material Safety Data Sheet in Sec.  68.48(a)(1) to conform with OSHA's 
revised terminology for SDS. In 2012, OSHA made changes to its Hazard 
Communication Standard at 29 CFR 1910.1200 in order to align with the 
UN Globally Harmonized System of Classification and Labelling of 
Chemicals (GHS), Revision 3 (77 FR 17574, March 26, 2012). One change 
was the change in nomenclature from ``Material Safety Data Sheets'' to 
``Safety Data Sheets.'' Consequently, OSHA made this change to the PSM 
standard at 1910.119(d)(1)(vii) (78 FR 9311, February 8, 2013). 
Chemical producers and users must comply with new SDS requirements by 
June 1, 2015.\206\ In order to be consistent with OSHA and the UN GHS, 
EPA is proposing to replace ``Material Safety Data Sheet'' with 
``Safety Data Sheet'' in Sec.  68.48(a)(1).
---------------------------------------------------------------------------

    \206\ OSHA Fact Sheet- Hazard Communication Standard Final Rule. 
https://www.osha.gov/dsg/hazcom/HCSFactsheet.html.

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

[[Page 13686]]

c. Proposed Revisions to Sec. Sec.  68.54 and 68.71 (Training)
    The RMP rule requires initial and refresher training for employees 
operating a Program 2 or Program 3 covered process. Since the inception 
of the rule, however, there has been confusion on the types of 
employees that are considered workers operating a covered process. 
Although ``employee'' is not defined in Sec.  68.3, EPA has 
traditionally interpreted an employee to be any worker that is involved 
in operating a process, including supervisors. This is consistent with 
the OSHA definition of employee set forth at 29 CFR 1910.2(d).
    EPA has noted during facility inspections that some owners and 
operators are confused about how the existing training requirements 
apply to supervisors involved in process operations. If a supervisor is 
involved in decision-making for process operations, such as making 
changes to operating parameters, developing or approving operating 
procedures, or conducting emergency operations, then EPA expects that 
the supervisor receives initial and refresher training appropriate to 
the supervisor's responsibilities. In such cases, the training of a 
supervisor might not need to be as extensive as that of an operator, 
but EPA expects that the supervisor training would include process 
operations for which the supervisor might have decision-making 
authority. For this reason, EPA is proposing to clarify that the 
training requirements in Sec. Sec.  68.54 and 68.71 (for Program 2 and 
Program 3 facilities, respectively) apply to supervisors who are 
involved in operating a covered process by adding paragraph (e) to 
indicate that the term employee includes supervisors.
    Similarly, the EPA realizes that there may be other employee types 
involved in operating a covered process besides operators. For example, 
process engineers and maintenance technicians may occasionally be 
involved in process operations. The degree of involvement for these 
other employee types may vary greatly. Therefore, EPA is proposing to 
revise Sec.  68.54(d) to clarify that the requirement applies to 
employees involved in operating a process. For employees other than 
operators and supervisors, EPA expects that initial and refresher 
training will be appropriate to the employee's responsibilities in 
operating the process.
    Finally, EPA believes that Program 3 requirements in Sec. Sec.  
68.71(a) and 68.71(b) provides clearer regulatory language regarding 
the applicability of employees subject to initial and refresher 
training requirements than the similar Program 2 requirements 
Sec. Sec.  68.54(a) and 68.54(b). Specifically, Sec. Sec.  68.71(a) and 
68.71(b) indicates that initial and refresher training is required for 
employees ``involved in'' operating a covered process. Because EPA 
believes that this language can better facilitate compliance for 
Program 2, the EPA is proposing to add similar language for Program 2 
facilities at Sec. Sec.  68.54(a) and 68.54(b).
d. Proposed Revisions to Sec.  68.65 (PSI)
    EPA is proposing to revise Sec.  68.65(a) in order to remove 
irrelevant text regarding the timeframe for initial development of PSI 
and to more clearly demonstrate that PSI must be kept up-to-date. The 
EPA believes that these proposed changes will help Program 3 facilities 
to better comply with PSI requirements.
    EPA is proposing to revise Sec.  68.65(a) to remove the phrase ``In 
accordance with the schedule set forth in Sec.  68.67.'' This language 
appears to have been adopted from OSHA's PSM PHA completion schedule of 
May 1994 to May 1997 and is not relevant to the RMP rule because the 
compliance date of June 21, 1999 is after OSHA's PSM PHA completion 
schedule. Additionally, the only schedule currently referenced in Sec.  
68.67 is in Sec.  68.67(e), which pertains to a written schedule of PHA 
corrective actions. Because Sec.  68.67(e) does not pertain to when a 
PHA must be completed, EPA is proposing to remove the phrase ``In 
accordance with the schedule set forth in Sec.  68.67'' from Sec.  
68.65(a).
    Furthermore, EPA is proposing to add the phrase: ``and shall keep 
PSI up-to-date.'' EPA has always intended that PSI be kept up-to-date 
for Program 3 facilities. Updated PSI is necessary to properly update 
or revalidate the PHA every 5 years as required by Sec.  68.67(f). PSI 
items that that need to be kept up-to-date include, but are not limited 
to, piping and instrumentation diagrams, SDSs, hazard information, and 
changes to the design of the process. Although PSI must be updated for 
Program 3 facilities through MOC requirements in Sec.  68.75(d), EPA 
believes that the proposed change makes it clearer that PSI must be 
kept up-to-date. This proposed change also ensures consistency with the 
safety information requirement for Program 2 facilities, where Sec.  
68.48(a) indicates ``The owner or operator shall compile and maintain 
the following up-to-date safety information. . .'' EPA expects that 
revising Sec.  68.65(a) in this manner will further clarify the 
requirement that PSI must be completed prior to conducting a PHA.
    Finally, in order to be consistent with OSHA and the GHS, EPA is 
proposing to replace ``Material Safety Data Sheet'' with ``Safety Data 
Sheet'' in the note to Sec.  68.65(b).
e. Proposed Revisions to Sec.  68.130 List of Substances
    EPA is proposing revisions to Tables 1, 2, and 4 in Sec.  68.130 as 
follows:
    Table 1 to Sec.  68.130--List of Regulated Toxic Substances and TQs 
for Accidental Release Prevention. EPA is proposing to correct a 
typographical error in the Chemical Abstracts Service (CAS) number 
(no.) for allyl alcohol in Table 1 in Sec.  68.130. The incorrect CAS 
no. of 107-18-61 for allyl alcohol would be corrected to 107-18-6.
    Table 4 to Sec.  68.130--List of Regulated Flammable Substances and 
TQs for Accidental Release Prevention. EPA is proposing to correct a 
typographical error to the CAS no. for 1, 3-Butadiene, to read 106-99-
0, instead of 196-99-0, right justify the first CAS nos. column and 
delete the second CAS nos. column because it is redundant.
f. Proposed Revisions to Sec.  68.200 (Recordkeeping)
    EPA is proposing to revise Sec.  68.200 to clarify that records 
must be maintained at the stationary source.

VIII. Compliance Dates

    The initial Risk Management Program rule applied 3 years after 
promulgation of the rule on June 20, 1996, which is consistent with the 
last sentence of CAA section 112(r)(7)(B)(i). The provisions of this 
proposal modify terms of the existing rule, and, in some cases, clarify 
existing requirements. The statute does not directly address when 
amendments should become applicable. Therefore, in modifications to 
Sec.  68.10, EPA is proposing to:

     Require compliance with emergency response coordination 
activities within one year of an effective date of a final rule;
     Provide up to three years for the owner or operator of 
a non-responding stationary source to develop an emergency response 
program in accordance with Sec.  68.95 following an LEPC or 
equivalent's written request to do so;
     Comply with new provisions, unless otherwise stated, 
four years after the effective date of the final rule; and
     Provide regulated sources one additional year (i.e., 
five years after the effective date of the final rule) to correct or 
resubmit RMPs to reflect new and revised data elements.

    EPA is proposing that within one year of the effective date of a 
final rule, the owner or operator of a stationary source comply with 
emergency response

[[Page 13687]]

coordination activities in Sec. Sec.  68.93(a) and 68.93(b). This 
includes coordinating response needs annually with local emergency 
planning and response organizations to ensure resources and 
capabilities are in place to respond to an accidental release of a 
regulated substance, and documenting coordination activities. EPA 
believes one year is sufficient to arrange for and document 
coordination activities. The coordination activities in this proposed 
rule mostly are clarifications of current requirements rather than new 
provisions.
    EPA is also proposing to require three years for the owner or 
operator of a stationary source to comply with emergency response 
program requirements of Sec.  68.95 after receiving a written request 
by an LEPC or equivalent to develop an emergency response program. This 
timeframe is consistent with the time established in the original rule 
to comply with risk management program requirements and submit initial 
RMPs.
    Additionally, EPA is proposing to provide additional time for 
compliance with other proposed provisions (i.e., third-party compliance 
audits, root cause analyses as part of incident investigations, STAA, 
emergency response exercises, and information availability provisions). 
For these provisions, the proposed rule requires affected facilities to 
comply by four years after the effective date of the rule. Our reasons 
for the four year phase for these modified requirements are set out 
below. For the third-party audit, incident investigation root cause 
analysis, and public meeting provisions, this means that for any RMP 
reportable accident occurring later than four years after the effective 
date of the rule, the owner or operator of a source must conduct a 
third-party audit; investigate an incident, including a root cause 
analysis; and hold a public meeting within 30 days of the accident. For 
any incident that could reasonably have resulted in a catastrophic 
release (near miss), the owner or operator has four years after the 
effective date of the rule to comply with the proposed incident 
investigation root cause analysis requirements. For the STAA, emergency 
exercise, and information availability provisions, this means that the 
owner or operator must have completed or updated their PHA to include 
the STAA; conducted a notification exercise and at least one tabletop 
or field exercise; and prepared the required information to be provided 
to the public or, upon request, to the LEPCs.
    EPA is proposing to provide this additional time for several 
reasons. First, EPA believes that for most sources, the incident 
investigation root cause analysis and emergency response exercise 
requirements will involve training and program development activities 
that may reasonably require significant time to complete. Second, the 
extended compliance timeframe will allow potential auditors enough time 
to meet the competency and independence criteria necessary to serve as 
a third-party auditor. Third, for sources subject to the STAA 
provisions, EPA believes that in many cases these sources will prefer 
to perform a full PHA update when implementing the STAA requirements. 
Sources subject to this provision are among the largest and most 
complex sources regulated under 40 CFR part 68, and therefore PHAs and 
PHA updates at these sources typically require a significant level of 
effort. Since PHA updates are normally done at five year intervals, EPA 
believes it would be appropriate to allow most sources to adopt these 
provisions in their normal PHA update cycle if they so choose. Sources 
that performed their most recent PHA update immediately prior to the 
rule publication date would have up to four years to perform their next 
PHA update and adopt the STAA provisions. Most sources could schedule 
their PHA updates to incorporate the new STAA provisions on their 
normal PHA update schedule.
    Lastly, EPA intends to publish guidance for certain provisions, 
such as STAA, root cause analysis, and emergency response exercises. 
Once these materials are complete, owners and operators will need time 
to familiarize themselves with the new materials and incorporate them 
into their risk management programs.
    EPA is also proposing to provide one additional year for owners or 
operators to update RMPs to reflect proposed new or revised data 
elements in subpart G of the rule. The additional year will allow 
owners and operators an opportunity to begin to comply with revised 
rule provisions prior to certifying compliance in the RMP. 
Additionally, the Agency will need to make significant revisions to its 
online RMP submission system, RMP*eSubmit, to accommodate the newly 
required and revised data elements, and sources will not be able to 
update RMPs with new or revised data elements until the submission 
system is ready. Also, once it is ready, allowing an additional year 
for sources to update RMPs will prevent potential problems with 
thousands of sources submitting updated RMPs on the same day.

Examples for Compliance and Submission Dates

    The following examples assume a hypothetical effective date of June 
5, 2017 for a final rule that includes the proposed provisions in Table 
7: Proposed Rule Provisions and Corresponding Compliance Dates with 
corresponding proposed compliance dates.

                      Table 7--Proposed Rule Provisions and Corresponding Compliance Dates
----------------------------------------------------------------------------------------------------------------
                                                                                             Initiated after an
           Rule provision              Proposed compliance     Hypothetical  compliance        RMP reportable
                                              date                       date                    accident?
----------------------------------------------------------------------------------------------------------------
Third-party audit..................  Four years after        June 5, 2021................  Yes.
                                      effective date.
Root cause analysis................  Four years after        June 5, 2021................  Yes (also required
                                      effective date.                                       after near misses).
STAA...............................  Four years after        June 5, 2021................  No.
                                      effective date.
Emergency response coordination      Within one year of      June 5, 2018................  No.
 activities.                          effective date.
LEPC requires compliance with Sec.   Within three years of   N/A.........................  No.
  68.95 (emergency response           receipt of written
 program).                            request.
Emergency response exercises.......  Four years after        June 5, 2021................  Partially--field
                                      effective date.                                       exercise within one
                                                                                            year.
Information sharing................  Four years after        June 5, 2021................  Partially--public
                                      effective date.                                       meeting within 30
                                                                                            days.
Update RMP.........................  Five years after        June 5, 2022................  No (but previously
                                      effective date.                                       existing correction
                                                                                            requirements of Sec.
                                                                                              68.195 still
                                                                                            apply).
----------------------------------------------------------------------------------------------------------------


[[Page 13688]]

Example 1: Proposed Provisions That Would Apply to a Non-Responding 
Stationary Source

    Source A (see Table 8) is a non-responding stationary source with a 
regulated process subject to Program 2 requirements. Source A's owner 
submitted the latest RMP update to EPA on January 20, 2015 and 
completed its latest compliance audit on August 11, 2017. The source is 
not in NAICS 322, 324, or 325, and therefore is not subject to the 
proposed STAA provisions. The source has not had any RMP reportable 
accidents since the effective date of a final rule.

                      Table 8--Example 1, Source A
------------------------------------------------------------------------
          Source A--Program 2, non-responding stationary source
-------------------------------------------------------------------------
                                      Last compliance
     Date of last RMP update               audit          Last  accident
------------------------------------------------------------------------
January 20, 2015.................  August 11, 2017.....  N/A.
------------------------------------------------------------------------

    In this example, the following proposed provisions would apply:

     Annual emergency response coordination activities in 
accordance with proposed Sec.  68.93;
     Notification exercises (proposed Sec.  68.96(a)); and
     Information availability provisions (proposed 
Sec. Sec.  68.205 and 68.210).

    The owner or operator must coordinate response needs with local 
emergency planning and response organizations to ensure resources and 
capabilities are in place to respond to an accidental release of a 
regulated substance. Coordination activities must occur annually and be 
documented.
    Source A is a non-responding facility, and the owner or operator 
would be required to conduct annual notification exercises. The owner 
or operator would also be required to annually update information for 
the LEPC and provide the information upon request, and make certain 
information easily accessible to the public.
    Finally, beginning 5 years after the rule effective date, the owner 
or operator must update the RMP to include all revised data elements 
specified in subpart G and Sec.  68.42. In this case, the owner or 
operator would update their RMP no later than January 20, 2020 (the 
source's next scheduled five-year update), and again by June 5, 2022 
(the required resubmission date for the proposed rule).
    Table 9: Summary of proposed provisions that would apply to a non-
responding stationary source summarizes the proposed provisions that 
would apply to Source A.

         Table 9--Summary of Proposed Provisions That Would Apply to a Non-Responding Stationary Source
----------------------------------------------------------------------------------------------------------------
       Applicable provisions              Timeframe          Additional information        When to complete *
----------------------------------------------------------------------------------------------------------------
Emergency response coordination     Within one year of     Occurs annually...........  Complete coordination
 activities.                         effective date of a                                activities before June
                                     final rule.                                        5, 2018 and document
                                                                                        coordination.
Notification exercise.............  By four-years after    Occurs annually...........  Complete first
                                     effective date.                                    notification exercise by
                                                                                        June 5, 2021.
----------------------------------------------------------------------------------------------------------------
                                       Information availability provisions
----------------------------------------------------------------------------------------------------------------
Information to LEPC...............  By four-years after    Update information          Develop by June 5, 2021
                                     effective date.        annually. Includes          and provide upon
                                                            information on regulated    request.
                                                            substances; accident
                                                            histories; compliance
                                                            audits; incident
                                                            investigations (as
                                                            applicable) and
                                                            exercises. Provide to
                                                            LEPC upon request.
Information to the public.........  By four-years after    Occurs annually. Includes   Complete first calendar
                                     effective date.        information on: Regulated   year submission by June
                                                            substances including        5, 2021.
                                                            Safety Data Sheets;
                                                            accident history;
                                                            emergency response
                                                            program; exercises; and
                                                            LEPC contact information.
Update RMP........................  By five years after    Owner's next 5-year         Update RMP on regular
                                     effective date.        resubmission date occurs    schedule (by January 20,
                                                            prior to effective date     2020) and again to
                                                            for provision, so owner     include new information
                                                            must update RMP twice.      by June 5, 2022.
----------------------------------------------------------------------------------------------------------------
* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

    If the LEPC submits a request to Source A's owner requesting the 
source comply with the emergency response program requirements of Sec.  
68.95, then Source A's owner would have three years from the date of 
the letter to develop and implement an emergency response plan, obtain 
equipment, and train personnel in relevant procedures.
    Once the owner has developed an emergency response program, the 
source is a responding facility and must also comply with tabletop and 
field exercise requirements for responding facilities.

Example 2A: Proposed Provisions That Would Apply to a Responding 
Stationary Source

    Source B (see Table 10) is a responding stationary source with a 
process subject to Program 3 requirements. Its latest RMP update was 
submitted June 30, 2020 (i.e., three years after the rule effective 
date). Its latest compliance audit was performed on April 6, 2020. The 
source is not in NAICS 322, 324, or 325, and therefore is not subject 
to the proposed STAA provisions, and the source has not had any RMP 
reportable accidents since the effective date of a final rule.

                     Table 10--Example 2A, Source B
------------------------------------------------------------------------
            Source B--Program 3, responding stationary source
-------------------------------------------------------------------------
                                      Last compliance
     Date of last RMP update               audit          Last  accident
------------------------------------------------------------------------
June 30, 2020....................  April 6, 2020.......  N/A.
------------------------------------------------------------------------

    In this example, the following proposed provisions would apply:

     Annual emergency response coordination activities in 
accordance with proposed Sec.  68.93;
     Emergency response exercises (proposed Sec.  68.96); 
and
     Information availability provisions (proposed 
Sec. Sec.  68.205 and 68.210).


