
[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Rules and Regulations]
[Pages 4594-4705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31426]



[[Page 4593]]

Vol. 82

Friday,

No. 9

January 13, 2017

Part IV





 Environmental Protection Agency





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 40 CFR Part 68





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

  Federal Register / Vol. 82 , No. 9 / Friday, January 13, 2017 / Rules 
and Regulations  

[[Page 4594]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2015-0725; FRL-9954-46-OLEM]
RIN 2050-AG82


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA), in response to 
Executive Order 13650, is amending its Risk Management Program 
regulations. The revisions contain several changes to the accident 
prevention program requirements including an additional analysis of 
safer technology and alternatives as part of 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 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: This final rule is effective on March 14, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OEM-2015-0725. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through http://www.regulations.gov.

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 document and related news releases are 
available on EPA's Web site at http://www.epa.gov/rmp. Copies of this 
final rule are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
    A. Executive Summary
    B. Does this action apply to me?
II. Background
    A. Events Leading to This Action
    B. Overview of EPA's Risk Management Program Regulations
III. Additional Information
    A. Agency's Authority for Taking This Action
    B. List of Regulated Substances
IV. Prevention Program Requirements
    A. Incident Investigation and Accident History Requirements
    B. Third-Party 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. Disclosure Requirements to LEPCs or Emergency Response 
Officials
    B. Information Availability to the Public
    C. Public Meetings
VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule 
Technical Corrections
    A. Revisions to Sec.  68.160 (Registration)
    B. Revisions to Sec.  68.170 (Prevention Program/Program 2)
    C. Revisions to Sec.  68.175 (Prevention Program/Program 3)
    D. Revisions to Sec.  68.180 (Emergency Response Program)
    E. Technical Corrections
VIII. Compliance Dates
    A. Summary of Proposed Rulemaking
    B. Summary of Final Rule
    C. Discussion of Comments
    D. Compliance Date Examples
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
    K. Congressional Review Act (CRA)

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 (on May 11, 2016, ATF ruled 
that the fire was intentionally set.) \1\ President Obama issued 
Executive Order 13650, ``Improving Chemical Facility Safety and 
Security,'' on August 1, 2013.\2\
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    \1\ See ATF Announces $50,000 Reward in West, Texas Fatality 
Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire.
    \2\ 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 
existing agency program is the Risk Management Program implemented by 
EPA under section 112(r) of the Clean Air Act (CAA) (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.
    EPA proposed changes to its Risk Management Program regulations (40 
CFR part 68) on March 14, 2016 (81 FR 13637) after publishing a 
``Request for Information'' notice or ``RFI'' that solicited comments 
and information from the public regarding potential changes to the Risk 
Management

[[Page 4595]]

Program regulations (July 31, 2014, 79 FR 44604). While developing the 
proposed rulemaking, EPA convened a Small Business Advocacy Review 
(SBAR) panel to receive input from Small Entity Representatives (SERs). 
EPA also hosted a public hearing on March 29, 2016 to provide 
interested parties the opportunity to present data, views or arguments 
concerning the proposed action.
    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.
2. Summary of the Major Provisions of the Regulatory Action
    This action amends 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 granularity and rigor over three 
program levels (i.e., Program 1, Program 2, and Program 3).
    The major provisions of this 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 revisions is 
introduced in the following paragraphs of this section and described in 
greater detail in sections IV through VI, later in this preamble.
    Certain revised 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 preamble.
a. Accident Prevention Program Revisions
    This action includes three changes to the accident prevention 
program requirements. First, the rule requires 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 rule requires regulated facilities with Program 2 or 3 
processes to contract with an independent third-party, or assemble an 
audit team led by an independent third-party, to perform a compliance 
audit after the facility has an RMP reportable accident. 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 revision to the prevention program adds 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) are required 
to conduct a safer technology and alternatives analysis (STAA) as part 
of their PHA, and to evaluate the practicability of any inherently 
safer technology (IST) identified. The current PHA requirements include 
consideration of active, passive, and procedural measures to control 
hazards. These revisions support the analysis of those measures and 
adds consideration of IST alternatives. The 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.
b. Emergency Response Enhancements
    This action also enhances the rule's emergency response 
requirements. Owners or operators of all facilities with Program 2 or 3 
processes are required to coordinate with the local emergency response 
agencies at least once a year to determine how the source is addressed 
in the community emergency response plan and to ensure that local 
response organizations are aware of the regulated substances at the 
source, their quantities, the risks presented by covered processes, and 
the resources and capabilities at the facility to respond to an 
accidental release of a regulated substance.
    Additionally, all facilities with Program 2 or 3 processes are 
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 requires that all facilities subject to the 
emergency response program requirements of subpart E of the rule (or 
``responding facilities'') conduct field exercises and tabletop 
exercises. The frequency of these exercises shall be established in 
consultation with local emergency response officials, but at a minimum, 
full field exercises will be conducted at least once every ten years 
and tabletop exercises conducted at least once every three years. 
Responding facilities that have an RMP reportable accident, and 
document the response activities in an after-action report comparable 
to the exercise evaluation reports may use that response to satisfy the 
field exercise requirements. Furthermore, owner and operators of 
responding facilities that conduct exercises to meet other Federal, 
state or local exercise requirements may satisfy the RMP exercise 
requirements provided that the scope of the exercise includes the 
objectives of an RMP exercise. 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.

[[Page 4596]]

c. Enhanced Availability of Information
    This action includes various enhancements to the public 
availability of chemical hazard information. The rule requires all 
facilities to provide certain basic information to the public, upon 
request. The owner or operator of the facility shall provide ongoing 
notification of availability of information elements on a company Web 
site, social media platforms, or through some other publicly accessible 
means. The rule also requires all facilities to hold a public meeting 
for the local community within 90 days of 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.
    EPA proposed requirements for facilities to provide certain 
information to the Local Emergency Planning Committee (LEPC), Tribal 
Emergency Planning Committee (TEPC)\3\ or other local emergency 
response agencies. However, rather than prescribe information elements 
that must be provided upon request, EPA is requiring the owner or 
operator of a stationary source to share information that is relevant 
to emergency response planning as part of the coordination activities 
that occur annually between facility representatives and local 
emergency response agencies.
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    \3\ 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 discusses comments received on other aspects of 
the proposed action including revisions to the list of regulated 
substances, location of stationary sources (related to their proximity 
to public receptors), requirements for emergency shutdown systems, 
compliance dates, technical corrections and revisions to the RMP 
requirements.
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 revised rule. 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
----------------------------------------------------------------------------------------------------------------
                                                                        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,               247  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......................             445  Use chlorine (mostly for
                                                                                    water treatment) and other
                                                                                    chemicals.
Warehousing and storage...............  493......................           1,056  Use mostly ammonia as a
                                                                                    refrigerant.
                                                                  ----------------
    Total.............................  .........................          12,542  .............................
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    Table 2 presents a summary of the annualized costs estimated in the 
regulatory impact analysis.\4\ In total, EPA estimates annualized costs 
of $131.2 million at a 3% discount rate and $131.8 million at a 7% 
discount rate.
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    \4\ A full description of costs and benefits for this final rule 
can be found in the Regulatory Impact Analysis--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).

[[Page 4597]]



                  Table 2--Summary of Annualized Costs
                        [Millions, 2015 dollars]
------------------------------------------------------------------------
                Provision                  3  (percent)    7  (percent)
------------------------------------------------------------------------
Third-party Audits......................            $9.8            $9.8
Incident Investigation/Root Cause.......             1.8             1.8
STAA....................................            70.0            70.0
Coordination............................            16.0            16.0
Notification Exercises..................             1.4             1.4
Facility Exercises......................            24.7            24.7
Information Sharing with the Public.....             3.1             3.1
Public Meeting..........................             0.4             0.4
Rule Familiarization....................             3.9             4.6
                                         -------------------------------
    Total Cost *........................           131.2           131.8
------------------------------------------------------------------------
* Totals may not sum due to rounding.

    The largest average annual cost of the final rule is the STAA costs 
($70.0 million), followed by the exercise costs ($24.7 million), 
coordination ($16 million), and third-party audits ($9.8 million). The 
remaining provisions impose average annual costs under $5 million each, 
including rule familiarization ($3.9-4.6 million), information sharing 
with the public ($3.1 million), incident investigation/root cause 
analysis ($1.8 million), notification exercises ($1.4 million), and 
public meetings ($0.4 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 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 this final 
rule. Table 3 presents a summary of the quantified damages identified 
in the analysis.

                                     Table 3--Summary of Quantified Damages
                                            [Millions, 2015 dollars]
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                                             Unit value       10-year total     Average/year    Average/accident
----------------------------------------------------------------------------------------------------------------
                                                     On-site
----------------------------------------------------------------------------------------------------------------
Fatalities..............................              $8.6            $497.8             $49.8             $0.33
Injuries................................              0.05             105.2              10.5              0.69
Property Damage.........................  ................           2,054.9             205.5               1.4
                                         -----------------------------------------------------------------------
    On-site Total.......................  ................           2,657.9             265.8               1.8
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                                                     Offsite
----------------------------------------------------------------------------------------------------------------
Fatalities..............................               8.6               8.6              0.86              0.01
Hospitalizations........................               0.4               6.8              0.68             0.004
Medical Treatment.......................             0.001              14.8               1.5              0.01
Evacuations *...........................               0.0               7.0              0.70             0.004
Sheltering in Place *...................               0.0              40.9               4.1              0.03
Property Damage.........................  ................              11.4               1.1             0.007
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    Offsite Total.......................  ................              89.5               8.9              0.06
                                         -----------------------------------------------------------------------
        Total...........................  ................           2,747.3             274.7               1.8
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* The unit value for evacuations is less than two hundred dollars and for sheltering in place is less than one
  hundred dollars so when expressed in rounded millions the value represented in the table is zero.

    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 ($0.86 million), evacuations 
($0.7 million), and hospitalizations ($0.68 million).
    In total, EPA estimated monetized damages from RMP facility 
accidents of $274.7 million per year. The 10-year RMP baseline suggests 
that considering

[[Page 4598]]

only the monetized impacts of RMP accidents would mean that the rule's 
costs may outweigh the portion of avoided impacts from improved 
prevention and mitigation that were monetized. The annualized cost of 
the final rule (approximately $142 million annually) is approximately 
52% of the average annual monetized costs in the 10-year baseline. 
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 
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.
    When considering the rule's likely benefits that are due to 
avoiding some portion of the monetized accident impacts, as well as the 
additional non-monetized benefits described previously, EPA believes 
the costs of the rule are reasonable in comparison to its benefits.

      Table 4--Summary of Social Benefits of Final Rule Provisions
------------------------------------------------------------------------
                                                       Specific benefit
     Broad benefit category           Explanation         categories
------------------------------------------------------------------------
Accident Prevention.............  Prevention of        Reduced
                                   future RMP          Fatalities.
                                   facility
                                   accidents.
Accident Mitigation.............  Mitigation of        Reduced
                                   future RMP          Injuries.
                                   facility
                                   accidents.
Non-RMP accident prevention and   Prevention and       Reduced
 mitigation.                       mitigation of       Property Damage.
                                   future non-RMP      Fewer
                                   accidents at RMP    People Sheltered
                                   facilities.         in Place.
Avoided Catastrophes............  Prevention of rare   Fewer
                                   but extremely       Evacuations.
                                   high consequence    Avoided
                                   events.             Lost
                                                       Productivity.
                                                       Avoided
                                                       Emergency
                                                       Response Costs.
                                                       Avoided
                                                       Transaction
                                                       Costs.
                                                       Avoided
                                                       Property Value
                                                       Impacts.*
                                                       Avoided
                                                       Environmental
                                                       Impacts.
Information Disclosure..........  Provision of         Improved
                                   information to      efficiency of
                                   the public.         property markets.
                                                       Improved
                                                       emergency
                                                       response 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 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.
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    \5\ For descriptions of NAICS codes, see http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

   Table 5--Industrial Sectors and Associated NAICS Codes for Entities
                   Potentially Affected by This Action
------------------------------------------------------------------------
                   Sector                             NAICS code
------------------------------------------------------------------------
Administration of Environmental Quality      924.
 Programs.
Agricultural Chemical Distributors:
    Crop Production........................  111.
    Animal Production and Aquaculture......  112.
    Support Activities for Agriculture and   115.
     Forestry Farm.
    Supplies Merchant Wholesalers..........  42491.
Chemical Manufacturing.....................  325.
Chemical and Allied Products Merchant        4246.
 Wholesalers.
Food Manufacturing.........................  311.
Beverage Manufacturing.....................  3121.
Oil and Gas Extraction.....................  211.
Other \5\..................................  44, 45, 48, 54, 56, 61, 72.
Other manufacturing........................  313, 326, 327, 33.
Other Wholesale:
    Merchant Wholesalers, Durable Goods....  423.
    Merchant Wholesalers, Nondurable Goods.  424.

[[Page 4599]]

 
Paper Manufacturing........................  322.
Petroleum and Coal Products Manufacturing..  324.
Petroleum and Petroleum Products Merchant    4247.
 Wholesalers.
Utilities..................................  221.
Warehousing and Storage....................  493.
------------------------------------------------------------------------

II. Background

A. Events Leading to This Action

    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.\6\ 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. In addition to the tragedy at the 
West Fertilizer facility in West, Texas, on April 17, 2013,\7\ 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.\8\ On April 2, 2010, an explosion and fire at the 
Tesoro Refinery in Anacortes, Washington, killed seven people.\9\ 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.\10\ 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.\11\
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    \6\ 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.
    \7\ 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-/. On May 11, 2016, ATF ruled that the fire was 
intentionally set. See ATF Announces $50,000 Reward in West, Texas 
Fatality Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire.
    \8\ 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.
    \9\ 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.
    \10\ 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.
    \11\ CSB. October 2016. Case Study: Williams Geismar Olefins 
Plant Reboiler Rupture and Fire, Geismar, Louisiana. Incident Date: 
June 13, 2013, No. 2013-03-I-LA. US Chemical Safety and Hazard 
Investigation Board, Washington, DC http://www.csb.gov/williams-olefins-plant-explosion-and-fire-/.
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    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 informed the proposed rulemaking that was published on March 14, 
2016 (81 FR 13637).
    EPA received a total of 61,716 public comments on the proposed 
rulemaking. Several public comments were the result of various mass 
mail campaigns and contained numerous copies of letters or petition 
signatures. Approximately 61,467 letters and signatures were contained 
in these several comments. The remaining comments include 235 
submissions with unique content, 10 duplicate submissions, and 4 non-
germane submissions. In addition to these public submissions, EPA also 
received 8 written comments and had 22 members of the public provide 
verbal comments at a public hearing on March 29, 2016. Discussion of 
public comments can be found in topics included in this final rule and 
in the Response to Comments document,\12\ available in the docket for 
this rulemaking.
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    \12\ 2016. EPA Response to Comments on the 2016 Proposed 
Rulemaking Amending EPA's Risk Management Program Regulations. This 
document is available in the docket for this rulemaking.
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B. Overview of EPA's Risk Management Program Regulations

    Both EPA's 40 CFR part 68 RMP regulation \13\ and Occupational 
Safety and Health Administration's (OSHA) 29 CFR 1910.119 Process 
Safety Management (PSM) standard were authorized in the CAA Amendments 
of 1990. 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.
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    \13\ 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 https://www.epa.gov/rmp for more information on the Risk Management Program.
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    The 1990 CAA Amendments 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)).

[[Page 4600]]

    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'') \14\ and published the RMP final 
regulation, containing risk management requirements for covered 
sources, in 1996 (61 FR 31668, June 20, 1996) (the ``RMP 
rule'').15 16 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.
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    \14\ 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.
    \15\ Documents and information related to development of the RMP 
rule can be found in EPA docket number A-91-73.
    \16\ 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.
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    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).\17\ 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.
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    \17\ NAICS codes 325181 and 325188 are now combined and 
represented as revised NAICS code 325180 in the 2012 and 2017 code 
versions (other basic inorganic chemical manufacturing). NAICS code 
325192 is now revised NAICS code 325194 (cyclic crude, intermediate, 
and gum and wood chemical manufacturing) in the 2012 and 2017 code 
versions.
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    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,\18\ 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.
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    \18\ 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-/.
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III. Additional Information

A. 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 are amending 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, October 20, 1993). The 
prevention program provisions discussed in this preamble (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 section 
112(r)(7)(B)(i)). This paragraph in the

[[Page 4601]]

statute calls for EPA's regulations to recognize differences in ``size, 
operations, processes, class and categories of sources.'' In this 
document, we maintain the 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.
    Various commenters suggested that particular provisions of the 
proposed rulemaking were not consistent with CAA section 112(r) or 
other relevant statutes. We address these comments in each relevant 
section of the preamble and in the Response to Comments document,\19\ 
available in the docket for this rulemaking. Some commenters also 
suggested that EPA has not complied with the requirements in CAA 
section 112(r)(7)(D) for the Administrator to ``consult with the 
Secretary of Labor and the Secretary of Transportation'' and 
``coordinate any requirements under this paragraph with any 
requirements established for comparable purposes by the Occupational 
Safety and Health Administration or the Department of Transportation.''
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    \19\ 2016. EPA Response to Comments on the 2016 Proposed 
Rulemaking Amending EPA's Risk Management Program Regulations. This 
document is available in the docket for this rulemaking.
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    EPA disagrees with these comments. 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 conducted 
extensive interagency coordination, and solicited public comment on 
potential options for improving chemical facility safety. EPA's 
coordination efforts included discussions with numerous Federal 
agencies, including OSHA and the Department of Transportation (DOT), on 
potential changes to the Risk Management Program rule. As EPA explained 
in the preamble to the proposed rulemaking, 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. This coordination 
has continued throughout the development of this rule and on OSHA's 
initial steps toward proposing potential changes to the PSM standard. 
EPA's coordination with DOT was less extensive because nothing in this 
rule changes its basic applicability provisions, which apply the rule 
only to stationary sources, and exclude transportation. However, EPA 
continues to coordinate with DOT through ongoing Executive Order 
activities, which includes updates on RMP regulatory development, and 
this coordination is sufficient to meet EPA's obligations under CAA 
section 112(r)(7)(D). As with OSHA, EPA has a long history of close 
coordination with DOT on implementation of the RMP, particularly where 
potential transportation-related issues arise, and the Agency fully 
intends for such coordination to continue.

B. List of Regulated Substances

    As part of its work under Executive Order 13650, the Working Group 
solicited public comment on potential changes to the list of regulated 
substances for the Risk Management Program, including what actions to 
take to address ammonium nitrate (AN). EPA did not propose revisions to 
the list of regulated substances. Instead, EPA explained the actions 
other agencies in the Executive Order Working Group are considering to 
address AN and indicated that EPA will coordinate any potential changes 
to the list of substances in 40 CFR part 68 with the actions of these 
other agencies. EPA received several comments related to revising the 
list of regulated substances and whether to expand the list to include 
AN.
1. Discussion of Comments on the List of Regulated Substances
    A couple of commenters expressed support for expanding the scope of 
regulated substances under the RMP rule. One private citizen stated 
that EPA should broaden the range of chemicals covered under RMP and 
account for effects on vulnerable populations including children and 
the elderly. A professional organization asserted that EPA should 
update the list of regulated substances and require facilities to 
``evaluate the risk of a reactive chemical accident and take 
appropriate measures, even if the chemicals in question are not on the 
list.''
    However, multiple commenters supported EPA's decision not to revise 
the list of regulated substances in this action. These commenters 
opposed adding toxic or flammable substances to the list of regulated 
substances in a separate action. One industry commenter opposed the 
addition of combustible dust to the list, arguing that it is already 
regulated under OSHA and constitutes a low risk to the public.
    EPA will consider these comments when determining whether to 
propose revisions to the list of substances.
2. Discussion of Comments on AN
    Many commenters supported regulating AN in the RMP rule. Several 
commenters requested that EPA consider the danger to the public from 
AN, and other reactive chemicals, in its rulemaking. A state agency 
further asked EPA to ensure that calculations for the OCA consider the 
unique explosive characteristics of fertilizer grade ammonium nitrate 
(FGAN) and develop specific RMP guidance for regulated FGAN facilities. 
One commenter supported adding AN to the list of regulated substances 
but requested unique requirements for AN formulated as an explosive or 
blasting agent and FGAN. Another commenter claimed that EPA failed to 
address Executive Order 13650 by failing to address AN in the proposed 
rulemaking.
    However, EPA also received comments opposed to adding AN to the 
list of regulated substances. One commenter stated that EPA didn't have 
authority to regulate FGAN under the CAA and urged the Agency against 
including FGAN under the RMP regulations. Another commenter supported 
EPA's decision not to change current threshold quantities and toxic 
endpoints.
    An industry trade association requested EPA's support and 
recognition of its voluntary private sector comprehensive inspection 
and assessment organization and FGAN guidelines for fertilizer retail 
facilities.
    EPA acknowledges that there is both support and opposition to 
regulating AN and will consider these comments when determining whether 
to take further action on this issue. In the interim, EPA encourages 
fertilizer retailers to review and use existing guidance. OSHA compiles 
several resources on their Fertilizer Industry Guidance on Storage and 
Use of Ammonium Nitrate Web

[[Page 4602]]

page at https://www.osha.gov/dep/fertilizer_industry/.
    EPA disagrees with the commenter that indicated that EPA failed to 
address Executive Order 13650 when we chose not to propose to list AN 
in the list of regulated substances for the RMP regulations. In the 
proposed rulemaking, EPA explained that other agencies, including OSHA 
and DHS, are considering modifications to their regulations, and EPA 
will coordinate any potential changes to the list of substances in 40 
CFR part 68 with the actions of these other agencies.

IV. Prevention Program Requirements

A. Incident Investigation and Accident History Requirements

1. Summary of Proposed Rulemaking
a. Definitions, Sec.  68.3
    EPA proposed to revise the definition of ``catastrophic release'' 
in Sec.  68.3 to include impact categories 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, would replace the phrase ``that presents imminent and 
substantial endangerment to public health and the environment'' with 
impacts categories including impacts that resulted in:
     On-site: Deaths, injuries, or significant property damage; 
or
     Offsite: Known deaths, injuries, evacuations, sheltering 
in place, property damage, or environmental damage.
    EPA proposed to define ``root cause'' in Sec.  68.3 to mean a 
fundamental, underlying, system-related reason why an incident occurred 
that identifies a correctable failure(s) in management systems.
b. Incident Investigation Sections, Sec. Sec.  68.60 and 68.81
    EPA proposed a number of revisions to the incident investigation 
provisions. EPA proposed 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. Proposed subparagraph (a)(1) applied 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. Proposed 
subparagraph (a)(2) applied to a near-miss, which is an incident that 
could reasonably have resulted in a catastrophic release. EPA also 
proposed 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 also proposed 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 
existing requirement in Sec.  68.81(c) for Program 3 processes. EPA 
proposed that current Sec.  68.60(c) through (f) would become Sec.  
68.60(d) through (g).
    EPA proposed to revise the redesignated paragraph (d) in Sec.  
68.60 and current paragraph (d) in Sec.  68.81 to revise the incident 
investigation report requirements. EPA proposed 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.
    In addition, EPA proposed to amend and add new subparagraphs in the 
redesignated paragraph (d) in Sec.  68.60 and current paragraph (d) in 
Sec.  68.81 requiring additional elements in an incident investigation 
report. Specifically, EPA proposed 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 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. EPA also proposed to add 
language to paragraph (d)(7) to require that root causes 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, in the redesignated Sec.  68.60(g), EPA proposed to add 
the word incident before investigation and change ``summaries'' to 
``reports'' for consistency.
c. Accident History, Sec.  68.42
    EPA also proposed to amend the five-year accident history section 
to require reporting of categories of root causes identified in the 
root cause analysis proposed to be required in Sec. Sec.  68.60(d)(7) 
and 68.81(d)(7).
d. Hazard Review, Sec.  68.50
    For the Hazard review section, EPA proposed to amend subparagraph 
(a)(2) by adding a phrase at the end to require the owner or operator 
to consider findings from incident investigations.
e. Process Hazard Analysis (PHA), Sec.  68.67
    In the PHA section, EPA proposed 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).
f. Updates, Sec.  68.190
    In the Updates section, EPA proposed to amend paragraph (c) to 
require the owner or operator to report any accidents covered by Sec.  
68.42 and conduct incident investigations required under Sec.  68.60 
and/or Sec.  68.81 prior to de-registering a process or stationary 
source that is no longer subject to the RMP rule.
2. Summary of Final Rule
    EPA is not finalizing the proposed definition for catastrophic 
release and is instead maintaining the existing definition. 
Additionally, EPA is finalizing a modified version of the proposed 
definition of the term ``root cause.'' In the final definition EPA 
deleted the phrase ``that identifies a correctable failure(s) in 
management systems.''
    EPA is not finalizing the proposed revisions to the five-year 
accident history section in the final rule.
    EPA is finalizing the following provisions as proposed:
     Hazard review section, Sec.  68.50;
     Incident investigation section Sec. Sec.  68.60 and 68.81;
     Process hazard analysis (PHA) section, Sec.  68.67, to add 
subparagraph (c)(2).

[[Page 4603]]

     Updates section, Sec.  68.190.
3. Discussion of Comments and Basis for Final Rule Provisions
    EPA's rationale for modifying the accident investigation provisions 
to explicitly require root cause analysis for investigations of 
catastrophic releases and near miss events and to have the findings of 
these investigations integrated into the PHA remains generally the same 
as in the proposed rulemaking. In the discussion that follows and in 
the Response to Comment document, we explain the modifications to our 
approach and the basis for these modifications.\20\ The most 
significant change in approach is to retain the catastrophic release 
definition. As became apparent in the comments, our view that having a 
common definition of reportable accidental release and catastrophic 
release would simplify and clarify compliance was outweighed by the 
potential burden of inadvertently expanding the number of investigated 
accidental releases. We continue to require investigations of near 
misses, but have provided additional guidance as to what we intend by 
the term. Other changes from the proposal are similarly intended to 
clarify terms used in the rule. Identification of root cause categories 
in accident history reporting has been eliminated because identifying 
root cause categories only provides limited information for 
understanding the root cause which is best attained by reviewing the 
complete incident investigation report. Implementing agencies and/or 
local emergency planners may still obtain the investigation report 
through direct contact with the facility. The changes we adopt in this 
final rule strike a balance between ensuring facilities and planners 
learn about the causes of catastrophic releases and near misses while 
also better targeting the reporting to minimize burden.
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    \20\ 2016. EPA Response to Comments on the 2016 Proposed 
Rulemaking Amending EPA's Risk Management Program Regulations. This 
document is available in the docket for this rulemaking.
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a. Definitions
    Catastrophic release. Although EPA received some support for the 
proposed definition of ``catastrophic release,'' many commenters were 
opposed to the revision. Many commenters, including government 
agencies, industry trade associations, and facilities, argued that 
EPA's proposed definition of ``catastrophic release'' (1) expands its 
scope, rather than clarifying it, (2) is redundant of OSHA's authority 
to regulate workplace safety by including on-site damage or injuries, 
and (3) exceeds the CAA authority to regulate only ambient air beyond a 
facility's property.
    EPA also received some comments identifying other concerns with the 
proposed change to the definition of ``catastrophic release.'' Some 
commenters, including a few facilities, said that the proposed 
definition is too vague, and some commenters noted that terms such as 
``injuries,'' ``significant property damage,'' ``environmental 
damage,'' and ``major'' are not defined. A facility and a private 
citizen commented that the wording of the definition implies that a 
``catastrophic release'' could include a fire, regardless of whether an 
actual release of regulated material occurs due to the fire, and also 
implies that releases involving on-site environmental damage would not 
be considered catastrophic.
    Many commenters, including a state government agency, facilities, 
and industry trade associations, argued that EPA's proposed definition 
of ``catastrophic release'' would regulate workplace safety concerns 
that are outside EPA's authority to regulate under the CAA. Commenters 
asserted that EPA has authority to address through regulation and 
enforcement offsite impacts of facility releases, not on-site impacts. 
A facility asserted that the proposed definition inappropriately 
expands the scope of EPA's reach into workplace safety by requiring 
investigations of releases that would also include impacts to on-site 
workers or property. An industry trade association stated that the 
definition ignores Congress's express prohibition against EPA 
``exercising statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety and health.'' This commenter 
further argued that on-site injuries should be excluded from the 
proposed definition because OSHA already has jurisdiction in this area 
and because these often do not pose any risk to public health or the 
environment.
    A facility stated that the proposed revision directly contradicts 
EPA's long-held interpretation that the references in section 
112(r)(2)(A) to ``ambient'' air limit the Agency's authority to 
activities with offsite consequences. The commenter asserted that in 
the proposed rulemaking the EPA does not acknowledge the contradiction 
from its previous position or explain what new statutory authority 
exists or why it now has the authority to regulate workplace incidents.
    Due to the large number of comments opposing the proposed revision 
to the definition of ``catastrophic release,'' EPA has decided not to 
finalize the proposed language. EPA believed that providing a 
consistent trigger for accident investigations and reportable accidents 
under the accident history requirements of Sec.  68.42 would simplify 
compliance for the regulated community. EPA acknowledges that the 
proposed revision may have inadvertently expanded the definition and 
therefore the type of accident that could trigger an investigation. 
Some reportable incidents under the accident history provision may not 
pose an imminent and substantial threat to public health and the 
environment (see 40 CFR 68.3 (Catastrophic release)). Due to EPA's 
decision to retain the existing ``catastrophic release'' definition and 
not go forward with the proposed revision, the authority issues raised 
in comments are moot. However, contrary to one commenter's claim, it 
has never been EPA's position that the references in section 112(r) to 
``ambient'' air limit the Agency's authority to regulate only 
activities with offsite consequences. On the contrary, it has been the 
Agency's longstanding position that incidents that primarily or even 
exclusively impact on-site receptors are potentially relevant to 
protection of the public and the environment from the risks of an 
accidental release. As EPA explained in the Response to Comments 
document for the original RMP rule, certain on-site accident impacts 
are relevant because they ``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.'' \21\
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    \21\ EPA, Risk Management Plan Rule: Summary and Response to 
Comments, Excerpt from Volume 1: Table of Contents, Introduction, 
and Sections 3, 16 and 17. May 24, 1996, pp 3-11 and 17-4. Document 
No. EPA-HQ-OEM-2015-0725-0153, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0153.
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    For similar reasons, requiring investigation of accidents with on-
site impacts is not redundant to OSHA's authority when such accidents 
have the potential to affect offsite areas.
    Root cause. Many commenters opposed the proposed definition of 
``root cause.'' These commenters, which included industry trade 
associations, facilities, and a private citizen, said that EPA should 
revise the definition of ``root cause'' to remove ``system-related'' 
and ``management system,'' reasoning that not all incidents are due to 
system failures. One commenter also stated that the definition assumes 
that there is only

[[Page 4604]]

one root cause and that the failure is correctable, when there can be 
many causes and the investigators may not be able to determine what is 
``correctable.'' An association of government agencies agreed that the 
investigation should identify all root causes of failure, regardless of 
whether they are deemed correctable or related to the management 
system. An industry trade association stated that EPA should not define 
``root cause'' and instead should defer to facilities to rely on 
standard definitions from independent safety organizations. Another 
industry trade association also argued that EPA does not need to define 
``root cause'' because current incident investigator requirements, 
which call for the investigator to uncover ``the factors that 
contributed to the incident,'' are sufficient. Other industry trade 
associations commented that it is very misleading and may lead to 
incorrect enforcement proceedings to require a facility to identify a 
management system failure as a root cause of incidents whose true root 
cause is a design deficiency, equipment failure, or misuse of 
equipment.
    EPA agrees with some of the comments, and is finalizing the 
proposed definition of ``root cause'' with modifications. EPA deleted 
the language regarding identifying correctable failure(s) in management 
systems. In response to the comment that the definition assumes that 
there is only one root cause, EPA agrees that there are often multiple 
root causes. The final rule defines ``root cause'' in the singular, but 
does not preclude the possibility of more than one root cause. EPA 
agrees with the comments that support investigations identifying all 
root causes, and the Agency notes that the root cause requirements in 
the final rule require the owner or operator to identify ``root 
causes.''
b. Accident History Reporting
    Some government agencies, an industry trade association, and a 
professional association agreed that the RMP accident history should 
include the root causes of incidents. However, other commenters, 
including industry trade associations and a facility, stated that the 
existing reporting requirements in Sec.  68.42 are sufficient, and that 
requiring root cause reporting in the five-year accident history is an 
additional burden that is not offset by improved performance.
    Although EPA believes there could be some benefit to identifying 
root cause categories within a facility's accident history, in most 
cases, the Agency believes the incident investigation report must be 
reviewed in order to fully understand root causes attributed to that 
incident. Implementing agency officials can obtain investigation 
reports during inspections or by using the Agency's information 
gathering authorities when needed. Therefore, EPA did not finalize the 
proposed requirement.
c. Changes to Hazard Review (Sec.  68.50) and Process Hazard Analysis 
(PHA) (Sec.  68.67) Requirements
    Hazard review and PHA. Some commenters, including several 
government agencies, a professional organization, and an industry trade 
association, supported the requirement to include incident 
investigation findings in the hazard review. Other commenters opposed 
the requirement. Some of these commenters stated that the OSHA PSM 
standard already requires PHAs to address previous incidents, and EPA's 
changes are therefore unnecessary. One industry trade association 
commented that, as written, the proposal would require facilities to 
include all findings from all investigations for the facility's entire 
history.
    Another commenter argued that incident investigation findings 
should not be required for PHAs because PHA teams typically use 
established techniques and requiring the ``findings from incident 
investigations'' to be included would not be a good fit for these types 
of assessments.
    EPA disagrees with commenters and is finalizing these requirements 
as proposed, so that findings from incident investigations are 
considered when hazard reviews are conducted. EPA notes that the basic 
purpose of a hazard review is to identify what process equipment 
malfunctions or human errors could potentially lead to accidental 
releases, and then to identify what safeguards are needed in order to 
prevent such malfunctions and errors from occurring. An obvious source 
of information about such malfunctions and errors is information gained 
from investigating incidents that have previously occurred within the 
covered process. For this reason, the Program 3 analog to the hazard 
review, the PHA, already requires the owner or operator to identify any 
previous incidents that had a likely potential for catastrophic 
consequences when conducting the PHA.
    EPA therefore not only disagrees with the commenter who stated that 
including findings from incident investigations within the PHA ``would 
not be a good fit'' for the PHA (as the existing rule already contains 
this requirement), but also believes that this requirement should be 
incorporated into the hazard review. EPA also disagrees that widely-
used PHA (or hazard review) techniques preclude consideration of prior 
incidents--all PHA and hazard review techniques that EPA is aware of 
are easily adapted to allow consideration of prior incident scenarios. 
The commenter provided the example of the Hazard and Operability Study 
(HAZOP) PHA technique as an example of a technique for PHAs that is 
widely accepted but does not consider prior incidents. EPA disagrees 
that the HAZOP may not be adapted to consider prior incident causes. In 
fact, this PHA technique, which EPA acknowledges is widely used, is 
specifically intended to identify process deviations that can lead to 
undesirable consequences, as well as the causes and consequences of 
such deviations, and safeguards necessary to protect against the 
deviation from occurring. Incident scenarios are a key source of 
knowledge for conducting this technique. According to the Center for 
Chemical Process Safety (CCPS) ``Guidelines for Hazard Evaluation 
Procedures--Second Edition with Worked Examples'' (AIChE/CCPS, 1992, pp 
143) ``the knowledge-based HAZOP Analysis study can help ensure that 
the company's practices, and therefore its experience, have indeed been 
incorporated in the design.'' The CCPS Guidelines also provide a 
specific example of how incident information can be incorporated into 
the HAZOP:

    As a more specific example, consider the discharge from a 
centrifugal pump. The guide-word HAZOP approach would apply the 
guide word ``Reverse'' to identify the need for a check valve. The 
knowledge-based HAZOP approach might also identify the need for a 
check valve because an actual problem was experienced with reverse 
flow . . . [emphasis added].

In response to the comment regarding the requirements of OSHA PSM, EPA 
notes that this final rule requirement is applicable to Program 2 
covered processes, which are not subject to the OSHA PSM standard.
    Other potential failure scenarios. Some commenters opposed 
including ``other potential failure scenarios'' in the process hazards 
analysis (PHA). A state agency and an industry trade association stated 
that it is unclear what ``any other potential failure scenarios'' 
means. The state agency also said that facilities may not have access 
to or knowledge of issues at similar facilities. A facility said that 
EPA should provide a clearinghouse of ``potential failure scenarios'' 
so that facilities will have access to them. An industry trade 
association commented that a literature

[[Page 4605]]

review would not provide much information and would be costly to 
conduct.
    In response, as stated in the preamble to the proposed rulemaking, 
other potential failure scenarios can include incidents that occurred 
at other similar facilities and or processes, failure mechanisms 
discovered in literature, or from other sources of information. EPA 
believes that it is appropriate to research information about other 
potential scenarios and consider these scenarios when conducting a 
(PHA). Regarding the comment to provide a clearinghouse of scenarios, 
given the variety of processes and stationary sources, and ongoing 
changes to technologies, it would be difficult to establish a one-stop 
resource that would identify all potential failure scenarios for all 
processes covered under the rule. However, EPA believes that owners and 
operators are in the best position to obtain incident information 
relevant to their own covered processes. In most cases, industry trade 
associations will be a useful source for this information. Such 
information is also commonly available in trade journals, at industry 
conferences, in industry newsletters, in the Chemical Safety Board's 
accident investigation reports, in reference publications (e.g., Lees' 
Loss Prevention in the Process Industries \22\), and through other 
professional networks. EPA therefore believes that information about 
other potential failure scenarios that are potentially relevant to a 
covered process should not be costly for the owner or operator to 
conduct and will benefit both the regulated stationary sources and its 
surrounding community.
---------------------------------------------------------------------------

    \22\ Lees, Frank P. 2012. Loss Prevention in the Process 
Industries, Fourth Edition. Butterworth-Heinemann. http://www.sciencedirect.com/science/book/9780123971890.
---------------------------------------------------------------------------

    Regarding the comment that this provision will require the owner or 
operator to review findings from all incident investigations for the 
facility's entire history--EPA agrees that the owner or operator should 
review all available incident information, but notes that the rule does 
not require the owner or operator to retain incident investigation 
reports for more than five years. However, if the owner or operator has 
access to incident information beyond that period, they should 
incorporate it into their hazard review as appropriate.
d. Destroyed or Decommissioned Processes
    EPA received various comments regarding the proposed rulemaking's 
requirement for investigation of incidents that resulted in destruction 
or decommissioning of a process. Several commenters, including local 
agencies, facilities, an advocacy group, and an association of 
government agencies, expressed support for the requirement that an 
incident investigation with a root cause analysis be performed for 
incidents involving processes units that were destroyed or will be 
decommissioned. A local agency and a facility explained that this 
information could improve safety for other processes at the same 
facility or at other facilities.
    EPA also received comments opposing incident investigations for 
destroyed or decommissioned processes. A facility and industry trade 
associations commented that there is no benefit to requiring 
investigations in cases where a process is decommissioned or destroyed.
    EPA also received comments in opposition to registration 
requirements for decommissioned processes. A facility and an industry 
trade association said that there is no incremental safety benefit to 
requiring a destroyed or decommissioned unit to remain registered under 
RMP until after the incident investigation is complete. The commenters 
argued that this requirement imposes additional paperwork burdens 
without any additional safety benefit.
    EPA is finalizing this requirement as proposed. The Agency agrees 
with the commenters who support this requirement because it will ensure 
that when incidents occur, particularly incidents so severe that the 
owner or operator elects to decommission the process involved or where 
the process is destroyed in the incident, lessons are learned as a 
result, both for the benefit of the owner/operator, and potentially for 
other stationary sources with similar processes.
    In response to the comments opposed to the registration 
requirements for decommissioned processes, EPA believes that the 
additional paperwork burden regarding such requirements is minimal, as 
the processes would have already been registered in the source's most 
recent RMP. New accident history information may be added to the RMP 
without performing a full update. Following that correction, if the 
affected process has been decommissioned or destroyed, and if the 
source has multiple covered processes, the owner or operator would 
update their RMP to reflect the loss of the affected process (this 
would be required whether or not the incident was investigated). If the 
affected process was the only process at the source, after completing 
the investigation and correcting the existing RMP, the owner or 
operator would submit a deregistration notice for the source to EPA. 
Deregistration is already required by Sec.  68.190(c) when a source is 
no longer subject to Part 68. Therefore, from a paperwork standpoint, 
the primary effect of this change would be the timing of when 
deregistration occurs. EPA believes the potential benefits of the 
knowledge gained from the incident investigation warrant this delay in 
deregistering a source.
e. Near Misses
    In the proposed rulemaking, EPA did not propose a definition for 
the term ``near miss,'' although EPA did include the term in proposed 
revisions to Sec. Sec.  68.60 and 68.81, paragraph (a)(2), in the 
phrase: ``Could reasonably have resulted in a catastrophic release 
(i.e., was a near miss).'' EPA also sought public comment on whether to 
include a formal definition for the term. EPA received comments both 
supporting and opposing a definition of ``near miss.''
    Requests to define ``near miss.'' Several commenters, including 
government agencies, industry trade associations, facilities, and an 
advocacy group, recommended defining ``near miss'' to reduce vagueness, 
uncertainty around which incidents require investigation, and the 
reliance on owners and operators to define the term. A local agency and 
an industry trade association suggested providing examples of near 
misses in guidance. A local agency said that EPA should clarify whether 
a release is considered a ``near miss'' if it was a controlled release. 
Other commenters, including a state agency and an industry trade 
association, opposed a regulatory definition of the term, stating that 
facilities should be permitted to determine what qualifies as a ``near 
miss'' that requires investigation. A state agency also said that EPA 
should not define ``near miss'' because it would be challenging to 
provide a definition that is suitable for all industry sectors. An 
industry trade association stated that the rule raises constitutional 
due process concerns because the rule lacks specificity to define the 
``near miss'' standard and fails to provide adequate notice to the 
regulated community as to what the RMP rule will require.
    EPA is finalizing the language in paragraph (a)(2) of Sec. Sec.  
68.60 and 68.81 as proposed, and has elected not to finalize a 
regulatory definition of ``near miss'' to identify incidents that 
require investigation. The criteria for determining incidents that 
require investigation will continue to include events that ``could 
reasonably have resulted in a catastrophic release.''