[[Page 13689]]


    The owner or operator must coordinate response needs with local 
emergency planning and response organizations to ensure resources and 
capabilities are in place to respond to an accidental release of a 
regulated substance. Coordination activities must occur annually and be 
documented.
    Additionally, since Source B is a responding facility, the owner or 
operator would be required to conduct annual notification exercises, 
annual tabletop exercises (with a field exercise substituting for a 
tabletop exercise once every five years).
    The owner or operator would be required to update information 
annually and provide the information upon request, to the LEPC and make 
information easily accessible to the public.
    Finally, by five years after the rule effective date, the owner or 
operator must update the RMP to include all revised data elements 
specified in subpart G and Sec.  68.42. Table 11: Summary of proposed 
provisions that would apply to Source B summarizes the proposed 
provisions that would apply to Source B.

                      Table 11--Summary of Proposed Provisions That Would Apply to Source B
----------------------------------------------------------------------------------------------------------------
       Applicable provisions                Timeframe           Additional information      When to complete *
----------------------------------------------------------------------------------------------------------------
Emergency response coordination      Within one year of      Occurs annually............  Complete coordination
 activities.                          effective date of a                                  activities before
                                      final rule.                                          June 5, 2018.
----------------------------------------------------------------------------------------------------------------
                              Emergency response exercises (proposed Sec.   68.96)
----------------------------------------------------------------------------------------------------------------
Notification exercise..............  Four-years after        Occurs annually............  Complete first
                                      effective date.                                      notification exercise
                                                                                           by June 5, 2021.
Field and tabletop exercises.......  Four-years after        Tabletop exercise annually,  Complete first
                                      effective date.         field exercise once every    tabletop or field
                                                              five years. No tabletop      exercise by June 5,
                                                              exercises in the year of a   2021.
                                                              field exercise.
----------------------------------------------------------------------------------------------------------------
                                       Information availability provisions
----------------------------------------------------------------------------------------------------------------
Information to LEPC................  Four-years after        Update information           Develop by June 5,
                                      effective date.         annually. Includes           2021 and provide upon
                                                              information on regulated     request.
                                                              substances; accident
                                                              histories; compliance
                                                              audits; incident
                                                              investigations (as
                                                              applicable) and exercises.
                                                              Provide to LEPC upon
                                                              request.
Information to the public..........  Four-years after        Occurs annually. Includes    Complete first
                                      effective date.         information on: Regulated    calendar year
                                                              substances including         submission by June 5,
                                                              Safety Data Sheets;          2021.
                                                              accident history;
                                                              emergency response
                                                              program; exercises; and
                                                              LEPC contact information.
Update RMP.........................  By five years after     ...........................  Update RMP to include
                                      effective date.                                      new information by
                                                                                           June 5, 2022.
----------------------------------------------------------------------------------------------------------------
* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

Example 2B: Additional Proposed Provisions That Would Apply to a 
Responding Stationary Following an RMP Reportable Accident

    See Table 12 below.

                     Table 12--Example 2B, Source B
------------------------------------------------------------------------
            Source B--Program 3, responding stationary source
-------------------------------------------------------------------------
    Date of last RMP update      Last compliance audit    Last accident
------------------------------------------------------------------------
June 30, 2020.................  April 6, 2020.........  July 5, 2021.
------------------------------------------------------------------------

    In this example, Source B has an accidental release on July 5, 2021 
that meets the reporting requirements of Sec.  68.42. As a result of 
the accident, Source B's owner would be required to comply with the 
following additional proposed provisions:

     Accident history provisions of Sec.  68.42 (to report 
root causes identified during the incident investigation);
     Third-party audit provisions of Sec.  68.80;
     Incident investigation and root cause analysis 
requirements of Sec.  68.81;
     Field exercise provisions of Sec.  68.96(b)(1)(i) 
(i.e., requiring a field exercise within one year of any accidental 
release required to be reported under Sec.  68.42); and
     Public meeting within 30 days of an RMP reportable 
accident, pursuant to Sec.  68.210(d).

    Chronologically, the first provision that would apply is the 
requirement to host a public meeting. Section 68.210(d) requires the 
owner or operator to hold a public meeting within 30 days after the 
accident to inform the public about

[[Page 13690]]

the accident, including information required under Sec.  68.42, and 
other relevant information.
    An incident investigation must be initiated promptly, but no later 
than 48 hours following an incident. The proposed incident 
investigation provisions would require the owner or operator to 
complete an incident investigation that includes a root cause analysis 
and other elements specified in Sec.  68.81(d), and an incident 
investigation report, within 12 months of the incident, unless the 
implementing agency approves an extension of time. A summary of the 
incident investigation report must be provided to the LEPC, upon 
request.
    The proposed third-party audit provisions would require the owner 
or operator to hire a third-party auditor to perform a third-party 
compliance audit and submit an audit report to the implementing agency 
and owner or operator within 12 months of the accident (if the source's 
next scheduled compliance audit was required sooner than one year 
following the incident, the third-party audit would be required to be 
completed by the scheduled compliance audit date unless the 
implementing agency approved an extension). The owner or operator must 
also complete an audit findings response report and submit it to the 
implementing agency within 90 days of receiving the audit report from 
the third-party auditor. The owner or operator must also provide the 
audit findings response report, as well as a schedule to address 
deficiencies identified in the audit findings response report and 
documentation of actions taken to address deficiencies, to the owner or 
operator's audit committee of the Board of Directors, or other 
comparable committee, if one exists.
    The owner or operator would also be required to conduct a field 
exercise meeting the requirements of Sec.  68.96 within one year of the 
accidental release, and prepare an evaluation report within 90 days of 
completing the exercise. By five years after the rule effective date, 
the owner or operator must update the RMP to include all revised data 
elements specified in subpart G and Sec.  68.42. Table 13 summarizes 
the additional provisions that would apply to Source B following an RMP 
reportable accident (in addition to complying with new requirements 
triggered by an RMP reportable accident, the owner or operator must 
annually coordinate response needs with local emergency planning and 
response organizations, document coordination activities, and comply 
with the other information disclosure provisions as previously 
described).

  Table 13--Summary of Additional Proposed Provisions That Would Apply to Source B Following an RMP Reportable
                                                    Accident
----------------------------------------------------------------------------------------------------------------
Applicable provisions following an
      RMP reportable accident             Timeframe          Additional information        When to complete *
----------------------------------------------------------------------------------------------------------------
Public meeting....................  Four-years after       Within 30 days after an     Hold public meeting by
                                     effective date.        accident.                   August 4, 2021.
Incident investigations...........  Four-years after       Initiate within 48 hours,   Complete report by July
                                     effective date.        complete investigation      5, 2022.
                                                            and root cause analysis
                                                            within 12 months.
Third-party audit.................  Four-years after       Within 12 months of the     Complete third-party
                                     effective date.        accident or three years     audit by July 5, 2022;
                                                            of previous audit,          complete findings
                                                            whichever is sooner.        response report within
                                                                                        90 days of completing
                                                                                        audit.
Field exercise....................  Four-years after       At least once every five    Complete field exercise
                                     effective date.        years, and within one       by July 5, 2022;
                                                            year of an RMP reportable   complete an evaluation
                                                            accident.                   report within 90 days of
                                                                                        the exercise.
Include new accident history        Five-years after       Correct RMP within 6        Correct RMP by January 5,
 information in RMP.                 effective date.        months of accident          2022; report complete
                                                            (existing requirement);     accident information by
                                                            report complete accident    June 5, 2025.
                                                            information in next five-
                                                            year RMP update.
----------------------------------------------------------------------------------------------------------------
* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

Example 3: Compliance Date Example For Sources Subject to STAA 
Requirements

    Source C (see Table 14) is a petroleum refinery in NAICS 32411. Its 
latest RMP update was submitted on March 31, 2018 (i.e., the year after 
the rule effective date). Its latest PHA revalidation was completed on 
March 7, 2017 (i.e., approximately three months before the rule 
effective date).

                      Table 14--Example 3, Source C
------------------------------------------------------------------------
                    Source C--Program 3, NAICS 32411
-------------------------------------------------------------------------
          Date of last RMP update               Last PHA revalidation
------------------------------------------------------------------------
March 31, 2018............................  March 7, 2017.
------------------------------------------------------------------------

    Because the source is in NAICS 32411, it is subject to the proposed 
STAA provisions of Sec.  68.67(c)(8). Therefore, by four years after 
the rule effective date, the owner or operator must complete a PHA 
revalidation that addresses safer technology and alternative risk 
management measures, and determine the feasibility of the ISTs and ISDs 
considered. Under the proposed information availability requirements of 
Sec.  68.205, the owner or operator must also submit to their LEPC a 
summary of the ISTs or ISDs implemented or planned, and annually update 
the summary as part of the calendar year submission described in Sec.  
68.205(c).
    By June 5, 2018 the owner or operator of Source C must comply with 
the new emergency response coordination provisions, and by June 5, 
2021, the owner or operator must also comply with other applicable 
proposed rule provisions including: Third-party audits; incident 
investigations; emergency response exercises; and information 
availability (including public meetings).
    By five years after the rule effective date, the owner or operator 
of Source C must update the RMP to include all revised data elements 
specified in subpart G and Sec.  68.42. Table 15: Compliance date 
example for sources subject to STAA requirements, summarizes the 
proposed STAA provisions that would apply to Source C.

[[Page 13691]]



                   Table 15--Compliance Date Example for Sources Subject to STAA Requirements
----------------------------------------------------------------------------------------------------------------
       Applicable provisions              Timeframe          Additional information        When to complete *
----------------------------------------------------------------------------------------------------------------
STAA..............................  Four-years after       Occurs every five years as  By June 5, 2021.
                                     effective date.        part of PHA revalidation.
Information availability to LEPC,   Four-years after       In addition to other        Develop in first calendar
 upon request.                       effective date.        information availability    year after completion of
                                                            provisions, include         STAA or June 5, 2021,
                                                            information on IST or ISD   whichever is later and
                                                            to be implemented. Update   provide to LEPC upon
                                                            every five years as part    request.
                                                            of information to provide
                                                            to LEPC upon request.
Update RMP........................  Five years after rule  ..........................  By June 5, 2022.
                                     effective date.
----------------------------------------------------------------------------------------------------------------
* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

IX. Statutory and Executive Order Reviews

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

    This action is an economically significant regulatory action that 
was submitted to the OMB for review. Any changes made in response to 
OMB recommendations have been documented in the docket. The EPA 
prepared a Regulatory Impact Analysis (RIA) of the potential costs and 
benefits associated with this action. This RIA is available in the 
docket and is summarized here (Docket ID Number EPA-HQ-OEM-2015-0725).
1. Why EPA Is Considering This Action
    In response to catastrophic chemical facility incidents in the 
United States, President Obama issued Executive Order 13650, 
``Improving Chemical Facility Safety and Security,'' on August 1, 2013. 
The Executive Order establishes the Chemical Facility Safety and 
Security Working Group (Working Group), co-chaired by the Secretary of 
Homeland Security, the Administrator of EPA, and the Secretary of Labor 
or their designated representatives at the Assistant Secretary level or 
higher, and comprised of senior representatives of other Federal 
departments, agencies, and offices. The Executive Order requires the 
Working Group to carry out a number of tasks whose overall goal is to 
prevent chemical accidents, such as the explosion that occurred at the 
West Fertilizer facility in West, Texas, on April 17, 2013, which 
killed 15 people, most of whom were first responders, caused multiple 
injuries, and resulted in extensive building damage to the town.
    Section 6(a)(i) of Executive Order 13650 requires the Working Group 
to develop options for improved chemical facility safety and security 
that identify ``improvements to existing risk management practices 
through agency programs, private sector initiatives, Government 
guidance, outreach, standards, and regulations.'' Section 6(c) of 
Executive Order 13650 requires the Administrator of EPA to review the 
Risk Management Program. As part of this effort to solicit comments and 
information from the public regarding potential changes to EPA's RMP 
regulations (40 CFR part 68), on July 31, 2014, EPA published an RFI 
(79 FR 44604).
    EPA believes that the RMP regulations have been effective in 
preventing and mitigating chemical accidents in the United States; 
however, EPA believes that revisions could further protect human health 
and the environment from chemical hazards through advancement of PSM 
based on lessons learned. These revisions are a result of a review of 
the existing Risk Management Program and information gathered from the 
RFI and Executive Order listening sessions, and are proposed under the 
statutory authority provided by CAA section 112(r) as amended (42 
U.S.C. 7412(r)).
2. Description of Alternatives to the Proposed Rule
    The RIA analyzed the proposed new requirements and revisions to 
existing requirements as well as several alternatives for each.
Third-Party Audits--(Proposed Revisions Apply to Existing Sec. Sec.  
68.58 and 68.79 and New Sec. Sec.  68.59 and 68.80)
    The existing rule requires Program 2 and Program 3 processes to 
conduct a compliance audit at least once every 3 years. The proposed 
rule would require facilities to contract with an independent third-
party to conduct the next scheduled compliance audit following an RMP 
reportable accident or after an implementing agency determines that 
certain circumstances exist that suggest a heightened risk for an 
accident. The third-party would have to be someone with whom the 
facility does not have an existing or recent relationship and who meets 
specific qualification criteria. The low cost alternative would apply 
only for Program 2 and Program 3 processes after an RMP reportable 
accident or at the request of the implementing agency. The medium cost 
alternative would apply every three years for all compliance audits 
conducted for all Program 3 processes. The high cost alternative would 
apply every three years for all compliance audits conducted for Program 
2 and Program 3 processes.
Root Cause Analysis--(Proposed Revisions Apply to Sec. Sec.  68.60 and 
68.81)
    The proposed rule would require facilities to conduct a root cause 
analysis as part of an incident investigation following an RMP 
reportable accident or an incident that could reasonably have resulted 
in an RMP reportable accident (i.e., ``near miss''). A root cause 
analysis is a formal process to identify underlying reasons for 
failures that lead to accidental releases. These analyses usually 
require someone trained in the technique. The low cost alternative 
would apply the provision only to RMP reportable accidents or near 
misses in Program 3 processes. The medium/high cost alternative would 
apply to RMP reportable accidents or near misses involving Program 2 
and Program 3 processes.
Safer Technology and Alternatives Analysis (STAA)--(Proposed Revisions 
Apply to Sec.  68.67)
    Under the proposed rule, facilities in NAICS codes 322 (paper 
manufacturing), 324 (petroleum and coal products manufacturing), and 
325 (chemical manufacturing) with Program 3 processes would be required 
to conduct a STAA for each process as part of their PHA, which occurs 
every 5 years. The STAA includes two parts: The initial analysis to 
identify alternatives, and a feasibility study to determine the costs 
and assess the reasonableness of implementing

[[Page 13692]]

technology alternatives. The proposed rule is the low cost alternative, 
which would apply to all facilities with Program 3 processes in NAICS 
codes 322, 324, and 325. The medium cost alternative would apply the 
requirement to all Program 3 processes. The high cost alternative would 
apply the requirement to all Program 3 processes and require facilities 
to implement feasible IST/ISD.
Coordination Activities--(Proposed Revisions Apply to Sec. Sec.  68.90, 
New 68.93, and 68.95)
    Under the proposed rule, all facilities with Program 2 or Program 3 
processes would be required to coordinate with local response agencies 
annually to determine response needs and ensure that response resources 
and capabilities are in place to respond to an accidental release of a 
regulated substance. The owner or operator would also be required to 
document coordination activities. The proposed rule also includes a 
provision enabling the LEPC or local emergency response official to 
request, in writing, that the RMP-facility owner or operator comply 
with the emergency response program requirements of Sec.  68.95. 
Section 68.95 requires the owner or operator to develop an emergency 
response program that includes an emergency response plan, procedures 
for use, inspection and maintenance of response equipment, training for 
responding employees, and procedures to review and update the program.
    Alternatives to this provision are similar to the proposed 
requirements. One alternative that imposes the same costs as the 
proposed option would eliminate the option for local officials to 
request that a facility owner or operator comply with the requirements 
of Sec.  68.95. A second alternative is a high cost alternative and 
would require all facilities with Program 2 or Program 3 processes to 
comply with Sec.  68.95, regardless of local response capability. This 
would be analogous to the requirements under the Oil Pollution 
Prevention regulation (40 CFR part 112) where all facilities subject to 
the FRP provisions at Sec.  112.20 are required to prepare and 
implement an emergency response plan for oil discharges into navigable 
waters or adjoining shorelines.
Exercises--(Proposed Revisions Apply to New Sec.  68.96)
    Notification Exercises. All facilities with Program 2 or Program 3 
processes would be required to conduct a notification exercise annually 
to ensure that the contact list to be used in an emergency is complete, 
accurate, and up-to-date.
    Tabletop and Field Exercises. The proposed rule would require 
responding facilities to conduct annual exercises of their emergency 
response plans and invite local emergency response officials to 
participate. Under the low cost alternative, facilities would conduct 
tabletop exercises annually. Under the proposed rule, which is the 
medium cost alternative, facilities would conduct a full field exercise 
at least once every five years and tabletop exercises annually in the 
interim years. Facilities with an RMP reportable accident would also 
have to conduct a full field exercise within a year of an RMP 
reportable accident, but this may not impose any additional burden 
under the medium alternative as it would count as the required field 
exercise for the next 5-year period. Under the high cost alternative, 
facilities would conduct full field exercises annually.
Information Availability--(Proposed Revisions Apply to New Sec.  68.205 
and Existing Sec.  68.210)
    The proposed rule would require all facilities to disclose certain 
chemical hazard information to the public. The facility or its parent 
company, if applicable, would have to make the information available in 
an easily accessible manner, which might be presenting information on a 
company Web site, posting the information at public libraries, 
publishing it in local papers, or other means appropriate for 
particular communities and facilities. The information to be disclosed 
includes names of regulated substances at the facility; SDS; accident 
history information; emergency response program information; and LEPC 
or local response agency contact information.
    In addition, facility owners or operators would be required to 
provide information upon request to the LEPC or other local response 
agencies on all of the following that apply to the facility: Names and 
quantities of regulated substances; five-year RMP reportable accident 
history; summaries of compliance audit reports; summaries of incident 
investigation reports; summaries of implementation of IST; and 
information on emergency response exercises, including schedules for 
upcoming exercises. Facilities owners or operators would be required to 
update this information annually. Although EPA did not analyze 
alternatives for this provision, the different applicability for the 
STAA provision alternatives increases the cost of the medium/high 
alternative for disclosure to the LEPC because more facilities would 
have to report on that analysis.
Public Meeting--(Proposed Revisions Apply to Sec.  68.210)
    The proposed rule would require facilities to hold a public meeting 
for the local community within 30 days of an RMP reportable accident. 
The medium cost alternative would require Program 2 and Program 3 
facilities to hold a public meeting at least once every 5 years and 
within 30 days of an RMP reportable accident. The high cost alternative 
would require all facilities (i.e., including Program 1 facilities) to 
hold a public meeting at least once every 5 years and within 30 days of 
an RMP reportable accident.
3. Summary of Costs
    Approximately 12,500 facilities have filed current RMPs with EPA 
and are potentially affected by the proposed rule changes. These 
facilities range from petroleum refineries and large chemical 
manufacturers to water and wastewater treatment systems; chemical and 
petroleum wholesalers and terminals; food manufacturers, packing 
plants, and other cold storage facilities with ammonia refrigeration 
systems; agricultural chemical distributors; midstream gas plants; and 
a limited number of other sources that use RMP-regulated substances.
    Table 16 presents the number of facilities according to the latest 
RMP reporting as of February 2015 by industrial sector and chemical 
use.

                                Table 16--Number of Affected Facilities by Sector
----------------------------------------------------------------------------------------------------------------
                                                                        Total
                Sector                         NAICS Codes           facilities            Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental                               924           1,923  Use chlorine and other
 quality programs (i.e., governments).                                              chemicals for treatment.
Agricultural chemical distributors/          111, 112, 115, 42491           3,667  Store ammonia for sale; some
 wholesalers.                                                                       in NAICS 111 and 115 use
                                                                                    ammonia as a refrigerant.
Chemical manufacturing................                        325           1,466  Manufacture, process, store.

[[Page 13693]]

 
Chemical wholesalers..................                       4246             333  Store for sale.
Food and beverage manufacturing.......                   311, 312           1,476  Use (mostly ammonia as a
                                                                                    refrigerant).
Oil and gas extraction................                        211             741  Intermediate processing
                                                                                    (mostly regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).
Other.................................    44, 45, 48, 54, 56, 61,             248  Use chemicals for wastewater
                                                               72                   treatment, refrigeration,
                                                                                    store chemicals for sale.
Other manufacturing...................          313, 326, 327, 33             384  Use various chemicals in
                                                                                    manufacturing process, waste
                                                                                    treatment.
Other wholesale.......................                   423, 424             302  Use (mostly ammonia as a
                                                                                    refrigerant).
Paper manufacturing...................                        322              70  Use various chemicals in pulp
                                                                                    and paper manufacturing.
Petroleum and coal products                                   324             156  Manufacture, process, store
 manufacturing.                                                                     (mostly regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).
Petroleum wholesalers.................                       4247             276  Store for sale (mostly
                                                                                    regulated flammable
                                                                                    substances and flammable
                                                                                    mixtures).
Utilities.............................  221 (except 22131, 22132)             343  Use chlorine (mostly for
                                                                                    water treatment).
Warehousing and storage...............                        493           1,056  Use mostly ammonia as a
                                                                                    refrigerant.
Water/wastewater Treatment Systems....               22131, 22132             102  Use chlorine and other
                                                                                    chemicals.
                                       -------------------------------------------------------------------------
    Total.............................  .........................          12,542  .............................
----------------------------------------------------------------------------------------------------------------

    Table 17 presents a summary of the annualized costs estimated in 
the regulatory impact analysis. In total, EPA estimates annualized 
costs of $158.3 million at a 3% discount rate and $161.0 million at a 
7% discount rate.

                  Table 17--Summary of Annualized Costs
                        [Millions, 2014 dollars]
------------------------------------------------------------------------
                Provision                   3 (percent)     7 (percent)
------------------------------------------------------------------------
Third-party Audits......................            $5.0            $5.0
Incident Investigation/Root Cause.......             0.8             0.8
STAA....................................            34.8            34.8
Coordination............................             6.3             6.3
New Responders *........................            33.0            35.6
Notification Exercises..................             1.4             1.4
Facility Exercises......................            60.7            60.7
Information Sharing (LEPC)..............            11.7            11.7
Information Sharing (Public)............             4.0             4.0
Public Meeting..........................             0.4             0.4
Rule Familiarization....................             0.3             0.3
                                         -------------------------------
    Total Cost \+\......................           158.3           161.0
------------------------------------------------------------------------
* Reflects costs for some facilities to convert from ``non-responding''
  to ``responding'' as a result of improved coordination with local
  emergency response officials.
\+\ Totals may not sum due to rounding.

    The largest average annual cost of the proposed rule is the 
exercise cost for current responders ($60.7 million), followed by new 
responders ($35.6 million), STAA ($34.8 million), and information 
sharing (LEPC) ($11.7 million). The remaining provisions impose average 
annual costs under $10 million, including coordination ($6.3 million), 
third-party audits ($5.0 million), information sharing (public) ($4.0 
million), notification exercises ($1.4 million), incident 
investigation/root cause analysis ($0.8 million), public meetings ($0.4 
million), and rule familiarization ($0.3 million).
    The proposed rule includes three prevention program provisions--
third party audits, root cause analysis, and STAA--involving 
information collection and analysis activities that can lead to a wide 
range of outcomes, and therefore costs, if and when the owner acts upon 
the findings and/or recommendations generated by the audit, 
investigation, or analysis. Although resolving audit and investigation 
findings is required under the existing rule provisions, and the 
proposed rule does not require implementation of feasible IST 
alternatives, EPA believes it is possible that there may be costs 
associated with resolving findings from the proposed third-party audit 
and root cause analysis provisions that go beyond the costs of the 
existing provisions, and that some owners or operators may have 
additional costs due to voluntary implementation of IST. Due to the 
wide range of outcomes from these proposed provisions and the 
significant uncertainties associated with their costs, EPA seeks 
further information on their potential costs, and whether these costs 
should accrue to this proposal. What types of costs result from 
independent audits (other than the cost of the audit) that are 
different from self-audit costs? What types of costs result from root 
cause investigations as compared to non-root-cause investigations? For 
the STAA provisions, what information exists to project what changes 
facilities

[[Page 13694]]

are likely to voluntarily undertake? EPA particularly requests cost 
data or studies for implementation of IST changes from any commenters 
who may prefer the high option for this provision, which would require 
implementation of feasible IST alternatives.
Summary of Potential Benefits
    EPA anticipates that promulgation and implementation of this rule 
would result in a reduction of the frequency and magnitude of damages 
from releases. Accidents and releases from RMP facilities occur every 
year, resulting in fires and explosions, property damage, acute and 
chronic exposures of workers and nearby residents to hazardous 
materials, and resultant damages to health. Although we are unable to 
quantify what specific damage reductions may occur as a result of these 
proposed revisions, we are able to present data on the total damages 
that currently occur at RMP facilities each year. The data presented 
are based on a 10-year baseline period, summarizing RMP accident 
impacts and, when possible, monetizing them. EPA expects that some 
portion of future damages would be prevented through implementation of 
a final rule. Table 18 presents a summary of the quantified damages 
identified in the analysis.

                                     Table 18--Summary of Quantified Damages
----------------------------------------------------------------------------------------------------------------
                                                                                                     Average/
                                                Unit value      10-Year total     Average/year       accident
----------------------------------------------------------------------------------------------------------------
                                                     On-site
----------------------------------------------------------------------------------------------------------------
Fatalities..................................      $8,583,113      $497,820,554       $49,782,055        $328,161
Injuries....................................          50,000       105,150,000        10,515,000          69,314
                                             -------------------------------------------------------------------
Property Damage.............................  ..............     2,054,895,236       205,489,524       1,354,578
                                             -------------------------------------------------------------------
    On-site Total...........................  ..............     2,657,865,790       265,786,579       1,752,053
----------------------------------------------------------------------------------------------------------------
                                                     Offsite
----------------------------------------------------------------------------------------------------------------
Fatalities..................................      $8,583,113        $8,583,113          $858,311          $5,658
Hospitalizations............................          36,000         6,804,000           680,400           4,485
Medical Treatment...........................           1,000        14,807,000         1,480,700           9,761
Evacuations.................................             181         6,992,327           699,233           4,609
Sheltering in Place.........................              91        40,920,849         4,092,085          26,975
                                             -------------------------------------------------------------------
Property Damage.............................  ..............        11,352,105         1,135,211           7,483
                                             -------------------------------------------------------------------
    Offsite Total...........................  ..............        89,459,394         8,945,939          58,971
        Total...............................  ..............     2,747,325,184       274,732,518       1,811,024
----------------------------------------------------------------------------------------------------------------

    EPA monetized both on-site and offsite damages. EPA estimated total 
average annual on-site damages of $265.8 million. The largest monetized 
average annual on-site damage was avoided on-site property damage, 
which resulted in an average annual damage of approximately $205.5 
million. The next largest impact was avoided on-site fatalities ($49.8 
million) and injuries ($10.5 million).
    EPA estimated total average annual offsite damages of $8.9 million. 
The largest monetized average annual offsite damage was from sheltering 
in place ($4.1 million), followed by medical treatment ($1.5 million), 
property damage ($1.1 million), fatalities ($0.9 million), evacuations 
($0.7 million), and hospitalizations ($0.7 million).
    In total, EPA estimated monetized potential damages of $275 million 
per year. However, the monetized impacts omit many important categories 
of accident impacts including lost productivity, the costs of emergency 
response, transaction costs, property value impacts in the surrounding 
community (that overlap with other benefit categories), and 
environmental impacts. Also not reflected in the 10-year baseline costs 
are the impacts of non-RMP accidents at RMP facilities and any 
potential impacts of rare high consequence catastrophes. A final 
omission is related to the information provision. Reducing the 
probability of chemical accidents and the severity of their impacts, 
and improving information disclosure by chemical facilities, as the 
proposed provisions intend, would provide benefits to potentially 
affected members of society.
    Table 19 summarizes four broad social benefit categories related to 
accident prevention and mitigation including prevention of RMP 
accidents, mitigation of RMP accidents, prevention and mitigation of 
non-RMP accidents at RMP facilities, and prevention of major 
catastrophes. The table explains each and identifies ten associated 
specific benefit categories, ranging from avoided fatalities to avoided 
emergency response costs. Table 19 also highlights and explains the 
information disclosure benefit category and identifies two specific 
benefits associated with it: Improved efficiency of property markets 
and allocation of emergency resources.

[[Page 13695]]



    Table 19--Summary of Social Benefits of Proposed Rule Provisions
------------------------------------------------------------------------
                                                      Specific benefit
   Broad benefit category          Explanation           categories
------------------------------------------------------------------------
Accident Prevention.........  Prevention of future   Reduced
Accident Mitigation.........   RMP facility          Fatalities.
Non-RMP accident prevention    accidents.            Reduced
 and mitigation.              Mitigation of future   Injuries.
                               RMP facility          Reduced
Avoided Catastrophes........   accidents.            Property Damage.
                              Prevention and         Fewer
                               mitigation of         People Sheltered in
                               future non-RMP.       Place.
                               accidents at RMP      Fewer
                               facilities..          Evacuations.
                              Prevention of rare     Avoided
                               but extremely high    Lost Productivity.
                               con-.                 Avoided
                               sequence events....   Emergency Response
                                                     Costs.
                                                     Avoided
                                                     Transaction Costs.
                                                     Avoided
                                                     Property Value
                                                     Impacts.*
                                                     Avoided
                                                     Environmental
                                                     Impacts.
Information Disclosure......  Provision of           Improved
                               information to the    efficiency of
                               public and LEPCs.     property markets.
                                                     Improved
                                                     resource
                                                     allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories such as
  reduced health and environmental impacts.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the OMB under the PRA. The Information 
Collection Request (ICR) document that the EPA prepared has been 
assigned EPA ICR number 2537.01. You can find a copy of the ICR in the 
docket for this rule, and it is briefly summarized here.
    This ICR would amend a previously approved ICR (1656.15), OMB 
Control No. 2050-0144. That ICR covers the risk management program 
rule, originally promulgated on June 20, 1996; the current rule, 
including previous amendments, is codified as 40 CFR part 68. This ICR 
addresses the following proposed information requirements that are part 
of a proposed revision to the rule:
    (1) Make certain information related to the risk management program 
available to the local community.
    (2) Provide information, upon request, to the LEPC and local 
emergency response officials with summaries of certain activities under 
the risk management program.
    (3) Hold a public meeting within 30-days of an accident subject to 
reporting under Sec.  68.42.
    (4) Hire a third-party to conduct the compliance audit after a 
reportable release.
    (5) Conduct and document a root cause analysis after a reportable 
release.
    (6) Conduct and document an incident investigation, including root 
cause analysis, after a near miss.
    (7) Conduct and document a safer technology and alternatives 
analysis.
    (8) Meet and coordinate with local responders to ensure adequate 
response capability exists.
    (9) Conduct a notification drill to verify information.
    (10) Conduct and document emergency response exercises.
    (11) Come into compliance with requirements for developing an 
emergency response program, including developing an emergency response 
plan, conducting emergency response exercises, documenting training, 
and providing information to the LEPC.
    EPA believes that the RMP regulations have been effective in 
preventing and mitigating chemical accidents in the United States. 
However, EPA is proposing revisions to further protect human health and 
the environment from chemical hazards through advancement of PSM based 
on lessons learned--resulting in better coordination between 
facilities, LEPC's, and the public. State and local authorities will 
use the information in RMPs to modify and enhance their community 
response plans. The agencies implementing the RMP rule will use RMPs to 
evaluate compliance with part 68 and to identify sources for inspection 
because they may pose significant risks to the community. Citizens may 
use the information to assess and address chemical hazards in their 
communities and to respond appropriately in the event of a release of a 
regulated substance. These revisions are a result of a review of the 
existing Risk Management Program and are proposed under the statutory 
authority provided by section 112(r) of the CAA as amended (42 U.S.C. 
7412(r)).
    Some of the elements mandated in the regulation for the RMP may 
require the submittal of data viewed as proprietary, trade secret, or 
confidential. As described above, EPA has adopted procedures for 
sources to claim certain information as confidential business 
information. EPA encourages facilities that have CBI claims to submit 
substantiation with the RMP.
    Respondents/affected entities: Manufacturers, utilities, 
warehouses, wholesalers, food processors, ammonia retailers, and gas 
processors.
    Respondent's obligation to respond: Mandatory (CAA sections 
112(r)(7)(B)(i) and (ii), CAA section 112(r)(7)(B)(iii), 114(c), CAA 
114(a)(1)).
    Estimated number of respondents: 12,542.
    Frequency of response: On occasion.
    Total estimated burden: 623,970 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $55,278,216 (per year), includes $4,303,435 
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to the EPA using the docket identified at 
the beginning of this rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs via email to 
oria_submissions@omb.eop.gov, Attention: Desk Officer for the EPA. 
Since OMB is required to make a decision concerning the ICR between 30 
and 60 days after receipt, OMB must receive comments no later than 
April 13, 2016. The EPA will respond to any ICR-related comments in the 
final rule.

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 603 of the RFA, the EPA prepared an initial 
regulatory flexibility analysis (IRFA) that examines the impact of the 
proposed rule on small entities along with regulatory alternatives that 
could minimize that impact. The complete IRFA is available for review 
in the docket and is summarized here.

[[Page 13696]]

1. Why EPA Is Considering This Action
    The purpose of this action is to improve safety at facilities that 
use and distribute hazardous chemicals. In response to catastrophic 
chemical facility incidents in the United States, including the 
explosion that occurred at the West Fertilizer facility in West, Texas, 
on April 17, 2013 that killed 15 people, President Obama issued 
Executive Order 13650, ``Improving Chemical Facility Safety and 
Security,'' on August 1, 2013. Section 6(a)(i) of Executive Order 13650 
requires that various Federal agencies develop options for improved 
chemical facility safety and security, including modernizing 
regulations. As a result, EPA is proposing revisions to the Risk 
Management Program (40 CFR part 68). For more information on Executive 
Order 13650, see section II. Background of this document.
2. Objectives of, and Legal Basis for, the Proposed Rule
    EPA believes that the RMP regulations have been effective in 
preventing and mitigating chemical accidents in the United States; 
however, EPA believes that revisions could further protect human health 
and the environment from chemical hazards through the advancement of 
process safety based on lessons learned. These revisions are a result 
of a review of the existing Risk Management Program and information 
gathered from the RFI and Executive Order listening sessions, and are 
proposed under the statutory authority provided by CAA section 112(r) 
as amended (42 U.S.C. 7412(r)).
3. Estimate of the Number of Small Entities to Which the Proposed Rule 
Will Apply
    The RMP rule affects a broad range of sectors (296 separate NAICS 
codes are listed in RMP filings; 240 of these are associated with small 
entities). The RMP data include facility and parent company name as 
well as the number of full time equivalents (FTE) for the facility and 
the NAICS codes. To develop an estimate of the number of small 
entities, the analysis required a series of reviews of the data to 
identify the large entities and the small entities that were part of 
small firms owning multiple facilities. The data were reviewed to 
identify parent companies that were clear from the facility name, but 
not included in the parent company field. That made it possible to 
determine the total FTE for facilities belonging to the same parent 
company and compare that number to the Small Business Administration 
(SBA) standard (when in FTEs). If the total FTE exceeded the standard, 
all the facilities were classified as large. Where the facilities 
listed different NAICS codes, the analysis applied either the code used 
for a majority of the facilities or, if no single code dominated, the 
code with the highest threshold. For example, if a firm had facilities 
in sectors where the standards were 500 and 1,000 FTE, the 1,000 FTE 
standards was used to determine if the firm was large.
    For remaining facilities, if there were multiple facilities 
belonging to a single firm and the total FTE approached the threshold 
or if the name included ``USA'' or ``US holdings,'' which implied an 
international company, Internet searches were conducted to identify 
whether the facilities belonged to a firm with other facilities or 
employees.
    The RFA defines small governments as governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.\207\ Most 
governmental RMP facilities are water and wastewater treatment systems 
and listed a city or county as the owning entity. A check of budgets 
that were available for some of the smallest cities indicated that (1) 
the systems are sub-agencies of the city/county and (2) obtain some 
revenues from the general fund although most of their revenues are 
derived from user fees. To determine which facilities belong to small 
governments, the populations for each of cities or counties were 
determined by checking the 2014 estimates from the Census. For special 
water and irrigation districts, their Internet sites were checked for 
information on the population served. Table 20 below presents the 
number of small and large facilities by program level.
---------------------------------------------------------------------------

    \207\ 5 U.S.C. 602.