[[Page 4606]]

Under the final rule, this criterion, rather than a definition of 
``near miss,'' applies to determine which incidents require 
investigation. However, the rule makes clear that a ``near miss'' is an 
example of an event that ``could reasonably have resulted in a 
catastrophic release.'' EPA agrees with commenters who said it would be 
difficult to address in a single definition the various types of 
incidents that may occur in RMP-regulated sectors that should be 
considered near misses, and therefore be investigated. Instead, 
facility owners or operators will need to decide which incidents 
``could reasonably have resulted in a catastrophic release.'' This may 
be 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 original 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.\23\ EPA decided to leave it up to the owner or operator to 
determine whether an incident could reasonably have resulted in a 
catastrophic release and to investigate such incidents.
---------------------------------------------------------------------------

    \23\ [thinsp]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.
---------------------------------------------------------------------------

    EPA understands from the comments that there was some uncertainty 
about the term near miss. 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 most of these events did not result in deaths, injuries, 
adverse health or environmental effects, or sheltering-in-place, the 
Agency believes that in some cases, if circumstances had been slightly 
different, a catastrophic release could reasonably have occurred.
    As described in the preamble to the proposed rulemaking, and as 
noted by one commenter, there is a CCPS definition of ``near miss.'' 
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.
    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.
    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.\24\ These include:
---------------------------------------------------------------------------

    \24\ 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.
---------------------------------------------------------------------------

     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.\25\ 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.
---------------------------------------------------------------------------

    \25\ CCPS. March 2003. Guidelines for Investigating Chemical 
Process Incidents, 2nd ed., p. 68.
---------------------------------------------------------------------------

    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.
    The intent is not to include every minor incident or leak, but 
focus on serious incidents that could reasonably have resulted in a 
catastrophic release, although EPA acknowledges this will require 
subjective judgment. EPA will update existing RMP guidance to reflect 
the revised RMP requirements and will provide guidance to identify what 
types of incidents could be considered near misses.
    The concept of ``near miss'' has a meaning in industry and in the 
chemical engineering profession. In this preamble and in guidance, EPA 
has explained the concept and has identified sources that explain the 
term, and EPA believes that this satisfies any due process concerns 
raised by commenters related to the definition of this term. These 
sources put the regulated community on notice of EPA's expectations 
under the rule and thus also address the due process concerns raised by 
commenters regarding notice to the regulated community as to what the 
RMP rule will require. EPA expects that by expanding the root cause 
analysis requirement to near misses that could have resulted in a 
catastrophic incident, some stationary sources will be able to take 
corrective actions before another similar, but catastrophic incident 
occurs in the future. For example, as discussed in the March 14, 2016 
RMP proposed rulemaking (81 FR 13637), incidents at Tosco Refinery, 
Georgia Pacific, Shell Olefins, Morton International, BP Texas City 
Refinery and Millard Refrigerated Services all involved near-misses or 
less serious incidents involving the same cause as the later 
catastrophic release.
    Industry suggestions for clarifying near misses. A few industry 
trade associations commented that the examples of near misses that EPA 
provided in the NPRM, such as excursions of process parameters and 
activation of protections devices such as relief valves, should not be 
considered ``near misses.'' The commenters said that many of these 
examples are safeguards that are designed to be used to prevent 
catastrophic releases. An industry trade association also proposed a 
definition of ``near miss'' that would be limited only to scenarios 
where the final safeguard or layer of protection is activated, such 
that a release would have occurred if not for that control.
    In response to these comments, EPA agrees that not all excursions 
of process parameters outside control levels or all instances of 
protective device activation should necessarily be considered to be 
near misses. EPA expects that activation of protective devices should 
be investigated when the failure of such devices could have reasonably 
resulted in a catastrophic release. However, EPA does not agree that 
near miss investigations should only include situations that resulted 
in activation of a final safeguard or layer of protection. This may be 
appropriate in some cases, but in others, multiple layers of protection 
may quickly fail. EPA

[[Page 4607]]

believes that owners and operators must use reasonable judgement to 
decide which incidents, if they had occurred under slightly different 
circumstances, could reasonably have resulted in a catastrophic 
release, and investigate those incidents.
f. Investigation Timeframe
    EPA received many comments in support of a shorter investigation 
timeframe. Many commenters, including a local agency and a professional 
association, stated that 12 months is too long to complete most 
investigations, and some commenters said that the timeframe should be 
shortened to five or six months. Some commenters also stated there 
should be a shorter timeframe, but with the ability to request an 
extension.
    Other commenters, including state and local agencies and industry 
trade associations, said that EPA should allow for 12 months to 
complete an investigation and also allow extensions for especially 
large or complex incidents. Some commenters also recommended requiring 
interim reports. An industry trade association asked EPA to clarify 
that the 12-month period is only for completing the investigation 
report, not for implementing the recommendations in the report.
    Other commenters, including facilities and industry trade 
associations, said that EPA should not impose any deadline for 
completing incident investigations. A few commenters, including a 
facility and industry trade associations, commented that an arbitrary 
deadline does not account for the complexity of the incident, the types 
of process units involved, or the need to retain outside consultants or 
experts to complete the investigation.
    After considering these comments, EPA has decided to finalize the 
requirement to complete incident investigations within twelve months as 
proposed. EPA believes that this timeframe will provide a reasonable 
amount of time to conduct most investigations, while also ensuring that 
investigation findings are available relatively quickly in order to 
assist in preventing future incidents. For very complex incident 
investigations that cannot be completed within 12 months, EPA is 
allowing an extension of time if the implementing agency approves such 
an extension, in writing. EPA encourages owners and operators to 
complete incident investigations as soon as practicable, and believes 
that 12 months is typically long enough to complete even complex 
incident investigations. However, EPA provided flexibility for 
facilities to request more time to complete investigations when they 
consult with their implementing agency and receive written approval for 
an extension.
g. Incident Investigation Team
    Some commenters, including a Federal agency, local government 
agencies, an association of government agencies, and an industry trade 
association, supported the proposed requirements under Sec.  68.60(c) 
for the owner or operator of a Program 2 process to establish an 
incident investigation team consisting 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. Other commenters opposed these requirements. A 
facility commented that the incident investigation team requirements 
are unnecessary because they are already covered by the OSHA PSM 
standard. A private citizen commented that the requirement assumes that 
all investigations will be conducted by a team, when it is possible for 
a competent individual to perform all aspects of the investigation if 
given access and support by the facility owner or operator. The 
commenter also stated that although the proposed rulemaking provides 
significant information on who may perform a third-party audit, it does 
not specify the qualifications of persons who may perform 
investigations and certify investigation reports.
    EPA is finalizing the Program 2 incident investigation 
requirements, as proposed. The Agency agrees with the commenters who 
support requiring at least one person on the investigation team to be 
knowledgeable in the process involved and other persons with 
appropriate knowledge and experience in incident investigation 
techniques, as EPA believes these provisions are necessary to ensure 
that facilities thoroughly investigate and analyze incidents and their 
root causes.
    EPA disagrees that these incident investigation team requirements 
are already covered by the OSHA PSM standard. The requirements for 
Program 3 processes in the current rule already include a provision for 
incident investigation teams; however, the incident investigation team 
requirements in this rule apply to Program 2 processes, which by 
definition are not covered by the OSHA PSM standard. EPA agrees that 
the requirement assumes that all investigations will be conducted by a 
team. EPA believes that all incident investigations, whether conducted 
on Program 2 or Program 3 processes, should involve a team of at least 
two people, particularly given the requirement under the final rule for 
investigations to include analysis of root causes. However, beyond the 
requirements specified in the final rule (i.e., to establish an 
investigation team consisting 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), the 
Agency does not believe it is necessary to specify additional 
qualification criteria for incident investigation team members.
h. Root Causes
    Support for root cause requirements. Many commenters, including 
government agencies, advocacy groups, a facility, and others, expressed 
support for the requirements to determine root causes through the use 
of a recognized method and to include information on root causes in 
investigation reports. The commenters supported these provisions as a 
way to prevent future incidents. Most of these commenters also 
expressed support for applying the root cause analysis requirement to 
both catastrophic release incidents and to incidents that could 
reasonably have resulted in a catastrophic release (i.e. near misses). 
These commenters stated that conducting root cause analysis on near 
misses would allow the owner or operator to identify and make 
corrective actions before a catastrophic incident occurs. Some 
commenters also supported EPA's proposal to allow the use of any 
recognized method to complete a root cause analysis.
    EPA agrees with these comments and believes that requiring root 
cause analyses for catastrophic releases and near misses, and including 
root cause information in incident investigation reports is vital for 
understanding the nature of these events. EPA is finalizing, as 
proposed, the requirements that root causes must be determined through 
the use of a recognized method and that information on root causes must 
be included in investigation reports. As previously noted, however, the 
final rule includes a modified version of the proposed definition of 
the term ``root cause.'' The phrase ``that identifies a correctable 
failure(s) in management systems'' from the proposed definition has 
been deleted.
    Opposition for root cause requirements. EPA also received many 
comments opposing the proposed root cause analysis requirements. Some 
commenters, including industry trade associations and Federal agencies, 
said

[[Page 4608]]

that requiring the owner or operator to conduct a root cause analysis 
versus other investigation methods is unnecessary. Some of these 
commenters also argued that root cause analysis assumes that there is 
an underlying management or system-related cause behind every incident, 
which may not be the case and which EPA has failed to prove. An 
industry trade association and a facility stated that EPA should not 
require facilities to select from a predetermined list of root causes 
so as to avoid forcing them to fit their findings into a category that 
may not be appropriate.
    Regarding these comments, EPA agrees that root cause analysis may 
result in identifying causes that are not always an underlying 
management or system-related cause, but still believes that the 
analysis is necessary to understand why the accident occurred so that 
the causes can be addressed. Therefore, we have modified the definition 
of ``root cause'' to remove the phrase ``that typically identifies a 
correctable failure(s) in management systems'' in order to remove the 
implication that all incidents involve correctable management system 
failures. EPA also notes that the final rule does not require 
facilities to select from a predetermined list of root causes or force 
them to fit their findings into an inappropriate category.
    Many commenters argued that EPA should not require root cause 
analyses for near misses. A Federal agency, industry trade 
associations, and some facilities stated that EPA should not require 
root cause analyses for near misses because the requirement would 
increase compliance burdens and costs on facilities and take attention 
away from other safety activities. A few industry trade associations 
also argued that the quality of safety reviews will be diluted by 
applying the requirement to low-consequence, high-frequency events. One 
industry trade association stated that requiring a root cause analysis 
for near misses creates a false equivalency between near misses and 
actual catastrophic releases.
    While EPA acknowledges that requiring root cause analyses for near 
misses may impose some additional burden on facilities, the Agency 
disagrees that the burden is unwarranted or that it will take attention 
away from other safety activities. The Agency notes that catastrophic 
release near miss events are infrequent events, and therefore do not 
typically divert attention from other safety activities. However, EPA 
believes that investigation of such incidents, when they occur, should 
be a high priority safety activity for regulated stationary sources, 
because these investigations can lead to the correction of problems 
which could ultimately prevent much more serious and costly 
catastrophic release incidents.
    EPA also disagrees that the final rule applies the root cause 
investigation requirement to low-consequence, high-frequency events. 
The final rule requires root cause investigations only for incidents 
that resulted in, or could reasonably have resulted in, a catastrophic 
release. Such incidents are unusual. Based on accident history 
information reported to EPA, most regulated sources have never 
experienced a catastrophic release incident, and the Agency also 
believes that near misses will also be relatively rare events. The 
final rule does not presume any ``equivalency'' between near misses and 
actual catastrophic releases. The Agency notes that actual catastrophic 
releases may be more difficult to investigate if the incident requires 
extensive cleanup, damage assessment, evidence collection, etc.--
activities that are unlikely to be necessary for near miss events. 
However, lessons learned from catastrophic releases and near misses 
should both benefit the source and its surrounding community, whether 
or not such events are viewed as equivalent.
    Root cause requirements for Program 2 facilities. Some commenters 
opposed requiring root cause analyses for Program 2 processes. An 
industry trade association said that since most incidents happen at 
facilities with Program 3 facilities, it is unnecessary to expand this 
requirement to Program 2 facilities. Another industry trade association 
said root cause analyses should only be required at Program 3 
facilities because the methodology is most appropriate for complex 
incidents.
    While it is true that most RMP-reportable incidents occur at 
Program 3 processes, EPA decided that there was little justification 
for limiting the root cause requirements to only Program 3 processes, 
because some serious accidents also occur at Program 2 processes. Also, 
the Agency notes that some of the accidents at Program 2 processes 
occur at publicly owned water and wastewater treatment facilities that 
are not in Program 3 only because they are not located in a state with 
an OSHA-approved State Plan. Unlike state and local government 
employees at facilities in states with OSHA-approved State Plans, state 
and local government employees at facilities in states under Federal 
OSHA authority are not covered by the OSHA PSM standard. This results 
in regulated processes at these sources being placed in Program 2, even 
though the processes generally pose the same risk as similar processes 
at publicly owned water or wastewater treatment processes that are 
located at sources in OSHA State Plan states.
    Incident investigation methodology. One commenter argued that EPA 
does not have authority to specify a specific incident investigation 
and analysis methodology and should remove all references to or 
requirement for any named investigation or analysis method from its 
proposed rulemakings. The commenter cited various provisions of the CAA 
and the language within the Memorandum of Understanding between CSB and 
EPA and asserted that CSB is the lead entity for accident 
investigations and has the authority to specify a named investigation 
method. Other commenters, including a state agency and facilities, said 
that EPA has not provided examples of how to determine what is a 
recognized method or which consensus bodies are to be used to determine 
recognized methods.
    EPA disagrees with these comments. While the final rule does not 
require use of a specific incident investigation or analysis method 
(the final rule allows the owner or operator to determine root causes 
using ``a recognized method''), nothing in the CAA precludes EPA from 
requiring sources to conduct incident investigations. Contrary to the 
commenter's suggestion, the legislative history specifically 
contemplates EPA requiring accident investigations (see Senate Report 
at 242-43 \26\). The Agency notes that the existing RMP rule already 
contains such a requirement applicable to Program 2 and Program 3 
processes. Like other risk management provisions, CAA section 
112(r)(7)(B)(i) requires investigation requirements to be reasonable, 
but nothing in the statute otherwise limits EPA from requiring the 
investigation to address the issue of the underlying root cause of the 
accident.
---------------------------------------------------------------------------

    \26\ Senate Committee on Environment and Public Works, Clean Air 
Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st 
Session (1989)--``Senate Report''.
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    Nothing in this final rule interferes with the ability of the CSB 
to conduct its accident investigations. The incident investigation 
provision we adopt is designed to have the facility learn from its 
accidents and near misses in order to identify ways to improve the 
facility's prevention program. The root cause investigations in this 
rule serve a distinct purpose from the oversight purposes of the CSB.
    EPA also disagrees that we should specify recognized investigation 
methods or point to specific governing

[[Page 4609]]

bodies for such methods. Investigation methods evolve over time, and 
new methods may be developed, so any list promulgated by EPA in this 
rule may soon be obsolete. The Agency took a similar approach in the 
PHA requirements for the existing rule, where it listed several 
potential methods, but also included the option to use an appropriate 
equivalent methodology. EPA recommends that owners and operators 
consult available literature on root cause investigation. For example, 
CCPS has published Guidelines for Investigating Chemical Process 
Incidents, which provides extensive guidance on incident 
investigations, near miss identification, root cause analysis, and 
other related topics.\27\
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    \27\ CCPS 2003. Center for Chemical Process Safety, Guidelines 
for Investigating Chemical Process Incidents, 2nd Edition, NY: 
AIChE.
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i. Other Incident Investigation Report Requirements
    A few commenters, including a Federal agency, expressed support for 
the proposal to require additional information to be included in 
incident investigation reports. Several other commenters expressed 
opposition to various proposed incident investigation report 
requirements. A facility said that EPA's proposed changes are 
unnecessary because each of the proposed items is already required 
under the OSHA PSM standard. Some industry trade associations opposed 
requiring facilities to include the results of the root cause analysis 
in the incident investigation report, saying this could increase the 
likelihood of lawsuits against the facility if those reports are made 
public, or could result in the release of confidential business 
information.
    EPA believes that providing the additional required information is 
vital for understanding the nature of the incident and should be 
included in the incident investigation report. Some facility owners or 
operators may already voluntarily include root cause information and 
other elements required under this rule (e.g., time and location of 
incident, name and amount of substance involved in the release, etc.) 
in incident investigation reports prepared to comply with the RMP rule. 
However, Sec. Sec.  68.60 and 68.81 are being revised to require this 
information to ensure clarity and consistency among reports. While the 
OSHA PSM standard contains the same incident investigation reporting 
requirements as the existing RMP rule for Program 3 processes, prior to 
this rule, neither regulation required reporting of root cause 
information nor the other report elements required in this rule. EPA 
disagrees with the conjecture that there may be an increased 
possibility of lawsuits is a good reason not to include root causes and 
other factual incident information in incident investigation reports. 
We note that the current rule requires a report that discusses factors 
contributing to the incident and recommendations resulting from the 
investigation, so to the extent that litigants would seek to use 
reports to establish cause or preventability of an incident, the 
litigation risk is there already. To the extent that the root cause 
discussion contains CBI, the existing rule provides methods for 
asserting CBI claims. Identifying root causes can prevent future 
incidents, thereby reducing accidental release impacts.

B. Third-Party Audits

    EPA proposed to require owners or operators of certain RMP 
facilities to perform third-party audits, in order to prevent accidents 
and ensure compliance with part 68 requirements. The third-party audits 
are similar to the compliance audits already required by Sec. Sec.  
68.58 and 68.79, but EPA expects that independent compliance audits 
will assist stationary sources to come fully into compliance with the 
applicable prevention program requirements. The details of these 
requirements are described further.
1. Summary of Proposed Rulemaking
a. Definitions
    EPA proposed to define ``third-party audit'' in Sec.  68.3 as a 
compliance audit conducted pursuant to the requirements of Sec.  68.59 
and/or Sec.  68.80, by an entity (individual or firm) meeting the 
competency, independence and impartiality criteria in those sections.
b. Compliance Audit Requirements Under Sec. Sec.  68.58 and 68.79
    EPA proposed changes to Sec. Sec.  68.58 and 68.79 to require 
third-party compliance audits for both Program 2 and Program 3 
processes, under certain conditions and to clarify existing 
requirements for compliance audits. EPA proposed to edit Sec. Sec.  
68.58(a) and 68.79(a) to add the language ``for each covered process'' 
to clarify that all compliance audits, self and third-party, shall 
address compliance with the provisions of Subpart C or D for each 
covered process. EPA also added a sentence at the end of the paragraph 
to reference when a compliance audit must be a third-party audit.
    EPA also proposed to add paragraphs (f) through (h) in Sec. Sec.  
68.58 and 68.79. Paragraph (f) identified third-party audit 
applicability. EPA proposed that the next required compliance audit for 
an RMP facility would be a third-party audit when one of the following 
conditions apply:
     An accidental release, meeting the criteria in Sec.  
68.42(a), from a covered process has occurred; or
     An implementing agency requires a third-party audit based 
on noncompliance 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).
    Proposed paragraph (g) described the procedure when an implementing 
agency requires a third-party audit and proposed an internal appeals 
process. EPA proposed to require an implementing agency to provide 
written notice to the facility owner or operator stating the reasons 
for the implementing agency's preliminary determination that a third-
party audit is necessary. The owner or operator would have an 
opportunity to respond by providing information to, and consulting 
with, the implementing agency. The implementing agency would then 
provide a final determination to the owner or operator. If the final 
determination requires a third-party audit, the owner or operator would 
have an opportunity to appeal the final determination. EPA proposed 
that the implementing agency would provide a written, final decision on 
the appeal to the owner or operator after considering the appeal.
    Proposed paragraph (h) described the schedule for completing third-
party audits. The proposed language required the audit and associated 
report to be completed, and submitted to the implementing agency within 
12 months of when any third-party audit is required or within three 
years of completion of the previous compliance audit, whichever is 
sooner. The provision also allowed an implementing agency to specify a 
different schedule.
c. Third-Party Compliance Audit Requirements in Sec. Sec.  68.59 and 
68.80
    EPA proposed new Sec. Sec.  68.59 and 68.80, which included 
requirements for both third-party compliance audits and third-party 
auditors. In paragraph (a), EPA proposed that owners or operators 
engage a third-party auditor to evaluate compliance with the provisions 
of subpart C or D (as applicable) when the applicability criteria of 
Sec.  68.58(f) or Sec.  68.79(f) are met.

[[Page 4610]]

    Auditor qualifications. In paragraph (b), EPA proposed third-party 
auditor qualifications and required facility owners and operators to 
document that the third-party auditor or audit team meets competency 
and independence criteria of the rule. Specifically, EPA proposed that 
facility owners or operators determine and document that the third-
party auditors meet the competency criteria in paragraph (b)(1) and the 
independence criteria in paragraph (b)(2).
    EPA proposed competency criteria for auditors, requiring third-
party auditors to be:
     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
     A licensed Professional Engineer (PE) or include a 
licensed PE on the audit.
    EPA also proposed independence and impartiality criteria that would 
apply to the third-party auditor or auditing team, and to each audit 
team member, individually. Specifically, the criteria would have 
required the auditor/audit team to:
     Act impartially when performing all activities under this 
section;
     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. 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;
     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 that all personnel involved in the audit sign and 
date the conflict of interest statement in Sec.  68.59(d)(8); and
     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.
    In addition, in paragraph (b)(3), the proposed rulemaking required 
the auditor to have written policies and procedures to ensure that all 
personnel comply with the applicable competency, independence, and 
impartiality requirements.
    Audit report. EPA proposed requirements for the audit report in 
paragraph (c). In paragraph (c)(1) EPA specified 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, as applicable. EPA 
also proposed to require that the final third-party audit reports 
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.
    Proposed paragraph (c)(2) included requirements for third-party 
auditors to retain reports and records. Proposed paragraph (c)(3) 
required 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. 
Proposed paragraph (c)(4) provided that the audit report and related 
records could not be claimed as attorney-client communications or as 
attorney work products, even if written for or reviewed by legal staff.
    Third-party audit findings. EPA proposed in paragraph (d)(1), to 
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. EPA proposed that the 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.
    EPA proposed in paragraph (d)(2), to require the owner or operator 
to implement the schedule to address deficiencies identified in the 
audit findings response report, and document the action taken to 
address each deficiency, along with the date completed.
    Proposed paragraph (d)(3) required 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.
    Recordkeeping. Finally, EPA proposed recordkeeping requirements for 
the owner or operator in paragraph (e). The proposal would have 
required 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. Those sections would further have required 
the owner or operator to provide draft third-party audit reports, or 
other documents, to the implementing agency upon request. EPA proposed 
that requirements would not apply to any documents that are more than 
five years old.
2. Summary of Final Rule
    Regulated entities must engage a third-party to conduct an 
independent compliance audit when they (1) have an RMP reportable 
accident or (2) have been notified by an implementing agency of a 
determination of either conditions that could lead to an accidental 
release or problems with a prior third-party audit.
    EPA is finalizing the proposed requirements for third-party 
auditors with modifications that include:
     Revising the applicability criteria for third-party audits 
required by implementing agencies from noncompliance to conditions that 
could lead to an accidental release;
     Providing for a third-party audit team, led by an 
independent third-party, which may now include a wide variety of 
additional, non-independent personnel, including facility employees and 
other personnel;
     Eliminating the competency criterion that the auditor be a 
PE;
     Revising the third-party auditor independence criteria to 
increase the number and diversity of qualified and available auditors; 
and
     Removing the requirement that either or both draft and 
final audit reports be submitted to implementing agencies.

EPA believes these changes address many of the most significant public 
comments EPA received on the proposed third-party audit requirements.

[[Page 4611]]

a. Definitions
    In the final rule, EPA revised the definition of ``third-party 
audit'' to reflect the changes in Sec. Sec.  68.59 and 68.80, which, 
when applicable, require that an owner or operator must either engage a 
third-party auditor or assemble an auditing team led by a third-party 
auditor. EPA also deleted the reference to impartiality, because 
impartiality is a criterion under the independence criteria in 
Sec. Sec.  68.59(c)(2) and 68.80(c)(2) and there is no need to 
highlight this term individually.
b. Compliance Audit Requirements Under Sec. Sec.  68.58 and 68.79
    EPA is finalizing paragraph (a) as proposed. This includes 
clarifying language ``for each covered process'' added to Sec. Sec.  
68.58(a) and 68.79(a).
    EPA is finalizing the applicability requirements set forth in 
Sec. Sec.  68.58(f)(1) and 68.79(f)(1) as proposed but modifies the 
criterion in Sec. Sec.  68.58(f)(2) and 68.79(f)(2) to apply when an 
implementing agency requires a third-party audit due to conditions at 
the stationary source that could lead to an accidental release of a 
regulated substance, or when a previous third-party audit failed to 
meet the competency or independence criteria of Sec.  68.59(c).
    EPA is also finalizing the implementing agency notifications and 
appeals process in paragraph (g), as proposed. However, the final rule 
language includes minor editorial revisions. The language of 
subparagraph (g)(1) requires the implementing agency to provide written 
notice to the owner or operator that describes the basis for the 
determination. The language of Sec. Sec.  68.58(g)(3) and 68.79(g)(3) 
was modified to delete the unnecessary phrase ``of this section.''
    EPA has modified and clarified the schedule for completing a third-
party audit in paragraph (h) as follows:
     EPA deleted the language requiring the auditor to submit 
the audit report to the implementing agency.
     The final rule requires a third-party audit to be 
completed within 12 months, unless a different timeframe is specified 
by the implementing agency. However, EPA made changes to simplify and 
clarify the schedule requirements.
    [cir] Subparagraph (h)(1) requires a third-party audit to be 
completed within 12 months of an RMP reportable accident.
    [cir] Subparagraph (h)(2) requires a third-party audit to be 
completed within 12 months of the date of the implementing agency's 
final determination, or if appealed, within 12 months of the date of 
the final decision on the appeal.
c. Third-Party Compliance Audit Requirements in Sec. Sec.  68.59 and 
68.80
    EPA is finalizing paragraph (a) as proposed but modified the 
language slightly to clarify that the owner or operator shall engage a 
third-party to conduct an audit to evaluate compliance with subpart C 
or D as applicable.
    Third-party auditors and auditing teams. In the final rule, EPA 
added paragraph (b) to provide options for assembling a third-party 
auditor or an audit team. In addition to engaging a fully independent 
third-party auditing firm, owners or operators may assemble auditing 
teams that include competent and independent third-party auditor team 
leaders and other qualifying, non-independent personnel. The owner or 
operator shall either:
     Engage a third-party auditor meeting all of the competency 
and independence criteria of the rule (subparagraph (b)(1)); or
     Assemble an auditing team, led by a third-party auditor 
meeting all of the competency and independence criteria. The team may 
include:
    [cir] Other employees of the third-party auditor firm meeting the 
independence criteria of the rule; and
    [cir] Other personnel not employed by the third-party auditor firm 
(subparagraph (b)(2)).\28\
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    \28\ ``Other personnel'' may be facility personnel, personnel 
from any other facilities owned or controlled by the owner or 
operator, and/or any non-independent second or third-party 
consultants or contractors the owners or operators choose to include 
on the auditing teams they assemble under subparagraph (b)(2). In 
addition, the auditing teams may include other employees of the 
third-party auditor firm who meet the independence criteria of 
subparagraph (c)(2). Such personnel need not individually meet the 
final rule's third-party auditor competency criteria as long as the 
independent third-party audit team leader, pursuant to his/her 
evaluation of audit team member competencies under subparagraph 
(d)(2), determines that the full audit team includes all of the 
competencies required to successfully complete the audit pursuant to 
the requirements in the final rule.
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    Auditor qualifications. The final rule retains the third-party 
auditor qualification requirements in paragraph (b) of the proposed 
rulemaking but redesignated as paragraph (c). The qualification 
requirements set forth in this paragraph apply only to the third-party 
auditors. The third-party auditor qualifications are clarified and 
modified as described further in this preamble.
    In the final rule, EPA simplified the introductory paragraph to 
indicate that the owner or operator shall determine and document that 
the third-party auditor(s) meets the competency and independence 
requirements set forth in the subparagraphs.
    Subparagraph (c)(1) identifies competency criteria that apply to 
third-party auditors.\29\ EPA is finalizing the competency criteria as 
proposed, except to delete the requirement for a licensed PE to conduct 
the audit or participate on the audit team.
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    \29\ The competency criteria do not apply to other personnel, 
not employed by the third-party auditor firm, that participate on 
the auditing team (e.g., facility personnel).
---------------------------------------------------------------------------

    Subparagraph (c)(2) identifies independence criteria that apply to 
third-party auditors. EPA is amending and finalizing the proposed 
independence criteria as follows:
     EPA is deleting the phrase ``and impartiality'' from the 
title because the impartiality requirement is listed as one of several 
criteria, and it is unnecessary to highlight the term separately.
     EPA clarified that retired employees qualify as third-
party auditors when financial attachments are limited to retirement 
and/or health plans.
     EPA revised the timeframe that limits third-party auditors 
past and future research, development, design, construction services, 
or consulting services to two years. EPA further clarified that if the 
firm employs personnel that did conduct these services within the 
prescribed timeframe, then these personnel may not participate in the 
audit.
     The final rule requires third-party audit personnel to 
sign and date a conflict of interest statement documenting that they 
meet the independence criteria.
     The limitation regarding future employment with the owner 
or operator has been modified to apply to only third-party personnel 
involved in the audit and the timeframe decreased to two years.
    EPA is finalizing subparagraph (c)(3), as proposed, to require 
auditors to have written policies and procedures to ensure that all 
personnel comply with the qualification criteria--except to delete the 
word impartiality from the criteria description.
    Third-party auditor responsibilities. EPA is adding requirements 
for the owner or operator to provide certain responsibilities to the 
third-party auditor.\30\ Paragraph (d) requires the

[[Page 4612]]

owner or operator to ensure that the third-party auditor:
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    \30\ EPA is finalizing auditor responsibilities to ensure that 
third-party auditors maintain certain responsibilities when audit 
teams are comprised of both third-party auditor personnel and other 
personnel. EPA did not propose roles and responsibilities for 
independent third-party auditors because, in the proposed approach, 
independent third-party auditors were responsible for conducting all 
auditing activities.
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     Manages the audit and participates in audit initiation, 
design, implementation, and reporting;
     Determines appropriate roles and responsibilities for the 
audit team members based on the qualifications of each team member;
     Prepares the audit report and where there is a team, 
documents the full audit team's views in the final audit report;
     Certifies the final audit report and its contents as 
meeting the requirements of the rule; and
     Provides a copy of the audit report to the facility owner 
or operator.
    Audit report. EPA is redesignating and finalizing audit report 
requirements under paragraph (e) of the final rule with modifications. 
EPA reorganized and added one report requirement to the proposed 
subparagraphs (c)(1)(i) to (c)(1)(v). These are subparagraphs (e)(1) to 
(e)(6) in the final rule.
    EPA also amended the audit report provisions in the final rule to 
simplify the applicable provisions and simplify the requirements for 
preparing and handling the third-party audit reports:
     Subparagraph (e)(1) requires the report to identify all 
persons participating on the audit team, including their employers and/
or affiliations. The report must also document that third-party 
auditors meet the competency criteria of the rule; \31\
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    \31\ Note-only third-party auditors must meet the competency 
criteria of the rule-does not apply to other personnel on an audit 
team.
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     EPA added an additional requirement under subparagraph 
(e)(2) for the auditor to describe in the report, or incorporate by 
reference, policies and procedures to ensure all third-party personnel 
comply with the competency and independence criteria of the rule;
     Proposed subparagraphs (c)(ii) and (c)(iii) are finalized 
as proposed and redesignated as (e)(3) and (e)(4). The report must 
document the auditor's compliance evaluation for each covered process 
and document the findings of the audit, including any identified 
deficiencies;
     Subparagraph (e)(5) requires the report to summarize any 
significant revisions between draft and final versions of the report;
     Subparagraph (e)(6) requires the auditor or audit team 
leader to sign and date a certification. The certification is finalized 
as proposed except to remove the last sentence that acknowledges 
penalties for submitting false information;
     EPA deleted the provision that required the auditor to 
maintain copies of all reports and records; \32\
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    \32\ EPA retains its authority under Section 114 of the CAA to 
require regulated entities to make such records available to the 
Agency, as appropriate, upon request or during inspections. EPA is 
finalizing recordkeeping requirements under paragraph (g) of the 
final rule.
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     EPA deleted the provision that required the auditor to 
submit the report to the implementing agency at the same time as it 
would be provided to the owner or operator; and
     EPA deleted the provision limiting attorney-client 
privilege.
    Third-party audit findings. EPA is finalizing requirements for the 
owner or operator to prepare a findings response report; develop a 
schedule to address deficiencies; and submit the findings response 
report and schedule to the Board of Directors. These requirements are 
redesignated to paragraph (f) of the final rule with the following 
modifications to the findings response report:
     EPA deleted the proposed requirement to submit the 
findings response report to the implementing agency; and
     EPA amended the owner/operator certification in the 
findings response report to add a sentence indicating that the owner or 
operator has engaged a third-party to perform or lead an audit team to 
conduct a third-party audit in accordance with the requirements of 40 
CFR 68.80. EPA also modified the final sentence of the certification to 
clarify that submitting false information includes making false 
material statements, representations, or certifications.\33\
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    \33\ This change was made to track the language of Section 
113(c)(2)(A) of the CAA which makes it illegal for regulated 
entities to ``make any false material statement, representation, or 
certification.''
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    EPA is finalizing requirements in subparagraph (f)(2) to develop a 
schedule to address deficiencies as proposed, except to modify the 
title of the provision to schedule implementation and correct citations 
to redesignated paragraphs.
    EPA is also finalizing the requirement in subparagraph (f)(3) to 
submit the findings response report and implementation schedule to the 
board of directors as proposed with minor modifications to update 
citations to redesignated paragraphs, and capitalize Board of Directors 
in the title. In addition, the end of the last sentence was changed to 
reference a comparable committee, or individual, if applicable.
    Recordkeeping. EPA is finalizing the recordkeeping requirements as 
proposed in paragraph (d) with the following modifications:
     The paragraph has been redesignated as paragraph (g) in 
the final rule;
     EPA eliminated the proposed subparagraphs and moved the 
language of proposed subparagraph (e)(1) into the main paragraph with 
edits to clarify that the owner or operator shall retain at the 
stationary source the two most recent final third-party audit reports;
     EPA eliminated the proposed requirement for owners or 
operators to retain copies of all draft third-party audit reports 
(subparagraph (e)(2) of the proposed rulemaking); and
     EPA amended the recordkeeping provision for Program 3 
processes in Sec.  68.80(e) to delete the sentence that applied the 
recordkeeping provisions to any documents that were five-years old or 
less. This revision is consistent with current recordkeeping compliance 
audits under Sec.  68.79(e) and corrects an error in the proposed 
rulemaking text.
3. Discussion of Comments and Basis for Final Rule Provisions
    Several comments supported the proposed third-party audit 
requirements, including one stating that the commenter found that 
internal audits often fail to identify systemic process safety 
deficiencies. However, many commenters opposed the proposed third-party 
compliance audit provisions, including some who expressed general 
opposition, reasoning that existing requirements and mechanisms are 
working. Some comments argued that the costs outweigh the benefits 
associated with this provision or that audits by internal resources are 
more cost-effective and less disruptive, while still providing adequate 
assessment and encouraging compliance.
    EPA has retained a third-party audit requirement in the final rule. 
We continue to rely on the rationale expressed in the proposed 
rulemaking. However, in the final rule, we have modified the 
requirements for the audit team to expand the potential membership 
while still retaining the critical role of the independent auditor in 
the review of the compliance program. In the discussion that follows 
and in the Response to Comment document, we explain the modifications 
to our approach and the basis for these modifications.\34\ While the 
RMP rule does not prohibit accidental releases, an accidental release 
can be an indication of a prevention program that both needs

[[Page 4613]]

improvement and that may benefit from an audit by someone independent 
from the source's historic program and the management of the source. 
The requirements finalized in this rule are not based on a wide finding 
that the original compliance audit requirement of the RMP rule does not 
have value; instead, we promulgate this requirement to target a 
subgroup that have had indications of potential problems not detected 
and addressed by the traditional audit structure.
---------------------------------------------------------------------------

    \34\ 2016. EPA Response to Comments on the 2016 Proposed 
Rulemaking Amending EPA's Risk Management Program Regulations. This 
document is available in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA believes it is appropriate to require a subset of RMP-regulated 
facilities to engage competent and independent third-party auditors 
following an RMP-reportable accident or identification of conditions at 
the stationary source that could lead to an accidental release of a 
regulated substance. The purpose of the third-party audit is to assist 
the owners and operators in determining whether facility procedures and 
practices to comply with subparts C and/or D of the RMP rule (i.e., the 
prevention program requirements) are adequate and being followed. Thus, 
EPA is finalizing requirements for third-party audits when required 
under Sec.  68.58 and/or Sec.  68.79, to require that owners and 
operators ensure that third-party auditors meet qualification criteria, 
audits are conducted and documented, and findings are addressed 
pursuant to the requirements of Sec.  68.59 and/or Sec.  68.80, as 
applicable. EPA notes that under part 68, sources with any Program 2 
and/or Program 3 processes are already required to conduct compliance 
audits every three years. This rule does not change the requirement 
that RMP facilities regularly conduct RMP compliance audits but 
provides only that, in specific situations, those audits be performed 
by a third-party or a team led by a third-party, pursuant to the 
schedule in Sec.  68.58(h) and/or Sec.  68.79(h) of the rule.
    EPA considered, but did not adopt, changes to the final rule that 
would establish additional processes or programs under which EPA or 
other regulatory agencies must first approve or credential third-party 
auditors before owners or operators can engage them. Nor did EPA modify 
the rule to establish or reference additional independent auditor 
accreditation programs or auditor accreditation oversight committees or 
otherwise require potential third-party auditors to be accredited by an 
independent auditing or accreditation body before owners or operators 
may engage the auditors under this rule. For some programs, external 
accreditation of third-party auditors adds additional rigor to the 
process of ensuring the competence and independence of the auditors but 
such external accreditation can be time-consuming and add financial 
costs. EPA believes that the level of effort and resources necessary to 
establish these programs would cause unnecessary delays in implementing 
third-party compliance audit requirements and are not warranted for the 
small universe of facilities that may be subject to these requirements. 
Comments on significant issues relating to third-party audits are 
summarized and discussed further in this preamble. The following also 
discusses EPA's basis for the third-party audit provisions adopted in 
this final rule.
a. Third-Party Auditing Constitutional Law and Agency Authority Issues
    EPA's enforcement authority. Several commenters stated that EPA 
should rely on its existing enforcement authority, including the 
ability to require third-party audits in particular enforcement 
proceedings, rather than requiring third-party audits more generally. 
Another encouraged EPA to focus on enforcing existing audit 
requirements. Similarly, another recommended that EPA address 
facilities deemed to be incapable of performing objective self-auditing 
through EPA's enforcement authorities. One commenter argued that the 
proposed third-party audit requirements violate the U.S. Constitution's 
Fifth Amendment Due Process Clause because the proposal seeks to 
outsource EPA's inspectional duties to a third-party and force facility 
owners or operators to accept and implement the third-party's findings 
without processes to protect the due process rights of those subject to 
the audits. A few commenters stated that the proposed third-party 
auditing provisions are an unlawful and unconstitutional circumvention 
of Congressional appropriations limits on EPA's enforcement budget. 
Specifically, the commenters argued that the Anti-Deficiency Act 
prohibits EPA from augmenting its enforcement budget by mandating that 
third parties oversee the RMP program.
    EPA disagrees with the commenters. Third-party audits do not 
constitute enforcement, nor do they substitute for inspections by 
implementing agencies, and as such, EPA believes that they do not 
violate either the Due Process Clause of the Fifth Amendment, or the 
Anti-Deficiency Act. In addition, as discussed further in this 
preamble, EPA believes that there is no violation of the Due Process 
Clause of the Fifth Amendment regarding implementation of third-party 
audit findings.
    The third-party audits required in this final rule are compliance 
audits, similar to the current self-audit requirements, only conducted 
by a team led by a third-party auditor. The Senate Environment and 
Public Works Committee identified program audits ``by company personnel 
. . . or outside consultants'' as an element of prevention program 
rules within the range of authorities provided EPA. See Senate Report 
at 243.\35\ The findings of a third-party audit are intended to 
identify noncompliance that was not discovered by facility personnel 
during self-audits, and are not intended primarily to bring such 
findings to the attention of government regulators. In fact, the audits 
are designed primarily to benefit owners or operators by assisting them 
to identify both actual noncompliance as well as operational or 
equipment deficiencies, previously unidentified risk factors, and 
accident release and/or regulatory noncompliance precursor conditions 
which, if uncorrected, could lead to releases and/or enforcement 
actions. Proactively addressing deficiencies, risk factors, and 
precursor conditions to accidental releases and regulatory 
noncompliance will provide financial, regulatory, and environmental 
benefits for facility owners and operators and communities. EPA has 
reasonably targeted third-party audit requirements at facilities that 
have had RMP reportable incidents that may demonstrate weaknesses in 
prior self-assessments and at facilities of heightened concern for 
implementing agencies.
---------------------------------------------------------------------------