                Table 20--Number of Facilities Owned by Small and Large Entities by Program Level
----------------------------------------------------------------------------------------------------------------
                                                                       Small           Large
           RMP program             Small private   Large private    government      government         Total
----------------------------------------------------------------------------------------------------------------
Program 3.......................           3,545           6,097             451             522          10,615
Program 2.......................             174             176             521             414           1,285
Program 1.......................             213             414               6               9             642
                                 -------------------------------------------------------------------------------
    Total.......................           3,932           6,687             978             945          12,542
----------------------------------------------------------------------------------------------------------------

4. Projected Reporting, Recordkeeping and Other Compliance Requirements 
of the Proposed Rule
    Under the proposed rule, all facilities would be required to make 
certain information available to the public and, upon request, to the 
LEPC or local emergency response officials. Program 1 facilities would 
not likely have to spend more than an hour a year on this disclosure 
because the information disclosed to the public is information every 
facility should have readily available and because the additional 
information that would be provided, upon request, to the LEPC relates 
to provisions that do not apply to Program 1 facilities. Therefore, the 
IRFA has not considered Program 1 small facilities in the analysis of 
impacts.
    Program 2 and Program 3 facilities would incur the same costs for 
the other proposed provisions except the STAA. Each facility would be 
required to update information to be disclosed annually, coordinate 
with the local responders, and conduct a notification drill annually. 
If the facility is a responder, it would have to hold an annual 
exercise, including at least one full field exercise every 5 years. 
Program 3 facilities in NAICS codes 322, 324, and 325 would have to 
conduct an STAA as part their PHA every 5 years.
    If a facility has an accident, it would incur costs to hold a 
public meeting within 30 days of an RMP reportable accident. It would 
also incur additional costs for obtaining a third-party to conduct 
their next scheduled compliance audit and to conduct a root cause 
analysis as part of the incident investigation. Facilities would also 
be required to conduct root cause investigations of near misses. 
Finally, if

[[Page 13697]]

a facility has to become a responder, it would incur costs to develop 
an emergency response plan, train personnel to respond, purchase and 
maintain equipment, and conduct exercises.
    Table 21 presents three sets of costs: low year, annualized, and 
high year (excludes costs incurred after an accident or a near miss). 
Low-year costs represent costs for years in which routine annual costs 
apply. These include costs for coordinating with local responders, 
conducting notification exercises (applies to all Program 2 and Program 
3 facilities), conducting tabletop exercises (applies only to 
responders), and updating disclosure information to LEPC and the 
public. High-year costs represent a year in which every applicable 
provision would occur, except costs incurred after an accident or 
``near miss.'' This includes the routine annual costs and periodic 
costs that apply either every 3 or 5 years (i.e., field exercise in 
lieu of a tabletop exercise, public meeting, all public disclosure 
requirements, and STAA). Because the STAA provisions would only apply 
to a subset of facilities (i.e., those in NAICS 322, 324, and 325), 
these facilities are broken out separately in the last two rows of the 
table. Complex facilities are those categorized as NAICS 324 or 325 and 
simple facilities are all others. Annualized costs average the low 
costs incurred for four years with the high costs incurred every fifth 
year.

                                   Table 21--Low, Annualized, and High Year Combined Costs for Small Entities by Group
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Low year cost                    Annualized                    High year cost
                                                         -----------------------------------------------------------------------------------------------
                                                              Simple          Complex         Simple          Complex         Simple          Complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Program 2 and Program 3 facilities (excludes Program 3 facilities subject to STAA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non Responder...........................................            $808          $1,223            $808          $1,223            $808          $1,223
Responder 0-19 FTE......................................           6,743           9,289           8,158          10,898           9,572          12,507
Responder 20+ FTE.......................................           7,870          10,761          11,885          15,261          15,900          19,761
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Program 3 facilities subject to STAA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non Responder...........................................             n/a           1,223             n/a          17,295             n/a          33,366
Responder <20 FTE.......................................             n/a           9,289             n/a          26,970             n/a          44,650
--------------------------------------------------------------------------------------------------------------------------------------------------------

5. Related Federal Rules
    The Risk Management Program is one of several programs regarding 
chemical facility safety and security. Executive Order 13650 directed 
Federal agencies to identify ways to modernize policies, regulations, 
and standards to enhance safety and security in chemical facilities. 
The Executive Order established a Chemical Facility Safety and Security 
Working Group to oversee this effort, which is tri-chaired by the EPA, 
DOL, and DHS. Members of the Working Group (at the management and staff 
level) regularly share information in order to coordinate activities on 
any work involving revisions in regulations, such as revisions to 
OSHA's PSM standard and DHS' CFATS regulations. These efforts also 
serve to avoid unnecessary duplication, overlap and conflicts with the 
Risk Management Program requirements.
    OSHA's 29 CFR 1910.119 PSM standard. Mandated by the CAAA of 1990 
and issued in 1992, the PSM standard sets requirements for the 
management of highly hazardous substances to prevent and mitigate 
hazards associated with catastrophic releases of flammable, explosive, 
reactive, and toxic chemicals that may endanger workers. The PSM 
standard covers the manufacturing of explosives and processes involving 
threshold quantities of flammable liquids and flammable gasses, as well 
as 137 other highly hazardous chemicals.
    The OSHA PSM standard, similar to the EPA RMP rule, aims to prevent 
or minimize the consequences of accidental chemical releases through 
implementation of management program elements that integrate 
technologies, procedures, and management practices. The EPA RMP 
regulation closely tracks the accident prevention measures contained in 
the OSHA PSM standard because Section 112(r)(7)(D) of the CAA requires 
EPA to coordinate the RMP regulation with ``any requirements 
established for comparable purposes'' by OSHA. Consequently, the OSHA 
PSM standard and EPA RMP regulation are closely aligned in content, 
policy interpretations, Agency guidance, and enforcement.
    Since the inception of these regulations, EPA and OSHA have 
coordinated closely on their implementation in order to minimize 
regulatory burden and avoid conflicting requirements for regulated 
facilities. For example, owners and operators of RMP covered processes 
also subject to the OSHA PSM standard will generally have met their RMP 
accident prevention program obligations if they have properly 
implemented their PSM program.
    Occupational Safety and Health Act General Duty Clause. Section 
5(a)(1) of the Occupational Safety and Health (OSH) Act requires 
employers to provide its employees with a workplace free from 
recognized hazards that are causing, or are likely to, cause death or 
serious physical harm.
    EPA's EPCRA regulations (40 CFR 350-372). Following the 1984 
release of approximately 40 tons of MIC into the air in Bhopal, India, 
that killed over 3,700 people and the 1985 leak of 500 gallons of 
aldicarb oxime from a Union Carbide facility in Institute, West 
Virginia, Congress passed EPCRA in October 1986. The purpose of EPCRA 
is twofold: (1) To encourage and support emergency planning efforts at 
the state and local levels, and (2) to provide the public and local 
governments with information concerning potential chemical hazards 
present in their communities.
    EPCRA created state and local infrastructure designed to (1) 
prepare for and mitigate the effects of a chemical incident and (2) 
ensure that information on chemical risks in the community is provided 
to the first responders and the public. These state and local entities 
are the SERCs, TERCs, LEPCs, and TEPCs. Representatives on the LEPCs 
include local officials and planners, facility owners and operators, 
first responders, health and hospital personnel, environmental groups, 
and citizen/members of the public.
    A central requirement of LEPCs and TEPCs is to develop a local 
emergency response plan. These plans are required to:


[[Page 13698]]


     Identify facilities and transportation routes of 
extremely hazardous substances and assess the risk based on chemical 
information from facilities;
     Describe on-site and offsite emergency response 
procedures;
     Designate a community coordinator and facility 
emergency coordinator(s) to implement the plan;
     Describe emergency notification procedures;
     Describe how to determine the probable affected area 
and population by releases (including identification of critical 
community receptors and assets);
     Describe local emergency equipment and facilities and 
the persons responsible for them;
     Describe evacuation plans;
     Identify the training program for emergency responders 
(including schedules); and
     Identify the methods and schedules for exercising 
emergency response plans.

    Under the community right-to-know section of EPCRA, certain 
facilities that manufacture, process, or store any hazardous chemicals 
are required to submit an SDS or list of hazardous chemicals, grouped 
into hazard categories, to SERCs, TERCs, LEPCs, TEPCs, and local fire 
departments. Under the Hazard Communication Standard, OSHA requires 
SDSs that describe the properties, hazards, and health effects of these 
chemicals as well as emergency response procedures and appropriate 
personal protection equipment. Facilities must also annually report 
their inventories of all on-site chemicals for which SDSs are required 
that are stored above reporting threshold quantities to SERCs, LEPCs, 
and local fire departments. LEPCs must use information about chemical 
inventories at facilities and SDSs in developing their local emergency 
plans; this information must also be available to the public.
    Standards for Owners and Operators of Hazardous Waste Treatment, 
Storage, and Disposal Facilities (40 CFR 264 and 265). These 
regulations establish minimum national standards which define the 
acceptable management of hazardous waste including requirements for 
arrangements that owners and operators of hazardous waste facilities 
make with local authorities. In sections 264.37 and 265.37, hazardous 
waste generators are required to attempt to make arrangements for 
emergency response activities with local authorities, and document the 
refusal of local or State authorities to complete such arrangements in 
the operating record.
    CAA section 112(r)(1) general duty clause. The statute requires 
facility owners and operators to identify hazards; design, maintain and 
safely operate a facility; and prevent and minimize releases of any 
regulated substances under Sec.  112(r)(3) (40 CFR part 130) and ``any 
other extremely hazardous substance.'' \208\
---------------------------------------------------------------------------

    \208\ Although the term ``any other extremely hazardous 
substance'' is not defined, the legislative history of the 1990 CAA 
amendments indicates that the term would include any agent ``which 
may or may not be listed or otherwise identified by any Government 
agency which may as the result of short-term exposures associated 
with releases to the air cause death, injury or property damage due 
to its toxicity, reactivity, flammability, volatility, or 
corrosivity.'' See: http://www2.epa.gov/sites/production/files/2013-10/documents/gdcregionalguidance.pdf.
---------------------------------------------------------------------------

    DHS's 6 CFR part 27 CFATS rule. The CFATS program, established in 
2007, regulates chemical facilities that present a high level of 
security risk to ensure they have security measures in place to reduce 
the risks associated with their possession of chemicals of interest 
(COI). There are 325 COI and 137 of the 140 RMP regulated substances 
are included on the list of COI.
    The CFATS program requires the development, submission, and 
implementation of Site Security Plans (SSPs) (or Alternative Security 
Programs in lieu of SSPs), which document the security measures high-
risk chemical facilities use to satisfy the applicable risk-based 
performance standards (RBPS) under CFATS. These plans are not ``one-
size-fits-all,'' but in-depth, highly customized, and dependent on each 
facility's unique circumstances.
    Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 
requirements for explosives. ATF is responsible for enforcing Federal 
explosives laws that govern commerce in explosives in the United 
States, including licensing, storage, recordkeeping, and conduct of 
business. ATF conducts inspections of Federal explosives licensees who 
manufacture, import, sell, or store explosives in the United States to 
ensure that explosives are managed in accordance with Federal law.
6. Description of Alternatives to the Proposed Rule
    The RIA analyzed the proposed new requirements and revisions to 
existing requirements as well as several alternatives for each. In most 
cases, EPA chose regulatory alternatives that had reduced impacts on 
small businesses relative to other alternatives that EPA considered. In 
this section, we discuss each regulatory provision, explain whether and 
how the proposed provision minimizes impacts on small businesses, and 
discuss additional recommendations resulting from the SBAR Panel that 
could further mitigate small business impacts. EPA has requested 
comment on these recommendations.
Third-Party Audits--(Proposed Revisions Apply to Existing Sec. Sec.  
68.58 and 68.79 and New Sec. Sec.  68.59 and 68.80)
    EPA evaluated three options for this provision and selected the 
lowest cost alternative, which would apply the requirement only to 
sources with Program 2 and/or Program 3 processes that have had an RMP 
reportable accident. The other alternatives would have required that 
all compliance audits be conducted by third parties for sources with 
either Program 3 processes or Program 2 and Program 3 processes. 
Limiting the applicability of this proposed provision to sources that 
have had RMP reportable accidents minimizes its impact to the overall 
universe of RMP facilities, and particularly to small businesses. As 
indicated in Exhibit 5-25 in the RIA, the estimated cost of the high 
option ($96.2 million annualized) is nearly 20 times higher than the 
estimated costs of the proposed option ($5.0 million annualized). 
Furthermore, a majority of the costs for the proposed option would 
likely be borne by large businesses, as historically, most RMP 
accidents have occurred at facilities that do not meet SBA small 
business criteria. Table 22 shows the percentage of accidents from 
2004-2013 that occurred at small and large facilities.

                 Table 22--Percentage of Accidents at Small and Large RMP Facilities, 2004-2013
----------------------------------------------------------------------------------------------------------------
                                           Program 1             Program 2             Program 3
               Sector               ------------------------------------------------------------------   Total
                                       Small      Large      Small      Large      Small      Large
----------------------------------------------------------------------------------------------------------------
NAICS 325--Chemical Manufacturing..          0          6          1          5         53        465        530
NAICS 311, 312--Food/Beverage                0          0          2          0         58        210        270
 Manufacturers.....................
NAICS 322--Paper Manufacturing.....          0          0          0          0          9         37         46

[[Page 13699]]

 
NAICS 331, 332, 333, 334, 336, 339--         0          0          4          0         12         27         43
 Other Manufacturing...............
NAICS 11, 12, 15, 42491--                    0          0          0          0         91         65        156
 Agricultural Chemical Distributors
NAICS 4246, 4247--Chemical/                  0          2          0          0          7         29         38
 petroleum wholesale...............
NAICS 4244, 4245--Other wholesale..          0          0          0          0          7         13         20
NAICS 493--Warehouse...............          0          1          0          0         18         53         72
NAICS 324--Petroleum and Coal                2          6          0          0         15        146        169
 Products Manufacturing............
NAICS 22131, 22132--Water/POTW.....          0          0         14         20         17         24         75
NAICS 211--Oil/Gas exploration.....          4          4          1          0         10         34         53
Other..............................          3          7          7          4          7         17         45
                                    ----------------------------------------------------------------------------
    Total..........................          9         26         29         29        304      1,120      1,517
----------------------------------------------------------------------------------------------------------------

    While the proposed third-party audit provision should have fairly 
low impact on small businesses, the SBAR Panel made additional 
recommendations to further minimize the impacts of this provision on 
small businesses. The Panel recommended that EPA consider proposing 
streamlined independence requirements for small businesses (i.e. based 
on size of the facility). The Panel also recommended that EPA limit the 
independence criteria to individuals participating in the audit rather 
than the entire company. The Panel further recommended that EPA seek 
comments on:

     Eliminating the independence requirement, in its 
entirety, and retaining existing requirement for compliance audits;
     Limiting applicability of the third-party audit 
provision by only requiring third-party audits, for Program 3 
facilities, triggered by major accidents that have offsite impacts 
and how to define or characterize ``major accidents with offsite 
impacts'';
     Deleting the current PE requirement and considering 
other independent accreditation for third-party auditors which also 
carry ethical requirements, such as CSP, CIH, CFPS, CHMM, CPEA, or 
CPSA; and
     The impacts a third-party auditor may have on a 
facility's security and the measures that should be included in the 
rule provision to protect facilities from terrorism or release of 
CBI from a third-party auditor.

    EPA incorporated preamble language to address these Panel 
recommendations in section IV.B of this document.
Incident Investigation/Root Cause Analysis--(Proposed Revisions Apply 
to Sec. Sec.  68.60 and 68.81)
    In this case, EPA considered two potential regulatory options, and 
proposed the higher cost option, which would apply the requirement for 
an incident root cause analysis to all RMP-reportable accidents and 
near misses involving Program 2 and Program 3 processes. The lower cost 
option would apply the requirement to accidents and near misses at only 
Program 3 processes. Although the Agency chose the higher cost option, 
this provision is estimated to be one of the least costly provisions of 
the proposed rule. In fact, the costs for both options considered were 
nearly indistinguishable--as indicated in Exhibit 5-25 in the RIA, both 
the low and proposed options are estimated to cost approximately $0.8 
million annually. Therefore, EPA believes that the additional safety 
benefit of requiring owners and operators of Program 2 processes to 
also conduct root cause analyses after incidents and near misses was 
warranted.
    The SBAR Panel also made recommendations to further minimize the 
impacts of this provision on small businesses. The Panel recommended 
that EPA clarify our intent that incident investigations are not 
intended to cover minor accidents or minor near misses that could not 
reasonably have resulted in a catastrophic release. The Panel further 
recommended that EPA consider proposing to require root cause analysis 
only for reportable releases, not including near misses. The Panel 
recommended that EPA clarify in the preamble the comparative advantages 
of a root cause analysis to the current incident investigation 
requirements in Sec. Sec.  68.60 and 68.81 of the rule. Finally, the 
Panel recommended that EPA seek comments on:

     Whether the root cause analysis requirement should be 
eliminated;
     The revised definition of catastrophic release and 
whether it should be limited to loss of life, serious injury or 
significant damage or loss of offsite property; and
     Examples of near misses.

    EPA incorporated preamble language to address these Panel 
recommendations in section IV.A of this document.
STAA--(Proposed Revisions Apply to Sec.  68.67)
    For STAA, EPA examined three potential alternative regulatory 
options, and chose the least costly option. The proposed option, which 
would apply the STAA requirement to Program 3 processes in NAICS 322 
(paper manufacturing), 324 (petroleum and coal products manufacturing), 
and 325 (chemical manufacturing), costs $34.8 million annually and is 
approximately half as costly as the medium option ($71.7 million 
annually), which would apply the requirement to all Program 3 
processes, and likely far less costly than the high option, which would 
require implementation of feasible safer alternatives for all Program 3 
processes.
    The low-cost STAA option not only minimizes the overall number of 
sources that are subject to it, but is also biased toward larger 
sources. This is because the three sectors selected for regulation 
under this proposed provision all have a lower percentage of small 
entities than the overall percentage of small entities within the RMP 
facility universe. As indicated in Table 23, approximately 39% of 
facilities regulated under the RMP regulation are owned by small 
entities. In comparison, NAICS 322 (paper manufacturing) has about 20% 
RMP-regulated small businesses within the sector, while NAICS 324 
(petroleum and coal products manufacturing) and 325 (chemical 
manufacturing) each have approximately 10% small businesses.