    \35\ Senate Committee on Environment and Public Works, Clean Air 
Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st 
Session 211 (1989)--``Senate Report.''
---------------------------------------------------------------------------

    Furthermore, third-party compliance audits in no way constitute 
regulatory inspections of, or enforcement at, RMP-regulated facilities. 
This rule is clear that third-party auditors' or third-party audit 
teams' findings are not, in and of themselves, determinations of 
regulatory violations. Nor are the audit reports or related 
documentation required to be automatically submitted to implementing 
agencies. EPA believes there is no violation of the Due Process Clause 
of the Fifth Amendment regarding implementation of third-party audit 
findings. Owners or operators must address all third-party audit 
findings, the rule provides that addressing the audit findings may 
include, where appropriate, determining that some specific findings 
were based on incorrect factual assumptions or were otherwise 
inappropriate to implement. Thus, as described further

[[Page 4614]]

in this preamble, the owner or operator of a stationary sources may 
determine an appropriate response to the findings in the audit report, 
and are not required to accept findings when they can justifiably 
decline to adopt them, and EPA believes that determining appropriate 
responses, and addressing of deficiencies, risk factors, and precursor 
conditions to accidental releases and regulatory noncompliance pursuant 
to the third-party audit regulatory requirements, do not constitute 
violations of the Due Process Clause of the Fifth Amendment.
    Finally, nothing in this rule relieves the EPA of any of its 
responsibilities under the CAA or implies that EPA will not continue to 
use its enforcement authorities under the CAA or devote resources to 
monitoring and enforcing this rule. The third-party auditing regulatory 
requirements simply ensure that regulated entities will, in a 
carefully-defined subset of circumstances, take reasonable measures to 
assess and ensure their own compliance.
    Security and CBI concerns. A few commenters expressed security 
concerns associated with third-party compliance audits. One commenter 
was concerned with ensuring proper treatment of confidential 
information by third-party auditors, and asserted that the proposed 
rulemaking does not address whether or not a facility will be able to 
limit the release of sensitive information once a third-party auditor 
is involved. Another comment was received stating that facility and 
process security are concerns for the commercial explosives industry, 
and recommended that EPA eliminate the third-party audit requirements. 
This commenter reasoned that internal staff at explosives sites would 
have undergone mandatory background checks but third-party auditors 
wouldn't necessarily be subject to the same security screening. A few 
commenters stated that attempts to find auditors with appropriate 
security clearances would further limit the pool of available qualified 
auditors. One commenter asserted that the third-party compliance audit 
requirements create legal concerns given that the third parties would 
be privy to potential CBI or information that should be protected under 
attorney-client privilege.
    EPA acknowledges commenters concerns; however, facility owners or 
operators routinely obtain and review the internal policies, 
procedures, and qualifications of a wide range of consultants and 
contractors before engaging them in order to assess their 
qualifications to perform consulting or contractual services. EPA is 
confident owners and operators will be able to ensure that third-party 
auditor personnel meet applicable security criteria.
    Regarding concerns that the third-party compliance audit 
requirements create legal concerns given that the third-parties would 
be privy to potential CBI, the contracts or other agreements between 
owner/operators and third-party auditors can address how any potential 
confidential business information is handled by the third-party.
    With regard to information that arguably should be protected under 
evidentiary privileges, EPA's view is that the third-party audit 
reports and related records under this rule, like other documents 
prepared pursuant to part 68 requirements, such as process safety 
information, PHAs, operating procedures and others, are not documents 
produced in anticipation of litigation. With respect to the attorney-
client communication privilege specifically, 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, in EPA's view, neither the audit report nor 
the records related to the audit report provided by the third-party 
auditor are attorney-client privileged (including documents originally 
prepared with assistance or under the direction of the audited source's 
attorney). Nevertheless, EPA recognizes that the ultimate decision 
maker on questions of evidentiary privileges are the courts. Therefore, 
this rule does not contain a specific regulatory provision prohibiting 
assertion of these privileges.
b. Requirement To Conduct Compliance Audit for Each Covered Process
    EPA received several comments regarding the clarification in 
Sec. Sec.  68.58(a) and 68.79(a) of the proposed rulemaking that all 
RMP audits must address ``each covered process'' at a facility. Some 
commenters opposed this clarification. A few commenters indicated that 
this would be a change, and asserted that EPA has endorsed guidance 
from the CCPS allowing facilities with a large number of covered 
processes to audit a representative sample of processes.
    One commenter argued that it was punitive for an accidental release 
from one process to automatically trigger a third-party audit 
requirement for all covered processes. A few commenters stated that 
requiring that all RMP-covered processes at the facility be audited 
regardless of what process triggered the requirement to perform the 
third-party audit would result in duplication of efforts with little 
benefit where processes at multi-process facilities are on different 
auditing schedules and third-parties are required to audit processes 
that were recently audited and not related to the incident that 
triggered the third-party audit. One commenter stated that requiring 
audits of processes that are not part of an incident would tie-up plant 
resources for longer than needed, which was particularly notable to the 
commenter because these processes would very likely still be operating 
after the incident and at the time of the audit.
    Finally, commenters asserted that it is unfair and more burdensome 
to require larger facilities with multiple processes to audit each 
covered process, arguing that they would essentially be auditing all 
the time, where small facilities with one or two processes would have a 
lesser auditing burden.
    EPA disagrees with commenters that believe it is punitive or 
redundant to require an audit of all RMP-covered processes at the 
facility, including those not involved in an RMP-reportable accident. 
Under existing rules, each facility compliance audit must address each 
covered process at least every three years. The third-party audit 
required under this rule simply replaces the next scheduled self-
compliance audit, which must address each covered process.
    EPA has consistently maintained that, at least every three years, 
owners or operators must, under the RMP rule, certify that they have 
evaluated compliance with the prevention program requirements for each 
covered process. ''In EPA's General Risk Management Guidance, issued in 
2004 and updated in 2009, in Chapter 6, ``Prevention Program (Program 
2)'' Section 6.7 ``Compliance Audits (Sec.  68.58)'', under the heading 
``What Do I Need to Do?'' it states ``At least every three years, you 
must certify that you have evaluated compliance with the prevention 
program requirements for each covered process'' [emphasis added]. In 
addition, Chapter 7 of this guidance, ``Prevention Program (Program 
3)'' Section 7.9 ``Compliance Audits (Sec.  68.79),'' states ``You must 
conduct an audit of the process to evaluate compliance with the 
prevention program requirements at least once every three years.'' 
While EPA does list the 1993 edition of CCPS Guidelines for Auditing 
Process Safety Management Systems as a reference source within this 
guidance, EPA disagrees that the CCPS guidelines endorse allowing large 
facilities to audit a representative sample of covered processes.

[[Page 4615]]

    EPA has also clearly stated its position within the Notice of 
Proposed Rulemaking preamble for the initial RMP regulation, and in the 
Response to Comments for that rule. In response to a question 
concerning whether facilities could stagger compliance audits where 
there are multiple processes at a facility, EPA stated, in the Response 
to Comments document, that a source ``may choose to audit different 
processes on different schedules (if) over each three-year period, all 
covered processes are audited.'' \36\ Furthermore, while OSHA's 
original PSM compliance audit guidelines may have allowed for auditing 
a sample of processes, the current guidelines are consistent with EPA's 
General Risk Management Guidance. See OSHA's ``Appendix C to Sec.  
1910.119--Compliance Guidelines and Recommendations for Process Safety 
Management (Nonmandatory).'' EPA's decision to retain, in Sec. Sec.  
68.59(e)(3) and 68.80(e)(3) of the final rule, the requirements for the 
third-party audit reports to document the auditor's evaluation, for 
each covered process, of the owner or operator's compliance with the 
prevention program provisions is thus consistent with both the initial 
RMP rule and EPA's longstanding interpretation of the scope of the 
rule.
---------------------------------------------------------------------------

    \36\ EPA. May 24, 1996. Risk Management Plan Rule, Summary and 
Response to Comments. Volume 1, p. 15-2. Docket No. A-91-73, 
Document No. IX-C-1.
---------------------------------------------------------------------------

    EPA also disagrees with commenters' burden argument for larger 
companies and facilities with a larger number of processes. These 
larger facilities typically also have more personnel and resources, 
where smaller facilities with fewer processes may have fewer employees, 
so the burden of auditing is proportionate for these facilities. 
Furthermore, larger facilities with more processes, in general, are 
likely to have more potential opportunities for accidental releases due 
to their size, complexity, and scale of operations. Therefore, it is 
appropriate for such facilities' auditing responsibilities to be 
commensurate to their size, complexity, and scale of operations.
c. Third-Party Audit Applicability
    Some commenters generally supported the proposed applicability 
requirements. However, many commenters opposed the requirements, 
requesting that EPA narrow, limit, or eliminate these requirements.
    RMP-reportable accident criterion. A commenter encouraged EPA to 
develop a narrower range of circumstances that can trigger a third-
party audit to ensure they will not become an overwhelming compliance 
function, and detract from the performance-based aspects of RMP. Other 
commenters recommended limiting the requirements to: Releases that 
result in offsite impacts, such as offsite deaths, serious injuries, or 
significant environmental contamination; Program 3 facilities; 
facilities with multiple releases or multiple major accidents; or 
incidents that result in significant impacts to workers, or to the 
community. Another commenter stated that third-party audits should not 
be required automatically, but should only be required if the facility 
has experienced an accidental release that meets the criteria in Sec.  
68.42(a) and EPA makes the determination that there is good cause for 
the audit, in light of the particular circumstances and facts 
surrounding the release in question. One commenter stated that the 
accidental release trigger was not an effective way to improve public 
safety and urged EPA to adopt a more proactive and targeted approach.
    EPA disagrees with commenters that third-party compliance audits 
will become an overwhelming compliance function. EPA has limited 
applicability of third-party audits to circumstances in which an RMP 
reportable accident has occurred or where conditions exist at the 
source that could lead to a release. In responding to the previous 
comments, it is necessary to provide context for how infrequently 
third-party auditing will, in practice, be necessary under the final 
rule, both in absolute numbers of such audits and their number relative 
to the full universe of RMP-regulated stationary sources already 
subject to the RMP rule's self-auditing requirements.
    Currently, there are approximately 12,000 stationary sources with 
Program 2 and/or Program 3 processes. The final rule requires third-
party compliance audits only under the following two conditions:
     If there has been an RMP reportable accident (i.e., an 
accidental release from an RMP facility meeting the five-year accident 
history criteria as described in Sec.  68.42(a)); or
     If an implementing agency makes a determination that a 
third-party audit at an RMP facility is necessary, based on conditions 
``that could lead to an accidental release of a regulated substance'' 
or a prior third-party audit at the facility.
    EPA does not expect these criteria to impact a large percentage of 
stationary sources with Program 2 and/or Program 3 processes. For 
example, comparing the number of facilities which in past years have 
had an RMP reportable accident (averages approximately 150/year), with 
the number of current stationary sources with Program 2 and/or Program 
3 processes, would represent less than 2% of stationary sources subject 
to this requirement, due to an accident, on an annual basis. For more 
information on the number of RMP reportable accidents over a ten-year 
period see section IX.A of this preamble.
    EPA also disagrees with suggestions to limit the applicability of 
third-party compliance audits to releases with offsite impacts, deaths, 
injuries, or significant environmental impacts. The purpose of the 
third-party audit is to help reduce the risk of future accidents by 
requiring an independent and objective audit to determine whether the 
owner or operator of the facility is effectively meeting the prevention 
program requirements of the RMP rule. Stationary sources that have had 
accidents and/or substantial noncompliance with Risk Management Program 
requirements may pose a greater risk to the surrounding communities. 
EPA agrees that releases with offsite impacts, deaths, injuries, or 
significant environmental impacts are potential indicators of 
noncompliance with RMP prevention program requirements. But so are 
accidental releases that involve significant property damage on-site, 
or known offsite evacuations, sheltering in place, property damage, or 
environmental damage of any degree.
    The existing self-audit requirements under Sec. Sec.  68.58 and 
68.79 incorporate a proactive evaluation of prevention program 
requirements for Program 2 and Program 3 processes. However, when a 
facility has an accidental release or noncompliance that could lead to 
an accidental release of a regulated substance, EPA has determined that 
further self-auditing may be insufficient to prevent accidents and 
ensure safe operation. Therefore, we believe it is appropriate to 
require such stationary sources to undergo third-party auditing to 
better assist owners and operators and implementing agencies to 
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 
believes this approach will improve public safety overall by preventing 
future accidents at the source.
    Overlap between incident investigations and third-party audits. 
Many commenters recommended that EPA focus on incident investigations 
after accidental releases rather than third-party audits. Some 
commenters reasoned that incident investigations are

[[Page 4616]]

the activities that are most likely to mitigate both the severity of 
future incidents and the potential for recurrence. Some commenters 
stated that third-party audits should not be required when an incident 
investigation is also required because both of these activities require 
substantial internal resources and the incident investigation is more 
responsive to health and safety concerns. Some commenters also stated 
that requiring a facility to conduct the third-party audit after an 
accidental release has the potential to dilute resources from the 
facility's efforts to complete a comprehensive incident investigation 
and implement associated improvements. One commenter suggested that an 
incident investigation be required immediately after a catastrophic 
release but not a third-party audit, and that EPA could then require 
the stationary source's next three-year compliance audit (after the 
completion of the incident investigation) to have some degree of 
independence to assess the effectiveness of the changes made in 
response to the incident investigation.
    EPA disagrees with commenters. Following an accident, incident 
investigations often reveal that facilities have deficiencies in some 
prevention program requirements related to that process. Incident 
investigations generally only evaluate the affected process, and do not 
necessarily address all covered processes at a facility, or even all 
prevention program elements for the affected process. However, 
compliance audits entail a systematic evaluation of the full prevention 
program for all covered processes, and EPA expects that third-party 
audits should identify deficiencies in any other covered processes at 
such facilities.
    EPA believes that conducting the third-party compliance audits 
immediately after an accidental release is necessary to identify and 
correct existing noncompliance at prevention program facilities that 
could lead to future releases. EPA acknowledges that conducting third-
party audits at the same time as incident investigations may impact the 
availability of facility resources for these activities. However, this 
is not a sufficient argument to delay the independent audit. Facilities 
may hire personnel from different firms to conduct the two activities 
or, for some facilities with knowledgeable internal staff to conduct 
investigations, they may only need to hire the third-party.
    Although we agree with the commenter that suggested that compliance 
audits assess the effectiveness of changes made in response to an 
incident investigation, we disagree that this assessment must be made 
by a third-party. The owner or operator will resume the three-year 
schedule to conduct self-compliance audits after the third-party audit 
and, at that time, the facility owner or operator may consider the 
findings of the incident investigation and the third-party compliance 
audit when assessing compliance with prevention program requirements.
    Implementing agency criterion. Many commenters argued that the 
third-party audit trigger associated with implementing agency findings 
of noncompliance should either be eliminated or significantly revised. 
Commenters expressed concerns with allowing an implementing agency to 
require a third-party audit based on a noncompliance determination. 
Commenters were also concerned about the potential for inconsistent or 
arbitrary decisions by implementing agencies, and a few commenters were 
concerned about the potential for abuse of this mechanism by 
implementing agencies. One commenter expressed due process concerns 
related to the triggers for third-party compliance audits, stating that 
the proposed rulemaking fails to provide the regulated facility an 
opportunity to contest implementing agency allegations of 
noncompliance. Commenters also requested clarification on whether an 
implementing agency could require a third-party compliance audit 
following a site inspection by the implementing agency.
    In response to comments, EPA has revised the third-party audit 
applicability criterion by requiring the implementing agency to base a 
determination on conditions at the stationary source that could lead to 
an accidental release of a regulated substance, rather than on 
noncompliance. An implementing agency may determine that a third-party 
audit is necessary following inspections, audits, or facility visits, 
if conditions are observed at the stationary source that could lead to 
an accidental release of a regulated substance. The implementing agency 
may choose to take other action following an inspection, as 
appropriate.
    Conditions at a stationary source that could lead to an accidental 
release may include, but are not be limited to, significant 
deficiencies with process equipment containing regulated substances, 
such as unaddressed deterioration, rust, corrosion, inadequate support, 
and/or other lack of maintenance that could lead to an accidental 
release. The presence of small ``pinhole'' releases, that do not meet 
the criteria in Sec.  68.42(a) for RMP-regulated accidental releases, 
could also constitute conditions that could lead to a larger accidental 
release of a regulated substance. The occurrence of several prior 
accidental releases that did not meet the reporting criteria in Sec.  
68.42(a) at or from a facility could also constitute conditions which 
could lead to potentially more severe accidental releases. These 
releases may be a potential indicator that an owner or operator is not 
complying with RMP prevention program requirements and would benefit 
from a third-party audit to prevent future accidental releases.
    EPA believes that having the implementing agency evaluate whether 
conditions exist that could lead to an accidental release better 
addresses the types of situations where a third-party audit would be 
most effective and will minimize the potential for inconsistent or 
arbitrary decisions made by implementing agencies. EPA also believes 
that the revised criterion is responsive to commenters' requests to 
narrow the applicability of these requirements. The criterion focuses 
on conditions with the potential to lead to accidental releases, rather 
than authorizing implementing agencies to require third-party audits 
under a potentially wide range of circumstances, including minor 
noncompliance.
    In the final rule, a facility owner or operator has an opportunity 
to challenge the underlying findings when an implementing agency 
requires a third-party audit. Sections 68.58(g) and 68.79(g) describe 
the notification and appeals process. The implementing agency must 
provide written notice to the facility owner or operator that describes 
the basis for the implementing agency's determination. Within 30 days, 
the owner or operator may consult with, and provide information and 
data to the implementing agency on the preliminary determination. The 
implementing agency will then consider this information and provide a 
final determination to the owner or operator. EPA believes this appeal 
process provides due process to the owner or operator and is sufficient 
to eliminate any potential inconsistent use or abuse of authority.
    Previous third-party audit criterion. A few commenters suggested 
deleting the failure of a previous third-party audit to meet the 
competency, independence, or impartiality criteria as a criterion for 
potentially requiring a subsequent third-party audit. These commenters 
reasoned that EPA has not shown that the auditor criteria will 
necessarily lead to better outcomes. A commenter questioned whether it 
was reasonable for EPA to declare a previous audit that was otherwise 
conducted in good faith, to be null and void, arguing that stationary

[[Page 4617]]

sources could find it burdensome and difficult to track auditor 
qualification criteria.
    EPA disagrees with commenters' assertions that stationary sources 
will find it burdensome or difficult to apply the third-party auditor 
competency and independence criteria in this rule to identify qualified 
third-party auditors. See sections IV.B.3.i and IV.B.3.j of this 
preamble for a discussion of auditor qualifications in the final rule 
as well as an explanation for why EPA believes that independent 
auditors can provide a fresh perspective on compliance audits that will 
enable an owner or operator to improve the source's risk management 
program.
    If the implementing agency has concerns about a previous third-
party audit, which involved an auditor that failed to meet the 
qualification criteria for competency and independence, and the agency 
is concerned about the quality and/or adequacy of the audit and/or its 
findings, then the implementing agency may choose to require that 
another third-party audit be conducted. The final rule establishes a 
procedure for owners or operators to challenge the regulators' 
determinations.
    Regarding the comment concerning auditor criteria leading to better 
outcomes, this issue was addressed in the preamble to the proposed 
rulemaking, and is also discussed extensively in section IV.B.3.h of 
this preamble.
    Alternative criteria suggestions. EPA received a comment 
recommending that EPA require third-party compliance audits for all 
Program 2 and Program 3 facilities every three years, reasoning that 
this alternative option is a more preventative measure than the 
proposed applicability.
    A few commenters, including a state government agency, suggested 
that EPA consider limiting the requirement to perform third-party 
audits to specific NAICs codes. Some of these commenters further 
recommended that certain types of facilities be excluded from the 
requirement, including water and wastewater treatment facilities and 
retail anhydrous ammonia facilities. A local government agency 
commented that EPA should consider limiting the requirement to perform 
third-party audits to the petroleum manufacturing, chemical 
manufacturing, and paper manufacturing industries only.
    As part of the SBAR panel process for the proposed rulemaking, SERs 
suggested that EPA consider excluding or exempting small businesses 
from the rule's third-party auditing requirements or providing small 
businesses with special flexibility to use less-than-fully-independent 
third-party auditors such as retired facility employees not otherwise 
meeting all of the proposed rulemaking's independence criteria. The 
SERs noted that the requirements in the proposed rulemaking for every 
member of the third-party auditing team to individually meet all of the 
proposed rulemaking's competency and independence criteria would be 
especially costly and burdensome to small businesses.
    EPA disagrees with the suggestion to require all facilities with 
Program 2 and/or Program 3 processes conduct third-party compliance 
audits every three years, because the Agency believes that this would 
impose a very large economic burden on the regulated industry. EPA is 
also concerned that there may not be a sufficient number of independent 
auditors available to perform third-party audits at the frequency that 
this approach would demand.
    Upon review of these comments in the context of EPA's overall 
approach to this rule, EPA has determined that it is unnecessary to add 
an exceptions or exemptions process for third-party auditor competency 
and independence to the final RMP rule, or to exempt small facilities 
or facilities within select industry sectors from the third-party 
auditing requirements. First, EPA expects that the current approach to 
require third-party audits following an RMP reportable accident, or 
based upon an implementing agency's determination, will impact 
approximately 150 facilities per year. In the Initial Regulatory 
Flexibility Assessment (IRFA) \37\ for the proposed rulemaking, EPA 
determined that relatively few small businesses have reportable 
accidents and therefore this provision will typically not apply to 
small facilities. Therefore, it is unnecessary to exempt small 
facilities or revise the auditor qualifications for small facilities.
---------------------------------------------------------------------------

    \37\ The IRFA can be found in Chapter 7 of 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).
---------------------------------------------------------------------------

    Additionally, EPA believes that the revised third-party auditor 
qualifications in this final rule will make it easier for owners and 
operators to find suitable third-party auditors and third-party audit 
team leaders to comply with the third-party audit provisions, making it 
unnecessary to add additional exceptions or an exception process to the 
final rule. EPA agrees with commenters' requests to provide additional 
flexibility to allow retired facility employees to conduct a third-
party audit and has revised the auditor qualification criteria to 
address this request (see section IV.B.3.j of this preamble for more 
information).
    Finally, EPA disagrees with commenters that request EPA exclude 
facilities within specific sectors from third-party applicability. EPA 
based applicability of third-party audits on whether a source had an 
RMP reportable accident or whether conditions exist that could lead to 
an accidental release. EPA believes that these criteria are potential 
indicators for noncompliance with prevention program requirements and 
therefore warrant an evaluation by a third-party. If a specific 
industry sector does not typically have accidental releases, then this 
provision will not likely apply. Furthermore, EPA modified the third-
party auditor qualification criteria to make it simpler for all 
businesses, small, medium, and large and in all sectors, to find 
qualified third-party auditors. Therefore, it is unnecessary to exclude 
or limit third-party audit applicability to specific industry sectors.
d. Implementing Agency Notification and Appeals
    A few commenters asserted that the appeals process associated with 
third-party compliance audits is insufficient. One commenter stated 
that the proposed appeals process does not preclude the excessive or 
baseless use of the claim by agency staff nor detail the quality or 
quantity of information that a facility could present to overcome an 
agency's determination and the requirement to perform a third-party 
audit. Commenters also recommended adding an additional independent 
party to the appeals process. One commenter stated that EPA should 
clearly provide for judicial review of decisions on appeals by 
including regulatory language specifying that EPA's decision 
``constitutes final agency action for purposes of judicial review.'' 
Another commenter stated that EPA should make the deadline for appeals 
at least 60 days and should expressly provide for extensions.
    EPA disagrees with the comments requesting an independent party be 
added to the appeals process. This approach would create unacceptable 
delays while the implementing agency and the facility identifies an 
appropriate third-party. EPA believes the appeals process set out in 
the final rule provides sufficient opportunities for the owner or 
operator to challenge an implementing agency's determination.

[[Page 4618]]

    Sections 68.58(g) and 68.79(g) describe the notification and 
appeals process for when an implementing agency requires a third-party 
audit. The implementing agency must provide written notice to the 
facility owner or operator that describes the basis for the 
implementing agency's determination. Within 30 days, the owner or 
operator may consult with, and provide information and data to, the 
implementing agency on the preliminary determination. The implementing 
agency will then consider this information and provide a final 
determination to the owner or operator. Then there is an appeals 
process, in which the owner or operator may appeal the final 
determination to the EPA Regional Administrator, or for determinations 
made by other implementing agencies, the administrator or director of 
such implementing agency.
    It is important to note that the final determination regarding the 
applicability of these provisions is not an enforcement determination. 
It is a notification regarding the applicability of an existing 
regulatory requirement, a requirement that does not apply to all 
stationary sources, all the time, but when an agency determines that it 
would apply, the owner or operator is notified, given an opportunity to 
consult, and appeal further within the agency. Part 68 already includes 
final agency determinations regarding regulatory requirements in 
Section 68.220, and the process set out in this final rule for appeals 
of third-party audit determinations is similar.
    In response to comments about the short time frames, EPA has 
determined that the 30-day timeframe to submit an appeal, which follows 
an initial 30-day time period for the owner or operator to provide 
information and data to, and consult with, the implementing agency, is 
adequate and will ensure timely consideration of the information 
presented. EPA believes there is sufficient time built into the initial 
notification and consultation process, and the subsequent appeals 
process, particularly considering that the provisions apply to third-
party audits required due to accidents or conditions at the facility 
that could lead to an accidental release of a regulated substance, and 
taking into account the need, in these circumstances, to take prompt 
action to identify and correct deficiencies.
e. Schedule for Conducting a Third-Party Audit
    One commenter supported the proposed 12-month timeframe to complete 
a third-party audit. However, a few commenters opposed the proposed 
schedule. One commenter said that it would not be reasonable or 
appropriate to require completion of an audit report within twelve 
months by default. Some comments suggested modifying the rule to allow 
extensions of time to conduct third-party audits. Some comments sought 
clarification concerning the timing of a third-party audit. One 
commenter stated that the proposal seems to include inconsistent 
requirements for the required timing of third-party audits. Another 
commenter stated that, although it seems that EPA intended to require 
the third-party audit to be completed within 12 months of a triggering 
event, the deadline would be even sooner if the next scheduled 
triennial compliance audit is fewer than 12 months away. A few 
commenters encouraged EPA to clarify that conducting a third-party 
audit would count as the scheduled compliance audit and reset the clock 
on the three-year compliance audit schedule.
    In response to comments, EPA has revised the regulatory text to 
clarify that the schedule for conducting a third-party audit, unless a 
different timeframe is specified by the implementing agency, is within 
12 months of an RMP reportable accident or within 12 months of the date 
of the implementing agency's final determination. If the final 
determination is appealed, the third-party audit is required within 12 
months of the date of the final decision on the appeal. EPA believes 
that the 12-month timeframe in the final rule provides sufficient time 
for owners or operators to complete a third-party audit while avoiding 
unnecessary delays in identifying and addressing noncompliance. 
Additionally, the final rule allows the implementing agency to specify 
a different timeframe for conducting third-party audits. This allows 
flexibility for an implementing agency to grant an extension, or to 
specify a shorter timeframe, to complete the audit, as appropriate. For 
example, an implementing agency may grant an extension if a source can 
demonstrate that it has had difficulty finding a qualified third-party 
auditor to conduct or lead the audit team, or that the audit will 
require extra time due to the complexity or number of processes, due to 
extensive damage to the facility following an incident, or due to 
resource constraints. Alternatively, the implementing agency may 
specify a shorter timeframe to complete the audit after considering the 
severity of the release or determining that unsafe conditions exist at 
the source.
    EPA acknowledges that in some cases, the default result of these 
timeframes may be that a gap of greater than three years may occur 
between completion of the previous compliance audit and a subsequent 
third-party audit (e.g., if an accident triggering a third-party audit 
occurs shortly before the facility's next regular compliance audit is 
due). In these cases, the owner or operator will still have 12 months 
to complete the third-party audit unless a different timeframe is 
specified by the implementing agency. Finally, stationary sources are 
required to audit compliance at least every three years, and a third-
party compliance audit counts toward meeting this recurring requirement 
for purposes of determining the timing of the stationary source's next 
compliance audit.
f. Process by Which Owners or Operators Select Third-Party Auditors
    In the preamble to the proposed rulemaking, EPA sought comment on 
potential alternative approaches to determining auditor competency and 
independence, such as requiring third-party auditors to be accredited 
by EPA or an independent auditing or accreditation body or board. EPA 
received a range of public comments on this issue. Commenters disagreed 
about whether facility owners and operators should be responsible for 
determining and documenting third-party auditor qualifications for 
competence and independence. A few commenters, including local agencies 
and industry trade associations, supported having the facility, rather 
than a regulatory agency, determine their third-party auditors' 
qualifications. Another industry trade association agreed that auditor 
competency should be determined and documented by individual owners and 
operators but asserted that it should be the auditors' responsibility 
to determine whether they qualify as independent. Other commenters, 
however, including a state agency, facilities, and industry trade 
associations, asserted that it is burdensome to the owners and 
operators to require them to self-select qualified auditors that they 
determined to be competent and independent. One commenter stated that a 
facility cannot easily obtain and review a third-party auditing firm's 
internal policies and procedures each time it engages a third-party 
auditor. Two commenters further questioned whether facility owners and 
operators would be sufficiently able to assess a third-party's 
qualifications to perform the required audits.
    A few commenters expressed support for establishing an 
accreditation program for auditing firms while others

[[Page 4619]]

stated that determinations of third-party auditor competency and 
independence are more properly performed by regulatory agencies. A 
state agency suggested, as an alternative, establishing an auditor 
oversight committee to include representatives from the facility, local 
agencies, and the community. Another state agency commented that an 
oversight committee would be needed to ensure that the process is truly 
independent if the auditor is hired by the owner or operator and not by 
the implementing agency. One commenter suggested that EPA approve 
third-party auditors based on technical and other qualifications and 
provide a list of those determined to be acceptable to industry. Some 
local agencies suggested that the implementing agency should approve or 
assist the facility in selecting a third-party auditor. One local 
agency stated that existing accreditation from a recognized auditing 
body should be allowed but not be the only prerequisite for being 
qualified to conduct a third-party audit. An advocacy group suggested 
that if an auditor failed to identify a crucial hazard that could have 
prevented a catastrophic event, the auditor should lose its 
accreditation until it corrects the problems that led to the failure.
    EPA has considered these comments and believes that establishing an 
accreditation program for third-party auditors would add time and costs 
to the process of third-party auditor selection and engagement. 
Therefore, in this final rule EPA has elected, instead, to focus on 
streamlining the auditor competency and independence criteria. Owners 
and operators are responsible for determining and documenting that the 
third-party auditors are qualified pursuant to the rule's competency 
and independence criteria. EPA believes this approach is consistent 
with commenters' requests that the process for engaging the auditors 
should be straightforward and allow for reasonable judgement of the 
owner or operator in selecting third-party auditors. Owners and 
operators routinely obtain and review the internal policies, 
procedures, and qualifications of a wide range of consultants and 
contractors before engaging them in order to assess their 
qualifications to perform consulting or contractual services. EPA is 
confident that owners and operators will be able to assess third-party 
auditor qualifications in a similar manner.
g. Auditors and Audit Team Structure
    In the preamble to the proposed rulemaking, EPA invited comment on 
how to determine the roles and responsibilities for third-party 
auditors and how to structure third-party audit teams. Many commenters, 
including a Federal government agency, a state government agency, 
facilities, and industry associations, stated that facilities should 
have the flexibility to utilize internal staff who are much more 
familiar with the facility and covered processes than outside 
consultants. A facility commented that in the past it has used third-
party auditors and determined that the facility's existing internal 
audit process provided an audit of equal or greater value than that of 
the third-party. Industry trade associations also asserted that the use 
of facility staff was more effective than third-party auditors because 
crucial time is not lost in learning about the facility. Another 
industry trade association stated that, in addition to identifying 
deficiencies, the most effective audits identify opportunities for 
improvement, which the commenter asserted is why audits that are 
conducted by or overseen by corporate staff or staff from other 
facilities within a company with similar processes can be more 
effective than strictly third-party audits. A professional association 
stated that companies must determine their own policies, procedures, 
and programs for performing audits. Similarly, an industry trade 
association stated that owners and operators should be allowed to 
choose whether in-house personnel or a third-party auditor conduct the 
compliance audit, as long as the organization can demonstrate that the 
auditor is qualified.
    Industry trade associations commented that EPA's proposed approach 
may have unintended consequences on the effectiveness of audits by 
setting up an adversarial relationship between the regulated facility 
and the third-party auditor and creating a scenario that discourages 
the free flow of information between the facility and the auditor. 
Furthermore, an industry trade association commented that this 
fundamental change to the RMP audit program will likely cause companies 
to separate RMP and PSM audits. The commenter argued that such a change 
would demonstrate that EPA had failed in this rulemaking to satisfy its 
statutory obligation to develop a coordinated approach with OSHA. An 
individual commenter recommended the Institute of Nuclear Power 
Operations evaluation team model, which is a hybrid of a self-audit and 
a third-party audit by well qualified individuals. An industry trade 
association suggested setting up an industry sharing option (similar to 
the Occupational Safety and Health Administration's Voluntary 
Protection Program, which uses qualified personnel from other regulated 
facilities or company employees from a different plant to perform 
audits at facilities being evaluated under the program) in lieu of 
third-party auditing firms.
    A Federal government agency recommended that third-party auditors 
be required to consult with facility employees and their 
representatives when conducting audits, reasoning that this requirement 
would be consistent with the language in the CAA at 29 U.S.C. 651 et 
seq. and EPA guidance on worker participation during EPA audits and 
inspections. And although opposed to the proposed requirement for 
third-party audits, an industry trade association asserted that there 
can be value in having/adding a third-party individual on or in 
coordination with a self-audit team, reasoning that the addition of the 
third-party auditor contributes to the development of the internal 
experts and expertise.
    In response to commenters' suggestions to allow more flexibility on 
the composition of the audit team, EPA is finalizing an approach that 
allows owners or operators to meet their third-party auditing 
obligations either by:
     Engaging third-party auditors meeting all applicable 
competency and independence criteria, as originally proposed, or
     By assembling an auditing team which is led by a third-
party auditor but may include other audit team members. The audit team 
may be comprised of:
    [cir] A team leader--this must be an employee of the third-party 
auditor firm who meets all of the competency and independence criteria 
of the rule;
    [cir] Other employees of the third-party auditor firm--these 
personnel must meet the independence criteria of the rule; and
    [cir] Other personnel not employed by the third-party auditor firm 
(e.g. facility personnel or employees of another consulting firm with 
specialized expertise). These personnel are not required to meet the 
competency and/or independence criteria of the rule.
    EPA agrees with commenters who suggest that allowing facility 
personnel and other knowledgeable but non-independent contractors and 
consultants to participate in the audit would improve the audit teams' 
performance and outcomes. This change addresses, among other things, 
the commenters' concerns that requiring the audit team and all of its 
individual members to meet the full independence criteria would exclude 
too many potential team members with critical sector or facility-
specific experience.

[[Page 4620]]

This approach allows qualified personnel from other regulated 
facilities or company employees to participate in the audit and enables 
facility personnel to provide input during the compliance audit.
    Although some commenters suggested that facility's existing 
internal audit process provided an audit of equal or greater value than 
that of a third-party, EPA believes that an independent, third-party 
perspective can provide insight on the facility's risk management 
program that may not otherwise be identified during an internal 
compliance audit. EPA further disagrees that this change to the RMP 
audit program will cause companies to separate RMP and PSM audits. EPA 
believes that the flexible approach for assembling a third-party audit 
that includes both independent and facility personnel will allow 
facilities to continue to conduct RMP and PSM audits simultaneously, as 
appropriate.
h. Auditor Qualifications and Responsibilities
    General comments on qualification criteria. Many commenters stated 
that the requirements in the proposed rulemaking for every member of 
the third-party auditing team to individually meet all of the proposed 
rulemaking's competency and independence criteria will severely reduce 
the number of qualified auditors available and raise the costs of 
auditing for facilities. One facility argued that the auditor 
qualification requirements are arbitrary and should be withdrawn. 
Specifically, the commenter described the findings from the EPA-Wharton 
pilot study and concluded that this study undermines EPA's assertion in 
the proposal that rigid qualifications are necessary for a successful 
RMP third-party audit program. A professional association recommended 
that EPA require companies to develop, implement, and maintain 
effective policies, procedures, and programs for performing RMP audits. 
Such policies, procedures, and programs could themselves establish 
basic third-party auditor competency and independence criteria.
    EPA agrees with commenters that the proposed qualification criteria 
could limit availability of qualified auditors and raise costs of 
audits. Therefore, EPA is finalizing an approach that allows owners or 
operators to comply with third-party auditing requirements either by 
engaging third-party auditors that meet all applicable competency and 
independence criteria, as originally proposed; or by assembling an 
auditing team, led by a third-party auditor, that includes other 
personnel (e.g., consultants or facility employees).
    EPA disagrees with commenters who argue that auditor qualifications 
are unnecessary for a successful third-party audit program. EPA's goal, 
in proposing criteria for auditor qualifications, was to ensure clarity 
and objectivity as to the minimum expected standards third-party 
auditors must meet for competency and independence. Since EPA is not 
finalizing requirements for third-party auditors to be qualified or 
accredited by an outside independent accreditation board, nor to meet 
competency and independence criteria in external consensus standards or 
protocols, the final rule must necessarily specify third-party auditor 
competency and independence criteria. Such criteria are necessary to 
ensure that owners and operators are able to successfully identify and 
engage fully qualified, competent and independent third-party auditors.
    Consensus standards. EPA did not propose that consensus standards 
apply to third-party audits or auditors. However, in the preamble to 
the proposed rulemaking, EPA sought comment regarding potentially 
relevant and applicable consensus standards and protocols that might 
apply to the third-party auditors or audits that could be incorporated 
into the rule. Some commenters recommended that EPA use existing 
guidelines and standards including the CCPS ``Guidelines for Auditing 
Process Safety Management Systems'' and National Fire Protection 
Association codes and standards. One commenter stated that establishing 
protocols for auditing would assist in ensuring that a third-party 
audit is being performed to some type of recognized standard. However, 
the commenter stated that it is not aware of the establishment of such 
a standard at this time and noted that EPA might be required to work 
with a standard setting organization to develop the standard, if such a 
standard was to be provided to facilities and auditors. One commenter 
stated that the International Code Council (ICC) administers exams for 
building, fire, plumbing, and many other trade inspectors. An industry 
trade association commented that it opposed a requirement that 
consensus standards and protocols be incorporated into compliance 
audits and asserted that such a requirement was not within the scope of 
Executive Order 13650.
    A few commenters, including a local government agency, noted that 
consensus standards may result in the bar for acceptable procedures 
being set low. Although noting that consensus standards could offer 
some minimum criteria to follow, a commenter stated that applying 
consensus standards to third-party compliance audits could be 
problematic because they are the lowest high-bar industry has agreed 
to, which runs the risk of lowering the bar for select companies or the 
consultants hired to perform the audit.
    EPA acknowledges that consensus standards and protocols are 
referenced in a range of Federal and state regulations and can play 
useful roles in third-party verification programs. California's 
Underground Storage Tank program is an example of a program that relies 
on consensus standards in which designated operators are required to 
pass an exam administered by the ICC in order to be certified to 
conduct audits.\38\ However, EPA has determined that reference to such 
standards and protocols is unnecessary for third-party compliance 
audits conducted under this rule because the final rule identifies 
qualification criteria for competency and independence for third-party 
auditors and third-party auditor team leaders.
---------------------------------------------------------------------------

    \38\ See, e.g., CA UST Regulations (CCR, Title 23, Division 3, 
Chapter 16), Amended and Effective July 1, 2012) at Sec.  2715 
(Certification, Licensing, and Training Requirements for Underground 
Storage Tank Owners, Operators, Installers, Service Technicians, and 
Inspectors). http://www.swrcb.ca.gov/ust/regulatory/docs/title23_d3_c16.pdf
---------------------------------------------------------------------------

    EPA is also finalizing third-party auditor responsibilities in 
Sec. Sec.  68.59(d) and 68.80(d). This provides the third-party auditor 
with minimum expectations for conducting the compliance audit. The 
owner or operator shall ensure that the third-party auditor:
     Manages the audit and participates in audit activities 
including: Initiation, design, implementation, and reporting;
     Determines appropriate roles and responsibilities for the 
audit team members;
     Prepares the audit report and ensures all audit team 
members' views are reflected in the final audit report;
     Certifies the final audit report and its contents as 
meeting the requirements of the rule and
     Provides a copy of the audit report to the facility owner 
or operator.
    Third-party auditors must evaluate the audit team members' 
qualifications to determine appropriate audit roles and 
responsibilities in order to produce audit outcomes and final audit 
reports meeting the applicable rule requirements. This approach 
recognizes that audit team members may have varying levels of knowledge 
and experience with the RMP rule requirements, the stationary source 
being audited, the applicable or relevant

[[Page 4621]]

engineering practices, and proper auditing techniques. EPA believes it 
is appropriate for the third-party auditor to be responsible for these 
determinations and that this approach allows the owners or operators 
and the third-party audit team leader to successfully collaborate to 
assemble an effective auditing team.
i. Third-Party Auditor Competency Criteria
    Almost all of the public comments on the proposed third-party 
auditor competency criteria focused on the requirement for the auditor 
to be a licensed Professional Engineer (PE) or include a licensed PE on 
the audit team. PE organizations supported the proposed requirement 
arguing that many facilities that would require third-party audits are 
designed, constructed, and maintained by PEs, who are subject to 
professional ethical standards that require objectivity. Some of these 
commenters described the supply of PEs as being sufficient to meet the 
demand for the third-party auditors under the approach in the proposed 
RMP rule.
    However, a large number of commenters opposed the proposed PE 
competency criterion. Many commenters stated that they saw no value in 
requiring a PE because PEs do not specifically have process safety or 
auditing skills. Several commenters questioned whether there are a 
sufficient number of PEs with appropriate experience to meet the need 
for RMP audits. As an industry trade association observed, even though 
the number of PEs may be large, there may be an insufficient number of 
PEs that have third-party audits as an area of expertise. A facility 
asserted that every PE cannot practice in every state, and if a PE is 
part of the audit team, he or she must be licensed in the state 
affected by the RMP incident.
    As part of the feedback for the SBAR Panel for the proposed 
rulemaking, SERs suggested that EPA consider allowing other qualified, 
credentialed personnel besides PEs to qualify as third-party auditors. 
Such other personnel could, SERs suggested, be 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. 
Many other commenters also suggested that professionals with process 
safety management experience who have other credentials subject to 
ethical standards should also be allowed to give facilities a larger 
choice for their third-party auditors. Another facility and an industry 
trade association commented argued that the owner or operator is in the 
best position to assess who is qualified to perform the audit. Two 
commenters characterized the EPA-Wharton Pilot Study on Third-Party 
Audits \39\ as suggesting that relevant industry and process specific 
experience, training, and regulatory knowledge are the essential 
qualifications of RMP auditors and that the PE requirement should be 
withdrawn.
---------------------------------------------------------------------------

    \39\ EPA conducted a pilot study with the Wharton School of the 
University of Pennsylvania on the efficacy of voluntary third-party 
RMP audits. For relevant reports from this pilot, see R. Barrish, R. 
Antoff, & J. Brabson, Dep't of Natural Resources & Env. Control, 
Third Party Audit Pilot Project in the State of Delaware, Final 
Report (June 6, 2000) http://opim.wharton.upenn.edu/risk/library/2000_RAB,RA,JB_3rdPartyAudit_Delaware.pdf and EPA Region 3, Third-
Party Pilot Project in the Commonwealth of Pennsylvania, Final 
Report (February 2001).
---------------------------------------------------------------------------

    EPA agrees with commenters that stated it is unnecessary for third-
party auditors to be PEs and that a variety of qualified personnel can 
potentially be effective third-party auditors or third-party audit team 
leaders. Consequently, EPA deleted the PE requirement from the final 
rule. EPA believes it is sufficient for the third-party auditor or 
third-party audit team leader to be:
     Knowledgeable with the requirements of the RMP rule;
     Experienced with the stationary source type and processes 
being audited and applicable recognized and generally accepted good 
engineering practices; and
     Trained or certified in proper auditing techniques.
    Third-party auditors can meet the requirement to be knowledgeable 
with the RMP rule requirements, and the requirement to be experienced 
with the stationary source type and processes being audited and 
applicable recognized and generally accepted good engineering practices 
through a variety of ways, including prior experience and training. 
Third-party auditors can meet the requirement to be trained or 
certified in proper auditing techniques by completing courses in 
environmental or safety auditing, obtaining certifications from 
recognized professional bodies, or having prior process safety auditing 
experience.
    EPA has also established third-party auditor responsibilities in 
Sec. Sec.  68.59(d) and 68.80(d). If the third-party auditor believes 
that a necessary skill or expertise is lacking in the auditing team, 
the owner or operator and third-party auditor are responsible for 
augmenting the audit team with the additional team members needed to 
supply the missing skill or expertise. For example, an owner or 
operator may choose to designate an employee competent in using an 
infrared camera to participate on a third-party auditing team. Such an 
audit team member would be acceptable, even though the individual does 
not meet the independence criteria and lacks specific knowledge of the 
stationary source type and processes being audited, as long as the 
third-party audit team leader evaluates the employee's qualifications 
to perform the specific role the employee will perform in the audit. 
The same standard would also apply to the participation of any other 
personnel the owner or operator might choose to include when assembling 
the third-party audit team.
j. Third-Party Auditor Independence Criteria
    A few commenters, including a Federal and two local government 
agencies, supported the proposed provisions for ensuring auditor 
independence. Some local government agencies agreed that the proposed 
requirement for auditors to have written policies and procedures to 
ensure that personnel comply with the proposed competency, 
independence, and impartiality requirements is appropriate. Several 
commenters, however, warned that the independence criteria would be 
difficult to monitor and enforce. Conversely, many commenters opposed 
the third-party auditor independence criteria, arguing that the 
criteria are too restricted and will limit the availability of third-
party auditors and the quality of the audits.
    Availability of third-party auditors. Some commenters warned that 
the proposed auditor independence criteria would have the unintended 
consequence of reducing the quality of the audits and/or the 
availability of sufficiently qualified auditors. A few commenters 
suggested that the lack of ability for employees to participate on the 
audit team could lead to an adversarial relationship, inhibiting the 
impartial fact-finding an audit is supposed to facilitate. Some 
commenters stated that the independence criteria would, in practice, 
discourage open and productive auditor-source dialog, that auditor 
unfamiliarity with the audited facilities could turn the audits into 
``check-the-box'' exercises, and that new and unfamiliar auditors will 
feel

[[Page 4622]]

pressure to be ``trigger happy'' on finding deficiencies. An industry 
trade association suggested that facilities should be allowed to 
petition for a relaxation of these requirements if auditors cannot be 
identified.
    As part of the SBAR Panel process, some SERs raised concerns about 
the extent of the independence criteria and suggested this would limit 
the availability of qualified auditors. Specifically, these SERs were 
concerned that the independence criteria would rule out, as third-party 
auditors, all of the members of any auditing firm employing any 
personnel who previously worked for or otherwise engaged in consulting 
services with the owner or operator. This was deemed problematic 
because, in the SERs' experience, many, if not most, otherwise 
qualifying audit firms hire retired personnel specifically because the 
personnel have sector, company, and/or facility-specific experience 
with firms subject to the RMP rule. Numerous other commenters observed 
that consulting firms perform a wide variety of work for RMP facilities 
of which only a fraction is auditing but the new restrictions could 
cause those firms to exit the auditing market rather than risk losing 
their other business lines.
    In order to address concerns about the availability of auditors, 
EPA modified the third-party auditor independence criteria in the final 
rule to enable more firms and individuals to qualify as third-party 
auditors or third-party audit team leaders. The final rule 
modifications provide additional flexibility while still ensuring that 
audit teams are managed and operated independently to produce the types 
of enhanced audit outcomes commonly associated with independent 
auditors per the literature and evidence described in the preamble to 
the proposed rulemaking and in this document.
    EPA made many significant changes to the third-party independence 
criteria. The most significant modification to the third-party audit 
requirements is that only employees of the independent third-party 
audit firm must meet the independence criteria of Sec.  68.59(c)(2) 
and/or Sec.  68.80(c)(2). For third-party audit teams, the team leader 
must meet both the competency and independence criteria of Sec.  
68.59(c) and/or Sec.  68.80(c) and all other employees of the third-
party auditor firm that participate on the team need only meet the 
independence criteria. Third-party audit teams may also include other 
personnel, such as consultants or facility employees and these 
personnel are not subject to the third-party qualification criteria of 
the final rule.
    EPA also revised the timeframe within which third-party auditors 
cannot provide business or consulting services to two years. EPA also 
added language indicating that if a third-party-firm employs personnel 
who have provided business or consulting services to the facility 
within the prescribed timeframe (i.e. within two years of the audit) 
then the third-party audit firm must ensure that these personnel do not 
participate on the audit team. Additionally, EPA clarified in 
regulatory language the circumstances in which a retired employee may 
participate in a third-party audit. Viewed as a whole, these changes 
serve to increase the types of personnel who may potentially serve as 
independent third-party auditors. Therefore, EPA believes it will be 
unnecessary for facility owners or operators to petition for a 
relaxation of auditor qualifications.
    Criteria limiting past and future business or consulting services 
and future employment. A large number of commenters specifically 
opposed the proposed independence provisions, particularly the 
requirement that an auditor cannot have provided other consulting 
services to the owner or operator in the prior three years and cannot 
accept future employment for three years following submission of the 
final audit report. Some commenters stated that third-party auditing is 
entirely unnecessary for RMP facilities because there is no evidence to 
believe that internal auditors working for, or employed by, facility 
owners or operators would deliberately fail to conduct honest and 
complete audits because of their prior, current, or future financial or 
employment ties to the owners or operators. Many commenters stated that 
to disqualify auditors who have performed certain services for the 
owner or operator of a facility within the past three years would 
disqualify those auditors who are most familiar with a source's 
operations, and facilities would be forced to select auditors who are 
unfamiliar with the facility and its processes. Many commenters 
emphasized that audit teams should include personnel with direct, 
personal familiarity with the facility (including facility employees) 
to ensure effective RMP compliance audits. Commenters stated that this 
could be of concern particularly for plants with complex engineered 
processes requiring site-specific expertise.
    In response to these comments, in the final rule EPA has modified 
the three-year prohibition on auditors providing prior consulting 
services to (other than auditing services) or subsequently being 
employed by the owner or operator to a two-year prohibition. This 
prohibition applies only to employees of the third-party auditor firm. 
Owners or operators can assemble a third-party audit team led by a 
third-party auditor that meets both the competency and independence 
criteria of the final rule. The third-party audit team can also include 
other non-independent personnel such as current or former employees of 
the facility or other persons with prior site-specific experience. This 
revision, itself, will enable a much broader and more diverse set of 
auditors to serve on the audit teams, including knowledgeable facility 
personnel, other personnel employed at different facilities owned by 
the regulated company, and a variety of second or third-party personnel 
such as consultants and contractors. Only employees of the third-party 
auditor firm leading the audit team are subject to the independence 
criteria of the final rule and only the individual leading the third-
party audit team is subject to both the competency and independence 
criteria of the final rule.
    Retired employees. Commenters and SERs supported allowing company 
retirees to participate on audit teams.
    EPA agrees with commenters. EPA modified the final rule to clearly 
identify that retired employees who otherwise satisfy the third-party 
auditor independence criteria may still qualify as independent if their 
sole continuing financial attachments to the owner or operator are 
employer-financed or managed retirement and/or health plans. This 
revision clarifies that owners or operators can hire retired employees 
with specialized knowledge or experience with the source type or 
facility to participate in third-party audits.
    Effectiveness of self-audits. Three trade associations stated that 
EPA failed to adequately demonstrate through statistical or other 
analyses that the RMP rule's self-auditing requirement was deficient or 
that independent auditor certification is necessary. Some commenters 
stated that the proposed third-party auditing requirements and criteria 
are unnecessary because the record does not demonstrate widespread RMP 
self-auditing-related fraud. One association referenced the CSB's 
report on the Texas City refinery accident as suggesting that 
management's failure to implement prior self-audit recommendations is 
of greater concern than self-audit inadequacy, per se.
    While third-party auditing is useful for minimizing the potential 
for fraudulent behavior or reporting, EPA believes that helping to 
prevent or

[[Page 4623]]

minimize fraud is but one positive independent third-party auditing 
outcome. In fact, the third-party auditing requirements are intended to 
improve auditing practices and outcomes by also correcting biases shown 
by the literature to be associated with self-auditing. These biases are 
compelling precisely because they are not the hallmark solely of 
fraudulent firms but are exhibited commonly by entities with no overt 
or covert malicious intent to be inaccurate or unfair in their auditing 
or reporting.\40\
---------------------------------------------------------------------------

    \40\ See, e.g.: (1) Short, Jodi L., and Michael W. Toffel, The 
Integrity of Private Third-party Compliance Monitoring, Harvard 
Kennedy School Regulatory Policy Program Working Paper, No. RPP-
2015-20, November 2015. (Revised December 2015) http://www.hbs.edu/faculty/Pages/item.aspx?num=50186; (2) Lesley K. McAllister, 
Regulation by Third-Party Verification, 53 B.C. L. Rev. 1 (2012). 
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3182&context=bclr; (3) Esther Duflo et al., 
Truth-Telling by Third-Party Auditors and the Response of Polluting 
Firms: Experimental Evidence From India, 128 Q.J. Econ. 1499, 1499 
(2013) http://qje.oxfordjournals.org/content/128/4/1499.abstract.
---------------------------------------------------------------------------

    EPA's recent experience demonstrates that in some cases self-
auditing is deficient. In the preamble to the proposed rulemaking, EPA 
referenced enforcement settlements requiring third-party auditing of 
settlement agreement implementation and compliance at facilities 
handling CAA section 112(r) chemicals. One such settlement is the 
administrative order on consent issued by Region 1, in 2015, to Mann 
Distribution LLC and 3134 Post Road LLC (Respondents) to address 
Resource Conservation and Recovery Act (RCRA) and CAA section 112(r)(1) 
(the ``general duty clause'') violations found during an April 4, 2013 
inspection at a chemical distribution facility in Warwick, Rhode 
Island. 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 noncompliance. The order required Respondents to, 
among other things, implement an independent third-party inspection 
program. The Respondents agreed to the program because they wanted to 
maximize the benefits of implementing the administrative order on 
consent by accelerating the improvement of the culture of compliance 
and safety at the facility.
    Since the proposed rulemaking was published, EPA has received and 
reviewed the Mann independent third-party inspection team's audit 
reports. These reports state that the third-party team found several 
compliance and safety issues the facility owner and operator had not 
independently found or corrected. The suite of audits uncovered and 
tracked the correction of these deficiencies. EPA has also received 
feedback from a facility representative and its third-party auditor 
about the program. All of the involved parties--EPA, facility 
representative, and the third-party auditor--agreed that the new and 
independent third-party auditing required pursuant to the enforcement 
order was beneficial for both correcting specific deficiencies and 
improving a culture of compliance. The suite of four third-party 
inspections improved the company's hazardous materials management plan, 
plan implementation, and emergency response program. As of March 2016, 
corrections to issues identified by the third-party auditors produced 
results including safer storage of chemicals that are oxidizers, 
improved integrity testing and maintenance of chemical storage tanks; 
better emergency egress, training, and coordination with the fire 
department; and improvements in container storage (such as better 
labeling and more aisle space). After a year of audits, the audit team 
leader provided some constructive suggestions about how EPA could 
modify third-party audit requirements in the future. For example, she 
felt that one of the order's auditor independence criterion (a five-
year ban on future work with the company) was excessive as such a 
requirement, in light of New England's contracting manufacturing/
industrial market, might serve as a disincentive to the participation 
as third-party auditors by highly qualified professionals and firms. 
Also, although this order did not require that the audit team include a 
PE, the auditor said she was aware that EPA was considering requiring 
PEs for future audits and believed that such a requirement would be 
unnecessary because good practice suggests that team make-up and 
qualifications should be determined on a case-by-case basis.
    EPA agrees with the commenters stating that auditors with facility-
specific experience can contribute insights that independent auditors 
lacking such experience would be unlikely to contribute. EPA addressed 
this comment in the final rule by, among other things, modifying the 
final rule to allow owners or operators to include non-independent 
employees, contractors, or consultants with facility-specific 
experience on the third-party auditing teams.
    EPA continues, however, to believe that the ``fresh eyes'' and 
perspectives that third-parties contribute to audit teams support the 
approach in this rule to third-party auditing for the small subset of 
RMP facilities that have RMP reportable accidents or conditions at 
their stationary sources that could lead to an accidental release of a 
regulated substance. In this context, EPA has assessed available 
empirical research suggesting why independent auditors lacking prior 
facility-specific experience can actually produce better audit outcomes 
than personnel with prior site-specific experience. This research 
suggests independent personnel can audit the facilities they monitor 
with ``fresh eyes'' and thus be more likely to identify issues of 
concern. While the research that follows primarily involves government 
inspectors, EPA believes that the findings correlate to designing 
effective third-party auditing programs.
    One such study concerns the relationship of inspector experience 
and product recalls in the medical device industry.\41\ The study's 
authors explain:
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    \41\ Ball, George and Siemsen, Enno and Shah, Rachna; Inspector 
Experience and Product Recalls in the Medical Device Industry (June 
2, 2014). Available at http://ssrn.com/abstract=2445022, http://dx.doi.org/10.2139/ssrn.2445022, or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445022.

    Plant inspections enable supply chain partners to manage quality 
risk in global supply chains. However, surprisingly little research 
examines the behavioral aspects of inspectors' work. Drawing on 
insights from the experience, learning, and complacency literatures, 
we examine the how well plant inspection outcomes predict future 
recalls and analyze the effect of inspector experience on both the 
information content of plant inspections as well as the prevalence 
of product recalls. Using secondary data spanning a 7-year period in 
the medical device industry and a recurrent event Cox Proportional 
Hazard model, our results show that inspection outcomes contain 
information and hence predict future product recalls, and that this 
relationship is moderated by inspector experience. . . . [T]he 
hazard of recalls at a plant increases if the same inspector 
continues to inspect the plant, independent of the inspection 
outcome. Recall hazard increases by 48% the second time an inspector 
visits a plant, and 63% by the third visit. These results indicate 
the need to rotate inspectors among plants and have important 
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implications for managers, regulatory agencies, and theory.

    The authors' views on the drivers for these outcomes are 
informative. Although significant literature exists indicating that 
sending the same auditor or inspector to repeatedly inspect a facility 
can lead to familiarity, that

[[Page 4624]]

weakens an auditor's independence and compromises audit outcomes,\42\ 
these were not the above study's primary findings. Rather, the authors 
found that the worsening inspection outcomes over time were likely 
primarily due to inspector complacency. In the authors' words,
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    \42\ See, e.g., Abigail Brown, The Economics of Auditor Capture, 
Edmond J. Safra Center for Ethics, Harvard University (Nov. 8, 2011) 
at https://abigailbrown.files.wordpress.com/2009/08/auditor-capture-111108.pdf (``[T]here does not need to be an explicit exchange of 
bribes to sustain a collusive equilibrium, suggesting that social 
norms and psychological biases reinforce rational action and allow 
profitable collusion to occur with little conscious intent.'' Id. at 
Abstract).

    The stale, routine nature of the job, and the familiarity which 
comes from repeat visits to a site, can lead to complacency and 
lower the information contained in an inspection, even when the 
investigator has no clear incentive to `go easier' on an inspection 
---------------------------------------------------------------------------
site.

    These complacency effects ``may outweigh the benefits [such repeat 
visits have on inspector] learning.'' Another analysis of 426,831 
unannounced inspections by state government inspectors from July 2003 
through March 2010 found that new inspectors tend to have ``fresher 
eyes'' in their first visit to a restaurant, reporting 12.7-17.5% more 
violations than the second visit of a repeat inspector, and that this 
effect is more pronounced when the previous inspector had a longer 
relationship with the restaurant.\43\
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    \43\ Ginger Zhe Jin & Jungmin Lee, A Tale of Repetition: Lessons 
from Florida Restaurant Inspections, National Bureau of Eco. 
Research Working Paper No. 20596 (Oct. 2014). http://www.nber.org/papers/w20596.
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    Findings such as these, and the policy implications that flow from 
such studies, address human behavioral and psychological influences 
that appear to be common to inspection and auditing regimes. Thus, 
although not expressly required by this rule, EPA encourages owners or 
operators, when assembling both third-party audit teams and conducting 
self-audits under the RMP rule, to include on their teams a mix of 
personnel previously familiar, and unfamiliar, with the specific 
facilities they are tasked with auditing.
    Finally, EPA agrees with commenters that it is critical that 
facility owners and operators implement corrective actions to address 
findings from compliance audits. Therefore, the final rule requires the 
owner or operator to certify in the findings response report that 
deficiencies are being corrected. As an additional measure to ensure 
accountability, EPA is also requiring a copy of the findings response 
report and schedule to implement deficiencies to be submitted to the 
auditing committee of the Board of Directors or other comparable 
committee or individual, if applicable.
    Validity of examples of third-party audits. Commenters sought to 
criticize the many examples of third-party auditing provided by EPA in 
the preamble to the proposed rulemaking, including mandatory and 
voluntary programs by regulators and industry trade associations, on 
the grounds that these other regulations and programs operate in a 
different context from that of the RMP rule (i.e., that the literature 
and empirical data on the effectiveness of third-party auditing cited 
by EPA do not specifically address regulatory compliance auditing at 
RMP facilities). These commenters stated that most or all of EPA's 
examples of other Federal, state, and voluntary or industry independent 
auditing do not relate to RMP rule compliance, and therefore limit the 
transferability of these programs' design features and outcomes to the 
RMP context. The associations further stated that there is no evidence 
showing:
     A systemic problem with RMP facilities' self-audits or 
that employees or contractors act unethically or are biased;
     A lack of auditor independence creates bias leading to 
accidents;
     Third-party audits would have successfully prevented past 
accidental releases; or
     The root causes of a significant number of past accidents 
at RMP facilities were deficient self-audits.
    EPA disagrees with commenters. Because RMP facilities were not 
previously required to have third-party compliance audits, 
statistically valid outcome data specifically on RMP rule third-party 
auditing does not currently exist. As EPA has described, however, there 
is a considerable and growing body of literature and empirical data on 
the effectiveness of third-party auditing, generally. These literature 
and data occur in many contexts that involve a diverse set of statutes 
and voluntary standards. In fact, some of these contexts are similar to 
RMP auditing.
    In the preamble to the proposed rulemaking, EPA presented many 
examples of Federal and state agencies and trade association third-
party verification programs. Like the RMP rule, some of those programs 
are expressly described by their managers as designed to improve 
regulatory compliance, prevent or reduce risks, or improve safety at 
the same or similar facility types and operations as are regulated by 
the RMP rule. These programs reflect industry recognition that third-
party auditing does, in fact, produce better outcomes relative to self-
auditing in a variety of settings. Such programs include: \44\
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    \44\ EPA has not formally evaluated these programs and standards 
or their outcomes. This discussion is not a formal Agency review or 
endorsement.
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     Responsible Care. This program is described by ACC as 
identifying, and acting to address potential hazards and risks 
associated with their products, processes, distribution and other 
operations.\45\ Responsible Care's Guiding Principles include 
``mak[ing] continual progress toward a goal of no accidents, injuries 
or harm to human health and the environment from products and 
operations and openly report health, safety, environmental and security 
performance.'' \46\ 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.\47\ The Responsible Care Web site provides, ``A key part 
of the Responsible Care Management System process is mandatory 
certification by an independent, accredited auditor.'' \48\
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    \45\ ACC. 2012. Responsible Care Product Safety Code. https://responsiblecare.americanchemistry.com/Product-Safety-Code/.
    \46\ ACC Responsible Care Guiding Principles. https://responsiblecare.americanchemistry.com/ResponsibleCare/Responsible-Care-Program-Elements/Guiding-Principles/.
    \47\ Certification must be renewed every three years, and 
companies can choose one of two certification options. RCMS[supreg] 
certification is 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.
    \48\ ACC Responsible Care Management System. https://responsiblecare.americanchemistry.com/Management-System-and-Certification/.
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     The API Process Safety Site Assessment Program (PSSAP). 
According to API, the PSSAP ``is focused on higher risk activities in 
petroleum refining and petrochemical facilities. This program primarily 
involves the assessment of a site's process safety systems by 
independent and credible third-party teams of industry-qualified 
process safety expert assessors.'' \49\ 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

[[Page 4625]]

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.\50\
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    \49\ API. 2015. PSSAP. http://www.api.org/~/media/Files/
Certification/PSSAP/PSSAP-Brochure.pdf?la=en.
    \50\ API. 2015. PSSAP. http://www.api.org/certification-programs/process-safety-site-assessment-programs.
---------------------------------------------------------------------------

     Center for Offshore Safety (COS). This 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 Center serves the U.S. offshore oil and gas 
industry with the purpose of adopting standards of excellence to ensure 
continuous improvement in safety and offshore operational integrity. 
The third-party audits are intended to ensure that COS member companies 
are implementing and maintaining Safety and Environmental Management 
Systems (SEMS) throughout their deepwater operations.\51\ COS states 
expressly that ``the highest level of safety for offshore drilling, 
completions, and operations [is promoted through] independent third-
party auditing and certification.'' \52\
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    \51\ COS. 2013. See http://www.centerforoffshoresafety.org/auditInfo.html.
    \52\ COS. 2015. See http://www.centerforoffshoresafety.org/About.
---------------------------------------------------------------------------

     ChemStewards[supreg]. ChemStewards is a SOCMA 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 management 
system.\53\ On its Web site, SOCMA describes the environmental benefits 
of the program as including improving environmental performance, 
decrease releases and waste disposal costs, and positioning members to 
meet current and future compliance requirements.\54\ The associated 
training materials explain the on-site audit elements of the third-
party verification program.\55\
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    \53\ SOCMA. 2015. See http://www.socma.com/ChemStewards/.
    \54\ SOCMA, 2016. See Benefits of Implementing 
ChemStewards[supreg]. http://www.socma.com/chemstewards/about/benefits.
    \55\ SOCMA. See http://www.socma.com/Portals/0/Files/ChemStewards/ChemStewards_101_Training.pdf.
---------------------------------------------------------------------------

    Additionally, the supporting literature and data described by EPA 
in the proposed rulemaking preamble remain relevant to RMP compliance 
auditing, notwithstanding the varied contexts they describe, because 
such literature addresses cross-cutting human biases and behaviors, 
common to all auditor and audit types, that can be addressed or 
corrected through independent third-party auditing.\56\ EPA thus finds 
that the state of the science, evidence, and data on the effectiveness 
of independent third-party auditing programs supports requiring 
independent third-party audits for RMP facilities with accidental 
releases or conditions that could lead to an accidental release of a 
regulated substance.
---------------------------------------------------------------------------

    \56\ See, esp.: (1) Short, Jodi L., and Michael W. Toffel, The 
Integrity of Private Third-party Compliance Monitoring, Harvard 
Kennedy School Regulatory Policy Program Working Paper, No. RPP-
2015-20, November 2015. (Revised December 2015) http://www.hbs.edu/faculty/Pages/item.aspx?num=50186; (2) Lesley K. McAllister, 
Regulation by Third-Party Verification, 53 B.C. L. Rev. 1 (2012). 
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3182&context=bclr; (3) Esther Duflo et al., 
Truth-Telling by Third-Party Auditors and the Response of Polluting 
Firms: Experimental Evidence From India, 128 Q.J. Econ. 1499, 1499 
(2013) http://qje.oxfordjournals.org/content/128/4/1499.abstract.
---------------------------------------------------------------------------

k. Third-Party Audit Report
    Draft reports. EPA received numerous comments regarding the 
proposed third-party audit reporting requirements. While no commenters 
objected to the requirement to prepare an audit report, most commenters 
opposed the proposed requirements to submit draft and final reports to 
the implementing agency. Many commenters felt that a requirement to 
submit draft reports before they have been vetted by internal 
operations and management teams could have the unintended consequence 
of incomplete or inaccurate information being distributed. Some of the 
commenters added that the owner or operator should be able to ensure 
that the audit report does not contain confidential business 
information. Finally, some commenters stated that the proposed 
requirement to document all changes made by the owner or operator to 
audit report drafts would chill communications and information exchange 
during audits.
    EPA agrees with commenters. The final rule requires the third-party 
auditor to prepare an audit report and provide it to the owner or 
operator, but does not require that the draft or final reports be 
submitted to the implementing agency. However, the third-party auditor 
must summarize in the audit report any significant revisions between 
draft and final versions of the report.
    Submitting reports to the implementing agency. Many commenters, 
including industry trade associations and facilities, objected to the 
proposed requirement that third parties submit their reports to the 
implementing agency at the same time, or before, the reports are sent 
to the source. These commenters felt that this would prevent facilities 
from being allowed to correct factual errors or present evidence that 
the auditors either missed or were not aware of, which could markedly 
change the audit's recommendations. Some commenters who opposed 
distribution of audit reports to the implementing agency warned of the 
potential release of confidential business information.
    EPA agrees with commenters and deleted provisions that require the 
third-party auditor to submit audit reports to the implementing agency.
    Attorney-client communications. EPA received several comments 
regarding the proposed limitation on claiming the audit report and 
related records as attorney-client communications or attorney work 
products. One commenter agreed with EPA that the audit report should 
not be protected from disclosure under the attorney-client privilege. 
Many commenters opposed EPA's proposal to prohibit companies from 
asserting attorney-client privilege and attorney work product privilege 
over third-party audits and related documents. The commenters argued 
that EPA lacked authority to do this and that these privileges are 
essential for purposes of legal representation. One commenter stated 
that attorney-client privilege is a long-established common-law rule of 
evidence, and asserted that any attempt to abrogate it across the board 
is likely a violation of the Sixth Amendment. Similarly, another 
commenter stated that the proposed limitations on attorney-client 
privilege seem contrary to due process and legal rights that should be 
afforded the owner or operators of the facility.
    It remains EPA's position, as stated in the preamble to the 
proposed rulemaking, that with respect to the attorney work product 
privilege, the audit report and related records are produced to 
document compliance. Audit reports and related records are similar to 
other documents prepared pursuant to RMP rule requirements (e.g., 
process safety information, PHAs, operating procedures) and are not 
produced in anticipation of litigation. They are analogous to work or 
management practice records that show a regulated operation was 
performed. 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, in EPA's 
view, neither the audit report nor the records related to the audit 
report provided to the third-

[[Page 4626]]

party auditor, including documents originally prepared with assistance 
or under the direction of the audited source's attorney, should be 
considered attorney-client privileged. Nevertheless, EPA recognizes 
that the ultimate decision makers on questions of evidentiary 
privileges are the courts. Therefore, this rule does not contain a 
specific regulatory provision prohibiting assertion of these 
privileges.
l. Findings Response Report, Timeframe, and Response to Audit Findings
    EPA received several comments relating to the proposed requirement 
for the owner or operator to develop a findings response report within 
90 days of receiving the final audit report, and to provide the report 
to the implementing agency and the owner or operator's audit committee 
of the Board of Directors. EPA also received comments opposing various 
aspects of the proposed requirements for findings response reports.
    Timeframe. Some commenters supported these proposed requirements. 
One commenter urged EPA to shorten the required reporting from 90 days 
to 30 days, arguing that deficiencies in compliance indicate a risk of 
a catastrophic release that could harm the facility, its employees, and 
the community. The commenter reasoned that 30 days is enough time to 
review the audit report and develop a schedule to address deficiencies.
    Other commenters objected to the proposed timeframe for preparing 
and submitting the findings response report, stating that 90 days 
provides for an insufficient timeframe for preparing the report. A few 
commenters recommended a six-month timeframe. One commenter asserted 
that EPA has not demonstrated that a 90-day period to develop a 
findings response report is achievable. As an alternative to extending 
the timeframe for all facilities, a few commenters urged EPA to 
consider allowing facilities to obtain extensions as needed to 
adequately address the concerns raised by third-party auditors.
    EPA is finalizing the requirement that the owner or operator 
prepare a findings response report as soon as possible, but no later 
than 90 days after receiving the final audit report as proposed. EPA 
believes this timeframe is appropriate for the owner or operator to 
consider the findings of the audit report and determine a response to 
each of the audit's findings. This approach allows the owner or 
operator an opportunity to establish a schedule to implement corrective 
actions that can extend beyond the 90-day period for developing the 
findings response report and balances the need to promptly respond to 
the audit findings. EPA notes that, in many instances, an owner or 
operator may receive prior information about the audit's findings 
before receiving a final audit report, particularly when the third-
party audit team includes facility personnel. This will give the owner 
or operator additional time to consider its responses.
    Submitting findings response report to implementing agency. Some 
commenters opposed the proposed requirement to submit a findings 
response report to the implementing agency. One such commenter stated 
that EPA has not demonstrated a need for universal submission of an 
action plan to respond to audit findings and schedule. Commenters also 
expressed legal concerns about the findings response report. These 
commenters raised concerns about not being able to dispute purported 
violations or deficiencies identified by third-party auditors. Some 
commenters asserted that refusing to afford companies the opportunity 
to dispute audit findings raises fundamental due process concerns.
    EPA agrees with the commenters and has eliminated the requirement 
to submit findings response reports to the implementing agency in the 
final rule. The audit report, findings response report and related 
records must be retained at the stationary source in accordance with 
the recordkeeping requirements in Sec. Sec.  68.59(g) and 68.80(g).
    Eliminating the requirement to submit the findings response report 
to the implementing agency also responds to commenters legal concerns. 
The owner or operator can determine an appropriate response to each of 
the audit report findings. This is similar to existing self-compliance 
audit requirements for the owner or operator to promptly determine and 
document an appropriate response to each of the findings of the 
compliance audit.
    In addition, there is no need for a process to dispute findings as 
the relevant requirement in the final rule for each of the findings in 
the audit report is to determine an appropriate response. In 
determining an appropriate response, owners or operators may follow 
EPA's existing guidance for addressing PHA team findings and 
recommendations, which is based on OSHA's 29 CFR 1910.119, Process 
Safety Management of Highly Hazardous Chemicals--Compliance Guidelines 
and Enforcement Procedures for resolving such findings.\57\ Under these 
guidelines, EPA considers an owner or operator to have resolved a 
finding or deficiency when the owner or operator either has adopted or 
implemented the associated recommendations or has justifiably declined 
to do so. An owner or operator can justifiably decline to adopt a 
recommendation where the owner or operator can document, in writing and 
based upon adequate evidence, that one or more of the following 
conditions is true:
---------------------------------------------------------------------------

    \57\ See page 7-7 of EPA's General Guidance on Risk Management 
Programs for Chemical Accident Prevention (40 CFR part 68), EPA-550-
B-04-001, April 2004 https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp; and replacement pages B-21 and B-22 of 
OSHA 29 CFR 1910.119, Process Safety Management of Highly Hazardous 
Chemicals--Compliance Guidelines and Enforcement Procedures CPL 2-
2.45A CH-1, September 13, 1994 https://www.osha.gov/OshDoc/Directive_pdf/CPL02-02-045_CH-1_20150901.pdf.
---------------------------------------------------------------------------

     The analysis upon which the recommendation is based 
contains material factual errors;
     The recommendation is unnecessary to protect public health 
and safety or the health and safety of the owner or operator's 
employees, or the employees of contractors;
     An alternative measure would provide a sufficient level of 
protection; or
     The recommendation is infeasible.
    Where a recommendation is rejected, the owner or operator must 
communicate this to the audit team and expeditiously resolve any 
subsequent recommendations of the team. Provided that the owner or 
operator addresses the audit report's findings by implementing the 
findings or by justifiably declining to do so, the owner or operator 
complies with the requirement. If an implementing agency concludes that 
a justification is inadequate and brings an enforcement action 
regarding this requirement, then the owner or operator may dispute the 
enforcement action through the normal adjudication process.
m. Owner or Operator Certification to Findings Response Report
    Certification burden. EPA received comments regarding the 
certification to the findings response report. A few commenters opposed 
the proposed certification requirement. Some commenters argued that the 
certification requirement increases the regulated community's burden, 
but provides no corresponding benefit. Other comments urged EPA to 
incorporate the ``reasonable inquiry'' concept from Title V compliance 
certifications into the proposed certification framework. These 
commenters described the ``reasonable

[[Page 4627]]

inquiry'' concept as requiring certification based on ``information and 
belief formed after reasonable inquiry.'' The commenters argued that 
this was necessary because a senior official signing a certification 
could not be expected to have or obtain personal knowledge of all the 
facts potentially relevant to the findings response report. Similarly, 
a facility encouraged EPA to coordinate the certification statement in 
this rule with the certification statement that is already required 
under CAA Title V. One commenter stated that EPA's rules regarding 
self-audits impose a less stringent certification requirement, and 
recommended that a less stringent standard may be appropriate here, 
too, if the third-party compliance audit provisions are finalized.
    In this rule, EPA is requiring a senior corporate officer, or an 
official in an equivalent position, to certify in the findings response 
report that:
     He or she engaged a third-party to perform or lead an 
audit team to conduct a third-party audit in accordance with the 
requirements of 40 CFR 68.59 or 68.80,
     The attached RMP compliance audit report was received, 
reviewed, and responded to under the senior officer's direction or 
supervision by qualified personnel, and
     Appropriate responses to the findings have been identified 
and deficiencies were corrected, or are being corrected, consistent 
with the requirements of subparts C or D of 40 CFR part 68.
    EPA believes these requirements and the associated certification 
are consistent with equivalent certification requirements in many EPA 
regulations, including in the CAA Title V regulations (40 CFR 
70.5(d).\58\)
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    \58\ ``(d) Any application form, report, or compliance 
certification submitted pursuant to these regulations shall contain 
certification by a responsible official of truth, accuracy, and 
completeness. This certification and any other certification 
required under this part shall state that, based on information and 
belief formed after reasonable inquiry, the statements and 
information in the document are true, accurate, and complete.''
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    EPA agrees that senior corporate officials do not necessarily have 
high levels of technical expertise; however, these officials and 
entities include key managers responsible for establishing internal 
corporate accountability and overseeing corporate prioritization, 
budgeting, and operations. Indeed, the Security and Exchange Commission 
(SEC) requires other specified documents to be provided to such 
individuals, committees, and boards for similar reasons.\59\ Finally, 
EPA believes that the certification will minimize corporate failures to 
properly address and implement compliance audit findings and 
recommendations. Adopting a less stringent standard would not be 
appropriate. EPA expects that the senior corporate official 
certification of the audit findings will improve facility and public 
confidence that third-party audit report findings and recommendations 
are promptly and properly addressed.
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    \59\ Under Section 3(a)(58) of the Exchange Act as added by 
Section 205 of the Sarbanes-Oxley Act, the term audit committee is 
defined as ``[a] committee (or equivalent body) established by and 
amongst the board of directors of an issuer for the purpose of 
overseeing the accounting and financial reporting processes of the 
issuer and audits of the financial statements of the issuer'' (if no 
such committee exists with respect to an issuer, the entire board of 
directors of the issuer). See Securities and Exchange Commission, 17 
CFR 240.10A-3--Listing standards relating to audit committees (68 FR 
18818, April 16, 2003, as amended at 70 FR 1620, January 7, 2005; 73 
FR 973, January 4, 2008).
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    Senior corporate officer or equivalent official. Comments were 
received requesting clarification of the terms ``senior corporate 
officer, or official in an equivalent position.'' Some commenters 
recommended that EPA incorporate the ``responsible official'' 
definition from the CAA's Title V operating permit program for major 
stationary sources which allows for certification by corporate 
leadership or a ``duly authorized representative'' appointed by 
corporate officials.
    One commenter stated that the certification requirement risks 
infringing on the senior corporate official's Fifth Amendment privilege 
against self-incrimination. The commenter stated that the Supreme Court 
has held that the privilege protects against compulsory disclosures to 
the government when those disclosures have ``the direct and 
unmistakable consequences of incriminating'' the disclosing party, and 
concluded that the proposed certification requirement may compel 
precisely those sorts of disclosures. The commenter went on to state 
that the certification necessarily admits the existence of 
``deficiencies'' which can only be interpreted as violations of the CAA 
and which could certainly be a significant link in a chain of evidence 
tending to establish guilt in a criminal case. One commenter also 
argued that the certification requirement raises First Amendment 
concerns by compelling speech that does not serve a sufficient 
government interest to avoid running afoul of the right to free speech 
because it is unclear what government interest the certification 
advances and the relevant section of the rule is not narrowly tailored 
to that interest.
    EPA disagrees with this recommendation to allow delegation of the 
certification to a duly authorized representative. The certification 
indicates that the compliance audit report was received, reviewed, and 
responded to under the senior corporate officer's direction or 
supervision by qualified personnel. Similar to the requirement to 
submit the findings response report to the audit committees of the 
Board of Directors, a senior corporate official ensures accountability 
and overseeing corporate prioritization, budgeting, and operations.
    Furthermore, the language of the certification cites the actions 
that are taken by the owner or operator pursuant to these requirements, 
and includes, among other things, a statement that based on personnel 
knowledge and experience, or inquiry of personnel involved in 
evaluating the report findings and 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. This language is equivalent to the language in certifications 
that support submissions under Title V of the CAA. EPA continues to 
believe that it is important for a senior corporate official, or an 
official in an equivalent position, sign such a certification, ensuring 
that the owner or operator is aware of the findings and responses, and 
will be correcting the deficiencies, pursuant to these requirements. 
For smaller entities without corporate officials, the official in an 
equivalent position for purposes of this requirement may include the 
owner or operator, or designated representatives of the owner or 
operator, including facility manager, operations manager, or another 
official at or above that level. Regarding comments concerning self-
incrimination in connection with the certification requirement, the 
certification does not contain an acknowledgement of a violation. It 
merely describes the actions taken by the owner or operator pursuant to 
the third-party audit requirements, and states that the information 
submitted is true, accurate, and complete. The certification and report 
are not required to be automatically submitted to the implementing 
agency.
n. Schedule Implementation
    EPA received comments supporting the proposed requirement for 
owners and operators to ``promptly'' address deficiencies noted in 
audit reports. A few commenters stated that there should be no specific 
timeframe for addressing deficiencies identified during a third-