[[Page 13700]]



                   Table 23--Percentage of Small Businesses in NAICS 322, 324, 325 and Overall
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percentage
                             Sector                                    Small           Total           small
----------------------------------------------------------------------------------------------------------------
NAICS 322--Paper Manufacturing..................................               9              46            19.6
NAICS 324--Petroleum and Coal Products Manufacturing............              17             169            10.1
NAICS 325--Chemical Manufacturing...............................              54             530            10.2
All Sectors.....................................................           4,910          12,542            39.1
----------------------------------------------------------------------------------------------------------------

    The SBAR Panel also made recommendations to further minimize the 
impacts of this provision on small businesses. The Panel recommended 
that EPA explain what evidence we have that caused us to reconsider the 
1996 assessment that IST analysis was unlikely to yield additional 
benefits. The Panel further recommended that EPA seek comments on:

     Whether to eliminate this requirement;
     Limiting this provision to require analyses only to be 
conducted at the design stage of new processes; and
     Exempting batch toll manufacturers from this 
requirement.

    EPA incorporated preamble language to address these Panel 
recommendations in section IV.C of this document.
Emergency Response Program Coordination With Local Responders--
(Proposed Revisions Apply to Sec. Sec.  68.90, New 68.93, and 68.95)
    The proposed option (medium option) would require all facilities 
with Program 2 or Program 3 processes to coordinate with local response 
agencies annually and document coordination activities. This option 
would also allow the LEPC or local emergency response officials to 
require that the RMP-facility owner or operator comply with the 
emergency response program requirements of Sec.  68.95. EPA considered, 
but did not propose, the more stringent option of requiring all 
facilities with Program 2 or Program 3 processes to implement an 
emergency response program and respond to accidental releases at the 
facility. The proposed option is estimated to cost $6.3 million 
annually and is far less costly than the high option, which would 
likely have exceeded $100 million annually. Therefore, by selecting the 
medium option, EPA substantially reduced the cost impact for the many 
small entities that may rely on local response organizations to respond 
to accidental releases at the source (see Exhibit 3-8 and Appendix B in 
the RIA for more information on the number, size, and industrial 
categories of non-responding facilities).
    While EPA does not believe it is necessary to require that all 
facilities develop an in-house response capability, the Agency believes 
that non-responding facilities, even if they are small businesses, must 
still coordinate with local public responders so that they are prepared 
to handle emergencies at the facility. EPA expects that these 
coordination activities will result in some sources, including some 
small entities, becoming responding facilities, which may involve 
additional costs for those facilities (see section 5.6 of the RIA). EPA 
believes this is necessary to meet the objectives of Clean Air Act 
section 112(r), which requires the Agency to promulgate regulations to 
(among other things) provide for a prompt emergency response to any 
accidental releases in order to protect human health and the 
environment. We also note that the 2013 accident at West Fertilizer, 
which was one of several accidents that triggered the Executive Order 
that ultimately led to this rule proposal, occurred at a facility that 
would likely have been considered a small entity under the established 
SBA criteria. The Agency believes it is appropriate to require that 
such facilities conduct adequate emergency coordination, and if 
necessary, develop adequate emergency response capabilities, even if 
they are small.
    The SBAR Panel also made recommendations to further minimize the 
impacts of this provision on small businesses. The Panel recommended 
that EPA explain how coordination should occur between local emergency 
response officials and small facilities and clarify requirements for 
facilities that make a ``good faith'' effort to coordinate with local 
emergency response officials. The Panel also recommended that EPA seek 
comment on the proposed frequency for annual coordination. EPA 
incorporated preamble language to address these Panel recommendations 
in section V.A of this document.
Exercises--(Proposed Revisions Apply to New Sec.  68.96)
    Notification Exercises. The proposed rule would require all 
facilities with Program 2 or Program 3 processes to annually conduct an 
emergency notification exercise to ensure that their emergency contact 
list is complete, accurate, and up-to-date. This proposed provision is 
expected to be one of the least costly rule provisions at $1.4 million 
annually (only the incident investigation root cause analysis and 
public meetings provisions are estimated to cost less). Therefore EPA 
did not consider any alternatives to reduce the impact of this 
provision on small businesses, nor did the SBAR Panel make any such 
recommendations.
Tabletop and Field Exercises
    The proposed option was the medium option, and would require 
responding facilities to conduct a full field exercise at least once 
every five years and tabletop exercises annually in the interim years. 
This option was substantially less costly than the high option ($61 
million vs $104 million annually), which would require annual field 
exercises. As this provision only affects responding facilities, which 
tend to more often be large facilities (see Exhibit 3-8 in the RIA), 
EPA has proposed an option that mitigates the impact on small entities. 
EPA also considered a low option that would only require annual 
tabletop exercises. This option would have saved approximately $11 
million annually. We did not propose the low option because the Agency 
believes that periodic field exercises are an important component of a 
comprehensive emergency response program. Nevertheless, this was also a 
recommendation from the SBAR panel and we have requested comment on the 
low option provision in the preamble to the proposed rule.
    The SBAR Panel also made other recommendations to further minimize 
the impacts of this provision on small businesses. The Panel 
recommended that EPA clarify that participation by local responders is 
not required for a facility to comply with exercise requirements and 
that field exercises and drills required by other state and Federal 
regulations could meet this requirement if the facility's emergency 
response plan is tested as part of those exercises. The Panel also 
recommended that EPA seek comments on:
     Whether the exercise provision should be eliminated;

[[Page 13701]]

     How to address postponement and rescheduling issues (which 
SERs have indicated may take up to a year);
     Limiting the requirement to only tabletop exercises; and
     The frequency of required field and tabletop exercises.
    EPA incorporated preamble language to address these Panel 
recommendations in section V.B of this document.
Information Availability--(Proposed Revisions Apply to New Sec.  68.205 
and Existing Sec.  68.210)
    There are three proposed information disclosure requirements. Under 
the proposed requirements, all facilities would be required to make 
certain information available to the public. Upon receiving a request 
from their LEPC or local emergency response official, regulated 
facilities would also be required to provide certain information to the 
LEPC or emergency response officials. Lastly, facilities would be 
required to hold public meetings within 30 days of any RMP reportable 
accident. In the preamble to the proposed rule, EPA has requested 
public comments on whether all regulated facilities should be required 
to hold a public meeting every five years and after an RMP reportable 
accident, or whether a requirement for periodic and post-accident 
public meetings should be limited to only Program 2 and Program 3 
facilities. Although EPA has not proposed specific alternatives to 
minimize the impact of the information disclosure provisions on small 
businesses, the Agency believes that in general, smaller facilities 
will bear lower costs to comply with these provisions. By requiring 
certain information disclosure elements (i.e., incident investigation 
and public meeting provisions) only following an RMP reportable 
accident, EPA is minimizing the impact to the overall universe of RMP 
facilities, and particularly to small businesses. Most RMP reportable 
accidents have generally occurred at facilities that do not meet SBA 
small business criteria (see Exhibit 7-11 in the RIA). Also, small 
facilities will generally have fewer processes, fewer chemicals, fewer 
accidental releases, etc., on which to provide information to LEPCs and 
the public.
    The SBAR Panel also made recommendations to further minimize the 
impacts of this provision on small businesses. The Panel recommended 
that EPA:

     Consider only requiring facilities to develop chemical 
hazard information summaries and allowing LEPCs to make reasonable 
requests for additional information;
     Make chemical hazard information available upon request 
by the LEPC rather than requiring it to be automatically submitted 
by the facility;
     Require that a public meeting be held only after an RMP 
reportable accident; and
     Allow public meetings to be combined with any meeting 
open to the general public (e.g. city council, municipal board, or 
LEPC meeting).

    The Panel also recommended that EPA seeks comments on:

     Narrowing the approach to require a one page summary of 
each significant chemical hazard during a fire identifying the 
product, its properties, its location and firefighting measures for 
responders--a one-page summary of information that addresses 
chemical hazard information and emergency response measures;
     Limiting the amount of information to be shared with 
LEPCs;
     Whether EPA should specify a format for summary 
information to make it easier for local officials to find and 
interpret the information that they need:
     Ways to limit the scope of the information elements 
shared with the public as well as the format in which information 
should be provided (e.g. a one-page summary of information that 
addresses chemical hazard information and emergency response 
measures);
     Whether the existing RMP data, including the executive 
summary, are adequate for the public in the absence of a specific 
request, and
     Whether additional information should only be provided 
to the public upon request.
     Whether it is appropriate to require public meetings;
     Whether to eliminate the public meeting requirement and 
instead require the facility to schedule a meeting with the LEPC 
and/or emergency responders 60 to 90 days after an accident or 
incident;
     Whether public meetings should be held upon request 
(e.g., LEPC or its community equivalent) rather than automatically 
within an established timeframe; and
     Extending the timeframe from 30 to 90 days or whether 
there is a more appropriate timeframe for scheduling a meeting 
following an RMP reportable accident and who should be included in 
the invitation (e.g. limit to local emergency response officials and 
LEPCs).

    EPA incorporated preamble language to address these Panel 
recommendations in section VI of this document. EPA also revised the 
proposed rule to incorporate the following two Panel recommendations as 
the proposed options:

     Make chemical hazard information available upon request 
by the LEPC rather than requiring it to be automatically submitted 
by the facility; and
     Require that a public meeting be held only after an RMP 
reportable accident.
7. Small Business Advocacy Review
    As required by section 609(b) of the RFA, the EPA also convened a 
SBAR Panel to obtain advice and recommendations from SERs that 
potentially would be subject to the rule's requirements. The SBAR Panel 
evaluated the assembled materials and small-entity comments on issues 
related to elements of an IRFA. The SBAR report contains the 
recommendations to the EPA Administrator from the three Federal Panel 
members (EPA, the Small Business Administration Office of Advocacy and 
the OMB Office of Information and Regulatory Affairs). This proposal 
was informed by the small entity comments and the Panel report 
recommendations were used in the development of this proposal, as 
provided in section 609(b) of the RFA. A copy of the full SBAR Panel 
Report is available in the rulemaking docket.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains a Federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Accordingly, the EPA has prepared a written 
statement required under section 202 of UMRA. The statement is included 
in the docket for this action and briefly summarized here.
    Over the 16 years of implementing the RMP program and, most 
recently through Executive Order 13650 listening sessions, webinars, 
and consultations, EPA has engaged states and local communities to 
discuss chemical safety issues. In the nine Executive Order 13650 
Improving Chemical Facility Safety and Security listening sessions and 
webinars, held between November 2013 and January 2014, states and local 
communities identified lack of chemical facility participation and 
coordination in local emergency contingency planning as a key barrier 
to successful local community preparedness. Additionally, EPA has had 
consultations with states and local communities through participation 
in the NASTTPO annual meetings to discuss key issues related to 
chemical facility and local community coordination and what areas of 
the RMP regulations need to be modernized to facilitate this 
coordination and improve local emergency preparedness and prevention. 
Key priority options discussed with NASTTPO states and local 
communities included: Improving emergency response coordination between 
RMP facilities and LEPCs/first

[[Page 13702]]

responder and requiring emergency response exercises of the RMP 
facility plan to involve LEPCs, first responders and emergency response 
personnel.
    This action may significantly or uniquely affect small governments. 
The EPA consulted with small governments concerning the regulatory 
requirements that might significantly or uniquely affect them. Through 
the July 31, 2014, RFI (79 FR 44604), EPA sought feedback from 
governmental entities while formulating the proposed revisions in this 
action. Additionally, EPA participated in ongoing consultations with 
affected SERs (including small governmental entities) through the SBAR 
panel. EPA convened an SBAR panel in accordance with the requirements 
of the RFA, as amended by the Small Business Regulatory Enforcement 
Fairness Act (SBREFA).

E. Executive Order 13132: Federalism

    This action does not have Federalism implications. The EPA 
believes, however, that these proposed regulatory revisions may be of 
significant interest to local governments. Consistent with the EPA's 
policy to promote communications between the EPA and state and local 
governments, and to better understand the concerns of local 
governments, EPA sought feedback through the July 31, 2014, RFI (79 FR 
44604). Additionally, consultations with governmental entities occurred 
through the SBREFA process.

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

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. EPA will be consulting with 
tribal officials as it develops this regulation to permit them to have 
meaningful and timely input into its development. Consultation will 
include conference calls, webinars, and meetings with interested tribal 
representatives to ensure that their concerns are addressed before the 
rule is finalized. In the spirit of Executive Order 13175 and 
consistent with EPA policy to promote communications between EPA and 
tribal governments, EPA specifically solicits comment on this proposed 
rule from tribal officials.

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

    This action is not subject to Executive Order 13045 because the EPA 
does not believe the environmental health risks or safety risks 
addressed by this action present a disproportionate risk to children. 
The EPA believes that the proposed revisions to the Risk Management 
Program regulations would further protect human health, including the 
health of children, through advancement of process safety.

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

    This proposed action is not a ``significant energy action'' because 
it is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This proposed action is not anticipated 
to have notable impacts on emissions, costs or energy supply decisions 
for the affected electric utility industry.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. The EPA proposes to 
require third-party auditors to be experienced with applicable RAGAGEP, 
which include Voluntary Consensus Standards as well as other measures, 
for regulated processes being audited. Numerous different standards 
apply to processes regulated under the proposed rule and their 
application will vary depending on the particular process and chemicals 
involved. EPA is not proposing to list all the various codes, standards 
and practices that would apply to the wide variety of chemical 
processes covered by this rule as doing so would be impracticable, 
given that this rule affects sectors across many industries and listing 
the applicable RAGAGEP measures would require the EPA to update that 
list every time there was a change in the industry standards or best 
practices. The proposed rule would require third-party auditors to be 
familiar with standards applicable to processes they audit, and to 
obtain their own copies of applicable standards where needed. Auditors 
must be knowledgeable of applicable consensus standards because the 
accident prevention program provisions of the existing rule (subparts C 
and D) require owners or operators to comply with RAGAGEP. Therefore, 
auditors must be knowledgeable of those practices in order to perform 
an effective audit. EPA seeks comment on this proposed RAGAGEP 
requirement.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low income, 
or indigenous populations. The results of this evaluation are included 
in the RIA, located in the docket.

List of Subjects

40 CFR part 68

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Hazardous substances, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: February 25, 2016.
Gina McCarthy,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I, part 
68, of the Code of Federal Regulations is proposed to be amended as 
follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

0
1. The authority citation for part 68 continues to read as follows:

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

0
2. Amend Sec.  68.3 by:
0
a. Adding in alphabetical order the definition ``Active measures'';
0
b. Revising the definition ``Catastrophic release'', and
0
c. Adding in alphabetical order, the definitions, ``CBI'', 
``Feasible'', ``Inherently safer technology or design'', ``LEPC'', 
``Passive measures'', ``Procedural measures'', ``Root cause'', and 
``Third-party audit''.
    The additions and revisions read as follows:


Sec.  68.3  Definitions.

* * * * *
    Active measures means risk management measures or engineering 
controls that rely on mechanical, or other energy input to detect and 
respond to process deviations. Examples of active measures include 
alarms, safety instrumented systems, and detection hardware (such as 
hydrocarbon sensors).
* * * * *
    Catastrophic release means a major uncontrolled emission, fire, or 
explosion, involving one or more regulated substances that results in 
deaths, injuries, or significant property damage on-site, or known 
offsite deaths, injuries, evacuations, sheltering in place, property 
damage, or environmental damage.
    CBI means confidential business information.
* * * * *

[[Page 13703]]

    Feasible means capable of being successfully accomplished within a 
reasonable time, accounting for economic, environmental, legal, social, 
and technological factors. Environmental factors would include 
consideration of potential transferred risks for new risk reduction 
measures.
* * * * *
    Inherently safer technology or design means risk management 
measures that minimize the use of regulated substances, substitute less 
hazardous substances, moderate the use of regulated substances, or 
simplify covered processes in order to make accidental releases less 
likely, or the impacts of such releases less severe.
* * * * *
    LEPC means local emergency planning committee as established under 
42 U.S.C. 11001(c).
* * * * *
    Passive measures means risk management measures that use design 
features that reduce the hazard without human, mechanical, or other 
energy input. Examples of passive measures include pressure vessel 
designs, dikes, berms, and blast walls.
* * * * *
    Procedural measures means risk management measures such as 
policies, operating procedures, training, administrative controls, and 
emergency response actions to prevent or minimize incidents.
* * * * *
    Root cause means a fundamental, underlying, system-related reason 
why an incident occurred that identifies a correctable failure(s) in 
management systems.
* * * * *
    Third-party audit means a compliance audit conducted pursuant to 
the requirements of Sec. Sec.  68.59 and/or 68.80, by an entity 
(individual or firm) meeting the competency, independence and 
impartiality criteria in those sections.
* * * * *
0
3. Amend Sec.  68.10 by:
0
a. Revising paragraphs (a) introductory text; (a)(2) and (3); and 
adding paragraph (a)(4);
0
b. Redesignating paragraphs (b) through (f) as paragraphs (f) through 
(j);
0
c. Adding new paragraphs (b) through (e); and
0
d. Revising the newly designated paragraph (f)(2).
    The revisions and additions read as follow:


Sec.  68.10  Applicability.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, an owner or operator of a stationary source that has more than 
a threshold quantity of a regulated substance in a process, as 
determined under Sec.  68.115, shall comply with the requirements of 
this part no later than the latest of the following dates:
* * * * *
    (2) Three years after the date on which a regulated substance is 
first listed under Sec.  68.130;
    (3) The date on which a regulated substance is first present above 
a threshold quantity in a process; or
    (4) For any revisions to this part, the effective date of the final 
rule.
    (b) Within 1 year of [DATE 1 YEAR AFTER THE EFFECTIVE DATE OF THE 
FINAL RULE] the owner or operator of a stationary source shall comply 
with the emergency response coordination activities in Sec.  68.93(a) 
and (b).
    (c) Within 3 years of the LEPC or equivalent requesting in writing, 
pursuant to Sec.  68.90(b)(2), the owner or operator must develop and 
implement an emergency response program in accordance with Sec.  68.95.
    (d) By [DATE 4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], 
the owner or operator shall comply with the following provisions 
promulgated on [PUBLICATION DATE OF FINAL RULE]:
    (1) Third-party audit provisions in Sec. Sec.  68.58(f), 68.58(g), 
68.58(h), 68.59, 68.79(f), 68.79(g), 68.79(h), and 68.80;
    (2) Incident investigation root cause analysis provisions in 
Sec. Sec.  68.60(d)(7) and 68.81(d)(7) and the incident root cause 
category information provision in Sec.  68.42(b)(10);
    (3) Safer technology and alternative analysis provisions in Sec.  
68.67(c)(8);
    (4) Emergency response exercise provisions of Sec.  68.96, and;
    (5) Availability of information provisions in Sec. Sec.  68.205, 
68.210(b), 68.210(c), and 68.210(d).
    (e) By [DATE 5 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE], the 
owner or operator shall comply with the risk management plan provisions 
of subpart G promulgated on [PUBLICATION DATE OF FINAL RULE].
    (f) * * *
    (2) The distance to a toxic or flammable endpoint for a worst-case 
release assessment conducted under subpart B and Sec.  68.25 is less 
than the distance to any public receptor, as defined in Sec.  68.3; and
* * * * *
0
4. Amend Sec.  68.12 by:
0
a. Revising paragraphs (c)(4) and (5), and adding paragraph (c)(6); and
0
b. Revising paragraphs (d)(4) and (5), and adding paragraph (d)(6).
    The revisions and additions read as follows:


Sec.  68.12  General requirements.