[[Page 4628]]

party audit, reasoning that there will be a wide variety of possible 
site-specific actions that an owner or operator may take to address 
audit findings. Another commenter believed it was appropriate to 
require ``prompt'' correction of deficiencies, but encouraged EPA to 
provide guidelines on what would be considered ``prompt'' action.
    Some commenters recommended specific timeframes for addressing 
deficiencies. One commenter recommended that deficiencies be corrected 
``promptly'' and no later than six months absent a written extension 
from EPA. A few commenters recommended that facilities be required to 
promptly implement corrective actions and that deficiencies be 
addressed within 18 months. However, some of these commenters stated 
that facilities should be given the opportunity to request an 
extension, if needed, from the implementing agency. Another commenter 
recommended that facilities be given 24 months to correct deficiencies 
after the facility has identified an appropriate response, with the 
deficiencies presenting the highest risk of injury being addressed 
first.
    One commenter recommended that EPA allow stationary sources to 
develop a reasonable schedule for correcting audit findings that would 
be based on the types of audit findings and the resulting efforts to 
implement them appropriately, rather than at a pace that may impede 
sound and sustainable implementation processes. One commenter stated 
that the proposal does not account for the likelihood that plans and 
schedules for addressing deficiencies may need to change. To account 
for needed changes, the commenter recommended that EPA should clarify 
that the details of the schedule are not binding.
    EPA disagrees with commenters that suggested incorporating a 
prescribed schedule for addressing findings in the final rule and we 
are finalizing the schedule implementation provision of Sec. Sec.  
68.59(f)(2) and 68.80(f)(2) as proposed. The owner or operator's third-
party audit findings response report must include ``a schedule for 
promptly addressing deficiencies'' but does not prescribe a specific 
timeframe or due dates by which the deficiencies must be addressed. 
Thus, under the final rule, the owner or operator must exercise best 
judgement to determine how, and when, to prioritize and address 
actions, consistent with the normal definition of ``promptly'' as 
meaning quickly, without delay.\60\ EPA finds that this approach best 
provides the flexibility owners or operators will need to address a 
potentially very wide range of deficiencies and other findings noted in 
third-party audit reports. This allows the facility owner or operator 
to develop a reasonable schedule for correcting audit findings that 
would be based on the types of audit findings and the resulting efforts 
to implement them appropriately.
---------------------------------------------------------------------------

    \60\ See definition of ``promptly,'' Cambridge English 
Dictionary, at http://dictionary.cambridge.org/us/dictionary/english/promptly.
---------------------------------------------------------------------------

    EPA also disagrees with commenters' suggestions to request a 
schedule extension from the implementing agency. The implementing 
agency will not receive a copy of the final audit report or findings 
response report and therefore it is inappropriate to request an 
extension to address deficiencies identified in the findings response 
report. In the event that a schedule must change due to unforeseen 
circumstances, EPA recommends that the owner or operator document the 
reasons for the change and update the schedule to reflect revised 
dates.
o. Submitting Reports to the Board of Directors
    EPA received comments both supporting and opposing the proposed 
requirement to submit the audit report to the audit committee of the 
Board of Directors. Those in support reasoned that it will make the 
Board of Directors aware of the deficiencies, and noted that the 
requirement will allow the Board of Directors the opportunity to 
properly budget for corrective actions.
    Several commenters, including facilities and industry trade 
associations, opposed the proposed requirement to submit the audit 
report to the Board of Directors, arguing that it is generally 
unnecessary or inappropriate to do so. These commenters stated that the 
requirement would unduly constrain facilities that may have other 
processes to involve facility leadership in responding to findings from 
third-party audits. Similarly, an industry trade association reasoned 
that this requirement subverts company policy established under the 
rule's management provisions and that the program would be most 
effective if each company is allowed to determine the most appropriate 
chain of command and reporting. The commenter also warned that such a 
requirement could set a precedent for other regulatory programs, which 
could result in Boards of Directors receiving a deluge of technical 
information that they do not have time to address and that they are in 
no position to interpret.
    One commenter recommended that EPA provide definitions for Board of 
Directors and audit committee to avoid ambiguity. The commenter also 
recommended that EPA specify a timeframe for this report to be 
submitted to the Board's audit committee. Furthermore, the commenter 
urged EPA to address how this requirement would be documented as 
completed or what documentation would be required to demonstrate that 
the owner or operator does not have an audit committee or comparable 
committee.
    Boards of Directors and their audit committees play an important 
role in establishing internal corporate accountability and overseeing 
corporate prioritization, budgeting, and operations. EPA believes that 
providing the audit committee of the Board of Directors with third-
party audit findings will ensure the committees and their Boards of 
Directors are aware of any deficiencies and have the opportunity to 
properly budget for any required corrective actions in a timely manner. 
EPA expects that this approach will improve facility and public 
confidence that third-party audit report findings and recommendations 
are promptly and properly addressed.
    Therefore, the final rule requires the owner or operator to 
immediately, upon its completion, provide to the audit committee of the 
Board of Directors, or other comparable committee or individual, if 
applicable a copy of the:
     Findings response report; and
     Implementation schedule to address deficiencies identified 
in the audit findings response report.
    EPA does not agree that we should define ``Board of Directors'' and 
``audit committee.'' Facility owners or operators should consider their 
corporate structure to determine if there is, in fact, a committee or 
individual that may serve to oversee auditing and compliance oversight. 
The closing clause in Sec. Sec.  68.59(e)(3) and 68.80(e)(3), ``if 
applicable,'' replaces the corresponding language in the proposed 
rulemaking, ``if one exists.'' ``If applicable,'' in this context, is 
intended to clarify that owners or operators not otherwise required by 
law to have an audit committee of the Board of Directors or that have 
not, otherwise, established or designated a comparable committee or 
individual, are not subject to the requirements in Sec. Sec.  
68.59(e)(3) and 68.80(e)(3).
    Finally, in response to concerns about demonstrating compliance 
with this requirement, EPA recommends that the facility document how 
the owner or

[[Page 4629]]

operator complied with this requirement and maintain that documentation 
with the findings response report. This may include identifying who 
received a copy of the report and the date it was provided. If there is 
no audit committee of the Board of Directors or a comparable committee 
or individual, then the owner or operator should consider documenting 
that no committee or individual exists.
p. Third-Party Audit Recordkeeping
    Some commenters supported the proposed third-party audit 
recordkeeping requirements. However, some commenters opposed the 
requirement to retain copies of the draft audit report. A few 
commenters opposed the requirement that records be retained at the 
stationary source.
    EPA agrees with commenters that opposed maintaining draft audit 
reports. Therefore, EPA is not finalizing the proposed requirement in 
Sec. Sec.  68.59(e)(2) and 68.80(e)(2) for owners or operators to 
retain copies of all draft third-party audit reports. The final rule 
requires that the owner or operator retain as records certain documents 
at the stationary source, including the two most recent final third-
party audit reports, related findings response reports, documentation 
of actions taken to address deficiencies, and related records. The 
final audit report must include a summary of any significant revisions 
between draft (if any) and final versions of the report.
    The final rule also requires the owner or operator to retain 
records at the stationary source in order to ensure that records are 
readily available to stationary source staff to review and utilize and 
for implementing agency inspectors to access during site inspections. 
These documents may be retained electronically as long as they are 
immediately and easily accessible to the owner or operator and the 
owner or operator retains the signed original documents, where 
appropriate.
q. Other Comments
    One commenter encouraged EPA to correct what it described as a 
grammatical error within Sec. Sec.  68.58(a) and 68.79(a). 
Specifically, the commenter urged EPA to correct the plural reference 
to the owner or operator by changing the word ``they'' to ``it'' to 
make it clear that only one of the entities needs to conduct an audit.
    EPA is not making this recommended revision. Both the owner and 
operator are responsible to evaluate compliance with the prevention 
program requirements of the rule and we do not believe that this 
language has been confusing. However, to clarify, we do agree that as 
long as the audit is performed, only one of the entities needs to have 
conducted the audit.

C. Safer Technology and Alternatives Analysis (STAA)

1. Summary of Proposed Rulemaking
    EPA proposed to modify the PHA provisions in Sec.  68.67 by adding 
paragraph (c)(8) to require certain industry sectors to conduct a safer 
technology and alternatives analysis (STAA) and to evaluate the 
feasibility of any inherently safer technology (IST) identified. EPA 
proposed to limit the requirement to 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).
    In the proposed rulemaking, EPA specified that the STAA would 
consider, in the following order of preference:
     IST or inherently safer design (ISD),
     Passive measures,
     Active measures, and
     Procedural measures.
    EPA further indicated that the owner or operator would be able to 
evaluate a combination of these risk management measures to reduce risk 
at the process.
    EPA also proposed to add several definitions that relate to an STAA 
in Sec.  68.3. EPA proposed active measures to mean risk management 
measures or engineering controls that rely on mechanical, or other 
energy input to detect and respond to process deviations. Some examples 
of active measures included alarms, safety instrumented systems, and 
detection hardware (such as hydrocarbon sensors).
    EPA proposed feasible to mean capable of being successfully 
accomplished within a reasonable time, accounting for economic, 
environmental, legal, social, and technological factors. EPA further 
clarified in the definition that environmental factors would include 
consideration of potential transferred risks for new risk reduction 
measures.
    For inherently safer technology or design, the proposed definition 
meant 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.

The proposed definition of ``passive measures'' meant risk management 
measures that use design features that reduce the hazard without human, 
mechanical, or other energy input. EPA provided examples of passive 
measures that included pressure vessel designs, dikes, berms, and blast 
walls.
    Finally, EPA proposed procedural measures to mean risk management 
measures such as policies, operating procedures, training, 
administrative controls, and emergency response actions to prevent or 
minimize incidents. EPA sought comment on these proposed revisions.
2. Summary of Final Rule
    After review and consideration of public comments, EPA is 
finalizing the STAA provision in Sec.  68.67(c)(8), and related 
definitions in Sec.  68.3, as proposed, with the following 
modifications:
     EPA is substituting the term ``practicability'' for 
``feasibility'' in proposed Sec.  68.67(c)(8)(ii) of the PHA 
requirements;
     EPA is substituting the term ``practicability'' for 
``feasible'' in the definition in Sec.  68.3 and substituting the 
phrase ``the capability'' for ``capable,'' while retaining the 
remaining definition as proposed; and
     EPA is revising the definition of ``passive measures'' by 
clarifying that these measures not only reduce a hazard but reduce the 
frequency or consequence of a hazard.

Significant comments on the proposed STAA provisions and related 
definitions are discussed in section IV.C.3 of this preamble.
3. Discussion of Comments and Basis for Final Rule Provisions
    Many commenters from environmental advocacy groups and some state 
agencies expressed support for the proposal to require an STAA to 
improve process safety. However, some believed that implementation of 
feasible safer alternatives, particularly IST, should be required and 
that STAA requirements should apply to a greater universe of facilities 
and not just those in the chemical manufacturing, petroleum refining 
and paper manufacturing industries. Many commenters, mostly from 
industry, requested that EPA remove IST and design requirements from 
the rule entirely for a variety of reasons, or requested significant 
clarifications to applicability if the STAA provision is finalized.

[[Page 4630]]

    As noted previously, except for substituting the term 
``practicable'' for ``feasible'' and some other definition changes, EPA 
is finalizing the STAA provisions as proposed. We continue to rely on 
the rationale expressed in the proposed rulemaking. In the discussion 
that follows and in the Response to Comment document, we explain our 
consideration of the comments and our analysis and response.\61\
---------------------------------------------------------------------------

    \61\ 2016. EPA Response to Comments on the 2016 Proposed 
Rulemaking Amending EPA's Risk Management Program Regulations. This 
document is available in the docket for this rulemaking.
---------------------------------------------------------------------------

    We recognize there may be multiple, rational approaches to STAA. We 
determined that it was reasonable to require STAA for sectors that have 
had a high per facility incidence of reportable accidental releases and 
where the complexity and variety of methods of chemical handling 
demonstrate the potential for process safety revisions. We do this in 
part to balance potential accidental release rate reduction and cost. 
There are some sectors, such as water treatment, with known ISTs that 
we do not require to evaluate or implement ISTs under this rule. In the 
water treatment sector in particular, the sector's lower accidental 
release rates do not demonstrate that requiring thousands of facilities 
to conduct STAA would result in a significant drop in accidental 
releases.\62\ In contrast, even if some of the sectors we have 
identified for the STAA requirement already may have voluntarily 
undertaken an STAA approach (at least at new facilities), accidental 
release rates remain higher for these industries, technologies advance 
over time, and ensuring a minimum level of application of the STAA 
approach limits the disincentives for sector members to be leaders in 
adoption of safer technologies. We do not mandate the adoption of any 
IST found to be practicable in part because we recognize that a passive 
measure or other approach on the STAA hierarchy may also be effective 
at risk reduction; we continue to leave the adoption of particular 
accident prevention approaches to owners' and operators' reasonable 
judgment. We discuss other factors that have led us to select 
particular industries for STAA and particular requirements in our STAA 
approach in response to particular comments.
---------------------------------------------------------------------------

    \62\ An intentionally-caused release through the criminal act of 
a third-party would be an accidental release because the emission 
would be unanticipated from the perspective of the owner or operator 
of the stationary source. Where the location of a water treatment 
source could expose large populations to regulated substances, we 
believe it is appropriate for such sources to work with local 
emergency planners and homeland security officials to reduce the 
risk. Nevertheless, such isolated cases do not justify a mandate 
across the industry in place of a case-specific review.
---------------------------------------------------------------------------

a. Legal Issues
    Various commenters raised potential legal issues or challenges 
regarding the STAA requirements based on CAA authority, Congressional 
intent, deficient analysis or substantiation, vagueness of 
requirements, and jurisdiction.
    Several industry associations and individual companies commented 
that EPA lacked the legal authority to require assessment of STAA in 
general and IST/ISD in particular. One argued that the authority for 
RMPs rests in subparagraph (B) of CAA section 112(r)(7), while the 
authority for design and equipment changes rests in subparagraph (A). 
Several argued that EPA did not adequately explain its change of 
position from the one adopted in the 1996 final RMP rule, which did not 
require the assessment or implementation of IST. In light of EPA's 
position that the 1996 final RMP rule and EPA's program implementation 
provided incentives to adopt IST, some argued that requiring STAA 
analysis without requiring implementation of changes would offer no new 
benefit to public health and safety; these commenters suggested that 
IST had been informally used already for decades where it was feasible. 
Another commenter said the STAA requirement could effectively ban 
certain chemicals without the authority to do so. Others noted that IST 
consideration would lead to increased liability issues for facilities 
because, even if a source was not required to implement IST by rule, 
should an accident happen, plaintiffs could cite the failure to adopt 
the IST in a court case. A commenter criticized the requirement as too 
amorphous to be meaningfully implemented and enforced in a non-
arbitrary manner. Other commenters said IST is more properly within the 
authority of OSHA, that EPA's record did not reveal consultations and 
coordination with OSHA as required by CAA section 112(r)(7)(D), and 
that subsequent to the enactment of the 1990 CAA Amendments, Congress 
had denied both EPA and DHS the authority to require IST when it 
rejected bills requiring or authorizing IST.
    In contrast to the comments discussed previously, a coalition of 
environmental, labor, community and other public groups, as well as a 
mass mail campaign, commented that EPA must adopt STAA in its final 
rule not only for NAICS codes we proposed but for all facilities where 
STAA is feasible. In the commenters' view, the proposed amendments are 
inconsistent with the statute's prevention objectives and its 
preference for measures that completely eliminate potential hazards 
because only certain sectors are required to undertake STAA while 
others only have requirements imposed after accidental releases. 
Additionally, the commenters argue that the authority to ``make 
distinctions'' among classes of facilities in CAA section 112(r)(7)(A) 
and to ``recognize differences'' among types of sources in CAA section 
112(r)(7)(B) does not include the authority to exempt entire sectors 
from STAA; even if the statute gave such authority, EPA failed to 
explain how it is relying on that authority. Finally, the commenters 
contended EPA's action was arbitrary and capricious by failing to 
account for the significant value STAA could provide to facilities, 
workers, and communities by not only removing hazards but by saving 
money through removing potential liability and sometimes improving 
industrial efficiency.
    EPA disagrees with the comments that the CAA does not authorize the 
STAA provisions of this final rule. Both subparagraphs (A) and (B) of 
CAA section 112(r)(7) authorize STAA and IST in particular. EPA cited 
all of paragraph (7) as authority for ``[e]ach of the portions of the 
Risk Management Program rule we propose to modify.'' 81 FR 13646, March 
14, 2016.\63\ The authority section for 40 CFR part 68 references CAA 
section 112(r) and is not limited to particular paragraphs and 
subparagraphs. The proposed rulemaking also noted that subparagraph (A) 
had been invoked in the rulemaking petition on IST. Therefore, EPA 
provided sufficient notice that we contemplated action under any 
authority under CAA section 112(r)(7). Nevertheless, we also view that 
our authority to require STAA assessments or an IST review is 
consistent with subparagraph (B). Under subparagraph (B), EPA has broad 
authority to develop ``reasonable regulations . . . for the prevention 
of accidental releases.''
---------------------------------------------------------------------------

    \63\ We note that our more extensive discussion of authority for 
the RMP rule provided in the 1993 proposal focused on CAA 
112(r)(7)(B)(i) and (ii), 58 FR 54191-93 (October 20, 1993), which 
the proposal for the Modernization rule referenced for additional 
authority discussion.
---------------------------------------------------------------------------

    Further support for IST can be found in both the Conference Report 
accompanying the 1990 CAA Amendments and the Senate Report explaining 
the provisions of the Senate bill that closely mirrors enacted 
provisions. In discussing the ``Hazard Assessments'' required by 
section

[[Page 4631]]

112(r)(7)(B), the Conference Report specifies that such assessments 
``shall include . . . a review of the efficacy of various release 
prevention and control measures, including process changes or 
substitution of materials.'' \64\ Conference Report at 340-41. The STAA 
analysis is such a review.\65\ The Senate Report identifies as 
``release prevention measures'' many of the techniques that are now 
known as IST--substitution of less hazardous materials, reduction in 
the severity of the conditions of processing and complexity of the 
process, and decreasing volumes of chemicals in storage.\66\ Senate 
Report at 242. That subsequent Congresses did not enact additional 
legislation on IST is irrelevant to what was enacted and intended at 
the time of enactment.
---------------------------------------------------------------------------

    \64\ H. Rep. 101-952, Clean Air Act Amendments of 1990 
Conference Report to Accompany S. 1630, 101st Cong., 2d Session, 
340-41. October 26, 1990.
    \65\ EPA chose to incorporate into the prevention program 
provisions several of the hazard assessment elements mentioned in 
the conference report and to limit the hazard assessment portions of 
40 CFR subpart B to the offsite consequence analysis and accident 
history in order to better conform the RMP rule to the format of the 
PSM rule. 58 FR 54194 (October 20, 1993).
    \66\ Clean Air Act Amendments of 1989, Report of the Committee 
on Environment and Public Works, U.S. Senate together with 
Additional and Minority Views to Accompany S. 1630. S. Report No. 
101-228. 101st Congress, 1st Session, p. 242, December 20, 1989.
---------------------------------------------------------------------------

    The proposed rulemaking, 81 FR 13646, March 14, 2016, provided an 
extensive discussion of developments concerning IST since the 1996 
final RMP rule. As we explained, EPA adopted a rule in 1996 that 
provided incentives for IST without a specific mandate to either 
conduct studies of IST or implement IST measures. From 1996 on, EPA has 
recognized that good PHA techniques will often identify opportunities 
to make new and existing processes and operation inherently safer. 
However, in the 1996 rule and thereafter, we also recognized that IST 
is not the only way to prevent accidents, and that sometimes IST can be 
impractical, especially for existing sources.
    The STAA approach we adopt in this action places IST in a hierarchy 
that allows for sources to choose non-IST approaches to accident 
prevention, such as passive mitigation, active mitigation, and 
administrative controls. While the EPA did not, in 1996, expressly 
require facilities to analyze and implement IST specifically, this rule 
places IST in a set of options to be studied. EPA relies on sources 
making rational decisions once presented with STAA studies and 
selecting prevention approaches that optimize the cost of the measures 
taken and costs avoided (e.g., liability, operational efficiency, 
image). Such an approach is similar to the approach to energy 
assessments recently taken in the major source and area source boiler 
rules under CAA section 112(d) and affirmed in U.S. Sugar Corp v. 
EPA.\67\
---------------------------------------------------------------------------

    \67\ United States Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 
2016).
---------------------------------------------------------------------------

    We acknowledge that many sources have conducted STAA analyses 
already. For these sources, the cost of implementing the new STAA 
requirement should be lessened. The requirement we promulgate in this 
rule captures those slower in considering IST in high accident 
industries rather than harms leaders. There are no specific chemicals 
banned by this final rule. While we recognize that companies have moved 
away from certain processes, such as those that involve the storage of 
large quantities of methyl isocyanate, in order to make facilities 
safer, we leave process design decisions to the reasonable judgment of 
owners and operators under this action.
    EPA disagrees with the comments concerning IST being more properly 
within the authority of OSHA. It is plain from the history of the 1990 
Amendments that both agencies were given authority to prevent 
accidents, and that Congress contemplated EPA adopting some IST 
measures as appropriate. Furthermore, EPA has a history of prior 
coordination with OSHA to define and promote STAA when developing the 
EPA and OSHA, Chemical Safety Alert: Safer Technology and Alternatives 
(EPA 550-F-15-003; June 2015).\68\
---------------------------------------------------------------------------

    \68\ https://www.epa.gov/sites/production/files/2015-06/documents/alert_safer_tech_alts.pdf.
---------------------------------------------------------------------------

    Not only for STAA, but also for other provisions of this final 
rule, the record adequately reflects EPA's coordination and 
consultation with Department of Labor (DOL)/OSHA and DOT. As an initial 
matter, both DOL and DOT were part of the Working Group under Executive 
Order 13650. That order and report of the Working Group reflect 
consultation and direction regarding the development of the this final 
rule. Second, we note that EPA's decision to not consider the 
regulation of AN at this time explicitly is based on an effort to 
coordinate any potential regulatory requirements for this substance 
with actions contemplated by other agencies, including OSHA. Third, 
while the content of interagency deliberations are not for the record 
for judicial review under CAA section 307(d), multiple agencies have an 
opportunity to review a draft rule under Executive Order 12866 
Regulatory Planning and Review. Finally, OSHA had representatives 
attend the SBAR panel which discussed the development of the proposed 
rulemaking. All of this is a matter of public record in the docket for 
this rulemaking.
    Consistent with the structure of the RMP rule, EPA has placed IST 
among the methods a facility may choose to adopt to prevent accidents. 
Commenters who argue that we have failed to require accident prevention 
by not mandating the adoption of IST measures for all facilities 
wherever feasible fail to acknowledge that non-IST methods for 
preventing accidents may be reasonable in some circumstances. To the 
extent that these regulations are imposed under subparagraph (B), these 
regulations have an overriding requirement to be reasonable. While it 
is true that similar quantities of chemicals under the same conditions 
present similar hazards regardless of sector, various sectors present 
different likelihood of release. Some sectors handle chemicals 
differently under conditions that are more likely to lead to severe 
releases. The record reflects that the likelihood of severe accidents 
is greater in the sectors that must conduct STAA analysis under this 
final rule. Thus, it is reasonable to have different requirements for 
these sectors than for others. Independent of whether any new IST/ISD 
is adopted, there is a cost to conducting an STAA analysis. EPA has 
reasonably limited STAA analysis requirements to sectors that we view 
as most likely to likely to have more frequent, severe releases that 
are most likely to be benefit from STAA review. Inherent in our 
approach is distinguishing among classes and types of facilities. We 
expect that the adoption of STAA analysis requirements in this final 
rule will advance IST not only in the sectors targeted by the rule, but 
also more generally as experience is gained and opportunities for 
technology transfer are developed.
b. Applicability
    Limiting applicability of STAA provisions. While some commenters 
supported EPA's proposal to limit applicability of STAA provisions to 
the petroleum refining, chemical manufacturing, and paper manufacturing 
sectors, other commenters objected to this aspect of the proposal. Many 
commenters, including a mass mail campaign joined by approximately 300 
commenters, expressed concern that the proposed rulemaking arbitrarily 
determined which industries have feasible and worthwhile alternatives, 
and which communities and facilities would benefit from STAAs. These 
commenters

[[Page 4632]]

asserted that limiting the requirement to certain industry sectors 
would exempt other sectors that pose a significant threat to the 
public. Commenters argue that focusing on accident rate to target 
sectors for STAA was not a credible way to forecast and prevent rare 
catastrophic events that tend to fall out of existing patterns.
    Some commenters urged EPA to apply the STAA requirement to all 
sources, or all Program 3 sources. Other commenters, including another 
mass mail campaign joined by approximately 17,250 commenters, 
recommended that EPA require assessment and implementation of STAA for 
industries where safer alternatives are feasible or well demonstrated, 
such as water supply, wastewater treatment, power generation, food and 
beverage manufacturing, and others. Several other commenters indicated 
that EPA should apply the STAA provisions to facilities with the 
largest worst case scenario populations, or to the 2,000 high-risk 
facilities cited in EPA's 2017-2019 National Enforcement Initiative 
(NEI). A few commenters suggested that EPA implement a pilot program 
requiring IST implementation for a subset of sectors considered 
extremely high risk, such as wastewater or drinking water treatment 
plants, bleach plants, refineries using hydrogen fluoride and for those 
facilities among the 2,000 high-risk facilities cited in the EPA's NEI 
2017-2019 proposal. A few commenters believe that the proposed STAA 
requirements have failed to address the disproportionate health and 
safety threats in communities of color and low-income communities, and 
want the STAA provisions to apply to all RMP facilities.
    In this rule, EPA is finalizing the STAA provisions as proposed, 
which limits applicability of the STAA requirements to Program 3 
processes in the petroleum refining, chemical manufacturing, and paper 
manufacturing sectors. EPA does not believe that the final provisions 
have been limited arbitrarily, or that the Agency's decision to limit 
applicability of the STAA provisions to the petroleum refining, 
chemical manufacturing, and paper manufacturing sectors implies that 
other sectors do not have viable safer technology alternatives. In the 
proposed rulemaking, EPA acknowledged that most RMP-regulated sectors 
could identify safer technologies and alternatives. However, the Agency 
proposed to limit the applicability of the STAA provisions to 
facilities in complex manufacturing sectors with high accident rates. 
EPA took this approach in order to target these provisions to the 
industrial sectors with the potential to achieve the greatest safety 
improvements through consideration of safer technology alternatives. 
EPA explained that 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, because 
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. 
Further, EPA noted that RMP facilities in the three selected sectors 
have been responsible for a relatively large number of accidents, 
deaths, and injuries, and the most costly property damage.\69\ 
Facilities in these sectors also have significantly higher accidents 
rates as compared to other sectors.\70\ EPA agrees that there is no way 
to forecast rare catastrophic events; however, we believe it is 
appropriate to target sectors that have had a large number of accidents 
and have the greatest opportunity to identify safer technologies.
---------------------------------------------------------------------------

    \69\ For more information, see Chapter 6 of the Regulatory 
Impact Analysis--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).
    \70\ For more information, see EPA, January 27, 2016. Technical 
Background Document for Notice of Proposed Rulemaking: 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).
---------------------------------------------------------------------------

    While EPA does not believe it is necessary to require all sources, 
all Program 3 sources, or all sources in industry sectors where 
feasible safer technology alternatives have been identified to perform 
an STAA, the Agency encourages such sources to consider performing an 
STAA, and to determine practicability of IST or ISD considered, even if 
they are not subject to the STAA provisions of the final rule.
    EPA does not agree that only sources with large worst-case scenario 
populations, or only sources on EPA's high risk facility list should be 
required to comply with the STAA provisions. EPA believes it is not 
appropriate to apply the STAA provisions only to sources with specified 
worst case scenario populations for several reasons. First, EPA's OCA 
requirements allow regulated facilities to use any commercially or 
publicly available air dispersion modeling techniques, provided the 
techniques account for the modeling conditions specified in the rule 
and are recognized by industry as applicable as part of current 
practices. This flexibility can result in two similar facilities 
obtaining significantly different endpoint distances (and vulnerable 
zone populations) simply through choosing different modeling 
techniques. By linking the STAA requirement to the worst case scenario, 
EPA could inadvertently cause some facilities to recalculate their OCA 
using a different modeling approach, simply to avoid the STAA 
requirement, and without actually implementing process changes that 
might reduce the facility's worst case scenario. Second, linking the 
STAA requirement to large worst case scenario populations would 
effectively bias the applicability of the requirement to facilities in 
densely populated areas, and potentially exempt equally hazardous 
facilities in or near less densely populated communities. Third, this 
application of the STAA requirement would disregard the criteria that 
EPA has used in the proposed rulemaking--accident history and facility 
complexity, which EPA believes provide a stronger rationale for 
limiting the applicability of the requirement. In addition, EPA 
believes that targeting the STAA requirements to the larger and more 
complex processes will benefit minority communities, who are located 
closer to larger facilities with more complex chemical processes and 
who bear a larger portion of risk from chemical accidents. Lastly, 
distribution of worst-case scenario population information is 
restricted under the CAA, and this would effectively prohibit the 
public from knowing which facilities are required to perform an STAA.
    For similar reasons, EPA does not agree with commenters' 
suggestions to develop a pilot program to apply to a subset of high 
risk facilities or to apply the STAA requirement to facilities on EPA's 
high risk facility list. This list is generated, in part, using worst 
case scenario population information (chemical quantities and accident 
history are also considered, although sector accident frequency is 
not), and therefore the list may not be publicized by EPA.
    Apply to facilities using different incident rate methodology. 
Several commenters objected to EPA's methodology for selecting 
industrial sectors subject to STAA requirements using an incident rate 
based on the

[[Page 4633]]

number of RMP-reportable accidents per facility in the industry sector. 
These commenters expressed concern that the proposal to require STAAs 
from only three NAICS codes is based on an incorrect approach to, and 
interpretation of, incident rates. An industry trade association 
commented that looking at the number of accidents per facility does not 
allow for direct comparisons as it does not account for the relative 
number of employees at a facility. This commenter argued that EPA 
should recalculate this value using the number of accidents per hours 
worked or the number of accidents per full time worker, and reasoned 
that such a calculation would be more consistent with the incident rate 
calculations conducted by the Occupational Safety and Health 
Administration (OSHA) and the Bureau of Labor Statistics (BLS). Another 
industry trade association remarked that EPA's methodology ignores not 
only the size of the facility but also the quantity of chemicals and 
the number of covered process units at a given facility. According to 
this commenter, upon normalizing the petroleum refining sector's 
accident rate to account for the number of process units and the 
diversity of facilities being compared, the accident rate for this 
sector is lower than for most other sectors. The commenter also 
expressed concern that EPA's proposal to subject this sector to the 
STAA requirement ignores the industry's significant recent safety 
improvements that EPA itself has noted in the NPRM, and that industries 
such as poultry processing have higher incident rates than petroleum 
refining or chemical manufacturing, even though these industries are 
not subject to the STAA requirement.
    A trade association representing the paper manufacturing industry 
urged EPA to remove the STAA requirement for that sector. The industry 
trade association stated that paper manufacturing should not be 
considered a ``complex'' manufacturing process, and cited EPA's 
Technical Background Document \71\ which, according to the commenter, 
does not categorize paper manufacturing facilities as ``complex.'' 
Additionally, the commenter remarked that the paper manufacturing 
industry has a much lower level incident risk than other sectors based 
on injuries offsite, and stated that of the roughly 15,000 offsite 
injuries mentioned by EPA, the paper manufacturing industry was 
responsible for only two. Citing Exhibit 6-4 of EPA's Regulatory Impact 
Analysis for the proposed rulemaking, the commenter asserted that the 
entire U.S. paper manufacturing sector has been responsible for the 
fewest offsite injuries out of any industrial sector over the ten-year 
study period. This commenter concluded that implementing the 
requirement for the paper industry would not enhance public safety, and 
that the industry has made significant strides to increase safety 
procedures in recent years.
---------------------------------------------------------------------------

    \71\ EPA. January 27, 2016. Technical Background Document for 
Notice of Proposed Rulemaking: 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).
---------------------------------------------------------------------------

    Another commenter stated that EPA's use of routine incident rates 
in selecting industry sectors to conduct STAAs was faulty because 
frequent smaller incidents cannot be used to reliably predict 
infrequent catastrophic events.
    EPA acknowledges that there were other possible methods of 
selecting industry sectors that would be subject to STAA requirements. 
All of the methods offered by commenters--normalizing accident rates by 
FTE, number of process units, chemical quantities, etc.--were 
considered but ultimately rejected by the Agency. EPA does not believe 
normalizing accident rates by FTE or chemical quantity is appropriate 
because prior research has shown that the interaction between these 
factors and incident rates is complex, and that none of these 
variables, by itself, is a suitable proxy for the relative risk of a 
catastrophic chemical release incident at a facility.\72\ Likewise, 
selecting industry sectors for applicability of the rule's STAA 
provisions using an approach similar to that used for OSHA personal 
injury statistics (e.g., OSHA lost workday injury and illness rates) 
would not identify sectors with higher chemical process risks. These 
OSHA rate data generally scale directly with the number of employees 
because most of the incidents measured in these metrics involve single-
person injuries (e.g., overexertion, sprains and strains, slips, trips, 
falls, injuries due to contact with objects and equipment, etc.).\73\ 
In other words, facilities with more employees are more likely to 
suffer higher amounts of these ``lost workday'' injuries, but not 
necessarily higher numbers of chemical release incidents.
---------------------------------------------------------------------------

    \72\ Elliott, M.R., Kleindorfer, P.R., and Lowe, R.A., The Role 
of Hazardousness and Regulatory Practice in the Accidental Release 
of Chemicals at U.S. Industrial Facilities, Risk Analysis, Vol. 23, 
No. 5, 2003.
    \73\ See, e.g., ``Nonfatal Occupational Injuries and Illnesses 
Requiring Days Away from Work, 2014,'' U.S. Department of Labor, 
Bureau of Labor Statistics, November 19, 2015. Available at http://www.bls.gov/news.release/osh2.nr0.htm.
---------------------------------------------------------------------------

    Furthermore, EPA chose not to normalize accident rates by the 
number of process units for two reasons. First, regulated sources have 
significant discretion in determining covered process boundaries--some 
petroleum refineries and large chemical manufacturing facilities 
containing numerous unit process operations have chosen to consider 
their entire plant as a single covered process, while other similar 
plants have divided their stationary source into dozens of different 
covered processes. Therefore, normalizing accident rates by the number 
of processes could result in a less accurate reflection of a sector's 
historical accident propensity. More importantly, even if a higher 
accident rate at a large facility is due, in part, to the facility 
having more covered processes, that fact does not reduce its risk to 
the surrounding community. For the community, it is the frequency of 
accidents at its neighbor that matters, not the rate per process. In 
fact, the relatively higher likelihood of accidental releases at such 
sources further warrants their consideration, and potential 
application, of safer alternative technologies.
    EPA disagrees that its approach ignores recent safety improvements 
on the part of the petroleum refining sector. The Agency views the 
application of safer technology alternatives as an approach to hazard 
control that can be applied throughout the life-cycle of a facility. A 
facility's recent implementation of a safer technology alternative does 
not foreclose consideration of additional safer technologies in the 
future. Facilities that have already implemented safer technology 
alternatives should document their implementation in their next PHA, 
determine whether there is additional information that should be 
considered in their STAA, and continue to consider additional safer 
alternatives during subsequent PHA re-validation cycles.
    EPA agrees that the poultry processing sector, when that sector is 
considered separately from other food and beverage industry sectors, 
has a slightly higher RMP facility incident rate than the petroleum 
refining sector. However, EPA did not include the poultry processing 
sector under the final rule STAA provision because the poultry 
processing sector, by itself, does not delineate a meaningful 
technological subgrouping of RMP facilities. Poultry processing 
facilities are just one of many different types of food and beverage 
manufacturing and processing facilities covered under the RMP 
regulation. The common technology among these facilities that results 
in their coverage under the RMP

[[Page 4634]]

regulation is ammonia refrigeration. While EPA is aware that some RMP 
facilities in the poultry processing sector have had serious chemical 
accidents, the Agency does not believe that these accidents are usually 
related to the fact that these facilities process poultry. Rather, they 
generally relate to the design, maintenance, or operation of the 
ammonia refrigeration system at the facility, and are similar to the 
causes of accidents involving ammonia refrigeration systems at other 
types of food and beverage processing facilities. Therefore, when 
considering the accident rates of RMP-covered poultry processing 
facilities, EPA believes the proper approach is to combine RMP 
facilities in this sector with RMP facilities in all other sectors in 
the food and beverage industry, as indicated in the RIA for the final 
rule.\74\ When this is done, the accident frequency for the food and 
beverage manufacturing sector is significantly lower than the accident 
frequency for the petroleum refining sector.
---------------------------------------------------------------------------

    \74\ Regulatory Impact Analysis--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).
---------------------------------------------------------------------------

    EPA disagrees with the commenter that argued the paper 
manufacturing sector should be exempt from the STAA provision of the 
final rule because the sector has had fewer accidents with offsite 
injuries, or because the sector was not characterized as ``complex'' by 
EPA's economic analysis. While it is true that the paper manufacturing 
sector has had fewer accidents with offsite injuries than other 
sectors, this is partly due to the relatively small number of RMP 
facilities (70) in the paper manufacturing sector. Additionally, the 
great majority of the offsite injuries reported by RMP facilities 
resulted from a single accident at the Chevron Richmond refinery, 
therefore it is inappropriate to compare offsite injuries from the 
paper manufacturing sector to the total of all offsite injuries that 
occurred during the ten-year period analyzed.\75\
---------------------------------------------------------------------------

    \75\ According to the CSB, ``approximately 15,000 people from 
the surrounding communities sought medical treatment at nearby 
medical facilities for ailments including breathing problems, chest 
pain, shortness of breath, sore throat, and headaches. Approximately 
20 of these people were admitted to local hospitals as inpatients 
for treatment.'' CSB, January 2015, Final Investigation 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/1/16/Chevron_Final_Investigation_Report_2015-01-28.pdf.
---------------------------------------------------------------------------

    More importantly, offsite injury is only one of several types of 
accident consequences that require reporting under the RMP rule. Other 
reportable consequences include deaths, injuries, and significant 
property damage on-site, and known offsite deaths, evacuations, 
sheltering-in-place, property damage and environmental damage. When all 
RMP-reportable accident consequences for a sector are considered, and 
normalized by the number of sources in the sector, the paper 
manufacturing sector has the second highest accident rate among all 
sectors regulated under the RMP rule. EPA believes this approach is a 
better gauge of the historical accident propensity for a sector than 
considering only accidents with offsite injuries.
    While it is also true that EPA did not characterize the paper 
manufacturing sector as ``complex'' in the Technical Background 
Document \76\ and for estimating the costs of most rule provisions 
within the RIA, it did do so for purposes of the STAA provision, and 
arguably could have done so for all rule provisions. Paper 
manufacturing facilities, and particularly large integrated pulp and 
paper mills, are clearly more complex than most other RMP facilities, 
which only involve chemical storage (e.g., agricultural ammonia 
distribution facilities) or simple chemical processes (e.g., water 
treatment). The main purpose for EPA's broad characterization of 
certain sectors as ``complex'' and all others as ``simple'' for certain 
rule provisions within the RIA was because the Agency judged that the 
cost of implementing those rule provisions would vary primarily by the 
complexity of the processes involved, and that a rough two-tier 
division of regulated sources (e.g., simple vs. complex) would suffice 
to establish cost estimates for those rule provisions. However, EPA did 
not use this two-tier division for purposes of estimating the costs of 
the rule's STAA provision. For the STAA provision, EPA included paper 
manufacturing as a sector that involves ``complex manufacturing 
operations.'' EPA chose to apply the STAA requirement to sources 
involved in complex manufacturing operations because these sources 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. For more information, see the preamble 
discussion in the proposed rulemaking at 81 FR 13688, March 14, 2016.
---------------------------------------------------------------------------

    \76\ EPA. January 27, 2016. Technical Background Document for 
Notice of Proposed Rulemaking: 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).
---------------------------------------------------------------------------

    EPA disagrees that the agency used ``routine'' incident rates to 
select industry sectors covered by the STAA provision. Accidents 
meeting EPA reporting criteria include accidental releases from covered 
processes that result in deaths, injuries, and significant property 
damage on-site, and known offsite deaths, injuries, evacuations, 
sheltering-in-place, property damage and environmental damage. EPA 
believe that such accidents generally either resulted in, or could 
reasonably have resulted in, a catastrophic release of a regulated 
substance, and are therefore an appropriate criterion to consider when 
identifying industrial sectors that may benefit public safety the most 
by analyzing safer alternative technologies.
    Eliminate or exempt batch toll chemical manufacturers. In the 
context of exempting batch toll processors from the STAA provision, 
some commenters recommended that processes governed by government 
agency specifications or through a contractual relationship with a 
customer should not be subject to the STAA provision because in these 
cases, the customer specifies the manufacturing process. According to 
one commenter, the customer is subject to regulation, often from the 
FDA or EPA. An industry trade association requested that EPA explicitly 
state in the body of the regulation that the STAA requirement would not 
apply to processes in whole or in part specified by a government agency 
or through any contractual obligation.
    EPA disagrees with the suggestion to exempt batch toll 
manufacturers from the STAA requirement. Safer technology alternatives 
include many options beyond chemical substitution. For example, IST 
could involve minimization of stored raw material chemicals, making 
process changes that make it less likely to release the chemical 
(moderation), or reducing complexity in the process in order to make 
accidents less likely (simplification). Therefore, even where a 
contractual relationship or regulation requires a regulated batch toll 
manufacturing facility to use a particular regulated substance in 
specified quantities, owners and operators of batch toll manufacturing 
facilities should still consider other potential IST measures besides 
chemical substitution. The facility must also consider potential safer 
alternatives beyond IST, such as passive measures instead of or in 
combination with active

[[Page 4635]]

measures, or active measures instead of procedural measures. Toll 
manufacturers may use RMP chemicals for purposes in addition to making 
a formulated product, such as for cleaning equipment, wastewater 
treatment or refrigeration, for which chemical substitution may not be 
prohibited by regulation or contractual relationship. Also, the final 
rule does not require regulated sources to implement IST or ISD 
considered, so there is no conflict between this final rule and other 
regulations that may apply to RMP-regulated facilities subject to STAA 
requirements. For example, an owner or operator would be in compliance 
with the STAA requirement to consider potential chemical substitution 
as part of the analysis if he or she determines that a chemical 
substitution is not practicable because the substitution is prohibited 
by another regulation The owner or operator would still need to 
consider other types of IST (minimization, moderation, or 
simplification), and passive, active, and procedural measures in the 
analysis.
    Applicability to water treatment facilities. Some commenters, 
including professionals and a mass mail campaign joined by 
approximately 300 commenters, urged that water supply and wastewater 
treatment facilities should be subject to the proposed STAA provision. 
A number of commenters expressed concern about threats posed by water 
and wastewater facilities and related operations. Several commenters 
asserted that technologically and economically feasible alternatives 
are available for water supply and wastewater treatment facilities, and 
suggested that exploring the implementation of these alternatives would 
be beneficial for the safety of workers, personnel, and communities 
associated with the facilities. One commenter stated that the costs for 
water facilities to convert to safer alternatives are feasible, and 
remarked that it is possible to adopt IST without disrupting 
operations.
    Alternatively, a few industry trade associations and government 
organizations stated that STAA should not be applied to water 
facilities citing that any STAA requirement would be repetitive and 
counterproductive and that drinking water utilities already have to 
consider a variety of public health and safety factors under the Safe 
Drinking Water Act (SDWA).
    EPA disagrees with commenters who suggest subjecting water and 
wastewater treatment facilities to STAA requirements. EPA's approach to 
applying the STAA requirement was to identify industry sectors with the 
greatest accident frequency at RMP-regulated facilities within the 
sector, and with the greatest opportunity to apply STAA risk management 
measures. While EPA agrees that water supply and wastewater treatment 
facilities often have feasible alternatives available, according to RMP 
accident history data, the sector is among the least accident-prone 
sectors covered under the risk management program. Therefore, the final 
rule does not apply the STAA requirement to the water and wastewater 
treatment sector. EPA acknowledges that drinking water utilities 
already may have considered alternative technologies for their 
disinfection process while addressing safety and health considerations, 
risk tradeoffs and compliance with the SDWA.
    Limit applicability to major process changes or after accidents. A 
few commenters want EPA to consider having a requirement similar to 
that required by Contra Costa County for facilities to conduct an STAA 
whenever major process changes are proposed and in the aftermath of 
accidents, when there are often significant opportunities for making 
process improvements as equipment is rebuilt or repaired. One commenter 
noted that the CCHS program requires an ISS analysis during the design 
of new processes, for PHA recommendations, or for major changes 
resulting from incident investigation recommendations, root cause 
analysis or MOC review that could reasonably result in a major chemical 
accident or release. This commenter noted that California's proposed 
refinery regulations are following the same requirements as the CCHS 
program. Other commenters recommended that instead of requiring STAA 
analyses at least every five years in conjunction with the a PHA 
revalidation, EPA should require the analysis only after accidents.
    Another commenter recommended modifying the wording in section 
68.67(c)(8) to limit the provisions to new processes or major 
modifications to existing processes. The commenter also remarked that 
stationary sources' management of change (MOC) programs should be 
updated to account for process changes and allow for reassessment of 
the IST analysis. The commenter concluded that this will ensure that 
existing IST components are not removed, replaced, or changed without 
revalidating the IST feasibility criteria.
    EPA disagrees that the STAA requirement should be triggered only by 
a major process change. While the Agency acknowledges that a major 
process change could be an opportune time to evaluate safer technology 
alternatives, the Agency is concerned that requiring STAA reviews only 
after major process changes could result in some processes rarely or 
never being evaluated for safer technology alternatives. This could 
occur if few or no major changes occurred during the life of the 
process. Also, limiting the STAA to only major process changes could 
create a disincentive to upgrading processes if facilities chose not to 
make improvements to avoid having to perform an STAA. EPA is also 
concerned that there is no common definition or understanding of the 
term ``major process change'' that could easily be applied to the wide 
range of processes affected by the STAA requirement. Therefore, while 
EPA agrees that integrating STAA reviews into a facility's MOC program 
(and other prevention programs) may often be beneficial, the Agency 
believes it is appropriate to incorporate the STAA provision into the 
PHA section of Sec.  68.67, rather than the MOC section of Sec.  68.75. 
Nevertheless, EPA encourages owners and operator to also consider safer 
technology alternatives whenever major process changes are planned.
    EPA is revising the PHA requirements in Sec.  68.67 to require that 
the PHA address findings from incident investigations as well as any 
other potential failure scenarios. Other potential failure scenarios 
may include those introduced from major process changes or new designs 
or those discovered as a result of an accident investigation. Thus, EPA 
believes that the PHA with its requirement to encompass IST review as 
part of the PHA process, would cover the same process changes whether 
they result from an incident investigation, MOC action or other process 
change.
    Finally, EPA disagrees that the STAA requirement should be 
triggered only by accidental releases. Although the Agency agrees that 
accidental releases may indeed signal to the owner or operator that 
safer technology alternatives should be considered, the Agency prefers 
that owners and operators evaluate safer technologies before accidents 
occur, with the aim of ultimately preventing such accidents. Also, 
similar to the Agency's objection to requiring STAA reviews only after 
major process changes, requiring an STAA only after an accident would 
mean that many processes subject to this provision may never undergo an 
STAA.
    Limit applicability of STAA requirements to the design phase of a 
process. Several commenters, including

[[Page 4636]]

industry trade associations suggested that EPA should not require STAAs 
for existing facilities or processes. Numerous commenters, including 
facilities, industry trade associations, local agencies, and a Federal 
agency, stated that an STAA is more appropriate during the design phase 
of a new process or facility, or during significant modifications. Some 
commenters, including a local agency, encouraged EPA to require STAAs 
to consider the highest level of hazard control (referring to the 
``hierarchy of controls'') that is feasible during the design phase or 
whenever a facility makes a change. Another commenter stated that 
adding a new regulatory requirement, particularly for existing 
operations, is unnecessary to address inherently safer design, and that 
safer technology reviews should not be part of a PHA.
    In contrast, other commenters urged that safer technologies 
analyses are an ongoing need and should not be limited to new 
facilities. A state agency and an individual urged that IST should be 
performed for all new projects, processes, or stationary sources 
throughout various phases of a project's life cycle. According to the 
commenter, performing a separate IST analysis for the entire existing 
process approximately every five years allows evaluators to see the big 
picture rather than just the minute details associated with a typical 
PHA process.
    EPA disagrees that STAA analyses should only be required during the 
initial design phase of a facility. While the greatest potential 
opportunities for using IST occur early in process design and 
development, many IST options may still be practicable after the 
initial design phase. Furthermore, STAA involves more than just IST. 
Safer technology alternatives also include passive measures, active 
measures, and procedural measures, and these measures can be modified 
and improved after the initial design of a facility. EPA notes that 
many RMP-regulated facilities were originally constructed decades ago, 
yet major enhancements have been reported in some plants that have been 
operating for many years.\77\ CCPS explains that inherently safer 
strategies can be evaluated throughout the lifecycle of a process, 
including operations, maintenance and modification, and EPA agrees with 
this approach.
---------------------------------------------------------------------------

    \77\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley, p. 25.
---------------------------------------------------------------------------

    Lastly, EPA disagrees that the PHA is not an appropriate risk 
management program element in which to integrate the STAA. EPA believes 
that safer technologies can and should be evaluated during the full 
life-cycle of a covered process, and the PHA is the fundamental and 
recurring risk management program element concerned with overall 
analysis and control of process hazards. By integrating the STAA with 
the PHA, every process subject to the provision will undergo an STAA, 
every five years. 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 practicable.
    Owners and operators of new construction facilities that will be 
subject to the RMP rule should consider performing the STAA portion of 
their initial PHA well enough in advance of facility construction so 
that the full range of inherently safer designs is considered, and 
include this evaluation in the initial PHA for the process.
c. Definitions
    Feasible definition. Many commenters, including a facility, several 
trade associations and an environmental advocacy group, remarked that 
EPA did not sufficiently explain any of the five factors (``economic, 
environmental, legal, social and technological'') for facilities to 
consider in the proposed definition of ``feasible,'' and asserted that 
the examples provided by EPA are unhelpful and vague. The commenters 
argue that the proposed rulemaking does not provide sufficient guidance 
on the feasibility component of the STAA review. As such, the 
commenters conclude that these factors are so expansive and vague that 
they do not provide any clear guidance as to how feasibility of IST 
should be determined, and therefore have no place in the RMP rule. 
According to one commenter, even if the five measures are properly 
defined, they do not address the full range of issues in the 
operational life of a project rather than just the processing phase.
    A mass mail campaign joined by approximately 300 commenters warned 
that ``accounting for'' these factors could be used as an excuse to 
avoid necessary implementation measures.
    An industry trade association said that it does not want EPA to 
elaborate further on the proposed STAA requirement. One commenter 
stated that it would be very subjective and difficult to prescribe in 
regulations what is ``feasible'' for a facility and that any ``one-size 
fits all'' approach to process safety would limit employers' ability to 
react to real facts on the ground. In regards to incorporating ISTs 
into safety programs, the commenter asserted that only facility 
operators know whether IST is appropriate given the complexities of 
their unique operating environments, and no one program will work for 
all facilities.
    EPA believes that the same tools and methods that facilities 
currently use for their PHA can be used to identify and measure hazards 
and risks of any safer alternative options. Further explanation of the 
economic, environmental, legal, social and technological factors 
included in the ``practicability'' definition of this final rule can be 
found in NJDEP's Guidance for Toxic Catastrophe Prevention Act (TCPA)-
Inherently Safer Technology (IST) Review, Attachment 1 Feasibility 
guidance.\78\
---------------------------------------------------------------------------

    \78\ http://www.nj.gov/dep/enforcement/tcpa/downloads/IST_guidance.pdf.
---------------------------------------------------------------------------

    EPA did not define the various factors, such as ``economic'' or 
``social'' used in the proposed definition of ``feasible'' or in the 
revised term ``practicability.'' The examples in the proposed 
rulemaking preamble are taken from the guidelines provided by CCPS, and 
are not exclusive of other situations. EPA believes that the definition 
of ``practicability'' in the final rule provides sufficient flexibility 
for the owner or operator to determine whether an IST or ISD considered 
could be successfully accomplished. EPA does not believe that we should 
further define ``economic or social factors'' in the rule because 
further specificity of these terms would likely be too prescriptive and 
would not encompass all the possible conditions and outcomes that might 
be encountered when determining the practicability of an IST or ISD 
considered in the STAA. EPA expects that facility owners and operators 
will use their expertise and make reasonable judgements when 
considering the appropriate meaning of economic or social factors so 
that any decisions regarding possible implementation of IST is not 
driven towards changes that would cause unintended adverse 
consequences.
    Finally, EPA disagrees with commenters' assertion that accounting 
for the factors in the definition of ``practicability'' could be used 
as an excuse to avoid necessary implementation measures. EPA is not 
requiring IST or ISD implementation in the final rule and, therefore, 
further clarifying the practicability definition will not impact IST or 
ISD implementation.

[[Page 4637]]

    Consistency of feasible definition with other programs. A commenter 
encouraged EPA to incorporate the definition of ``feasibility'' 
provided in the Contra Costa County Safety Program Guidance Document. 
Another commenter stated that the proposed definition of 
``feasibility'' is consistent with California's proposed California 
Accidental Release Prevention (CalARP) regulations and the Contra Costa 
County and the City of Richmond's Industrial Safety Ordinances. 
However, a state agency, commented that there is an inconsistency with 
CalARP's definition of ``feasible'' in that the proposed EPA definition 
omits the terms ``health'' and ``safety,'' and the commenter encouraged 
EPA to add these terms to the list of factors to consider in a 
determination of feasibility.
    EPA based the feasible definition on the CCHS definition of 
``feasible'' but modified the definition to add language acknowledging 
that environmental factors include a consideration of the potential to 
transfer risks or introduce new risks to a process or source. The 
practicability definition in the final rule maintains this language.
    EPA disagrees with the suggestion to add the terms ``health'' and 
``safety'' to the definition. The primary reason for EPA to consider 
ISTs in a STAA is to reduce risks to health and safety of the public by 
mitigating the frequency and severity of accidental releases. EPA 
believes this is adequately addressed in the definition of ``inherently 
safer technology or design'' of this final rule and including these 
factors in the definition of ``practicability'' would be redundant.
    Suggested revisions to feasible definition. One commenter argued 
that the term ``within a reasonable time'' in the definition of 
``feasible'' could allow facilities to avoid implementation, and urged 
EPA to exclude a time based factor from the final definition. This 
commenter also argued that EPA should not make any level of cost, no 
matter how minimal, an excuse to not implement any IST measures, but 
rather should recognize that IST measures should be implemented unless 
doing so would cause an extremely serious adverse economic effect, such 
as a facility shutdown. A facility noted that the proposed feasibility 
analysis does not allow sufficient time to complete the necessary work 
and recommended that the timeframe be determined on a case by case 
basis. A state agency commented that the feasibility of an IST must 
consider factors such as timeliness of implementation and costs. This 
commenter expressed concern that the definition of ``feasible'' would 
allow for the implementation of IST options that may not be 
economically justifiable compared to other equally protective options.
    Some commenters recommended deleting the explanation of 
environmental factors in the feasible definition. These commenters 
warned that this language is too specific in comparison with the 
general terms included in the definition. One commenter expressed 
concern that the language shows an industry bias and suggested using 
the following alternative definition: ``Feasible means capable of being 
successfully accomplished within a reasonable time, accounting for 
economic, environmental, legal, social, and technological factors 
weighed against the immediate and long-term benefits to safety and 
health. A claim of infeasibility shall not be based solely on evidence 
of reduced profits.''
    EPA disagrees with the commenters. Cost is a consideration when 
determining whether a risk management measure can be successfully 
accomplished and because EPA is not requiring implementation of any 
IST, we see no reason to exclude this factor from a practicability 
determination. EPA also disagrees with the suggestion to limit 
consideration of reduced profits when assessing a risk management 
measure because the Agency believes that cost is a valid consideration 
for practicability. Identifying an amount of an allowable cost for an 
IST is not something that can be prescribed in the regulation because 
cost decisions are highly dependent on the economics involving a 
particular process, facility and industry.
    EPA also disagrees that incorporating consideration of a reasonable 
timeframe will allow facilities to avoid implementation. EPA is not 
requiring IST implementation and we acknowledge that there may exist 
practical limits on whether some projects or process designs can be 
done to enhance safety. If a risk management measure cannot be 
accomplished within a reasonable time, then the facility should ensure 
that other safeguards are in place to prevent accidents instead of 
relying on the uncertainty of completing a long-term project that is 
dependent on future conditions such as process design, operating 
budgets, etc.
    Finally, as other commenters have noted, some ISTs involving 
chemical substitution or significant process redesign can result in new 
hazards or risks being introduced, and these should be considered when 
deciding the practicability of an IST. Thus, EPA is retaining the 
explanation of environmental factors in the practicability definition 
in this final rule.
    Definition should be stronger than OSHA definition of ``feasible.'' 
One commenter urged EPA to adopt a definition that is stronger than or 
at least as protective of health and safety as the OSHA definition of 
``feasible'' to provide an appropriate minimum level of protection 
under CAA--42 U.S.C. 7412(r)(7) that EPA should not go below. The 
commenter states that under the OSHA standard, a protective measure is 
technologically feasible if, using existing technology or technology 
that is reasonably expected to be developed, a typical facility could 
achieve the standard in most operations most of the time. Additionally, 
the protective measure is economically feasible if its costs do not 
threaten the existence or competitive structure of an industry. The 
commenter contends that OSHA's definition has been interpreted by 
courts to mean that the mere expense of a measure, alone, cannot trump 
the implementation of safety measures that are ``capable of being 
done.'' The commenter believes that EPA should not set a weaker 
definition that would make it less likely that IST or other prevention 
measures would be implemented under Sec.  7412(r) than under OSHA's 
definition. Doing so would be both inconsistent with the objectives of 
Sec.  7412(r) to protect the public and with the existing framework 
facilities follow under OSHA requirements, could lead to confusion for 
facilities and in the courts, and result in an overall reduction in 
safety measures.
    EPA disagrees with the commenter and believes the approach in the 
final rule to consider the practicability of IST or ISD considered is 
consistent with the intent of CAA and will not lead to an overall 
reduction in safety measures. The current rule already requires the PHA 
to consider active, passive and procedural risk management measures in 
Sec.  68.67; however, the requirements do not prescribe exactly which 
type or exactly what engineering and administrative controls must be 
implemented. The regulations allow facilities to use their specific 
knowledge and expertise of the process to meet the PHA requirement to 
``identify, evaluate and control the hazard'' [emphasis added]. EPA is 
finalizing a requirement for certain sectors to conduct a STAA that 
also considers IST in the hierarchy of controls. However, requiring 
facilities to implement IST instead of using passive, active or 
procedural safeguards can involve extensive and very expensive changes 
to a facility's

[[Page 4638]]

process, depending on the IST, especially if it involves substitution 
of alternative chemicals and/or major process redesign. EPA believes 
that a practicability consideration should address whether an IST or 
ISD can be accomplished technologically, is economically possible, does 
not result in an increase in hazards or other risks that cannot be 
controlled, or cannot be successfully accomplished because of other 
considerations. Therefore, EPA disagrees that the practicability 
definition should be stronger than (or even similar to) OSHA's 
interpretation of feasible.
    Harmonize feasible definition with OSHA. A facility noted that the 
proposed definition of ``feasible'' in Sec.  68.3 could cause the 
potential for confusion because the proposed rulemaking preamble states 
that 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. This is an illustration of 
the need to harmonize the requirements of EPA RMP requirements with 
that of OSHA PSM.
    A few commenters, including facilities and industry associations, 
urged harmonization with OSHA's definition of ``feasibility'' and 
requirements. A facility and an industry trade association warned of 
the confusion that could ensue if ``feasibility'' is defined 
inconsistently between EPA and OSHA, and encouraged EPA to use the term 
``practicability'' instead. Similarly, an industry trade association 
urged EPA to use the term ``practical'' in place of ``feasible.'' The 
industry trade association argued that what is deemed feasible is often 
not practical for a number of reasons, and asserted that any decision 
to alter a technology involves a complex variety of factors such as 
operating costs, associated risk, energy consumption and greenhouse gas 
emissions. The commenter concluded that only facility owners should 
ultimately be able to define what is feasible or practical for their 
facility. In contrast, a state agency encouraged use of the term 
``feasible'' rather than ``practical.'' An industry trade association 
asserted that neither term should be the basis for the analysis.
    EPA agrees with commenters and is revising the rule to replace the 
term ``feasible'' with ``practicability.'' EPA proposed to use the term 
``feasibility'' as part of the STAA analysis as it is already widely 
used in the technical literature discussing IST. However, because OSHA 
is considering similar revisions to its PSM standard involving IST and 
in order to eliminate the potential for confusion of different meanings 
of the term ``feasible,'' \79\ EPA has decided to use the term 
``practicability'' while retaining the same definition and meaning used 
for ``feasible'' in the proposed rulemaking.
---------------------------------------------------------------------------

    \79\ 81 FR 13667, March 14, 2016.
---------------------------------------------------------------------------

    Hierarchy of controls. A commenter noted that California's proposed 
regulations for refineries and EPA's proposed regulations would require 
that the facility look for inherently safer means to reduce the 
hazards, but if there is not a means to reduce the hazard, the facility 
would go through a hierarchy of prevention methods and select the 
highest level of prevention. This commenter and another requested that 
EPA use the term ``Hierarchy of Control,'' which is a term that is 
already understood, instead of adding a brand new term.
    EPA does not use the term hierarchy of control (nor substitutes a 
new term for it) but instead explicitly explains the concept in the 
regulation by stating that the owner or operator shall consider risk 
management measures in the following order of preference:
     Inherently safer technology or design,
     Passive measures,
     Active measures, and
     Procedural measures.
    EPA believes this is consistent with proposed CalARP regulations 
\80\ for Hierarchy for Hazard Control Analysis, which require 
refineries to eliminate hazards using first order inherent safety 
measures; to reduce any remaining hazards using second order inherent 
safety measures; and to address any remaining risks in the following 
sequence and priority by using passive safeguards, active safeguards, 
and procedural safeguards.
---------------------------------------------------------------------------

    \80\ Draft California Accidental Release Prevention Program 
(ARP) Regulations, California Governor's Office of Emergency 
Services. July 5, 2016, p. 83 http://www.caloes.ca.gov/FireRescueSite/Documents/CalARP%20Proposed%20Regs%202016.pdf.
---------------------------------------------------------------------------

    Passive measures. A commenter recommended revising the definition 
of ``passive measures'' to ``mean risk reduction measures designed to 
reduce the probability or the consequences of an accidental regulated 
chemical release without human intervention'' to better reflect that 
EPA probably meant ``reducing the hazard'' as an aspect of risk 
management. The commenter views ``hazard'' as the inherent capacity of 
a substance to cause an adverse effect, while ``risk'' is the 
probability that an adverse effect will occur, if one uses OSHA's 
definition of the terms. In addition, the commenter said that the 
definition of ``other energy inputs'' needs revision, and suggested 
replacing the phrase ``energy inputs'' with ``human intervention'' to 
meet the intent of the definition. This commenter expressed concern 
that the word ``other'' in the phrase ``other energy input'' 
mischaracterizes pressure vessel designs, dikes, etc. as energy inputs. 
This commenter also suggested that passive ``design features'' could 
include mechanical or energy intervention measures and the commenter 
cited examples such as automatic fire suppression systems and automatic 
vapor ignition.
    EPA agrees with the commenter's suggestion to revise the definition 
of ``passive measures'' to address the frequency and consequence of the 
hazard. EPA based the proposed definition of ``passive measures'' on 
the definition used by CCPS, which defined ``passive'' as ``minimizing 
the hazard through process and equipment design features that reduce 
either the frequency or consequence of the hazard without the active 
functioning of any device, i.e., providing a dike wall around a storage 
tank of flammable liquids.'' \81\ Thus the intent of the CCPS 
definition appears to be on aspects of both hazard and risk reduction. 
EPA is modifying the ``passive measures'' definition in the final rule 
to clarify that passive measures reduce the frequency or consequence of 
the hazard.
---------------------------------------------------------------------------

    \81\ CCPS. 2009, Inherently Safer Chemical Processes: A Life 
Cycle Approach. 2nd ed., p. 10. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0253.
---------------------------------------------------------------------------

    EPA disagrees that the word ``other'' in ``other energy inputs'' 
characterizes pressure vessel designs and dikes as energy inputs and 
also disagrees that passive design features would include automatic 
fire suppression systems or automatic vapor ignition (in which a flare 
is ignited). These types of measures would most likely be considered to 
be active measures. CCPS, in their Guidelines for Hazard Evaluation 
Procedures,\82\ cites a fire protection system as an active safeguard 
because a fusible link or other engineered device must function to 
successfully trip the system.
---------------------------------------------------------------------------

    \82\ CCPS. 2008, Guidelines for Hazard Evaluation Procedures. 
3rd ed., p. 234. http://www.aiche.org/ccps/publications/books/guidelines-hazard-evaluation-procedures-3rd-edition.
---------------------------------------------------------------------------

    IST/ISD. A number of commenters, requested clarification on the 
definition of IST, ISD or Inherently Safer Measures. A few wanted 
clarification as to what would qualify as ``safer'' in this context. 
One labor union expressed general support for the proposed definition 
of IST. One commenter asked

[[Page 4639]]

EPA to ensure that there is a distinction between IST and less 
effective controls and management methods. This commenter argued that 
chemical substitution and process changes are the most effective 
methods to protect workers and the public from incidents and that these 
``inherently'' safer options should be distinguished from less 
effective controls and management methods. The commenter cited lesser 
effective controls from the NJDEP IST compliance, such as safer 
extremely hazardous substance risk location, protection of storage 
vessels from weather conditions, changes in truck traffic patterns, 
addition of EHS leak detectors, use of closed circuit television 
systems, labeling of valves and equipment, revising procedures, 
installing a simulation training station, and adding light towers for 
EHS leak alarms. The commenter requested that EPA develop a precise 
definition for IST and Inherently Safer Design (ISD).
    EPA disagrees with the commenters' suggestions to provide a 
distinction between IST and other controls and management methods. EPA 
believes that determining effective risk management strategies for a 
facility is a site-specific determination and EPA encourages any 
improvement that will could lead to inherently safer conditions. 
Therefore, EPA is finalizing the definition of IST/ISD as proposed.
    EPA based its definition of inherently safer technologies (IST) or 
design (ISD) on the four inherently safer strategies as explained in 
the Inherently Safer Chemical Processes: A Life Cycle Approach by 
CCPS.\83\ These four types of strategies have been widely recognized by 
the industry and best encompass the concepts and principles of applying 
inherent safety, which focuses on eliminating or reducing the hazards 
associated with a set of conditions.
---------------------------------------------------------------------------

    \83\ CCPS. 2009, Inherently Safer Chemical Processes: A Life 
Cycle Approach. 2nd ed., https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0253.
---------------------------------------------------------------------------

    As the 2010 CCPS Final Report: Definition for Inherently Safer 
Technology (IST) in Production, Transportation, Storage and Use \84\ 
states:
---------------------------------------------------------------------------

    \84\ CCPS. July 2010. Final Report: Definition for Inherently 
Safer Technology in Production, Transportation, Storage, and Use, 
https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0274.

    IST (Inherently Safer Technology), also known as Inherently 
Safer Design (ISD), permanently eliminates or reduces hazards to 
avoid or reduce the consequences of incidents. IST is a philosophy, 
applied to the design and operation life cycle, including 
manufacture, transport, storage, use, and disposal. IST is an 
iterative process that considers such options, 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. [emphasis added]

    The CCPS guidance is organized by these four strategies and 
provides many examples of each type of strategy. NJDEP also uses 
descriptions of the four strategies to identify available IST 
alternatives in their inherently safer technology review 
requirements.\85\ Although some NJ facilities may have reported some 
controls that others might not strictly view as IST, EPA does not 
believe that IST should be limited only to chemical substitution and 
process changes. Some changes such as better labeling of equipment are 
cited as examples of process simplification in CCPS' IST Checklist. 
Changes involving transportation of chemicals and storage location are 
also cited in the checklist because inherent safety can involve 
reduction of hazard, and does not require complete elimination of a 
hazard.
---------------------------------------------------------------------------

    \85\ NJDEP TCPA. March 29, 2012. NJ Title 7, Chapter 31 TCPA 
Program Consolidated Rule Document, http://www.nj.gov/dep/rules/rules/njac7_31.pdf.
---------------------------------------------------------------------------

d. General Comments on STAA Requirements
    Suggestions for minimal elements for STAA methodology. An 
environmental advocacy group noted that in the proposed rulemaking, EPA 
states that owners and operators may use ``any available methodology or 
guidance'' to conduct their STAA, but urged EPA to define the minimum 
basic elements that owners or operators must include in their STAA. The 
commenter believed the STAA should include an analysis of the 
technical, economic, legal/regulatory, social, and hazards implications 
of each major technology option, and noted that the sample 
methodologies and guidance listed in the proposed rulemaking may not 
include all of these elements. The commenter urged EPA to require the 
economic analysis to include potential liabilities, costs, avoided 
costs, and savings associated with each major STAA option evaluated.
    EPA does not believe it should specify factors other than those 
already present in the PHA and STAA requirements, including the 
definition of ``practicability.'' EPA believes that various resources 
and guidance exist (as well as existing PHA methodologies, such as 
HAZOP, What-If? Method, or checklists or a combination of these as 
discussed in Chapter 8 of CCPS' book, Inherently Safer Chemical 
Processes: A Life Cycle Approach \86\) that can assist facilities in 
understanding how IST can reduce hazards and risk and in determining 
practicability of IST or ISD considered in the STAA. Facilities can 
follow, for example, guidance for IS Review Documentation found in 
CCPS's Inherently Safer Chemical Processes, which suggests documenting 
the summary of the approach used for the IS review (i.e., methodology, 
checklist, etc.), names and qualifications of the review team, IS 
alternatives considered, as well as those already implemented or 
included in the design, results of each consideration including those 
not considered and why, documentation of feasibility and rationale for 
rejection of IS opportunities.
---------------------------------------------------------------------------

    \86\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley.
---------------------------------------------------------------------------

    While some facilities may choose to conduct an economic analysis of 
potential liabilities, costs, avoided costs, and savings associated 
with each major STAA option evaluated, EPA is only requiring facilities 
to determine whether IST is practicable and document this 
determination. It may not be always be possible to estimate avoided 
costs and savings for a particular IST.
    STAA is not a suitable replacement for other prevention program 
measures. An association of governments expressed concern that analyses 
will not prevent accidents because human factors such as operational 
bias towards production rather than safety, failures to manage changes, 
failures to provide adequate training for employees and failures to 
follow standards cannot be eliminated by a safer technology analysis. 
The association warned that the analysis could be used as a substitute 
for appropriate emergency preparedness and accident prevention 
programs. The commenter also believed that adoption of safer technology 
without a holistic review of risk transfers might be dangerous.
    EPA does not believe or intend that a safer technology analysis as 
part of the exiting PHA would negate the need or requirements for 
facilities to follow other RMP rule provisions, such as training, 
managing change, and following RAGAGEP. Rather this analysis is 
designed to supplement or enhance the ways that hazards or risks of an 
accidental release can be eliminated or reduced by possibly more 
rigorous risk reduction measures.

[[Page 4640]]

Facilities can evaluate the feasibility of potential safer technologies 
and this evaluation can and should take into account any known 
transfers of risk, as well as other considerations. For this reason, 
EPA is not prescribing that facilities adopt any particular safer 
alternative and is allowing any decision on implementation of IST to be 
made based upon a facility's judgement using accepted hazard analysis 
and their knowledge of their processes, hazards, risks and methods to 
control hazards. EPA does not believe the analysis could be used as a 
substitute for appropriate emergency preparedness and accident 
prevention programs--existing requirements in these areas are still in 
place and this final rule also provides more emphasis on emergency 
coordination and response (for more information see section V of this 
preamble).
    STAA guidance, regulatory incentives and voluntary partnership 
programs. An industry trade association suggested the establishment of 
a working group to develop decision framework and guidance materials 
for STAAs. The commenter remarked that creation of a working group 
would be more effective than mandating RMP facilities to conduct STAAs 
with insufficient guidance. A commenter recommended that the working 
group should consider existing voluntary programs that include a safer 
alternatives assessment, and should consider the possibility of 
establishing a public-private partnership. The commenter further 
explained that the working group should explore how EPA could leverage 
these programs by providing regulatory incentives to those who 
participate in and fulfill the requirements of the voluntary programs. 
The commenter also suggested that a partnership could be created based 
on the core principles adopted by industry (i.e., stewardship) programs 
and the lessons learned from existing and past voluntary partnership 
programs. The commenter stated that such a program could provide 
technical assistance and tools to help create awareness and instill a 
quality culture of safety and security. The commenter provided a white 
paper with more detailed discussion on the potential purposes, 
components, incentives and requirements for a voluntary partnership 
program to improve chemical safety and security.
    EPA appreciates the commenters' suggestions for developing 
guidance, regulatory incentives and partnership programs for STAAs. EPA 
is finalizing a regulatory provision requiring Program 3 industry 
sectors in NAICS codes 322, 324, and 325 to conduct an STAA as part of 
the PHA and determine the practicability of IST or ISD considered. EPA 
disagrees that STAA should be limited to a voluntary partnership 
program; however, EPA will further consider the merits of a potential 
voluntary partnership program with industry to engage in improved 
process safety practices.
    EPA believes the STAA requirements are flexible and allow the use 
of industry expertise to best decide which safer technologies and 
alternatives to consider, and to determine the practicability of IST or 
ISD considered in the STAA. EPA will develop guidance for complying 
with RMP PHA and STAA requirements before sources must comply with the 
STAA provision required in this action. A draft of this guidance will 
be available for public comment.
    Making STAA information available to LEPCs. A facility is concerned 
that the proposed requirement to share information pertaining to 
inherently safer technology or design with the local LEPC would require 
specific detailed information that the LEPC may not consider relevant. 
While the facility expressed willingness to share appropriate 
information with the LEPC, the facility does not believe the LEPC would 
be interested in the minute details of the changes in process units. An 
industry trade association stated that not requiring implementation 
while requiring facilities to provide LEPCs the date of implementation 
or planned implementation could cause confusion.
    EPA agrees that providing LEPCs with detailed information regarding 
process changes involving IST or ISD may not always be relevant or 
necessary to community emergency preparedness or can be confusing. The 
final rule eliminates the proposed requirements under Sec.  68.205 to 
provide information to the LEPC, upon request (including IST 
information). For more information about how the final rule addresses 
sharing information with LEPCs or emergency response officials, see 
section VI.A. of this preamble.
e. Including STAA as a PHA Requirement
    Appropriateness of PHA techniques or process for STAA. A few local 
agencies expressed support for STAA measures being used as a method of 
addressing PHA recommendations. Commenters, including a local agency, 
encouraged the review of the STAA at least every five years.
    However, several commenters opposed including STAA in the PHA. Two 
trade associations commented that requiring PHA teams to evaluate the 
feasibility of IST has the potential to undermine the effectiveness of 
the PHA process. The commenters argued that regulating IST is 
infeasible because there is no simple answer when it comes to managing 
risk. The same two trade associations and one facility asserted that a 
PHA review of an existing process considers the adequacy of the 
existing controls for that process while an IST review is entirely 
different. The commenters believe an IST review involves a comparison 
to a different technology and an operation-specific and site-specific 
evaluation based on engineering judgment, in which many variables are 
considered that include hazards, the location of the facility, 
surrounding populations, exposures, technical feasibility and economic 
feasibility. A state agency and an industry trade association warned 
that requiring STAA during the PHA would be inappropriate because the 
structure of a PHA does not facilitate such an analysis.
    A facility expressed concern that none of the PHA methodologies 
described in the NPRM require this type of comparison, arguing that 
IST/ISD methodologies are similar, but not identical, to PHA analysis 
techniques. The facility stated that it would be wrong to assume that 
STAA can be directly incorporated into existing PHA methodologies. A 
trade association commented that in order to have PHA team members 
perform a comparative analysis on alternatives, the PHA team would be 
required to compile relevant process safety information for the 
alternatives in order to perform the IST analysis.
    One commenter believes that IST needs to be evaluated outside of 
the PHA process because the node-to-node hazard and operability study 
(HAZOP) approach is minutely focused, does not look at the bigger 
picture and reduces the impact of IST to localized risk reduction 
measures rather than making the whole process inherently safer. The 
commenter stated that a separate IST analysis for the entire existing 
process is needed and could be performed every five years but 
separately from the PHA since different team participants (such as 
technical experts) are usually needed.
    One trade association and a facility believed that IST analyses are 
not practical to conduct as part of a PHA for a defined process with 
defined chemicals. The commenters claimed that to consider a 
substitute, a facility operator would need to design the new process 
before being able to conduct the analysis. Some facility commenters 
reasoned that design and hazard reviews for new facilities can take 
place years

[[Page 4641]]

before any PHA. An industry trade agency suggested that EPA should 
include appropriate lead-time and grandfathering provisions so as not 
to disrupt projects already in the design or construction phase. 
Finally, an industry trade association asserted that IST decisions are 
very complex and should not be determined by any government agency, and 
recommended that EPA delete the proposed STAA provisions.
    EPA believes that IST analysis can be incorporated in the existing 
RMP PHAs by using PHA techniques such as HAZOP, What-If? Method, or 
checklists or a combination of these as discussed in Chapter 8 of CCPS' 
book, Inherently Safer Chemical Processes: A Life Cycle Approach.\87\ 
These techniques themselves are not requirements, but tools available 
to help the facility owner or operator to identify, evaluate and 
control the hazards involved in the process.
---------------------------------------------------------------------------

    \87\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley.
---------------------------------------------------------------------------

    While developing the original RMP rule, EPA noted some commenters 
strongly opposed any requirement for safer technology analyses because 
PHA teams regularly suggest viable, effective (and inherently safer) 
alternatives for risk reduction. In the preamble to the original RMP 
rule, EPA agreed with these commenters, indicating that ``application 
of good PHA techniques often reveals opportunities for continuous 
improvement of existing processes and operations without a separate 
analysis of alternatives.'' \88\ While these comments in 1996 led us to 
not require STAA in the original rule, further developments in STAA, 
and EPA's own experience with implementation of the rule, now indicate 
that a specific mandate to conduct STAA reviews as part of the PHA will 
encourage facilities who were performing PHAs that were of lower 
quality but legally compliant with the old rule, to perform better 
PHAs.
---------------------------------------------------------------------------

    \88\ See 61 FR 31699, June 20, 1996.
---------------------------------------------------------------------------