* * * * *
    (c) * * *
    (4) Coordinate response actions with local emergency planning and 
response agencies as provided in Sec.  68.93;
    (5) Develop and implement an emergency response program, and 
conduct exercises, as provided in Sec. Sec.  68.90 to 68.96; and
    (6) Submit as part of the RMP the data on prevention program 
elements for Program 2 processes as provided in Sec.  68.170.
    (d) * * *
    (4) Coordinate response actions with local emergency planning and 
response agencies as provided in Sec.  68.93;
    (5) Develop and implement an emergency response program, and 
conduct exercises, as provided in Sec. Sec.  68.90 to 68.95 96 of this 
part; and
    (6) Submit as part of the RMP the data on prevention program 
elements for Program 3 processes as provided in Sec.  68.175.
0
5. Amend Sec.  68.42 by redesignating paragraphs (b)(10) and (b)(11) as 
paragraphs (b)(11) and (b)(12) and adding a new paragraph (b)(10) to 
read as follows:


Sec.  68.42  Five-year accident history.

* * * * *
    (b) * * *
    (10) Categories of root causes identified based on the root cause 
analysis required in the incident investigation in accordance with 
Sec.  68.60(d)(7) or Sec.  68.81(d)(7);
* * * * *
0
6. Amend Sec.  68.48 by revising paragraph (a)(1) to read as follows:


Sec.  68.48  Safety information.

    (a) * * *
    (1) Safety Data Sheets (SDS) that meet the requirements of 29 CFR 
1910.1200(g);
* * * * *
0
7. Amend Sec.  68.50 by revising paragraph (a)(2) to read as follows:


Sec.  68.50  Hazard review.

    (a) * * *
    (2) Opportunities for equipment malfunctions or human errors that 
could cause an accidental release, including findings from incident 
investigations;
* * * * *
0
8. Amend Sec.  68.54 by revising paragraphs (a), (b), and (d); and 
Adding a new paragraph (e) to read as follows:


Sec.  68.54  Training.

    (a) The owner or operator shall ensure that each employee presently 
involved

[[Page 13704]]

in operating a process, and each employee newly assigned to a covered 
process have been trained or tested competent in the operating 
procedures provided in Sec.  68.52 that pertain to their duties. For 
those employees already operating a process on June 21, 1999, the owner 
or operator may certify in writing that the employee has the required 
knowledge, skills, and abilities to safely carry out the duties and 
responsibilities as provided in the operating procedures.
    (b) Refresher training. Refresher training shall be provided at 
least every three years, and more often if necessary, to each employee 
involved in operating a process to ensure that the employee understands 
and adheres to the current operating procedures of the process. The 
owner or operator, in consultation with the employees operating the 
process, shall determine the appropriate frequency of refresher 
training.
* * * * *
    (d) The owner or operator shall ensure that employees involved in 
operating a process are trained in any updated or new procedures prior 
to startup of a process after a major change.
    (e) For the purposes of this section, the term employee also 
includes supervisors responsible for directing process operations.
0
9. Amend Sec.  68.58 by revising paragraph (a) and adding paragraphs 
(f) through (h) to read as follows:


Sec.  68.58  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated 
compliance with the provisions of this subpart for each covered 
process, at least every three years to verify that the procedures and 
practices developed under the rule are adequate and are being followed. 
When required as set forth in paragraph (f), the compliance audit shall 
be a third-party audit.
* * * * *
    (f) Third-party audit applicability. The next required compliance 
audit shall be a third-party audit when one of the following conditions 
apply:
    (1) An accidental release meeting the criteria in Sec.  68.42(a) 
from a covered process at a stationary source has occurred; or
    (2) An implementing agency requires a third-party audit based on 
non-compliance with the requirements of this subpart, including when a 
previous third-party audit failed to meet the competency, independence, 
or impartiality criteria of Sec.  68.59(b).
    (g) Implementing agency notification and appeals. (1) If an 
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(2) of this section, 
the implementing agency will provide written notice to the owner or 
operator stating the reasons for the implementing agency's 
determination.
    (2) Within 30 days of receipt of such written notice, the owner or 
operator may provide information and data to, and may consult with, the 
implementing agency on the determination. Thereafter, the implementing 
agency will provide a final determination to the owner or operator.
    (3) If the final determination requires a third-party audit, the 
owner or operator shall comply with the requirements of Sec.  68.59, 
pursuant to the schedule in paragraph (h) of this section.
    (4) Appeals. The owner or operator may appeal a final determination 
made by an implementing agency under paragraph (g)(2) of this section 
within 30 days of receipt of the final determination. The appeal shall 
be made to the EPA Regional Administrator, or for determinations made 
by other implementing agencies, the administrator or director of such 
implementing agency. The appeal shall contain a clear and concise 
statement of the issues, facts in the case, and any relevant additional 
information. In reviewing the appeal, the implementing agency may 
request additional information from the owner or operator. The 
implementing agency will provide a written, final decision on the 
appeal to the owner or operator.
    (h) Schedule for conducting a third-party audit. The audit and 
audit report shall be completed, and the audit report submitted to the 
implementing agency pursuant to Sec.  68.59(c)(3) as follows, unless a 
different timeframe is specified by the implementing agency:
    (1) Within 12 months of when any third-party audit is required 
pursuant to paragraphs (f) and/or (g) of this section; or
    (2) Within three years of completion of the previous compliance 
audit, whichever is sooner.
0
10. Section 68.59 is added to subpart C to read as follows:


Sec.  68.59  Third-party audits.

    (a) Applicability. The owner or operator shall engage a third-party 
auditor to evaluate compliance with the provisions of this subpart in 
accordance with the requirements of this section when either criterion 
of Sec.  68.58(f) is met.
    (b) Auditor qualifications. The owner or operator shall determine 
and document that the auditor and/or audit team are independent and 
impartial, and that the auditor's or audit team's credentials address 
the following competency requirements:
    (1) Competency requirements. The auditor/auditor team shall be:
    (i) Knowledgeable with the requirements of this part;
    (ii) Experienced with the stationary source type and processes 
being audited and applicable recognized and generally accepted good 
engineering practices;
    (iii) Trained or certified in proper auditing techniques; and
    (iv) A licensed Professional Engineer (PE), or shall include a 
licensed PE on the audit team.
    (2) Independence and impartiality requirements. The auditor/audit 
team shall:
    (i) Act impartially when performing all activities under this 
section;
    (ii) Receive no financial benefit from the outcome of the audit, 
apart from payment for the auditing services;
    (iii) Not have conducted past research, development, design, 
construction services, or consulting for the owner or operator within 
the last 3 years. For purposes of this requirement, consulting does not 
include performing or participating in third-party audits pursuant to 
Sec.  68.59 or Sec.  68.80;
    (iv) Not provide other business or consulting services to the owner 
or operator, including advice or assistance to implement the findings 
or recommendations in an audit report, for a period of at least 3 years 
following submission of the final audit report;
    (v) Ensure that all personnel involved in the audit sign and date 
the conflict of interest statement in Sec.  68.59(c)(1)(v); and
    (vi) Ensure that all personnel involved in the audit do not accept 
future employment with the owner or operator of the stationary source 
for a period of at least 3 years following submission of the final 
audit report. For purposes of this requirement, employment does not 
include performing or participating in third-party audits pursuant to 
Sec.  68.59 or Sec.  68.80.
    (3) The auditor shall have written policies and procedures to 
ensure that all personnel comply with the competency, independence, and 
impartiality requirements of this section.
    (c) Third-party audit report. The owner or operator shall ensure 
that the auditor prepares and submits an audit report as follows:
    (1) The scope and content of each audit report shall:
    (i) Identify the lead auditor or manager, participating 
individuals, and any other key persons participating in

[[Page 13705]]

the audit, including names, titles, and summaries of qualifications 
demonstrating that the competency requirements in paragraph (b)(1) of 
this section are met;
    (ii) Document the auditor's evaluation, for each covered process, 
of the owner or operator's compliance with the provisions of this 
subpart to determine whether the procedures and practices developed by 
the owner or operator under this rule are adequate and being followed;
    (iii) Document the findings of the audit, including any identified 
compliance or performance deficiencies;
    (iv) Include a summary of the owner's or operator's comments on, 
and identify any adjustments made by the auditor to, any draft audit 
report provided by the auditor to the owner or operator for review or 
comment; and
    (v) Include the following certification, signed and dated by the 
auditor or supervising manager for the audit:

    I certify that this RMP compliance audit report was prepared 
under my direction or supervision in accordance with a system 
designed to assure that qualified personnel properly gather and 
evaluate the information upon which the audit is based. I further 
certify that the audit was conducted and this report was prepared 
pursuant to the requirements of subpart C of 40 CFR part 68 and all 
other applicable auditing, competency, independence, impartiality, 
and conflict of interest standards and protocols. Based on my 
personal knowledge and experience, and inquiry of personnel involved 
in the audit, the information submitted herein is true, accurate, 
and complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fines and 
imprisonment for knowing violations.

    (2) The auditor shall retain copies of all audit reports and 
related records for a period of five years, and make them available if 
directed by the owner or operator, to the owner or operator and/or the 
implementing agency.
    (3) The auditor shall submit the audit report to the implementing 
agency at the same time, or before, it provides it to the owner or 
operator.
    (4) The audit report and related records shall not be privileged as 
attorney-client communications or attorney work products, even if 
written for or reviewed by legal staff.
    (d) Third-party audit findings. (1) Findings response report. As 
soon as possible, but no later than 90 days after receiving the final 
audit report, the owner or operator shall determine an appropriate 
response to each of the findings in the audit report, and develop and 
provide to the implementing agency a findings response report that 
includes:
    (i) A copy of the final audit report;
    (ii) An appropriate response to each of the audit report findings;
    (iii) A schedule for promptly addressing deficiencies; and
    (iv) A certification, signed and dated by a senior corporate 
officer, or an official in an equivalent position, of the owner or 
operator of the stationary source, stating:

    I certify under penalty of law that the attached RMP compliance 
audit report was received, reviewed, and responded to under my 
direction or supervision by qualified personnel. I further certify 
that appropriate responses to the findings have been identified and 
deficiencies were corrected, or are being corrected, consistent with 
the requirements of subpart C of 40 CFR part 68, as documented 
herein. Based on my personal knowledge and experience, or inquiry of 
personnel involved in evaluating the report findings and determining 
appropriate responses to the findings, the information submitted 
herein is true, accurate, and complete. I am aware that there are 
significant penalties for submitting false information, including 
the possibility of fines and imprisonment for knowing violations.

    (2) Schedule to address deficiencies. The owner or operator shall 
implement the schedule to address deficiencies identified in the audit 
findings response report in paragraph (d)(1)(iii) of this section and 
document the action taken to address each deficiency, along with the 
date completed.
    (3) Submission to board of directors. The owner or operator shall 
immediately provide a copy of each document required under paragraphs 
(d)(1) and (d)(2) of this section, when completed, to the owner or 
operator's audit committee of the Board of Directors, or other 
comparable committee, if one exists.
    (e) Recordkeeping. The owner or operator shall retain at the 
stationary source, the following:
    (1) The two most recent third-party audit reports, related findings 
response reports, documentation of actions taken to address 
deficiencies, and related records. This requirement does not apply to 
any document that is more than five years old.
    (2) Copies of all draft third-party audit reports. The owner or 
operator shall provide draft third-party audit reports to the 
implementing agency upon request. This requirement does not apply to 
any draft audit reports that are more than five years old.
0
11. Amend Sec.  68.60 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (c) through (f) as paragraphs (d) through 
(g);
0
c. Adding a new paragraph (c); and
0
d. Revising the newly designated paragraphs (d) and (g).
    The revisions and additions read as follows:


Sec.  68.60  Incident investigation.

    (a) The owner or operator shall investigate each incident that:
    (1) Resulted in a catastrophic release (including when the affected 
process is decommissioned or destroyed following, or as the result of, 
an incident); or
    (2) Could reasonably have resulted in a catastrophic release (i.e., 
was a near miss).
* * * * *
    (c) An incident investigation team shall be established and consist 
of at least one person knowledgeable in the process involved and other 
persons with appropriate knowledge and experience to thoroughly 
investigate and analyze the incident.
    (d) A report shall be prepared at the conclusion of the 
investigation. The report shall be completed within 12 months of the 
incident, unless the implementing agency approves, in writing, an 
extension of time. The report shall include:
    (1) Date, time, and location of incident;
    (2) Date investigation began;
    (3) A description of the incident, in chronological order, 
providing all relevant facts;
    (4) The name and amount of the regulated substance involved in the 
release (e.g., fire, explosion, toxic gas loss of containment) or near 
miss and the duration of the event;
    (5) The consequences, if any, of the incident including, but not 
limited to: injuries, fatalities, the number of people evacuated, the 
number of people sheltered in place, and the impact on the environment;
    (6) Emergency response actions taken;
    (7) The factors that contributed to the incident including the 
initiating event, direct and indirect contributing factors, and root 
causes. Root causes shall be determined by conducting an analysis for 
each incident using a recognized method; and
    (8) Any recommendations resulting from the investigation and a 
schedule for addressing them.
* * * * *
    (g) Incident investigation reports shall be retained for five 
years.
0
12. Amend Sec.  68.65 by revising the first sentence of paragraph (a) 
and the note to paragraph (b) to read as follows:


Sec.  68.65  Process safety information.

    (a) The owner or operator shall complete a compilation of written 
process safety information before conducting any process hazard 
analysis required by the rule, and shall keep process safety 
information up-to-date. * * *

[[Page 13706]]

    (b) * * *
    Note to paragraph (b): Safety Data Sheets (SDS) meeting the 
requirements of 29 CFR 1910.1200(g) may be used to comply with this 
requirement to the extent they contain the information required by this 
subparagraph.
* * * * *
0
13. Amend Sec.  68.67 by:
0
a. Revising paragraph (c)(2);
0
b. In paragraph (c)(6) removing the word ``and'';
0
c. In paragraph (c)(7) removing the period at the end of the paragraph 
and adding ``; and'' in its place; and
0
d. Adding paragraph (c)(8).
    The revisions and additions read as follows:


Sec.  68.67  Process hazard analysis.

* * * * *
    (c) * * *
    (2) The findings from all incident investigations required under 
section 68.81, as well as any other potential failure scenarios;
* * * * *
    (8) For processes in NAICS 322, 324, and 325, safer technology and 
alternative risk management measures applicable to eliminating or 
reducing risk from process hazards.
    (i) The owner or operator shall consider, in the following order of 
preference, inherently safer technology or design, passive measures, 
active measures, and procedural measures. A combination of risk 
management measures may be used to achieve the desired risk reduction.
    (ii) The owner or operator shall determine the feasibility of the 
inherently safer technologies and designs considered.
* * * * *
0
14. Amend Sec.  68.71 by adding paragraph (d) to read as follows:


Sec.  68.71  Training.

* * * * *
    (d) For the purposes of this section, the term employee also 
includes supervisors with process operational responsibilities.
0
15. Amend Sec.  68.79 by revising paragraph (a) and adding paragraphs 
(f) through (h) to read as follows:


Sec.  68.79  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated 
compliance with the provisions of this subpart for each covered 
process, at least every three years to verify that the procedures and 
practices developed under the rule are adequate and are being followed. 
When required as set forth in paragraph (f), the compliance audit shall 
be a third-party audit.
* * * * *
    (f) Third-party audit applicability. The next required compliance 
audit shall be a third-party audit when one of the following conditions 
apply:
    (1) An accidental release meeting the criteria in Sec.  68.42(a) 
from a covered process at a stationary source has occurred; or
    (2) An implementing agency requires a third-party audit based on 
non-compliance with the requirements of this subpart, including when a 
previous third-party audit failed to meet the competency, independence, 
or impartiality criteria of Sec.  68.80(b).
    (g) Implementing agency notification and appeals. (1) If an 
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(2) of this section, 
the implementing agency will provide written notice to the owner or 
operator stating the reasons for the implementing agency's 
determination.
    (2) Within 30 days of receipt of such written notice, the owner or 
operator may provide information and data to, and may consult with, the 
implementing agency on the determination. Thereafter, the implementing 
agency will provide a final determination to the owner or operator.
    (3) If the final determination requires a third-party audit, the 
owner or operator shall comply with the requirements of Sec.  68.80, 
pursuant to the schedule in paragraph (h) of this section.
    (4) Appeals. The owner or operator may appeal a final determination 
made by an implementing agency under paragraph (g)(2) of this section 
within 30 days of receipt of the final determination. The appeal shall 
be made to the EPA Regional Administrator, or for determinations made 
by other implementing agencies, the administrator or director of such 
implementing agency. The appeal shall contain a clear and concise 
statement of the issues, facts in the case, and any relevant additional 
information. In reviewing the appeal, the implementing agency may 
request additional information from the owner or operator. The 
implementing agency will provide a written, final decision on the 
appeal to the owner or operator.
    (h) Schedule for conducting a third-party audit. The audit and 
audit report shall be completed, and the audit report submitted to the 
implementing agency pursuant to Sec.  68.80(c)(3) as follows, unless a 
different timeframe is specified by the implementing agency:
    (1) Within 12 months of when any third-party audit is required 
pursuant to paragraphs (f) and/or (g) of this section; or
    (2) Within three years of completion of the previous compliance 
audit, whichever is sooner.
0
16. Section 68.80 is added to subpart D to read as follows:


Sec.  68.80  Third-party audits.