    Therefore, EPA disagrees with commenters that argue it is not 
appropriate to include an STAA in the PHA. In fact, the RMP PHA 
requirements include other aspects of an analysis that is typically 
associated with process design. For example, the PHA must also address 
stationary source siting issues which involve the location and 
proximity of the source to local population and their numbers.
    Nevertheless, EPA agrees that for situations where an IST would 
involve a new process that is entirely different from the current 
process, the process design would have to exist or be developed, and 
process safety information be compiled, to conduct a PHA for this new 
process. EPA does not expect facility owners or operators to research 
and create new process designs or conduct research into all 
possibilities for the use of new chemicals. Instead, the STAA should 
focus on the known and existing substitute processes and chemicals that 
have been demonstrated to be in use commercially.
    If a facility is considering a chemical substitution or process 
change that involves a significant redesign of their process, such 
efforts involved with redesign and its evaluation may need to be 
undertaken as part of a practicability study.\89\ The definition of 
``practicability'' allows for consideration of technological factors, 
which could include whether the potential safer alternative can be 
designed and operated to meet the process functions needed. However, 
not all IST involves substituting a chemical or an entirely new process 
and there are other types of other IST measures (minimization, 
moderation or simplification) that can be considered to address various 
points within the current process where hazards and risks exist. 
Furthermore, the final rule does not require the facility to implement 
IST measures.
---------------------------------------------------------------------------

    \89\ EPA modified the final rule to replace the term 
``feasible'' defined in Sec.  68.3 with ``practicability.'' When 
evaluating the practicability of an IST, the facility owner or 
operator would determine whether the IST is capable of being 
successfully accomplished within a reasonable time, accounting for 
economic, environmental (including consideration of potential 
transferred risks for new risk reduction measures), legal, social, 
and technological factors.
---------------------------------------------------------------------------

    Facilities may, if desired, conduct a separate IST analysis of each 
covered process, outside of the PHA, if desired, as long as it is done 
in same timeframe as the PHA and the results are documented. If a 
facility does not have staff capable to identify and evaluate 
alternatives, the facility owner or operator may require outside 
assistance from engineering firms or consultants.
    The RMP PHA requirements require the facility owner or operator to 
identify risk management measures that eliminate or reduce the risks 
from the process hazards. If the facility has already performed such 
IST analysis in the past, then the owner or operator should consider 
these analyses when updating or revalidating their PHAs and determine 
whether there is new information that should be considered as part of 
conducting the current STAA.
    Involvement and training of employees and team members. An industry 
trade association expressed concern about the potential experience 
limitations of the PHA team. The commenter stated that team members may 
lack the expertise required to assess all alternative technologies, and 
said that in the case of inadequate experience the STAA should be 
considered within the management of change element of the RMP and the 
facility's ongoing risk assessment analysis. Two trade associations 
commented that a PHA and an IST analysis serve two entirely different 
engineering functions and the teams that conduct these reviews are 
staffed differently. The two associations further commented that small 
facilities do not have staff design engineers to conduct an IST review, 
which means the facility would be required to absorb the cost of 
retaining them even though there is no requirement that their findings 
be implemented.
    One Federal agency commented that throughout the SBAR panel 
process, SERs noted that this analysis would require additional 
staffing such as design engineers, in addition to the chemical and 
mechanical engineers already staffed for PHA analyses. The SERs added 
that most small facilities do not have design engineers on staff and as 
a result, would need to incur additional expenses to retain them.
    Another commenter stated that conducting a full IST/ISD review 
based on yet-unproven technologies typically is an extremely complex 
endeavor (particularly for a chemical production process), and would 
require very different PHA teams that could adequately assess IST/ISD 
(e.g., to adequately study how the hypothetical use of new IST/ISD 
might create additional, unanticipated hazards throughout a process).
    Another commenter suggested that the PHA/hazard review team should 
be properly educated in inherent safety analysis. A professional 
organization encouraged the participation of workers in the STAA 
process, but urged that these employees must have proper training and 
education to participate. Some commenters recommended engaging workers 
in the alternatives and feasibility assessment process and making sure 
they have the ability to report anonymously and hold whistleblower 
authority. One commenter urged EPA to explicitly state that union 
representatives and workers can participate fully in the STAA.
    EPA believes that limiting the applicability of the STAA 
requirement to only those facilities in Program 3 in the petroleum and 
coal products manufacturing (NAICS code 324), chemical manufacturing 
(NAICS code

[[Page 4642]]

325) and paper manufacturing (NAICS codes 322) minimizes the burden of 
the requirement for many small businesses. Of those approximately 1,557 
facilities that are subject to the STAA requirements, approximately 40% 
of them are owned by small entities, however, about 86% of these small 
entity-owned facilities have 20 or more full-time equivalent 
employees.\90\ EPA agrees that team members conducting an STAA should 
be properly trained and knowledgeable on how to conduct the analysis. 
The facility owner or operator is responsible for ensuring that 
facility personnel have the proper training to conduct STAAs or hire 
consultants with the appropriate qualifications. EPA expects that some 
facilities in NAICS codes 322, 324, and 325 will have staff qualified 
to conduct the analysis. If the facility owner or operator determines 
that two different teams should conduct the PHA and STAA, then they may 
choose to conduct a separate STAA of each entire process, outside of 
the PHA as long as it is done in same timeframe as the PHA and the 
results are documented.
---------------------------------------------------------------------------

    \90\ Regulatory Impact Analysis, Accidental Release Prevention 
Requirements: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7), using data from Exhibit 7-3 and 7-5.
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    As discussed in the RIA, the technical practicability assessment 
considers the extent of process redesign, its engineering implications, 
and possible costs. EPA estimates that most facilities except the large 
facilities in NAICS codes 322, 324, and 325 will seek help from 
consultants (i.e., engineering firms) to conduct STAA and determine the 
practicability of IST/ISD considered. However, EPA does not expect 
facilities to spend resources evaluating hypothetical untested 
alternatives that they believe are not proven within their industry.
    Finally, the final rule provides facility owners or operators the 
flexibility to use facility personnel with expertise and experience 
with facility processes and their industry to conduct STAAs and 
determine the practicability of IST/ISD considered. However, EPA does 
not believe the RMP rule is the appropriate mechanism to address worker 
rights or whistleblower protections.
    Overlap or conflict with PHA analysis. A few industry trade 
associations and a facility expressed concern that an IST analysis 
would detract from the goal and focus of the PHA process to identify 
hazards to be addressed and to identify opportunities for continuous 
improvement of operations. For example, one commenter was concerned 
that in an effort to ensure compliance with new safer alternative 
technology analysis regulations, PHA teams may be distracted from 
identifying and addressing the hazards of existing processes by 
spending too much time assessing potential alternative technologies 
with which they have no experience. Two commenters elaborated, stating 
that requiring IST or ISD ``consideration'' based on a laundry-list of 
``factors'' would substantially increase the already extensive time 
that is required to complete a PHA, and favor subjective reviews over 
objective reviews of actual safety problems and the most direct and 
timely techniques required to resolve them.
    EPA disagrees with the commenters. The RMP PHA requirements are not 
only to identify hazards but also to incorporate measures to reduce or 
mitigate those hazards. Under Sec.  68.67(a), the rule requires the 
owner or operator to identify, evaluate and control the hazards 
involved in the process. Several commenters acknowledge that some 
companies already evaluate ``safer alternatives'' during their PHAs 
when it is efficient to consider fundamental process changes. EPA 
disagrees that consideration of additional inherently safer measures 
necessarily precludes addressing hazards and applying other risk 
reduction measures in the hierarchy of controls. If facility owners or 
operators are concerned that an IST assessment could preclude other 
aspects of the PHA, they may choose to conduct the STAA separately from 
the PHA, as long as it is performed on the same timeframe and 
documented.
    IST already incorporated as part of PHA or otherwise considered. 
Another industry trade association remarked that STAA requirements are 
already a component of the PHA and concluded that costs of the new 
requirement would be redundant, but that these costs are incommensurate 
with the much lower risks faced by facilities in their industry. One 
trade association disagrees with requiring STAA as part of the PHA 
because currently approved PHA methodologies already provide for 
successful risk mitigation (reducing risks to personnel and the 
environment to `acceptable' levels), including the consideration of 
inherently safer design technologies by the PHA team where appropriate. 
A commenter noted that some companies already evaluate ``safer 
alternatives'' during their PHAs when it is efficient to consider 
fundamental process changes. However, they consider available, proven 
technologies, not ``potentially'' safer technology that may be noted in 
literature, but not yet in use anywhere within their industry. Another 
industry trade association remarked on the importance of process safety 
information for alternatives and its availability to the PHA team. A 
process safety organization commented that they believe the existing 
provisions to conduct a PHA automatically includes the team to consider 
safer alternatives as appropriate and applicable. An industry trade 
association said that many of the activities being reported as IST in 
NJDEP's IST Implementation Summary, were activities that already occur 
as a matter of course in most facilities.
    A facility and multiple industry trade associations remarked that 
other programs such as the Department of Homeland Security's Chemical 
Facility Anti-Terrorism Standards (CFATS) already provide incentives 
for facilities to promote safe practices, and implement safer 
alternatives and designs. Several commenters urged EPA to avoid 
burdensome requirements that overlap with the CFATS program at 
additional cost without added benefit. An industry trade association 
noted that CFATS allows facilities to move to a lower risk tier or out 
of the program if risk profiles are reduced and vulnerabilities are 
minimized, resulting in roughly 3,000 facilities that have changed 
processes or inventories in ways that have enabled them to be excluded 
from the program. This commenter notes that DHS's risk performance-
based approach does not mandate solutions, recognizes the unique 
situation of each facility, and embraces a public-private sector effort 
for implementation of safer measures. The commenter further indicated 
that mandating the adoption of government-selected ISTs would be unduly 
burdensome, particularly for smaller chemical facilities, and could 
hinder their overall efforts at improving security.
    While EPA recognizes that some facilities may already consider ISTs 
as part of a PHA, whether as part of a voluntary program or through 
other incentives, EPA believes that all facilities in NAICS 322, 324, 
and 325 industry sectors should consider IST to ensure that they are 
considering all the options to operate their facility safer. EPA 
expects that these regulatory requirements will raise industry 
awareness of IST possibilities and will reduce risk. EPA is not 
mandating implementation or adoption of any particular IST and will 
rely on facility expertise to reduce the hazard and mitigate risk 
without causing undesirable consequences such as reducing product 
quality or transferring risk to some other point in the supply chain.

[[Page 4643]]

    Furthermore, EPA disagrees with commenters that asserted that the 
STAA requirements will overlap with other regulatory requirements and 
result in an increased burden with no corresponding benefit. In its 
2007 Interim Rule for CFATS,\91\ DHS stated that Section 550 of the 
Homeland Security Appropriations Act of 2007 prohibited the Department 
from disapproving a site security plan ``based on the presence or 
absence of a particular security measure,'' including ISTs.\92\ DHS 
noted that, even so, covered chemical facilities are certainly free to 
consider IST options, and their use may reduce risk and regulatory 
burdens. Therefore, because DHS does not require IST or the assessment 
of IST, EPA does not believe there is an ``overlap'' in requirements. 
Furthermore, DHS requirements address site security measures, and not 
measures designed to reduce accidental releases.
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    \91\ See 72 FR 17718, April 9, 2007, https://www.gpo.gov/fdsys/pkg/FR-2007-04-09/pdf/E7-6363.pdf.
    \92\ Section 550 has since been replaced by the Protecting and 
Securing Chemical Facilities from Terrorist Attacks Act of 2014, 
Public Law 113-254. However, the prohibition on DHS disapproving a 
security plan based on the presence or absence of a particular 
security measure remains. See 6 U.S.C. 622(c)(1)(B).
---------------------------------------------------------------------------

    Potential for risk tradeoff or risk transfer. Some commenters, 
including an association of government agencies and an industry trade 
association, encouraged a holistic review of IST to avoid or minimize 
risk transfers. A few commenters stated that, for example, a facility 
adopting a safer technology may increase transportation requirements of 
hazardous materials and increase risks of incidents outside of the 
facility, including necessitating more exotic emergency response 
equipment or preparation. One commenter noted that minimization 
frequently involves the decrease of on-site storage and could result in 
the potential for additional shutdowns and startups due to insufficient 
raw materials. The same commenter further indicated that substitution 
of a purportedly safer alternative may introduce environmental or 
safety risks that are not realized until much later.
    In contrast, an advocacy group urged EPA to consider that the 
commenters citing risk transfer are often industry funded and, in the 
opinion of the commenter, overlook risk transfer that is caused by 
actions of the facilities themselves. A process safety organization 
stated that EPA should not require an STAA as part of a new prevention 
program, as part of the existing PHA/hazard review, or as a requirement 
under CAA section 112(r) because the definition of ``inherently safer 
alternatives'' has always been very debatable and use of these 
alternatives may not result in the overall reduction of the total 
quantitative risk of the facility. The organization expressed concerns 
that a verbatim statement of consideration and/or implementation of 
inherent safer options has the potential for unintended outcomes, such 
as risk transfer, risk accumulation, increased opportunities for 
terrorism, and other undesirable tradeoffs. This commenter recommended 
that EPA should not require the IST analysis because few technologies 
would be inherently safer with respect to all hazards, there may not be 
a clear implementation path for all situations, and facilities would 
have to address multiple tradeoffs in the decision making process. The 
commenter warned that improper implementation of a ``safer'' 
alternative may have negative consequences. Some commenters note that 
an absolute safer alternative is highly dependent on the hazard, the 
process, the technology and the facility. For every process there could 
be different type of alternative chemical use.
    EPA recognizes the risk transfer concerns raised by the commenters. 
However, EPA believes that the final rule allows the owner or operator 
to consider the potential for quantitative risk reduction, risk 
transfers and tradeoffs when determining whether it is practicable to 
implement ISTs or ISDs considered. EPA agrees that some technologies 
may not be inherently safer with respect to all hazards, may not be 
implementable for all situations and may involve multiple tradeoffs in 
the decision making process. IST is a relative concept dependent on the 
hazard, the technology, and the facility. Therefore, EPA is requiring 
facilities to only consider IST as a possibility for addressing hazards 
rather than requiring ISTs be implemented. The final rule gives the 
facility owner or operator the flexibility to assess IST as well as 
passive, active, and procedural measures to reduce risk associated with 
a process and to determine the practicability of any IST considered 
based on various factors (including those involving risk transference).
    Current PHA requirements and other risk reduction measures already 
adequate address risks. Several facilities and industry trade 
associations urged that existing requirements and principles, such as 
PHA and Layer of Protection Analysis (LOPA), are sufficient for 
determining if proper safeguards are in place in existing process 
units. Industry trade associations said that LOPA or similar risk-based 
analyses are more easily implemented and cost effective than IST, and 
stated that risk-based analyses also minimize risk shifting. A state 
agency urged EPA to require a LOPA but to ensure that it is clearly 
separated from the STAA.
    Some facilities and an industry trade association remarked that 
industry has proven capable of reducing hazards from current operations 
by using active, passive, or procedural measures. A facility and an 
industry trade association asked why the proposed rulemaking is not 
specifically focused on STAAs for new or potential processes when, 
according to the commenters, nothing indicates that IST evaluations 
have become more beneficial or less expensive for existing process 
units since the 1996 RMP rule.
    A facility asserted that current regulations that require 
compliance with RAGAGEP already ensure that appropriate controls are 
implemented in equipment and processes. One commenter expressed 
concerns that the STAA evaluation will become a paperwork exercise that 
will not result in any increase to safety. This commenter suggests that 
EPA require a review of safer technology or IST only when the PHA 
results show that a technology or design scenario does not meet the 
company's appropriate risk tolerance/reduction requirements.
    EPA believes that where feasible, reducing or eliminating hazards 
through change in materials, chemistry, or process variables is 
preferable to adding layers of safety to a process. While layers of 
passive, active or procedural controls will reduce the risk, they will 
do nothing to reduce the nature of the hazard itself. Failure of 
control devices or human error can result in an accidental release. 
However, an inherent safer strategy seeks to preferentially remove the 
hazard at the source, as opposed to accepting the hazard and attempting 
to mitigate the effects.\93\ In addition to eliminating or reducing a 
hazard, IST can also minimize the impact of a release or terminate the 
accident sequence before there are major impacts on people, property or 
the environment.
---------------------------------------------------------------------------

    \93\ CCPS. 2009, Inherently Safer Chemical Processes: A Life 
Cycle Approach. 2nd ed. American Institute of Chemical Engineers, 
Center for Chemical Process Safety. pp. 10-11.
---------------------------------------------------------------------------

    EPA agrees with other commenters who have indicated that the PHA 
can and should consider IST as hazard reduction or risk management 
measures where feasible and appropriate. Opportunities for the 
application of the

[[Page 4644]]

inherently safer strategy of simplification can be evaluated for each 
safety device or procedure during a PHA as well as in review of 
mechanical integrity program practices and procedures. CCPS provides 
examples for this.\94\ Although we agree that the general principles of 
PHA combined with LOPA may at times be appropriate to address the risk 
of an accidental release, EPA believes that facility owners or 
operators should consider IST first in the hierarchy of risk reduction 
measures to reduce and/or control the hazards of a process.
---------------------------------------------------------------------------

    \94\ CCPS. 2009, Inherently Safer Chemical Processes: A Life 
Cycle Approach. 2nd ed. American Institute of Chemical Engineers, 
Center for Chemical Process Safety. pp. 112-113.
---------------------------------------------------------------------------

    Consideration of untested and unproven technologies. One commenter 
was concerned that any potential IST considered should not have to 
include untested and unproven technologies. An industry trade 
association urged that technology takes time to mature and become 
acceptable and safe for widespread use. Concerns were that facilities 
might be encouraged to substitute novel and untested controls for 
existing controls and layers of protection that are in place at 
existing processes to control and manage risks, detracting from actual 
safety performance. One commenter was concerned that operators should 
not be required to update or replace technology on a year-in, year-out 
basis simply because new technologies are introduced into the 
marketplace. One commenter stated that any alternative considered 
should be easy to be applied and should have been properly tested.
    EPA agrees that a facility owner or operator may conclude that IST 
measures that have not been tested or used commercially should not be 
considered. It may be difficult to evaluate the practicability of 
hypothetical technologies or those that are still undergoing research 
and testing.
f. General Opposition to STAA
    Benefits and cost of STAA not adequately explained or justified. 
Commenters warned that analysis of existing facilities and processes is 
unlikely to provide significant insights or opportunities for safety 
improvement, but may be very costly. A facility and a number of trade 
associations asserted that IST analysis would not meaningfully increase 
safety. Stating that safer technology would have been adopted if it 
made business sense to do so, a facility remarked that the STAA 
requirement is unnecessary.
    An industry trade association and a facility expressed concern that 
the process of retrofitting existing facilities would be expensive and 
could result in facilities shutting down. Several commenters agreed 
with EPA conclusions made in the 1996 RMP rule regarding an IST 
analysis mandate where the agency stated, ``EPA does not believe that a 
requirement that sources conduct searches or analyses of alternative 
processing technologies for new or existing processes will produce 
additional benefits beyond those accruing to the rule already.'' The 
commenters, including a facility and industry trade associations, 
warned that EPA changed its position on whether or not a mandatory IST 
analysis leads to any incremental benefits, without any clear rebuttal, 
analysis, explanation, or substantiation of benefits from the STAA and 
urged EPA to withdraw the STAA mandate from the proposed rulemaking. An 
industry trade association, agreeing with EPA's 1996 assessment, 
remarked that the new conclusion was made without regard for the nature 
of the reported accidents or any scientific support. Many commenters 
stated that requiring STAAs would create a burden for industries that 
would not produce any significant benefits if the existing process has 
already had risks addressed by a PHA. A few commenters asserted that, 
for most facilities, an IST analysis would likely produce limited 
options that would not justify the cost and effort of the exercise 
itself.
    Two industry trade associations contend that there is no data to 
suggest that requiring an STAA analysis provides any measurable benefit 
or reduces the frequency or severity of incidents or any empirical 
studies showing that STAA effectively improves process safety. They 
believe that the analysis of the New Jersey data for facilities 
conducting IST analysis since 2008, shows no decrease in reportable 
accidents and that revising the RMP rule will likely have a negligible 
effect at great cost to covered facilities. Commenters asked whether or 
not EPA's analysis of the IST programs implemented by New Jersey and 
Contra Costa County has yielded any concrete data demonstrating that 
the programs have successfully reduced hazardous safety risks over 
voluntary adoption. One commenter urged EPA to withdraw the proposed 
IST requirement until EPA has conducted such an analysis.
    Several trade associations commented that the regulatory burden of 
requiring costly IST reviews tends to stifle innovation. The commenters 
asserted that for those companies already looking to improve safety by 
implementing IST options, a formal IST review would add costs to a 
process by forcing them to document the activities they are already 
performing. They further indicated that small operations might not have 
the manpower or expertise to do this and lack the resources to hire it 
out cost effectively. The same commenters further stated that for 
companies that do not implement IST options, the IST review becomes a 
``paper exercise'' where they document why it is ``infeasible'' to 
implement these options. Another commenter argued that if EPA only 
intends for an analysis to be conducted and not for the technologies to 
be implemented, then the proposal should be withdrawn on the basis that 
it provides no benefit to the public.
    One trade association commented that there is no value in having a 
facility perform an IST assessment if one was already performed earlier 
in the lifecycle of the process or to repeat the same STAA every five 
years on the same process. The association asserts that nothing new 
will be learned from doing so.
    According to a facility and some industry trade associations, the 
claim in the proposed rulemaking preamble that voluntary adoption of 
IST is becoming more prevalent indicates that the incremental benefits 
of mandatory adoption are decreasing, which the commenters remarked 
would be in line with the 1996 decision not to require IST analysis.
    EPA believes that the STAA should identify potential process 
changes including IST that, if implemented, would result in owners or 
operators using less hazardous substances, minimizing the amount of 
regulated substances present in a process, moderating process 
conditions, reducing process complexity, or implementing passive, 
active, or procedural changes to make processes safer. Such changes 
help prevent accidents by either eliminating the possibility of an 
accidental release entirely, by making a process more fault-tolerant, 
such that a minor process upset or equipment malfunction does not 
result in a serious accidental release, and by reducing the severity of 
releases that do occur. The STAA provision does not actually require 
the owner or operator to implement any changes, so facilities will only 
incur additional costs beyond the analysis when the benefits of the 
change make adoption of the change reasonable for the facility.
    IST is widely recognized as a concept or principle that can be used 
in process safety management along with other types of hazard reduction 
measures to eliminate or reduce the frequency and/or impact of 
accidents. As recognized in

[[Page 4645]]

process safety technical literature, the benefit of using practicable 
IST as the first choice for accident prevention is more likely 
permanent risk reduction. Some trade associations agree that individual 
companies often consider inherently safer approaches or safer 
alternatives as a matter of course. In fact, one of the key elements 
under ACC's Responsible Care, Process Safety Code \95\ requires ACC 
member companies to consider inherently safer approaches as one of many 
risk reduction measures when conducting a process safety risk 
assessment.
---------------------------------------------------------------------------

    \95\ ACC. 2016. Responsible Care Process Safety Code https://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Process-Safety-Code/Responsible-Care-Process-Safety-Code-PDF.pdf.
---------------------------------------------------------------------------

    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 enforcement cases and CSB incident 
investigations.\96\ The Contra Costa County Health Services (CCHS) and 
New Jersey Department of Environmental Protection (NJDEP) IST 
regulations requirements to consider IST have resulted in some 
facilities adopting IST measures.\97\ The concept of IST is more widely 
understood and accepted within the chemical process industry than it 
was 20 years ago. Innovations and research in chemical process safety 
have evolved and continue to evolve. Industries change and update their 
processes over time for a variety of reasons and when possible, EPA 
believes that opportunities to improve chemical process safety using 
all available means--not only passive, active, and procedural 
measures--should also be considered.
---------------------------------------------------------------------------

    \96\ For more information, see the preamble of the proposed 
rulemaking at 81 FR 13663-13665, March 14, 2016.
    \97\ For more information, see the preamble of the proposed 
rulemaking at 81 FR 13665-13666, March 14, 2016.
---------------------------------------------------------------------------

    EPA disagrees that increasing voluntary adoption of IST means that 
incremental benefits of mandatory adoption are decreasing. Benefits 
derived by those implementing IST do not negate any potential benefits 
from those who have not. As stated in the 1996 rule, ``EPA encourages 
sources to continue to examine and adopt viable alternative processing 
technologies, system safeguards, or process modifications to make new 
and existing processes and operations inherently safer.'' \98\ For 
those facilities who have not considered adopting any IST or have only 
done so in limited fashion, EPA believes that there is value in 
requiring facilities with extremely hazardous substances to 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. 
For those facilities who have already considered IST, EPA believe 
facilities should re-evaluate whether any improvements in hazard or 
risk reduction can be made and we believe the five-year re-validation 
timeframe of the PHA is an appropriate time period for such re-
evaluation.
---------------------------------------------------------------------------

    \98\ See 61 FR 31700, June 20, 1996.
---------------------------------------------------------------------------

    EPA did not perform any further analysis of the NJDEP or Contra 
Costa County IST data. The main purpose of providing these reports was 
to demonstrate that regulations involving IST in these two 
jurisdictions resulted in implementation of IST at some of their 
facilities and to explain what types of IST were implemented. NJDEP's 
2010 IST Implementation Summary report \99\ on IST reports submitted by 
NJ facilities since August 2008 is available in the docket and 
discusses 143 additional IST measures reported to have been implemented 
or scheduled to be implemented by 41 of the 85 facilities submitting 
reports. CCHS and Richmond CA annual performance review and evaluation 
reports on the Industrial Safety Ordinance include a summary of 
Inherently Safer Systems (ISS) results from their nine total 
facilities, as well as the actual ISS data reported by each facility. 
Three of these reports are in the docket for this rulemaking.\100\
---------------------------------------------------------------------------

    \99\ https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0143.
    \100\ https://www.regulations.gov/document?D=VEPA-HQ-OEM-2015-0725-0147, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0148, and https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0149.
---------------------------------------------------------------------------

    Because the requirements involve prevention of accidents before 
they occur, it is difficult to provide a quantitative assessment that 
the requirement would reduce a certain number of accidents. The 
assertion of increase in the number of NJ accidents reported cannot be 
explained as a result of implementation or non-implementation of IST 
because there are other factors involved. For example, the number of NJ 
facilities reporting over the years varies, which can affect the number 
of reportable accidents and not all NJ facilities may have implemented 
IST. In principle, because of the ``inherentness'' of any actual IST 
changes, there should be a hazard and risk reduction for a particular 
RMP chemical, because IST eliminates or minimizes the opportunities for 
a chemical release in a more rigorous fashion than relying on a device 
or human intervention. EPA recognizes that IST will not eliminate all 
hazard or risk and that reliance of other risk reduction measures will 
probably still be needed for other points in a process.
    Contra Costa County commented that it has seen improvements at 
existing facilities with existing processes subject to its ISS 
requirements.\101\ The county indicated that facilities have eliminated 
unnecessary vessels, shortened piping and replaced chemicals with less 
toxic chemicals. CCHS has seen that by considering ISS, facilities have 
looked at the highest level of risk reduction such as using passive 
means (such as a change in metallurgy) instead of relying on 
administrative means (such as increased piping inspections).
---------------------------------------------------------------------------

    \101\ https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0450.
---------------------------------------------------------------------------

    As some commenters indicated, some facilities have been evaluating 
IST as a best practice for decades and, in most cases, have already 
taken steps to implement beneficial technologies where it is 
practicable and cost-effective to do so. In those situations, where IST 
was previously evaluated but not implemented, facilities should review 
the analysis to determine if new information is available that would 
affect the analysis. The facility should document the STAA and 
practicability of IST and ISD considered.
    Inconsistent STAA implementation. A facility remarked that the lack 
of clarity and consensus about the methodology, definitions or 
standards for STAA would contribute to burden and could lead to 
inconsistent implementation of STAA across companies.
    EPA does not expect to see ``one-size-fits-all'' implementation of 
STAA by sources. The STAA requirements are not prescriptive in nature, 
but more similar to a performance-based standard (like other provisions 
of the RMP regulations) that give facilities the flexibility and allow 
facility owners and operators to exercise reasonable judgement to 
determine what technology or risk reduction measures work best for 
their particular chemical use, process or facility. However, in an 
effort to ensure a consistent understanding of EPA's expectations for 
conducting an STAA and determining practicability of IST and IST 
considered, the rule defines several terms related to the STAA, such as 
practicability, inherently safer technology or design, passives 
measures, active measures and

[[Page 4646]]

procedural measures. EPA has also cited various references and 
technical sources of information that explain the concepts and 
principles of STAA and provided examples.\102\
---------------------------------------------------------------------------

    \102\ CCPS. 2009, Inherently Safer Chemical Processes: A Life 
Cycle Approach. 2nd ed., https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0253; CCPS. July 2010. Final Report: Definition for 
Inherently Safer Technology in Production, Transportation, Storage, 
and Use, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0274; Contra Costa Hazardous Materials Program. June 15, 2011. 
Industrial Safety Ordinance Guidance Document, Attachment C--
Inherently Safer Systems Checklist. Contra Costa County Health 
Services, Martinez, CA, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0146; NJDEP. January 15, 2015. Guidance for Toxic 
Catastrophe Prevention Act (TCPA), Inherently Safer Technology 
(IST), https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0142.
---------------------------------------------------------------------------

    Impact to agribusinesses. One commenter stated that the proposed 
mandate for regulated facilities to consider STAA as a part of the PHA, 
and to evaluate the feasibility of IST, will fail to generate tangible 
RMP outcomes in the fertilizer industry or with other ag-industry RMP 
regulated chemicals, beyond what the current PHA requirements and 
procedural measures can accomplish in controlling hazards. The 
commenter further asserted that the administrative and recordkeeping 
burden associated with this portion of the proposed rulemaking will 
undoubtedly increase costs on the agribusiness industry at a time when 
margins across the industry are thin to non-existent. The same 
commenter indicated that these requirements will cause many small 
agricultural fertilizer retail facilities to close.
    EPA is not requiring agricultural fertilizer retail facilities to 
perform STAA and thus there should be no burden to this particular 
industry as a result of the STAA provision. The STAA requirement in the 
PHA will only apply to Program 3 facilities in chemical manufacturing 
(NAICS code 324), petroleum and coal products manufacturing (NAICS code 
325) and paper manufacturing (NAICS code 322).
    Feasibility costs. One trade association stated that the cost of 
determining feasibility was wholly underestimated by EPA because 
feasibility study costs can be quite large depending upon the type of 
project, but still be only a fraction of the cost of what it would take 
to implement any projects determined to be feasible. The commenter 
noted that a typical project consists of conceptual level design, 
feasibility level design, and then engineering and implementation. The 
association member's experience with hundreds of projects is that the 
cost of a conceptual level design is about 1% of the total project cost 
and the cost of a feasibility level design is 1% to 2% of the total 
project cost.
    EPA acknowledges that for some industries, evaluation of chemical 
substitution and process redesign will involve a greater level of 
effort and resources to consider the practicability of such changes. 
EPA has revised the cost estimates in the RIA to reflect the greater 
effort involved in conducting such practicability studies.
g. Model STAA Provisions After Other Regulatory Programs
    Several commenters suggested that the STAA requirement align with 
similar requirements by CCHS and NJDEP. Some of these comments are 
addressed under other STAA topic headings, as appropriate. Other 
specific comments are discussed further in this preamble.
    Establish qualifications for IST review team. One commenter 
recommended expanding on the NJDEP requirement which specifies that an 
IST review team should be ``a team of qualified experts, convened by 
the owner or operator, whose members shall have expertise in 
environmental health and safety, chemistry, design and engineering, 
process controls and instrumentation, maintenance, production and 
operations, and chemical process safety.'' This commenter also wanted 
EPA to require the names, qualification, and experience of team members 
to be stated in the review report and to explicitly specify that 
workers and union representatives can fully participate in the STAA. 
Another commenter noted that the proposed STAA requirement does not 
require employee participation and stated that employees have deep 
experience and knowledge of the processes and are best equipped to 
determine inherently safer technology or design, but cautioned that 
workers must have adequate education and training to participate in 
STAAs.
    EPA notes that Sec.  68.67 requires the PHA to be performed by a 
team with expertise in engineering and process operations, and the team 
shall include at least one employee who has experience and knowledge 
specific to the process being evaluated. Also, one member of the team 
must be knowledgeable in the specific process hazard analysis 
methodology being used. These same qualifications apply to team members 
involved in conducting the STAA. EPA believes most PHA reports already 
include the names and qualifications of team members in the report, and 
we do not believe it is necessary to prescribe a regulatory requirement 
to address this issue. EPA already requires Program 3 facilities to 
consult with their employees and their representatives on the conduct 
and development of process hazard analysis and on the development of 
other elements of process safety management, and EPA believes it would 
be inappropriate to incorporate additional provisions related to worker 
participation in the PHA requirements of Sec.  68.67.
    Establishing goals. A Federal agency recommended incorporating a 
goal setting requirement similar to that of CCC's ISO, expressing 
concern that a lack of goal setting requirements could allow regulatory 
requirements to be satisfied even if analyses fail to identify or 
control major hazards. The commenter explains that there is no RMP 
requirement to reduce risks to ``as low as reasonably practicable,'' or 
``ALARP'', while CCHS ISO requires facilities to select and implement 
ISS to the greatest extent feasible and as soon as administratively 
practicable.
    EPA disagrees with commenters. EPA did base some components of the 
STAA requirement on NJDEP and CCHS regulations (see discussion in 
section in IV.C.3.c Definitions of this preamble). Also see further 
discussion in section in IV.C.3.k of this preamble regarding 
documentation of feasibility. NJDEP and CCHS require a separate 
Inherently Safer Technology review or Inherently Safer Systems Analysis 
(ISSA), but NJ requires IST updates (covering both new and existing 
processes) on the same schedule as the PHA. CCHS requires an ISSA for 
existing and new processes every five years, but the analysis can be 
done as part of a PHA. CCHS also requires that an ISSA for any major 
changes (which could be result of accident investigation). EPA is 
requiring that the five-year PHA revalidation address the findings from 
all incident investigations required under section 68.81, as well as 
any other potential failure scenarios.
    EPA did not propose to require any implementation of any IST. EPA 
proposed to require facilities to determine the feasibility of IST 
options, but the final rule allows flexibility for facility owners or 
operators to decide whether to implement an IST in order to allow them 
to balance the appropriateness of the technology for their process, 
costs, risk transfer and other requirements that would have to be met 
along with possible integration with the use of existing risk reduction 
measures in place. In the final rule, EPA also replaced the term 
``feasibility'' with ``practicability.''

[[Page 4647]]

    Requiring risk reduction to be ``as low as reasonably practicable 
(ALARP)'' is a standard that can be seen as stricter than the ``to the 
greatest extent feasible'' requirement set by CCHS and could require 
implementation of risk reduction measures ``except where they are ruled 
out because they involve grossly disproportionate sacrifices.'' \103\ 
EPA does not believe that adopting a requirement that facilities reduce 
risks to ``ALARP'' is advisable for the RMP program because there are 
no set standards to define what level of risk is reasonably practicable 
for the variety of chemicals, processes, and hazards involved.
---------------------------------------------------------------------------

    \103\ http://www.hse.gov.uk/risk/theory/alarpglance.htm.
---------------------------------------------------------------------------

h. Feasibility
    Insufficient guidance and clarity for methodology for comparing 
risks. A facility, a local agency, and industry trade associations, 
among others, remarked that IST cannot be meaningfully and consistently 
implemented because there is no consensus in science or among the 
industry on its definition, how to implement it, or how to measure its 
effect. Stating that the concept of IST is vague, an industry trade 
association said that multiple factors are taken into account when 
making a determination of feasibility, including materials used for 
equipment.
    One commenter stated that the feasibility factors in the proposed 
STAA provision also provide no guidance on how to measure or balance 
risks or hazards. This commenter notes that there is no simple way to 
measure whether one process is safer than another or when a process is 
``safe enough'' as discussed in the July 2010 DHS report by CCPS. The 
commenter indicated that the proposed rulemaking does not address a 
multitude of critical questions: What does the PHA team measure? Does 
the team evaluate reduction in particular hazards or in overall risk? 
Is that reduction measured quantitatively or qualitatively? Who or what 
is the required beneficiary of that reduction--the employees, the 
adjacent community, the environment? What level of risk is tolerable? 
If EPA requires STAA analysis under the final RMP rule, it will 
necessarily need to become involved in measuring, evaluating, and 
determining the tolerable level of risk. It is unlikely that EPA has 
the expertise or bandwidth to take this on.
    EPA based its definition of IST upon CCPS' descriptions of 
inherently safer strategies and its definition of ``practicability'' 
upon CCHS' definition of ``feasible'' in their Industrial Safety 
Ordinance. EPA has existing requirements under Sec.  68.67 for 
facilities to evaluate and control hazards in the process and to 
establish a system to address the PHA's team findings and 
recommendations. Management response to hazard evaluation studies and 
recommended options involve risk management considerations that are 
developed based on a facility's risk tolerance criteria. EPA has not 
prescribed how facilities define or manage risk, whether it involves 
conforming to minimum standards such as codes or tries to reduce risk 
to as low as reasonably practical or whether it uses risk matrices or 
assesses qualitative or quantitative risk. EPA expects only that 
facilities consider IST as one of the types of risk management measures 
employed. Much of the structure of the RMP rule requires owners and 
operators to collect information and relies on them to make reasonable 
judgments in light of that information. The requirement here is no 
different. EPA only requires the analysis. There is no mandate to 
implement IST under this rule. For further information, EPA recommends 
consulting Chapter 9--Hazard Identification and Risk Analysis in the 
2007 CCPS Guidelines for Risk Based Process Safety.\104\
---------------------------------------------------------------------------

    \104\ CCPS. 2007. Guidelines for Risk Based Process Safety. 
American Institute of Chemical Engineers, CCPS, NY, Wiley. Chapter 
9--Hazard Identification and Risk Analysis.
---------------------------------------------------------------------------

    Efforts involved for determining feasibility. One commenter 
asserted that EPA has failed to consider the substantial complexity of 
the activities it is proposing to require, and the significant burden 
that will be placed on facilities with multiple or complex RMP 
regulated processes. The commenter cited issues involved with many 
chemical manufacturing processes that involve multiple optimizations of 
complicated reactions and integration of many processes with each 
other. The commenter cited as an example, the efforts involved by the 
National Academy of Sciences (NAS) to identify and evaluate the many 
individual alternative paths to methyl isocyanate (MIC) production for 
potential safer operations.\105\ The commenter stated that each 
alternative then had implications for the facility, the customer, the 
surrounding community and numerous other factors that needed to be 
identified, considered and weighed carefully. The commenter further 
explained that these factors included the costs of the chemicals, labor 
and energy requirements, new capital expenditures, quality of the 
product and revenues expected from its production, environmental 
impacts anticipated from the process, regulatory constraints, 
environmental policy and regulations and influence of local community 
on company decision making. The commenter indicated that many of these 
characteristics involve a substantial degree of uncertainty. The 
commenter also stated that the framework for decision-making discussed 
by NAS is akin to the proposed EPA requirement to perform a feasibility 
analysis for all ISTs considered. The commenter concluded that under 
the EPA proposal, complex chemical manufacturing RMP facilities would 
be required to go through this analysis multiple times for each and 
every regulated process.
---------------------------------------------------------------------------

    \105\ National Research Council of the National Academy of 
Sciences, The Use and Storage of Methyl Isocyanate (MIC) at Bayer 
CropScience, 2012. https://www.nap.edu/catalog/13385/the-use-and-storage-of-methyl-isocyanate-mic-at-bayer-cropscience.
---------------------------------------------------------------------------

    EPA believes a practicability determination for 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 expects that facilities will 
only evaluate chemical substitutes that have already been shown to be 
commercially viable and does not expect facility owners or operators to 
expend a major effort on hypothetical or untested chemical substitutes 
or uses.
    Insufficient time to complete a feasibility analysis. One commenter 
stated that when evaluating IST, a facility owner may at times be able 
to reject an alternative based on determining a single basis of 
infeasibility. The commenter asserted that if there is no known 
rationale for infeasibility, a facility may need to conduct lengthy and 
costly engineering studies, which would require a unit revamp on an 
existing process unit. The commenter further stated that under such 
circumstances, feasibility or practicality must consider unit 
congestion and constructability in addition to all of the issues 
associated with a new process. The commenter indicated that this need 
to perform detailed engineering study/design, in many cases, is 
indicative of impracticability. The commenter concluded that the 
proposed rulemaking allows four years after the rule become final for 
each PHA to consider IST/ISD alternatives for covered processes and, in 
the event the EPA decides to include this requirement in the final 
rule, facility owners should be allowed a second PHA cycle, following 
the four-