    (a) Applicability. The owner or operator shall engage a third-party 
auditor to evaluate compliance with the provisions of this subpart in 
accordance with the requirements of this section when either criterion 
of Sec.  68.79(f) is met.
    (b) Auditor qualifications. The owner or operator shall determine 
and document that the auditor and/or audit team are independent and 
impartial, and that the auditor's or audit team's credentials address 
the following competency requirements:
    (1) Competency requirements. The auditor/auditor team shall be:
    (i) Knowledgeable with the requirements of this part;
    (ii) Experienced with the stationary source type and processes 
being audited and applicable recognized and generally accepted good 
engineering practices;
    (iii) Trained or certified in proper auditing techniques; and
    (iv) A licensed PE, or shall include a licensed PE on the audit 
team.
    (2) Independence and impartiality requirements. The auditor/audit 
team shall:
    (i) Act impartially when performing all activities under this 
section;
    (ii) Receive no financial benefit from the outcome of the audit, 
apart from payment for the auditing services;
    (iii) Not have conducted past research, development, design, 
construction services, or consulting for the owner or operator within 
the last 3 years. For purposes of this requirement, consulting does not 
include performing or participating in third-party audits pursuant to 
Sec.  68.59 or Sec.  68.80;
    (iv) Not provide other business or consulting services to the owner 
or operator, including advice or assistance to implement the findings 
or recommendations in an audit report, for a period of at least 3 years 
following submission of the final audit report;
    (v) Ensure that all personnel involved in the audit sign and date 
the conflict of interest statement in Sec.  68.59(c)(1)(v); and
    (vi) Ensure that all personnel involved in the audit do not accept 
future employment with the owner or operator of the stationary source 
for a period of at least 3 years following submission of

[[Page 13707]]

the final audit report. For purposes of this requirement, employment 
does not include performing or participating in third-party audits 
pursuant to Sec. Sec.  68.59 or 68.80.
    (3) The auditor shall have written policies and procedures to 
ensure that all personnel comply with the competency, independence, and 
impartiality requirements of this section.
    (c) Third-party audit report. The owner or operator shall ensure 
that the auditor prepares and submits an audit report as follows:
    (1) The scope and content of each audit report shall:
    (i) Identify the lead auditor or manager, participating 
individuals, and any other key persons participating in the audit, 
including names, titles, and summaries of qualifications demonstrating 
that the competency requirements in paragraph (b)(1) of this section 
are met;
    (ii) Document the auditor's evaluation, for each covered process, 
of the owner or operator's compliance with the provisions of this 
subpart to determine whether the procedures and practices developed by 
the owner or operator under this rule are adequate and being followed;
    (iii) Document the findings of the audit, including any identified 
compliance or performance deficiencies;
    (iv) Include a summary of the owner's or operator's comments on, 
and identify any adjustments made by the auditor to, any draft audit 
report provided by the auditor to the owner or operator for review or 
comment; and
    (v) Include the following certification, signed and dated by the 
auditor or supervising manager for the audit:

    ``I certify that this RMP compliance audit report was prepared 
under my direction or supervision in accordance with a system 
designed to assure that qualified personnel properly gather and 
evaluate the information upon which the audit is based. I further 
certify that the audit was conducted and this report was prepared 
pursuant to the requirements of subpart D of 40 CFR part 68 and all 
other applicable auditing, competency, independence, impartiality, 
and conflict of interest standards and protocols. Based on my 
personal knowledge and experience, and inquiry of personnel involved 
in the audit, the information submitted herein is true, accurate, 
and complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fines and 
imprisonment for knowing violations.''

    (2) The auditor shall retain copies of all audit reports and 
related records for a period of five years, and make them available if 
directed by the owner or operator, to the owner or operator and/or the 
implementing agency.
    (3) The auditor shall submit the audit report to the implementing 
agency at the same time, or before, it provides it to the owner or 
operator.
    (4) The audit report and related records shall not be privileged as 
attorney-client communications or attorney work products, even if 
written for or reviewed by legal staff.
    (d) Third-party audit findings. (1) Findings response report. As 
soon as possible, but no later than 90 days after receiving the final 
audit report, the owner or operator shall determine an appropriate 
response to each of the findings in the audit report, and develop and 
provide to the implementing agency a findings response report that 
includes:
    (i) A copy of the final audit report;
    (ii) An appropriate response to each of the audit report findings;
    (iii) A schedule for promptly addressing deficiencies; and
    (iv) A certification, signed and dated by a senior corporate 
officer, or an official in an equivalent position, of the owner or 
operator of the stationary source, stating:

    ``I certify under penalty of law that the attached RMP 
compliance audit report was received, reviewed, and responded to 
under my direction or supervision by qualified personnel. I further 
certify that appropriate responses to the findings have been 
identified and deficiencies were corrected, or are being corrected, 
consistent with the requirements of subpart D of 40 CFR part 68, as 
documented herein. Based on my personal knowledge and experience, or 
inquiry of personnel involved in evaluating the report findings and 
determining appropriate responses to the findings, the information 
submitted herein is true, accurate, and complete. I am aware that 
there are significant penalties for submitting false information, 
including the possibility of fines and imprisonment for knowing 
violations.''

    (2) Schedule to address deficiencies. The owner or operator shall 
implement the schedule to address deficiencies identified in the audit 
findings response report in paragraph (d)(1)(iii) of this section and 
document the action taken to address each deficiency, along with the 
date completed.
    (3) Submission to board of directors. The owner or operator shall 
immediately provide a copy of each document required under paragraphs 
(d)(1) and (d)(2) of this section, when completed, to the owner or 
operator's audit committee of the Board of Directors, or other 
comparable committee, if one exists.
    (e) Recordkeeping. The owner or operator shall retain at the 
stationary source, the following:
    (1) The two most recent third-party audit reports, related findings 
response reports, documentation of actions taken to address 
deficiencies, and related records. This requirement does not apply to 
any document that is more than five years old.
    (2) Copies of all draft third-party audit reports. The owner or 
operator shall provide draft third-party audit reports to the 
implementing agency upon request. This requirement does not apply to 
any draft audit reports that are more than five years old.
0
17. Amend Sec.  68.81 by revising paragraphs (a), (d) introductory 
text, (d)(1), (d)(3) through (5), and adding paragraphs (d)(6) through 
(8) to read as follows:


Sec.  68.81  Incident investigation.

    (a) The owner or operator shall investigate each incident that:
    (1) Resulted in a catastrophic release (including when the affected 
process is decommissioned or destroyed following, or as the result of, 
an incident); or
    (2) Could reasonably have resulted in a catastrophic release (i.e., 
was a near miss).
* * * * *
    (d) A report shall be prepared at the conclusion of the 
investigation. The report shall be completed within 12 months of the 
incident, unless the implementing agency approves, in writing, an 
extension of time. The report shall include:
    (1) Date, time, and location of incident;
* * * * *
    (3) A description of the incident, in chronological order, 
providing all relevant facts;
    (4) The name and amount of the regulated substance involved in the 
release (e.g., fire, explosion, toxic gas loss of containment) or near 
miss and the duration of the event;
    (5) The consequences, if any, of the incident including, but not 
limited to: Injuries, fatalities, the number of people evacuated, the 
number of people sheltered in place, and the impact on the environment;
    (6) Emergency response actions taken;
    (7) The factors that contributed to the incident including the 
initiating event, direct and indirect contributing factors, and root 
causes. Root causes shall be determined by conducting an analysis for 
each incident using a recognized method; and
    (8) Any recommendations resulting from the investigation and a 
schedule for addressing them.
* * * * *

[[Page 13708]]

0
18. Revise Sec.  68.90 to read as follows:


Sec.  68.90  Applicability.

    (a) Non-responding stationary source. The owner or operator of a 
stationary source need not comply with Sec.  68.95 of this part 
provided that:
    (1) The coordination activities required under Sec.  68.93 indicate 
that adequate local public emergency response capabilities are 
available to appropriately respond to any accidental release of the 
regulated substances at the stationary source;
    (2) Appropriate mechanisms are in place to notify emergency 
responders when there is a need for a response; and
    (3) The LEPC or equivalent has not requested in writing that the 
owner or operator comply with the requirements of Sec.  68.95.
    (b) Responding stationary source. The owner or operator of a 
stationary source shall coordinate response activities as described in 
Sec.  68.93. The owner or operator shall also comply with the 
requirements of Sec.  68.95 when:
    (1) The outcome of the response coordination activities 
demonstrates that local public emergency response capabilities are not 
adequate to appropriately respond to an accidental release of the 
regulated substances at the stationary source; or
    (2) The LEPC or equivalent requests in writing that the owner or 
operator of the stationary source comply with the requirements of Sec.  
68.95.
0
19. Section 68.93 is added to subpart E to read as follows:


Sec.  68.93  Emergency response coordination activities.

    The owner or operator of a stationary source shall coordinate 
response needs with local emergency planning and response organizations 
to ensure resources and capabilities are in place to respond to an 
accidental release of a regulated substance.
    (a) Coordination shall occur at least annually, and more frequently 
if necessary, to address changes: At the source; in the source's 
emergency action plan; in local authorities' response resources and 
capabilities; or in the local community emergency response plan.
    (b) The owner or operator shall document coordination with local 
authorities, including: The names of individuals involved and their 
contact information (phone number, email address, and organizational 
affiliations); dates of coordination activities; and nature of 
coordination activities.
    (c) The owner or operator shall coordinate potential response 
actions as follows:
    (1) For stationary sources with any regulated toxic substance held 
in a process above the threshold quantity, the owner or operator shall 
coordinate potential response actions with the LEPC or equivalent and 
ensure that the stationary source is included in the community 
emergency response plan developed under 42 U.S.C. 11003; and/or
    (2) For stationary sources with only regulated flammable substances 
held in a process above the threshold quantity, the owner or operator 
shall coordinate response actions with the local fire department.
0
20. Amend Sec.  68.95 by:
0
a. Revising paragraph (a)(1)(i);
0
b. Adding a sentence to the end of paragraph (a)(4); and
0
c. Revising paragraph (c).
    The revisions and addition read as follows:


68.95  Emergency response program.

    (a) * * *
    (1) * * *
    (i) Procedures for informing the public and the appropriate 
Federal, state, and local emergency response agencies about accidental 
releases;
* * * * *
    (4) * * * The owner or operator shall review and update the program 
annually, or more frequently if necessary, to incorporate 
recommendations and lessons learned from emergency response exercises 
and/or incident investigations, or other available information.
* * * * *
    (c) The emergency response plan developed under paragraph (a)(1) of 
this section shall be coordinated with the community emergency response 
plan developed under 42 U.S.C. 11003. Upon request of the LEPC or 
emergency response officials, the owner or operator shall promptly 
provide to the local emergency response officials information necessary 
for developing and implementing the community emergency response plan.
0
21. Section 68.96 is added to subpart E to read as follows:


Sec.  68.96  Emergency response exercises.

    (a) Notification exercises. At least once each calendar year, the 
owner or operator of a stationary source with any Program 2 or Program 
3 process shall conduct an exercise of the source's emergency response 
notification mechanisms required under Sec.  68.90(a)(2) or Sec.  
68.95(a)(1)(i), as appropriate. Owners or operators of responding 
stationary sources may perform the notification exercise as part of the 
tabletop and field exercises required in Sec.  68.96(b). The owner/
operator shall maintain a written record of each notification exercise 
conducted over the last five years.
    (b) Emergency response exercise program. The owner or operator of a 
stationary source subject to the requirements of Sec.  68.95 shall 
develop and implement an exercise program for its emergency response 
program, including the plan required under Sec.  68.95(a)(1). When 
planning emergency response field and tabletop exercises, the owner or 
operator shall coordinate with local public emergency response 
officials and invite them to participate in the exercise. The emergency 
response exercise program shall include:
    (1) Emergency response field exercises. The owner or operator shall 
conduct a field exercise involving the simulated accidental release of 
a regulated substance (i.e., toxic substance release or release of a 
regulated flammable substance involving a fire and/or explosion).
    (i) Frequency. The field exercise shall be conducted at least once 
every five years, and within one year of any accidental release 
required to be reported under Sec.  68.42.
    (ii) Scope. The field exercise shall include tests of: Procedures 
to notify the public and the appropriate Federal, state, and local 
emergency response agencies about an accidental release; procedures and 
measures for emergency response actions including evacuations and 
medical treatment; communications systems; mobilization of facility 
emergency response personnel, including contractors, as appropriate; 
coordination with local emergency responders; equipment deployment; and 
any other action identified in the emergency response program, as 
appropriate.
    (2) Tabletop exercises. The owner or operator shall conduct a 
tabletop exercise involving the simulated accidental release of a 
regulated substance. The exercise shall involve facility emergency 
response personnel, response contractors, and local emergency response 
and planning officials, as appropriate.
    (i) Frequency. The owner or operator of a stationary source shall 
conduct tabletop exercises annually, except during the calendar year 
when a field exercise is conducted.
    (ii) Scope. The exercise shall include tests of: Procedures to 
notify the public and the appropriate Federal, state, and local 
emergency response agencies; procedures and measures for emergency 
response including evacuations and medical treatment; identification of 
facility emergency response personnel

[[Page 13709]]

and/or contractors and their responsibilities; coordination with local 
emergency responders; procedures for equipment deployment; and any 
other action identified in the emergency response plan, as appropriate.
    (3) Documentation. The owner/operator shall prepare an evaluation 
report within 90 days of each exercise. The report shall include: A 
description of the exercise scenario; names and organizations of each 
participant; an evaluation of the exercise results including lessons 
learned; recommendations for improvement or revisions to the emergency 
response exercise program and emergency response program, and a 
schedule to promptly address and resolve recommendations.
0
22. Amend Sec.  68.130 by:
0
a. In Table 1, ``List of Regulated Toxic Substances and Threshold 
Quantities for Accidental Release Prevention'', under second column 
entitled ``CAS No.'', removing the number ``107-18-61'' adding ``107-
18-6'' in its place; and
0
b. Revising Table 4, ``List of Regulated Flammable Substances and 
Threshold Quantities for Accidental Release Prevention''.
    The revisions read as follows:

   Table 4 to Sec.   68.130--List of Regulated Flammable Substances\1\ and Threshold Quantities for Accidental
                                               Release Prevention
                                        [CAS Number Order--63 Substances]
----------------------------------------------------------------------------------------------------------------
                                                                                Threshold
                 CAS No.                            Chemical name             quantity (lbs)   Basis for listing
----------------------------------------------------------------------------------------------------------------
60-29-7.................................  Ethyl ether [Ethane, 1,1'-oxybis-            10,000                  g
                                           ].
74-82-8.................................  Methane.........................             10,000                  f
74-84-0.................................  Ethane..........................             10,000                  f
74-85-1.................................  Ethylene [Ethene]...............             10,000                  f
74-86-2.................................  Acetylene [Ethyne]..............             10,000                  f
74-89-5.................................  Methylamine [Methanamine].......             10,000                  f
74-98-6.................................  Propane.........................             10,000                  f
74-99-7.................................  Propyne [1-Propyne].............             10,000                  f
75-00-3.................................  Ethyl chloride [Ethane, chloro-]             10,000                  f
75-01-4.................................  Vinyl chloride [Ethene, chloro-]             10,000               a, f
75-02-5.................................  Vinyl fluoride [Ethene, fluoro-]             10,000                  f
75-04-7.................................  Ethylamine [Ethanamine].........             10,000                  f
75-07-0.................................  Acetaldehyde....................             10,000                  g
75-08-1.................................  Ethyl mercaptan [Ethanethiol]...             10,000                  g
75-19-4.................................  Cyclopropane....................             10,000                  f
75-28-5.................................  Isobutane [Propane, 2-methyl]...             10,000                  f
75-29-6.................................  Isopropyl chloride [Propane, 2-              10,000                  g
                                           chloro-].
75-31-0.................................  Isopropylamine [2-Propanamine]..             10,000                  g
75-35-4.................................  Vinylidene chloride [Ethene, 1,1-            10,000                  g
                                           dichloro-].
75-37-6.................................  Difluoroethane [Ethane, 1,1-                 10,000                  f
                                           difluoro-].
75-38-7.................................  Vinylidene fluoride [Ethene, 1,1-            10,000                  f
                                           difluoro-].
75-50-3.................................  Trimethylamine [Methanamine, N,              10,000                  f
                                           N-dimethyl-].
75-76-3.................................  Tetramethylsilane [Silane,                   10,000                  g
                                           tetramethyl-].
78-78-4.................................  Isopentane [Butane, 2-methyl-]..             10,000                  g
78-79-5.................................  Isoprene [1,3,-Butadiene, 2-                 10,000                  g
                                           methyl-].
79-38-9.................................  Trifluorochloroethylene [Ethene,             10,000                  f
                                           chlorotrifluoro-].
106-97-8................................  Butane..........................             10,000                  f
106-98-9................................  1-Butene........................             10,000                  f
106-99-0................................  1,3-Butadiene...................             10,000                  f
107-00-6................................  Ethyl acetylene [1-Butyne]......             10,000                  f
107-01-7................................  2-Butene........................             10,000                  f
107-25-5................................  Vinyl methyl ether [Ethene,                  10,000                  f
                                           methoxy-].
107-31-3................................  Methyl formate [Formic acid,                 10,000                  g
                                           methyl ester].
109-66-0................................  Pentane.........................             10,000                  g
109-67-1................................  1-Pentene.......................             10,000                  g
109-92-2................................  Vinyl ethyl ether [Ethene,                   10,000                  g
                                           ethoxy-].
109-95-5................................  Ethyl nitrite [Nitrous acid,                 10,000                  f
                                           ethyl ester].
115-07-1................................  Propylene [1-Propene]...........             10,000                  f
115-10-6................................  Methyl ether [Methane, oxybis-].             10,000                  f
115-11-7................................  2-Methylpropene [1-Propene, 2-               10,000                  f
                                           methyl-].
116-14-3................................  Tetrafluoroethylene [Ethene,                 10,000                  f
                                           tetrafluoro-].
124-40-3................................  Dimethylamine [Methanamine, N-               10,000                  f
                                           methyl-].
460-19-5................................  Cyanogen [Ethanedinitrile]......             10,000                  f
463-49-0................................  Propadiene [1,2-Propadiene].....             10,000                  f
463-58-1................................  Carbon oxysulfide [Carbon oxide              10,000                  f
                                           sulfide (COS)].
463-82-1................................  2,2-Dimethylpropane [Propane,                10,000                  f
                                           2,2-dimethyl-].
504-60-9................................  1,3-Pentadiene..................             10,000                  f
557-98-2................................  2-Chloropropylene [1-Propene, 2-             10,000                  g
                                           chloro-].
563-45-1................................  3-Methyl-1-butene...............             10,000                  f
563-46-2................................  2-Methyl-1-butene...............             10,000                  g
590-18-1................................  2-Butene-cis....................             10,000                  f
590-21-6................................  1-Chloropropylene [1-Propene, 1-             10,000                  g
                                           chloro-].
598-73-2................................  Bromotrifluorethylene [Ethene,               10,000                  f
                                           bromotrifluoro-].
624-64-6................................  2-Butene-trans [2-Butene, (E)]..             10,000                  f
627-20-3................................  2-Pentene, (Z)-.................             10,000                  g
646-04-8................................  2-Pentene, (E)-.................             10,000                  g
689-97-4................................  Vinyl acetylene [1-Buten-3-yne].             10,000                  f
1333-74-0...............................  Hydrogen........................             10,000                  f
4109-96-0...............................  Dichlorosilane [Silane, dichloro-            10,000                  f
                                           ].
7791-21-1...............................  Chlorine monoxide [Chlorine                  10,000                  f
                                           oxide].
7803-62-5...............................  Silane..........................             10,000                  f
10025-78-2..............................  Trichlorosilane                              10,000                  g
                                           [Silane,trichloro-].

[[Page 13710]]

 
25167-67-3..............................  Butene..........................             10,000                  f
----------------------------------------------------------------------------------------------------------------
\1\A flammable substance when used as a fuel or held for sale as a fuel at a retail facility is excluded from
  all provisions of this part (see Sec.   68.126).
Note: Basis for Listing:
\a\ Mandated for listing by Congress.
\f\ Flammable gas.
\g\ Volatile flammable liquid.

0
23. Amend Sec.  68.160 by:
0
a. Revising paragraphs (b)(1), (4), (5), (9), and (12);
0
b. Removing and reserving paragraph (b)(13);
0
c. Revising paragraphs (b)(14) through (18);
0
d. Removing and reserving paragraph (b)(19);
0
e. Revising paragraphs (b)(20)(ii) and (iv); and
0
f. Adding paragraphs (b)(21) through (23).
    The revisions and additions reads as follows:


Sec.  68.160  Registration.

* * * * *
    (b) * * *
    (1) Stationary source name, street, city, county, state, zip code, 
latitude and longitude, and description of location that latitude and 
longitude represent;
* * * * *
    (4) The name, telephone number, mailing address, and email address 
of the owner or operator;
    (5) The name and title of the person with overall responsibility 
for RMP elements and implementation, and the email address for that 
person;
* * * * *
    (9) The number of full-time equivalent employees at the stationary 
source;
* * * * *
    (12) If the stationary source has a CAA Title V operating permit, 
and if so, the permit number;
* * * * *
    (14) The name, mailing address, email address, and telephone number 
of the contractor who prepared the RMP (if any);
    (15) Source or parent company email address (if an email address 
exists);
    (16) Source internet address (if an internet address exists);
    (17) Phone number at the source for public inquiries (if a public 
inquiries phone number exists);
    (18) LEPC name, phone number, email address, and internet address 
(if applicable and available);
* * * * *
    (20) * * *
    (ii) Corrections under Sec.  68.195 or for purposes of correcting 
minor clerical errors, updating administrative information, providing 
missing data elements or reflecting stationary source ownership 
changes, and which do not require an update and re-submission as 
specified in Sec.  68.190(b);
* * * * *
    (iv) Withdrawals of an RMP for any stationary source that was 
erroneously considered subject to this part 68;
    (21) Whether chemical hazard information has been provided to the 
LEPC or emergency response officials, pursuant to Sec.  68.205;
    (22) Location or means of public access for chemical hazard 
information made available to the public, pursuant to Sec.  68.210; and
    (23) Whether a public meeting has been held following an RMP 
reportable accident, pursuant to Sec.  68.210(d).
0
24. Amend Sec.  68.170 by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (d);
0
c. Revising paragraphs (e) introductory text, (e)(1), and (f) through 
(h);
0
d. Revising paragraphs (i) and (j);
0
e. Removing paragraph (k).
    The revisions and additions read as follows:


Sec.  68.170  Prevention program/Program 2.

    (a) For each Program 2 process, the owner or operator shall provide 
in the RMP the information indicated in paragraphs (b) through (j) of 
this section. If the same information applies to more than one covered 
process, the owner or operator may provide the information only once, 
but shall indicate to which processes the information applies.
* * * * *
    (d)(1) Whether safety information requirements, in Sec.  68.48, are 
implemented.
    (2) A list of all Federal and state regulations, industry-specific 
and established company or stationary source design codes and standards 
that are applicable, and identify those followed, to demonstrate 
compliance with the safety information requirements.
    (e) The most recent hazard review or hazard review update 
information, pursuant to Sec.  68.50, including:
    (1) The date of completion of the most recent hazard review or 
hazard review update;
* * * * *
    (f) Whether operating procedure requirements, in Sec.  68.52, are 
implemented.
    (g) Whether training requirements, in Sec.  68.54, are implemented.
    (h) Whether maintenance requirements, in Sec.  68.56, are 
implemented.
    (i)(1) Whether compliance audit requirements, in Sec.  68.58, are 
implemented.
    (2) The date of the most recent compliance audit.
    (3) Whether the most recent compliance audit was a third-party 
audit, pursuant to Sec. Sec.  68.58 and 68.59.
    (j)(1) Whether incident investigation requirements, in Sec.  68.60, 
are implemented.
    (2) The date of the most recent incident investigation.
    (3) Whether root cause analyses have been completed for all 
accidents and incidents that are subject to the incident investigation 
requirements in Sec.  68.60.
0
25. Amend Sec.  68.175 by revising paragraphs (a) and (d) through (o) 
and removing paragraph (p) to read as follows:


Sec.  68.175  Prevention program/Program 3.

    (a) For each Program 3 process, the owner or operator shall provide 
the information indicated in paragraphs (b) through (o) of this 
section. If the same information applies to more than one covered 
process, the owner or operator may provide the information only once, 
but shall indicate to which processes the information applies.
* * * * *
    (d)(1) Whether process safety information requirements, in Sec.  
68.65, are implemented.

[[Page 13711]]

    (2) A list of all Federal and state regulations, industry-specific 
and established company or stationary source design codes and standards 
that are applicable, and identify those followed, to demonstrate 
compliance with the process safety information requirements.
    (e)(1)The most recent process hazard analysis (PHA) or PHA update 
and revalidation information, pursuant to Sec.  68.67, including:
    (i) The date of completion of the most recent PHA or update and the 
technique used;
    (ii) Major hazards identified;
    (iii) Process controls in use;
    (iv) Mitigation systems in use;
    (v) Monitoring and detection systems in use; and
    (vi) Changes since the last PHA.
    (2)(i) Whether the current PHA addresses safer technology and 
alternative risk management measures, as required in Sec.  68.67(c)(8).
    (ii) Whether any inherently safer technology or design measures 
were implemented.
    (iii) If any inherently safer technology or design measures were 
implemented, identify the measure and the technology category 
(substitution, minimization, simplification, and/or moderation).
    (f) Whether operating procedure requirements, in Sec.  68.69, are 
implemented.
    (g) Whether training requirements, in Sec.  68.71, are implemented.
    (h) Whether mechanical integrity requirements, in Sec.  68.73, are 
implemented.
    (i) Whether management of change requirements, in Sec.  68.75, are 
implemented.
    (j) Whether pre-startup review requirements, in Sec.  68.77, are 
implemented.
    (k)(1) Whether compliance audit requirements, in Sec.  68.79, are 
implemented.
    (2) The date of the most recent compliance audit.
    (3) Whether the most recent compliance audit was a third-party 
audit, pursuant to Sec. Sec.  68.79 and 68.80.
    (l)(1) Whether incident investigation requirements, in Sec.  68.81, 
are implemented.
    (2) The date of the most recent incident investigation.
    (3) Whether root cause analyses have been completed for all 
accidents and incidents that are subject to the incident investigation 
requirements in Sec.  68.81.
    (m) Whether employee participation requirements, in Sec.  68.83, 
are implemented.
    (n) Whether hot work permit requirements, in Sec.  68.85, are 
implemented.
    (o) Whether contractor safety requirements, in Sec.  68.87, are 
implemented.
0
26. Revise Sec.  68.180 to read as follows:


Sec.  68.180  Emergency response program and exercises.

    (a) The owner or operator shall provide in the RMP:
    (1) Name, organizational affiliation, phone number, and email 
address of local emergency planning and response organizations with 
which the stationary source last coordinated emergency response 
efforts, pursuant to Sec.  68.10(b)(3) or Sec.  68.93;
    (2) Whether coordination with the local emergency response 
organizations is occurring at least annually, pursuant to Sec.  
68.93(a); and
    (3) A list of Federal or state emergency plan requirements to which 
the stationary source is subject.
    (b) The owner or operator shall identify whether the facility is a 
responding stationary source or a non-responding stationary source, 
pursuant to Sec.  68.90.
    (1) For non-responding stationary sources, the owner or operator 
shall identify:
    (i) Whether the owner or operator of the stationary source has 
confirmed that the local emergency response entity is capable of 
responding to accidental releases at the stationary source;
    (ii) Whether appropriate mechanisms are in place to notify public 
emergency responders when there is a need for emergency response; and
    (iii) Whether a notification exercise occurs at least annually, as 
required in Sec.  68.96(a).
    (2) For responding stationary sources, the owner or operator shall 
identify:
    (i) Whether the LEPC or local response entity requested the 
stationary source to be a responding stationary source as required in 
Sec.  68.90(a)(3);
    (ii) Whether the stationary source complies with emergency response 
program requirements in Sec.  68.95;
    (iii) Whether a notification exercise occurs at least annually, as 
required in Sec.  68.96(a);
    (iv) Whether a field exercise is conducted every five years and 
after any RMP reportable accident, pursuant to Sec.  68.96(b)(1)(i); 
and
    (v) Whether a tabletop exercise occurs at least annually, except 
during the calendar year when a field exercise is conducted, as 
required in Sec.  68.96(b)(2)(i).
0
27. In Sec.  68.190 amend paragraph (c) by adding a sentence at the end 
to read as follows:


Sec.  68.190  Updates.

* * * * *
    (c) * * * Prior to de-registration the owner or operator shall meet 
applicable reporting and incident investigation requirements in 
accordance with Sec. Sec.  68.42, 68.60, and/or 68.81.
0
28. Amend Sec.  68.195 by revising paragraph (a) to read as follows:


Sec.  68.195  Required corrections.

* * * * *
    (a) New accident history information. (1) For any accidental 
release meeting the five-year accident history reporting criteria of 
Sec.  68.42 and occurring after April 9, 2004, the owner or operator 
shall submit the data required under Sec.  68.168, except for root 
cause information required in Sec.  68.42(b)(10), with respect to that 
accident within six months of the release or by the time the RMP is 
updated under Sec.  68.190, whichever is earlier.
    (2) Root cause information required under Sec.  68.42(b)(10) shall 
be submitted within 12 months, or by the alternative timeframe provided 
by an implementing agency, as specified in Sec. Sec.  68.60(d) or 
68.81(d).
* * * * *
0
29. Revise Sec.  68.200 to read as follows:


Sec.  68.200  Recordkeeping.

    The owner or operator shall maintain records supporting the 
implementation of this part at the stationary source for five years, 
unless otherwise provided in subpart D of this part.
0
30. Section Sec.  68.205 is added to subpart H to read as follows:


Sec.  68.205  Availability of information to the LEPC or emergency 
response officials.

    (a) RMP availability. The RMP required under subpart G of this part 
shall be available to local emergency responders and LEPCs under 42 
U.S.C. 7414(c) and 40 CFR part 1400.
    (b) Chemical hazard information. The owner or operator of a 
stationary source shall develop summaries of chemical hazard 
information for all regulated processes and provide the information, 
upon request, to the LEPC or emergency response officials. Information 
shall include, as applicable:
    (1) Information on regulated substances. Names and quantities of 
regulated substances held in a process.
    (2) Accident history information. Provide the five-year accident 
history information required to be reported under Sec.  68.42.
    (3) Compliance audit reports. Summaries of compliance audit reports 
developed in accordance with Sec. Sec.  68.58, 68.59, 68.79, or 68.80, 
as applicable, updated as part of the calendar year submission 
described in subparagraph (c). The summary shall include:

[[Page 13712]]

    (i) The date of the report;
    (ii) Name and contact information of auditor and facility contact 
person;
    (iii) Brief description of the findings;
    (iv) An appropriate response to each of the findings; and
    (v) Schedule for addressing each of the findings, as applicable.
    (4) Incident investigation reports. Summaries of incident 
investigation reports developed in accordance with Sec.  68.60(d) or 
Sec.  68.81(d), as applicable. The summary shall include:
    (i) Description of the incident and events leading up to it, 
including a timeline;
    (ii) Brief description of the process involved;
    (iii) Names and contact information of personnel on the 
investigation team;
    (iv) Direct, contributing, and root causes of the incident;
    (v) On-site and offsite impacts;
    (vi) Emergency response actions taken;
    (vii) Recommendations; and
    (viii) Schedule for implementing recommendations, as applicable.
    (5) Inherently safer technology. For each process in NAICS codes 
322, 324, and 325, provide a summary of the inherently safer 
technologies (IST) or inherently safer designs (ISD) implemented or 
planned, in accordance with Sec.  68.67(c)(8). Update the summary, as 
part of the calendar year submission described in subparagraph (c), and 
following any revisions prepared in accordance with 68.67(f) and 
indicate when no revisions are incorporated, as applicable. The summary 
shall include:
    (i) The RMP process ID and process description, if provided, of the 
process affected;
    (ii) A brief description of the IST or ISD and which IST/ISD type 
of measure best characterizes it: Minimization, substitution, 
moderation or simplification;
    (iii) The name of the RMP regulated substance(s) whose hazard, 
potential exposure or risk was or will be reduced as a result of the 
implementation and whether the substance is listed as a toxic or 
flammable. If the chemicals affected are a mixture of flammables, the 
name ``flammable mixture'' may be used rather than the individual 
flammable substance names; and
    (iv) The date of implementation or planned implementation.
    (6) Exercises. Information on emergency response exercises required 
under Sec.  68.96. The information shall include schedules for upcoming 
exercises, reports for completed exercises as described in Sec.  
68.96(b)(3), and any other related information.
    (c) Submission dates and updates. The owner or operator shall 
update summary information every calendar year, including all 
applicable information that was revised since the last submission, and 
provide the information upon request.
    (d) Classified information. The disclosure of information 
classified by the Department of Defense or other Federal agencies or 
contractors of such agencies shall be controlled by applicable laws, 
regulations, or executive orders concerning the release of classified 
information.
    (e) CBI. An owner or operator asserting CBI for information 
required under this section shall provide a sanitized version to the 
LEPC or emergency response officials. Assertion of claims of CBI and 
substantiation of CBI claims shall be in the same manner as required in 
40 CFR 68.151 and 68.152 for information contained in the RMP required 
under subpart G of this part. As provided under 40 CFR 68.151(b)(3), an 
owner or operator of a stationary source may not claim five-year 
accident history information as CBI. As provided in 40 CFR 
68.151(c)(2), an owner or operator of a stationary source asserting 
that a chemical name is CBI shall provide a generic category or class 
name as a substitute.
0
31. Revise Sec.  68.210 to read as follows:


Sec.  68.210  Availability of information to the public.

    (a) RMP availability. The RMP required under subpart G of this part 
shall be available to the public under 42 U.S.C. 7414(c) and 40 CFR 
part 1400.
    (b) Chemical hazard information. The owner or operator of a 
stationary source shall distribute chemical hazard information for all 
regulated processes to the public in an easily accessible manner, such 
as on a company Web site, including, as applicable:
    (1) Regulated substances information. Names of regulated substances 
held in a process.
    (2) Safety data sheets (SDS). SDSs for all regulated substances 
located at the facility.
    (3) Accident history information. Provide the five-year accident 
history information required to be reported under Sec.  68.42.
    (4) Emergency response program. Summary information concerning the 
source's compliance with Sec.  68.10(b)(3) or the emergency response 
provisions of subpart E, including:
    (i) Whether the source is a responding stationary source or a non-
responding stationary source;
    (ii) Name and phone number of local emergency response 
organizations with which the owner or operator last coordinated 
emergency response efforts, pursuant to Sec.  68.180; and
    (iii) For sources subject to Sec.  68.95, procedures for informing 
the public and local emergency response agencies about accidental 
releases;
    (5) Exercises. The summary information required under Sec.  
68.205(b)(6).
    (6) LEPC contact information. Include LEPC name, phone number, and 
Web address as available.
    (c) Submission dates and updates. The owner or operator shall 
update and submit information required under Sec.  68.210(b) every 
calendar year, including all applicable information that was revised 
since the last update.
    (d) Public meetings. The owner or operator of a stationary source 
shall hold a public meeting to provide information required under Sec.  
68.42 as well as other relevant chemical hazard information, such as 
that described in paragraph (b), within 30 days of any accident subject 
to reporting under Sec.  68.42.
    (e) Classified information. The disclosure of information 
classified by the Department of Defense or other Federal agencies or 
contractors of such agencies shall be controlled by applicable laws, 
regulations, or executive orders concerning the release of classified 
information.
    (f) CBI. An owner or operator asserting CBI for information 
required under this section shall provide a sanitized version to the 
public. Assertion of claims of CBI and substantiation of CBI claims 
shall be in the same manner as required in 40 CFR 68.151 and 68.152 for 
information contained in the RMP required under subpart G. As provided 
under 40 CFR 68.151(b)(3), an owner or operator of a stationary source 
may not claim five-year accident history information as CBI. As 
provided in 40 CFR 68.151(c)(2), an owner or operator of a stationary 
source asserting that a chemical name is CBI shall provide a generic 
category or class name as a substitute.

[FR Doc. 2016-05191 Filed 3-11-16; 8:45 am]
 BILLING CODE 6560-50-P