[[Page 4648]]

year applicability, where the determination of feasibility or 
practicality requires engineering studies and design. Another commenter 
stated that the feasibility analysis outlined in the proposed 
regulation is ill-defined and doesn't allow sufficient time for the 
work to be properly completed.
    EPA allows that where a practicability evaluation is complex and 
resource intensive and may not be completed within the four-year 
compliance timeframe from the final rule or within the five years 
between PHA reviews, a facility should document during their PHA review 
that the IST is under consideration and that the practicability of 
implementing the technology is unknown and still undergoing evaluation.
    Practicability decisions made by facilities or outside parties. An 
environmental advocacy group argued that, if decisions are left up to 
facilities themselves, the economic interests of the facilities will 
outweigh considerations of public health. The advocacy group concluded 
that an independent body should be tasked with reviewing facilities' 
IST/ISD evaluations to determine whether or not such technologies are 
feasible and to prevent facility self-regulation. One local agency 
asserted that stationary sources rather than a regulatory body should 
determine the feasibility of ISD and document their decision.
    EPA disagrees that practicability decisions should be made by 
outside parties. These decisions are based on site-specific 
circumstances that a third-party may not have the experience to 
evaluate. EPA believes it would not be practical for many reasons 
including: The delay that may result in finding a third-party to assess 
practicability; the variety of factors that must be considered in 
establishing a basis for choosing an outside party (e.g. there may not 
be enough qualified third-parties with the expertise and resources to 
evaluate the various options and processes for the number of facilities 
subject to this provision); and the need to protect CBI and sensitive 
information that could reveal security vulnerabilities.
    Feasible definition does not take into account removal of existing 
safeguards. One commenter stated that the proposed definition for 
feasible precludes any reasonable basis for replacing existing controls 
and safeguards that have already been identified and implemented to 
address the risks. This commenter believes that since all the 
engineering and administrative controls necessary to address risk have 
already been identified and implemented in an operating plant, it is 
not appropriate to require a repeated analysis of alternatives that 
that are not feasible for an operating plant.
    EPA disagrees with the commenter. The definition of 
``practicability'' in the final rule is not intended to be used to 
judge the reasonableness or effectiveness of existing risk reduction 
measures, but whether new IST measures could be implemented. The STAA 
requirements allow a combination of risk measures to be used to achieve 
the desired risk reduction; therefore, they do not necessarily preclude 
the use of existing controls and safeguards.
    Feasibility factors go beyond scope of a PHA. One commenter 
asserted that requiring consideration of the five factors mentioned in 
the proposed definition of ``feasibility'' goes beyond the scope of a 
PHA.
    EPA disagrees. While the PHA identifies the hazards, the RMP PHA 
requirements require the facility to identify the risk management 
measures applicable to eliminating or reducing the risks from the 
process hazards. EPA believes that it is appropriate for a facility to 
consider the five feasibility (now practicability) factors (``economic, 
environmental, legal, social and technological'') for evaluating the 
appropriateness of implementing for potential IST measures because some 
IST can involve significant costs or involve impacts that go beyond the 
facility.
    Feasibility does not take into account full supply chain. An 
industry trade organization and a facility warned that the proposed 
definition of ``feasible'' does not sufficiently consider costs and 
benefits and fails to take into account the full supply chain. 
Facilities pressured to take these measures, such as reducing 
inventories of products, would prevent companies from meeting 
customers' needs. For example, downstream users may not even be able to 
receive an alternative product.
    EPA disagrees that the practicability determination does not allow 
facilities to take into account costs and benefits and the effect on 
the full supply chain. The STAA requirements do not require any 
implementation of any particular IST. EPA expects that facility owners 
or operators will seriously consider the merits and consequences of 
ISTs for their facilities and use their expertise and judgement to 
ensure safety while not severely affecting the economic viability of 
their businesses. Facilities can consider the effects in their supply 
chain (downstream and upstream) when evaluating potential IST options.
i. IST Implementation
    Several industry trade associations and a facility expressed 
support for EPA's decision not to require implementation of feasible 
safer alternatives and noted that the best approach would be to allow 
operators to decide which measures, methods, or IST components would be 
feasible at their facilities. An industry trade organization requested 
that EPA include language stating that ``the scope of the STAA for a 
regulated process will be based on the expert judgment of owners and 
operators'' because only the facility is uniquely qualified to 
determine what types of changes are feasible and practical. The 
commenter cited an example where reducing the volume of chlorine 
dioxide on-site at a paper mill may not be practical because a minimum 
amount is needed to ensure that production of pulp and paper can 
continue when operation of the chlorine dioxide generator is 
momentarily disrupted due to maintenance or other issues. The commenter 
also cited another example in which eliminating the use of chlorine 
dioxide for bleaching may not provide the necessary characteristics of 
the finished product.
    Many commenters, including multiple mass mail campaigns joined by 
approximately 24,610 commenters and advocacy groups, urged that upon 
identifying alternatives in an analysis, facilities should be required 
to switch to the safest cost-effective chemicals and technologies 
available. Among other reasons, one commenter cited the need to 
implement feasible alternatives because the NAS report on the Bayer 
CropScience accident stated that feasible alternatives should be 
attempted before moving on to specification of risk management 
equipment and procedures.\106\ This commenter notes that existing 
safeguards used have not prevented accidents from occurring and that 
CAA section 7412(r)(7)(B)(i), directs that regulations and guidance 
under this provision must ``provide, to the greatest extent 
practicable, for the prevention and detection of accidental releases of 
regulated substances and for response to such releases.'' [Emphasis 
added] In addition, this commenter states that not requiring 
implementation of IST also creates a competitive disadvantage for those 
facilities that do so voluntarily, as compared to other facilities who 
will avoid taking available preventative safety measures to maximize 
short-term profits. This commenter wants EPA to

[[Page 4649]]

require a timeframe for implementation of IST for those facilities who 
plan to implement IST as this will prevent accidents from happening 
sooner. A commenter urged that required implementation of feasible 
alternatives would reduce the risks associated with a catastrophic 
release, including from terrorist attacks, and would be important for 
protection of public health.
---------------------------------------------------------------------------

    \106\ National Research Council, The Use and Storage of Methyl 
Isocyanate (MIC) at Bayer CropScience, at 4-53 (2012).
---------------------------------------------------------------------------

    One commenter wanted IST to be implemented wherever feasible 
because IST is likely to be more effective and less costly in the long 
run than other safeguards, noting that the existing rule requires that 
facilities implement the recommendations from a conventional PHA. This 
commenter also stated that EPA should model its implementation 
requirements on California's Contra Costa County Industrial Safety 
Ordinance, which directs companies to ``select and implement each 
inherently safer system identified to the greatest extent feasible and 
as soon as administratively practicable'' or consider California's 
Department of Industrial Relations current proposed requirements for 
refineries which directs each facility to ``implement all 
recommendations'' from inherent safety analyses, unless the facility 
can demonstrate that a recommendation is factually flawed or infeasible 
on grounds other than cost alone.
    An industry trade association said that in their industry, 
operations are diverse and are constantly evolving, making it difficult 
to implement IST. A few industry trade associations warned that 
substitution is not a legitimate option for their industries, for 
manufacturing of agricultural products or in fragrance industry, for 
example. Stating that active ingredients in fragrances are extremely 
specific and non-fungible, an industry association commented that any 
substitution of fragrance ingredients should be done at the point of 
design to minimize the threat to fragrance businesses. The commenter 
requested that EPA provide a clear statement acknowledging the 
infeasibility of substitution in the fragrance industry. Some 
commenters stated that the analysis would be of no benefit for their 
facility because a Federal permit requires it to use certain processes.
    EPA agrees that the facility is in the best position to decide what 
safeguards or risk reduction measure can be employed to eliminate or 
reduce process hazards. Facilities must consider safeguards, in the 
following order of preference: IST, passive, active or procedural 
measures; however, the rule does not automatically require the facility 
to implement the measures preferentially in that order. EPA recognizes 
that for any particular hazard point, any one of the four types of 
safeguards may not exist or may not be practicable for a variety of 
reasons. EPA also recognizes that facilities may wish to employ more 
than one safeguard.
    The purpose of the STAA requirement is to ensure that facilities 
consider the available options and for them to find the best method for 
the facility to address accidental releases. The hierarchy of control 
methods in an STAA analysis--IST/ISD, passive, active, administrative--
is consistent with the language of CAA section 112(r)(7)(B)(i) in that 
it systematically provides for the identification of practicable 
control methods while also recognizing that the regulation must be 
reasonable. This approach is consistent with the current PHA 
requirements which provide flexibility for the owner or operator to 
decide which safeguards are appropriate to prevent accidental releases. 
We expect STAA analyses to lead to new control approaches at sources 
where management finds such approaches to be reasonable and 
practicable.
    EPA is not requiring implementation of IST at any facility because 
we believe that only the facility has the expertise and resources to 
determine whether implementation of any IST or ISD should be 
undertaken, taking into account that many factors must be considered 
when substituting a chemical or modifying a process, including cost, 
risk transfers, technological hurdles, etc. Facilities that choose to 
adopt the use of IST or ISD can eliminate or reduce hazards by using 
different materials and/or process conditions, which would make 
accidental releases less likely, or the impacts of such releases less 
severe. The results of the practicability determination 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.
    Also EPA does not believe we should establish a required timeframe 
for any planned implementation of IST. Planning, design, equipment 
modification and cost to implement IST can vary tremendously depending 
on the technology and scope of the project and could only be best 
determined by the facility involved in such implementation.
    EPA acknowledges that chemical substitution or whole design 
processes may be not practicable for some processes for a variety of 
reasons and that facilities should document these reasons for any 
particular IST that were considered by the facility for purposes of 
complying with the STAA requirements.
j. Security and Risk
    Terrorism. A commenter cited an increased risk of global and 
domestic terrorism as a reason to broaden the applicability of STAA 
requirements to cover transportation and storage of liquid chlorine. 
Another commenter stated that the existing RMP provisions already 
require the PHA team to consider safer alternatives, and warned that 
explicitly stating consideration or implementation of IST can expose 
facilities to risks, such as increased opportunity for terrorism, risk 
transfer, and risk accumulation. The commenter remarked that chemicals 
handled are highly dependent on the processes employed, so it would be 
difficult or impossible to identify an absolute safer alternative. The 
commenter concluded that facilities should asses the total risk reduced 
by implementation and stated that any alternative considered should be 
easily applied and properly tested.
    EPA acknowledges that transportation and storage of liquid chlorine 
can pose risks, not only from accidental releases, but from 
intentionally caused releases. However, EPA is limiting the scope of 
applicability of the STAA requirements in order to balance the 
regulatory and administrative burdens of assessing IST against the 
accident rate and possible opportunities to employ IST because of 
process complexity for various industries. EPA believes that the 
industries subject to the STAA provisions are also more likely than 
others to have the expertise and resources to properly assess and 
implement IST.
    In response to the commenter's concern that explicitly stating 
consideration or implementation of IST can expose facilities to risks, 
EPA believes that the STAA provisions in the final rule provide enough 
flexibility for owners and operators to consider a hierarchy of risk 
management measures to minimize the hazard of a process without 
prescribing an approach that could compromise facility security or 
transfer or increase risks. The STAA requirement does not require IST 
implementation but instead allows the facility owner or operator to 
determine whether an IST considered would achieve a reduction in risk, 
specific to the hazard being addressed. More specifically, the STAA 
requirement allows for a combination of risk management measures to be 
used to achieve the desired risk reduction. This

[[Page 4650]]

flexibility acknowledges that there is not always an absolute safer 
alternative to a chemical, which is highly dependent on the process or 
application and the chemical involved. EPA is also requiring the 
facility to evaluate the practicability of any IST or ISD considered to 
account for economic, environmental, legal, social, and technological 
factors. Environmental factors would include consideration of potential 
transferred risks for new risk reduction measures. This allows 
facilities to carefully consider whether an IST could create new risks 
or security concerns, including those involving terrorism.
    Security concerns related to STAA documentation. An industry trade 
association urged that if (or when) IST becomes applicable to a certain 
process, methods should be available for additional review. For 
example, the commenter said that documentation of safer technology 
information should be considered from a homeland security and critical 
infrastructure perspective.
    EPA agrees that documentation that could reveal vulnerabilities at 
an RMP-regulated facility must be secured. Therefore, although EPA is 
requiring facility owners and operators to document STAA and 
practicability determinations, EPA is not requiring this information to 
be submitted to implementing agencies, LEPCs or local emergency 
response officials. These entities have the ability to request 
documentation, at which point representatives of the facility and the 
requesting agency can discuss the security concern and involve security 
agencies as appropriate.
k. STAA Documentation
    Extent of STAA documentation. Some commenters urged EPA to require 
sufficient, detailed documentation of feasibility and alternatives 
considered. One commenter asserted that requiring sufficient 
documentation of alternatives would facilitate the incorporation of 
safer design principles into the PHA and would enhance the integrity of 
the process and encouraged a more extensive documentation of 
feasibility similar to the program in Contra Costa County, California. 
An advocacy group suggested that entities should be required to 
document economic benefits as well and quantify specific economic 
benefits of adopting safer options, such as reduced liability and 
insurance costs, public benefits such as savings to municipalities for 
reduced emergency response, and savings to workers and affected 
residents for medical care, property damage, etc.
    An industry trade association asserted that any requirement for 
entities to determine or document feasibility would be beyond EPA's 
authority and would be inappropriate because it does not provide 
sufficient detail of what would be required in a ``determination'' or 
information about how the determination was considered. An industry 
trade association expressed general opposition to a documentation 
requirement. A state agency requested clarification as to what type of 
documentation would be required in order to demonstrate compliance.
    EPA is not specifying any particular form of documentation for STAA 
given the potential complexity of analysis, variety of risk reduction 
measures involved and the factors that may be considered for 
feasibility and/or implementation. Facilities should retain any 
reports, analysis, findings and recommendations used to comply with the 
STAA requirements for the life of the process as is required by Sec.  
68.67(g). For IST/ISD measures considered, facilities should document 
the analysis and methodology used to evaluate or consider IST, its 
feasibility and the recommendations of the review team. Facilities may 
follow, for example, guidance for IS Review Documentation found in 
CCPS's Inherently Safer Chemical Processes, which suggests documenting 
the summary of the approach used for the IS review (i.e., methodology, 
checklist, etc), names and qualifications of the review team, IS 
alternatives considered, as well as those already implemented or 
included in the design, results of each consideration including those 
not considered and why, documentation of feasibility and rationale for 
rejection of IS opportunities. Facilities must provide in their RMP, 
any inherently safer technology or design measures implemented since 
the last PHA, if any, and the technology category (substitution, 
minimization, simplification and/or moderation) (Sec.  68.175(e)(7)).
    CBI. A facility contended that changes in process technology 
involving IST or ISD could be considered CBI, have a substantial impact 
on the strategic competitive nature of their operation and necessitates 
provisions to ensure that CBI claims can be asserted for IST or ISD 
implementation. An environmental advocacy group stated that facilities 
should have the ability to withhold CBI based on existing standards 
when they submit their STAA to EPA.
    EPA is not requiring the STAA or its documentation within the PHA 
to be automatically submitted to EPA nor to anyone else, but such 
analysis or documentation must be kept as records under the 
recordkeeping requirements of Sec.  68.200 and be available for 
inspection or review by EPA. Owners or operators may assert claims of 
CBI for information requested by EPA following the procedures in 
Sec. Sec.  68.151 and 68.152 if the information meets the criteria set 
forth in 40 CFR 2.301.
l. Availability and/or Submission of STAA Documentation
    Many commenters, including multiple mass mail campaigns joined by 
approximately 22,260 commenters, a Federal agency, and advocacy groups, 
stated that RMP facilities should be required to submit their STAA 
information to EPA. An environmental advocacy group suggested that the 
collection of STAAs is vital for the establishment of a clearinghouse 
of safer technology and alternatives and that EPA should certify STAAs 
for accuracy and completeness. One commenter suggested that by 
requiring the submission of STAAs to EPA, the Agency will enhance the 
quality of STAA assessments and feasibility analysis. This commenter 
also believed STAA submission would better inform enforcement under the 
CAA's General Duty Clause by providing the Agency with world class 
knowledge of feasible safer alternatives and effects taken under the 
EPA's 2017-2019 NEI approved on February 18, 2016.
    Two local agencies stated that STAA information should be retained 
on-site at the facility for inspection or be submitted upon request to 
be reviewed by EPA and implementing agencies. One commenter said that 
information on IST should be maintained at the stationary source.
    In contrast, other commenters, including multiple industry trade 
associations, remarked that EPA should not require RMP-regulated 
facilities to submit STAA information to EPA. Some industry trade 
associations argued that EPA or any other implementing agency will 
likely lack the required knowledge, resources, or expertise to evaluate 
an STAA or feasibility determination. An industry trade association 
asserted that EPA should have no role in analyzing or approving the 
plans. An industry association argued that any requirement for approval 
of STAAs by EPA would be too similar to a permitting program and would 
thus be against Congress' intent as per CAA section 112(r)(7)(F).
    Some commenters suggested that the submitted STAA information 
should be included in the RMP National Database and facilities be 
allowed to withhold CBI based on current RMP CBI

[[Page 4651]]

protections and facility-specific, element-specific, up-front 
substantiation of security claims. A professional organization 
encouraged EPA to use the STAA summary information provided in the RMPs 
to gather helpful data and incorporate lessons learned. One commenter 
reasoned that collection of STAA data is necessary for EPA and other 
regulatory agencies to carry out their regulatory responsibilities. 
Another commenter asserted that incorporating summary STAA information 
into RMPs will facilitate knowledge of successful practices as well as 
knowledge of barriers.
    Two commenters suggested that EPA collect information from 
facilities that change program levels within RMP or deregister entirely 
in order to collect valuable lessons learned for future use about IST 
preventive measures and reducing on-site quantities. One commenter 
expressed concern that the current deregistration reason codes are not 
sufficient to allow EPA to collect basic information about lessons 
learned from deregistered facilities and suggested adding a code 
representing ``implemented IST/ISO'' paired with a field to indicate 
the nature of the change.
    Some commenters wanted more detailed information about STAA to be 
provided in the RMP. Suggested additional information included: 
Descriptions of the alternatives evaluated; description of each option 
chosen for implementation and timeline; reasons for not implementing 
IST such as (1) cost; (2) technical feasibility; (3) conflicts with 
other regulatory requirements or good practices; (4) other hazards; (5) 
other (indicate reason) or by listing one of the factors included in 
the definition of ``feasible:'' time, economic, environmental, legal, 
social, or technological; and an attestation and checklist 
demonstrating a comprehensive accounting of potential benefits, 
savings, and avoided costs associated with each major option.
    One commenter recommended that an independent body be in place to 
carefully review the facilities' IST/ISD evaluations to assist in 
determining whether or not such technologies are feasible and to 
prevent facilities from self-regulating.
    Some commenters wanted STAA and documentation to be made publicly 
available, and allowed with reasonable protections, for genuine CBI and 
trade secrets. An advocacy group recommended allowing public comment 
and response on facilities' STAAs. A few commenters wanted STAA 
summaries to be available to at-risk communities and the public both 
online and offline, including at public meetings required at Sec.  
68.210.
    Reasons given by commenters for providing public availability of 
STAA included:
     To hold companies accountable and facilitate significant 
process safety changes with appropriate public discussion and oversight 
from other stakeholders;
     To ensure right-to-know and transparency for affected 
workers and communities;
     To provide comments on the STAA and get implementing 
agency response;
     To have facilities that have adopted IST receive public 
credit for their positive steps; and
     To ensure opportunities for at-risk communities to engage 
with facilities about alternatives and prevention plans.
    EPA is not requiring automatic submission of STAA information or 
documentation to EPA or requiring that it be made available to the 
public. EPA acknowledges there is much public interest in having STAA 
and documentation available to them, but STAA will be part of a PHA 
which can be a lengthy (e.g., the sectors subject to STAA requirements 
have multiple processes and some PHAs are hundreds of pages) 
technically complex document that could contain not only CBI, but 
sensitive security information involving process or equipment 
vulnerabilities. Some commenters' suggested solution of having 
facilities sanitize submitted documents and provide upfront 
justification of CBI claims would entail a significant level of burden 
upon industry and EPA. It would not be practical or good use of 
resources to have thousands of documents submitted to EPA, to any other 
body or with the RMP submission. EPA can inspect documents on-site or 
request their submission from facilities as needed.
    EPA believes that primary utility of STAA information for the 
public is whether or not facilities are implementing IST and the nature 
of that change. EPA is requiring that basic information on IST being 
implemented be provided in the RMP submission in accordance with Sec.  
68.175(e)(7). Facilities must provide in their RMP any inherently safer 
technology or design measures implemented since the last PHA, if any, 
and the technology category (substitution, minimization, simplification 
and/or moderation). In the event of a public meeting held after an 
accident, EPA encourages facilities to provide information about any 
IST or other safer technology alternatives that the facility is using 
or could be using and suggests that the public use this forum to 
inquire about ISTs implemented at the facility.
    EPA is not adopting an approval process for STAA analyses, either 
by an independent board, by the implementing agency, or by any 
emergency planning entity. We recognize nothing in the statute 
prohibits the adoption of an approval process. The language of CAA 
section 112(r)(7)(F) is directed towards the need for an operating 
permit under Title V of the CAA and therefore has no bearing on whether 
the underlying substantive rule may establish an approval process. In 
CAA section 112(r)(7)(B)(iii), the statute specifically requires EPA's 
rules to establish a system that provides for review and, if necessary 
revision of RMPs (see 40 CFR 68.220). Nevertheless, the approach we 
adopt in this final rule, which requires the owner or operator to 
conduct a STAA review and document its review in general and its 
reasoning for not adopting practicable IST/ISD, is consistent with the 
overall approach of the RMP rule to rely on the development and 
assessment of information to lead owners and operators to adopt 
reasonable measures to prevent accidents.
m. Clearinghouse
    Some commenters, including a Federal agency, a state agency, 
environmental advocacy groups, and a local agency, supported the 
establishment of a publicly available online clearinghouse providing 
information about the feasibility and efficacy of safer substances and 
processes. A Federal agency commented that such a database would also 
be a useful resource for insurers, chemical process vendors, emergency 
responders, academic researchers, and other government agencies, such 
as OSHA.
    One commenter remarked that such a clearinghouse should be 
dedicated to the topic of safer technology and alternatives and should 
be managed by either EPA, another Federal agency, or an independent 
third-party rather than industry-funded academics or institutions. One 
commenter suggested that a clearinghouse could be developed by EPA or a 
third-party such as CCPS or Texas A&M's Mary Kay O'Connor Process 
Safety Center.
    A few industry trade associations remarked that the creation of a 
clearinghouse would be redundant with some resources already publicly 
available. For example, one trade association asserted that it has 
effectively created its own clearinghouse through the publication and 
maintenance of its own publicly available publications, semi-annual

[[Page 4652]]

conferences, and regular member exchange forums. Additionally, this 
organization stated that it hosts a technology symposium every other 
year, where members can learn about new technologies, both from members 
sharing their experiences and directly from vendors and consultants. 
Another trade association suggested that the searchable database of all 
patents and patent applications available from the US Patent and 
Trademark Office can be used as a clearing house for safer technology 
and that information on unpatented technologies is readily available 
through the internet and other means.
    Another industry trade association warned that a government 
clearinghouse would not reduce chemical accidents because each chemical 
process is highly complex and unique and it would be difficult to find 
value in a massive database of technologies. A commenter warned that 
any clearinghouse would be required to have many ground rules so as to 
clarify what factors were at play in the IST decision. The commenter 
expressed concern that the clearinghouse could be harmful or not useful 
if the information was selective in detail because an IST selected by a 
stationary source may be narrow in scope for a specific set of risks to 
be avoided or mitigated. The commenter also stated that it is possible 
companies would provide information lacking enough detail to be useful. 
Another commenter cautioned that one type of technology, system or 
design that works for one facility or process may not work for another 
facility or process, due to differing processes and other conditions.
    EPA is not finalizing a provision to establish a clearinghouse in 
this rule. EPA will further consider the comments and suggestions on 
establishing a safer technologies and alternatives information 
clearinghouse should we pursue an effort to develop and establish such 
a clearinghouse in the future. Currently, industry and other 
stakeholders can share chemical safety and security best practices, 
including those involving safer technologies and alternatives, at the 
Executive Order 13650 best practices Web site.\107\ EPA encourages 
stakeholders to review information shared through this forum and to 
submit best practices on safer alternatives or other best practices 
that serve to improve chemical safety and security.
---------------------------------------------------------------------------

    \107\ https://www.osha.gov/chemicalexecutiveorder/LLIS/index.html.
---------------------------------------------------------------------------

D. Stationary Source Location and Emergency Shutdown

    EPA discussed the importance of location of stationary sources and 
their emergency shutdown capabilities in the preamble of the proposed 
rulemaking. However, EPA did not propose any provisions related to 
these issues.
1. Discussion of Comments on 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. EPA requested comments on whether to consider stationary 
source location requirements for future rulemakings, including the 
scope of such requirements, or whether the Agency should publish 
guidance. EPA received multiple comments on this issue.
    Commenters indicated that EPA should use stricter standards for 
calculating blast radius areas for new and existing facilities to 
ensure that communities, schools, and hospitals are outside of the 
blast impact. One commenter stated that EPA should use information 
availability requirements to better inform and protect local 
communities from accidents. A Federal agency and state/local agency 
requested that EPA consider the stationary source location issue in 
future rulemakings. A professional organization requested that EPA 
consider a 2014 Fire Protection Research Foundation report in future 
requirements for stationary source location.
    Several commenters argued that facilities should be located where 
no damage could occur to people and homes, asserting that the proposed 
rulemaking does not go far enough to ensure public safety. Some of 
these commenters specifically mentioned the Rancho LPG facility in San 
Pedro, California, and asked that EPA review the siting of this 
facility due to the danger it poses to the surrounding community.
    A local agency and an advocacy group asked that EPA consider IST or 
risk reduction methodologies and the importance of buffer zones in 
siting of new stationary sources. Multiple state and local agencies and 
an association of government agencies requested new guidance and tools 
for localities to clarify additional requirements for stationary source 
location. One commenter stated that EPA should consider reverse 911 
calls to public receptors in setting requirements.
    However, numerous commenters opposed adding provisions to address 
stationary source location issues in the proposed rulemaking, citing 
OSHA's PSM regulations and the lack of authority in the CAA. One 
commenter stated that EPA should not propose any additional 
requirements on the location of stationary sources. Multiple comments 
indicated that states and localities, not EPA, should regulate the 
siting of facilities.
    EPA will consider these comments when determining whether to 
develop guidance or propose stationary source location requirements in 
a future action.
2. Discussion of Comments on Emergency Shutdown
    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 requested comment on whether emergency shutdown system 
requirements should be considered for future rulemakings, including the 
scope of such requirements, or whether the Agency should publish 
guidance.
    Many commenters supported additional regulations and/or guidance on 
emergency shutdown systems regulations and/or guidance. Local agencies 
stated that EPA should issue regulations or guidance requiring that all 
processes be built such that they can be placed in a safe state during 
an emergency. Another local agency recommended that EPA publish 
guidance on emergency shutdown systems to assist regulated entities in 
evaluating various alternatives, but argued that including emergency 
shutdown systems in a future rulemaking would be infeasible for 
existing locations. One commenter stated that EPA should consider 
reverse 911 calls to public receptors in setting requirements. A state/
local agency expressed support for emergency shutdown systems 
requirements in a future rulemaking, to include operating procedures 
and annual testing.

[[Page 4653]]

    However, several commenters argued that EPA should not propose any 
additional requirements--regulations or guidance--on emergency shutdown 
systems. These commenters asserted that existing regulation and 
facility practices address emergency shutdown issues. One commenter 
supported EPA's decision to forgo an emergency shutdown system 
requirement, arguing that exclusion is consistent with RMP's 
performance-based nature, but opposed EPA's suggestion to issue a 
guidance document. Another commenter opposed a ``one-size-fits-all'' 
rule or guidance for emergency shutdown systems and argued that EPA 
should propose specific regulatory text in a future rulemaking should 
it decide to regulate emergency shutdown.
    EPA will consider these comments when determining whether to 
develop guidance or propose emergency shutdown system requirements in a 
future action.

V. Emergency Response Preparedness Requirements

A. Emergency Response Program Coordination With Local Responders

1. Summary of Proposed Rulemaking
    EPA proposed to require owners or operators of ``responding'' and 
``non-responding'' stationary sources to coordinate response needs with 
local emergency planning and response organizations to ensure that 
resources and capabilities are in place to respond to an accidental 
release of a regulated substance. Responding stationary sources also 
would be required to comply with the emergency response program 
provisions of Sec.  68.95 when the outcome of coordination activities 
demonstrated that local public emergency response capabilities were not 
adequate to appropriately respond to an accidental release at the 
stationary source, or when the LEPC or equivalent requested in writing 
that the owner or operator comply with the requirements of Sec.  68.95. 
``Non-responding'' stationary sources need not have complied with Sec.  
68.95 provided that the coordination activities indicated that adequate 
local public emergency response capabilities are available to 
appropriately respond to accidental releases at the source, appropriate 
mechanisms are in place to notify emergency responders when there is a 
need for a response, and the LEPC or equivalent has not requested in 
writing that the owner or operator comply with the requirements of 
Sec.  68.95.
    The proposed coordination provisions would have required 
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. The owner or 
operator would also have been required to document coordination 
activities, including the names of individuals involved and their 
contact information, dates of coordination activities, and the nature 
of coordination activities. The proposed coordination provisions of 
Sec.  68.93 also would have required sources with regulated toxic 
substances to coordinate response actions with the LEPC or equivalent, 
and sources with only regulated flammable substances to coordinate with 
the local fire department. This language is similar to the language in 
Sec.  68.90(b)(1) and (2) of the original rule, which requires that 
sources with toxic substances held above threshold quantities be 
included in the community emergency response plan developed under 
EPCRA, and sources with only regulated flammable substances held above 
threshold quantities coordinate response actions with the local fire 
department.
    The proposed rulemaking retained all emergency response program 
provisions from Sec.  68.95 of the original rule, and made two 
additions. The first was to modify Sec.  68.95(a)(1)(i) to require that 
release notification procedures included procedures to notify Federal 
and state emergency response agencies, in addition to the existing 
rule's requirement to notify the public and local emergency response 
agencies. The second addition was to modify Sec.  68.95(a)(4) to 
require the owner or operator to review and update the emergency 
response program annually, or more frequently if necessary, to 
incorporate recommendations and lessons learned from emergency response 
exercises, incident investigations, or other available information. The 
proposed rulemaking also would have replaced the phrase ``local 
emergency planning committee'' with the acronym ``LEPC.''
2. Summary of Final Rule
    In this rule, EPA has retained the proposed term ``Responding 
stationary source'' as a heading for Sec.  68.90(a) and ``Non-
responding stationary source'' as a heading for Sec.  68.90(b), as an 
indication of whether or not a facility is required to comply with the 
emergency response program provisions of Sec.  68.95. Section 68.90(a) 
is otherwise unchanged from the existing rule, as are Sec.  
68.90(b)(1), (2), and (3). EPA is also adopting as proposed paragraphs 
Sec.  68.90(b)(4) and (5), which require the owner or operator of a 
non-responding stationary source to perform the annual coordination 
activities required under Sec.  68.93, and the emergency notification 
exercises required under Sec.  68.96(a), respectively.
    The final rule adopts as proposed Sec.  68.93, but with some 
changes, which are discussed in the following sections. Section 68.93 
requires the owner or operator to coordinate response needs with local 
emergency planning and response organizations to determine how the 
source is addressed in the community emergency response plan and to 
ensure that local response organizations are aware of the regulated 
substances at the source, their quantities, the risks presented by 
covered processes, and the resources and capabilities at the facility 
to respond to an accidental release of a regulated substance.
    Section 68.93(a) requires coordination to occur at least annually, 
and more frequently if necessary, to address changes at the source, in 
the source's emergency response and/or emergency action plans, and/or 
in the local community emergency response plan.
    Section 68.93(b) requires coordination to include providing to the 
local emergency planning and response organizations, the facility's 
emergency response plan if one exists, emergency action plan, updated 
emergency contact information, and any other information that local 
emergency response planning and response organizations identify as 
relevant to local emergency planning. For responding stationary 
sources, Sec.  68.93(b) also requires coordination to include 
consulting with local emergency response officials to establish 
appropriate schedules and plans for field and tabletop exercises 
required under Sec.  68.96(b). Lastly, Sec.  68.93(b) require the owner 
or operator to request an opportunity to meet with the LEPC (or 
equivalent) and/or local fire department as appropriate to review and 
discuss these materials.
    Section 68.93(c) adopts as proposed the coordination documentation 
provisions without revision. Under Sec.  68.93(c), the owner or 
operator is required to document coordination with local authorities, 
including the names of individuals involved in coordination and their 
contact information, dates of coordination activities, and the nature 
of coordination activities.
    EPA is finalizing several modifications to Sec.  68.95. EPA has 
adopted the proposed addition to Sec.  68.95(a)(1)(i), which requires 
that release notification procedures include procedures to notify 
Federal and state emergency response agencies, in addition to public 
and local emergency

[[Page 4654]]

response agencies. The final rule also adopts as proposed revisions to 
Sec.  68.95(a)(4), with some modifications. The final rule requires the 
owner or operator to review and update the emergency response plan as 
appropriate based on changes at the source or new information obtained 
from coordination activities, emergency response exercises, incident 
investigations, or other available information, and ensure that 
employees are informed of the changes.
3. Discussion of Comments and Basis for Final Rule Provisions
    Many commenters, including industry trade associations, advocacy 
groups, professional organizations, facilities, Federal and state 
agencies, and others supported EPA's efforts to increase emergency 
response program coordination between facilities and local responders. 
Other commenters including industry trade associations and regulated 
facilities stated the proposal would potentially duplicate other 
Federal or state requirements or voluntary efforts, or suggested that 
EPA should increase enforcement efforts rather than impose additional 
requirements in certain areas.
    Although ATF ruled that the fire at West Fertilizer in West, Texas 
was intentionally set,\108\ the incident highlighted the need for 
better coordination between facility staff and local emergency 
responders. The approach EPA adopts in the final rule retains the 
proposed rulemaking's promotion of coordination between facilities and 
responders while recognizing the concerns of many of the commenters 
about LEPCs and owners and operators making determinations about the 
abilities and roles of owners and operators as well as LEPCs. We 
preserve local flexibility under our approach. Public comments on each 
proposed provision to the emergency response coordination and emergency 
response program provisions of Subpart E are discussed further in this 
preamble, along with EPA's responses and decisions for the final rule.
---------------------------------------------------------------------------

    \108\ See ATF Announces $50,000 Reward in West, Texas Fatality 
Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire.
---------------------------------------------------------------------------

a. Designation of ``Responding'' and ``Non-Responding'' Stationary 
Sources
    Some commenters objected to EPA's proposal to designate all sources 
as either responding or non-responding sources. These commenters 
pointed out these discrete categories do not accurately represent the 
realities of emergency response, which can include many different 
degrees of involvement by facilities and local communities in planning, 
preparing for and responding to accidental release events. One 
commenter stated that all facilities, regardless of whether they are 
responding or non-responding facilities, should have a partnership with 
the LEPC or local emergency responders. Another commenter stated that 
even facilities with full on-site emergency response capability would 
likely rely on local public responders to order and manage shelter-in-
place actions or evacuations. Another commenter stated that all 
facilities are responsible for and must be prepared to deal with the 
regulated substances they handle and there should be no such thing as a 
``non-responding'' stationary source, but this does not mean every 
facility needs a technician-level hazmat response team. This commenter 
stated that every facility must be able to immediately notify emergency 
response agencies when a release having the potential to impact the 
public occurs, take actions to protect the lives of employees and the 
public, minimize or contain the release, and coordinate with local 
response agencies who respond to the release.
    EPA agrees there is a wide spectrum of planning, preparedness, and 
response arrangements available to facilities and local communities, 
and the two categories of ``responding'' and ``non-responding'' 
facilities do not fully capture this continuum. EPA also acknowledges 
there is some overlap between the obligations of non-responding and 
responding facilities. For example, both non-responding and responding 
facilities must have mechanisms or procedures in place to notify 
emergency responders about accidental releases, and both types of 
sources must coordinate emergency response activities with local 
responders (and under the final rule, these coordination activities 
must occur annually and be documented, as further described further in 
this preamble). Because the outcome of coordination activities may 
result in different types of response arrangements involving regulated 
facilities and communities, EPA understands that a facility's 
designation as ``responding'' or ``non-responding'' does not, by 
itself, explain all facets of emergency preparedness and response for 
the facility.
    These designations are still useful, however, because 
``responding'' facilities must meet certain requirements that ``non-
responding'' facilities are not required to meet. Responding facilities 
must comply with all of the provisions of Sec.  68.95, which include 
developing an emergency response plan, developing procedures for the 
use, inspection, and testing of emergency response equipment, 
conducting training for employees in relevant procedures, and updating 
the emergency response plan to reflect changes at the source. Any 
facility that plans to use its employees to take response actions 
beyond those specified in its emergency action plan under 29 CFR 
1910.38 as a result of an accidental release at the source--which could 
include, for example, donning emergency air breathing apparatus in 
order to enter an area where a toxic gas leak has occurred with the 
intention of stopping or controlling the release--would be expected to 
have obtained appropriate equipment and training, and to address these 
activities in its emergency response program, even if the facility is 
also relying on local responders to supplement its own response, or to 
manage offsite response actions such as evacuations and sheltering-in-
place. Therefore, in the final rule, EPA has retained the proposed 
terms ``Responding stationary source'' as a heading for Sec.  68.90(a) 
and ``Non-responding stationary source'' as a heading for Sec.  
68.90(b), as an indication of whether or not a facility is required to 
comply with the emergency response program provisions of Sec.  68.95.
b. Evaluating Resources and Capabilities of Local Responders
    The proposed rulemaking would have made the owner or operator's 
decision to develop an emergency response program contingent on the 
outcome of local coordination activities. Under the NPRM, in order to 
be a non-responding facility, the owner or operator would have been 
required not only to coordinate with local responders and have 
appropriate notification mechanisms in place, but also to confirm that 
adequate local public emergency response capabilities are available to 
appropriately respond to any accidental release of the regulated 
substances at the stationary source.
    EPA received numerous comments objecting to this provision. Many 
commenters, including industry trade associations, government agencies, 
an association of government agencies, facilities, and other 
commenters, expressed concern over ambiguity in the terms ``adequate'' 
response capabilities and ``appropriate'' response. One commenter noted 
that unless they are notified by the LEPC or fire department, 
facilities will not know when a change in community response 
capabilities or resources occurs. Another commenter pointed out there 
is no accepted standard for community emergency

[[Page 4655]]

response capability applicable nationwide, and that response resources 
and capabilities can only be evaluated in the context of the overall 
community's response plan.
    EPA has not adopted this provision in the final rule. While EPA 
believes it is important for regulated facilities and local responders 
to share information on response resources and capabilities, the Agency 
acknowledges the capabilities and resources of local response 
organizations are subject to numerous influences, including other 
potential demands within the community for local response resources, 
local government organization and budgets, Federal, state, and local 
regulations, and others. Few if any of these factors are within the 
purview of the owners and operators of individual regulated facilities, 
and therefore in many cases, owners and operators will not be in a 
position to judge the adequacy of local response capabilities and 
resources.
c. Developing an Emergency Response Program Upon Receiving a Written 
Request From the LEPC
    The NPRM would also have required the owner or operator to develop 
an emergency response program in accordance with Sec.  68.95 upon 
receiving a written request to do so from the LEPC or local response 
authorities. Numerous commenters objected to this provision. These 
commenters indicated that the provision would allow or incentivize 
LEPCs to absolve themselves of their emergency response obligations 
under EPCRA, even if this may not be in the best interest of the 
overall emergency response. Several commenters stated that allowing 
local authorities to ``opt out'' of their responsibilities would 
undermine the mission of those authorities, and that relying on 
facilities to fulfill emergency response obligations if an LEPC ``opts 
out'' may not be within these facilities' authority or capability. 
Several commenters also expressed concern that EPA's proposal did not 
include criteria LEPCs must meet before requesting a facility become a 
responding facility. One commenter representing an association of state 
government response commissions stated that this provision would cause 
the vast majority of LEPCs to request facilities become responding 
facilities.
    EPA disagrees the proposed provision would have absolved local 
responders of their responsibilities under EPCRA or allowed them to 
disregard their other response obligations. The proposed provisions 
would have had no effect on local authorities' community emergency 
planning responsibilities under EPCRA. Also, even in situations where 
regulated sources maintain full emergency response capabilities, local 
responders would still be responsible for managing the aspects of the 
response external to the source, such as community evacuations and 
sheltering-in-place. Nevertheless, EPA has decided not to finalize this 
provision because of the objections raised by commenters, and because 
it would have allowed local governments to place emergency response 
program obligations on the owners or operators of regulated facilities 
without requisite knowledge of the facility's operations, business 
practices, financial condition, and other relevant factors. Also, 
commenters pointed out that many facilities--particularly small 
businesses--would as a practical matter simply be unable to manage all 
of their own response needs, which could include maintaining a full 
hazardous materials response team, as well as firefighting 
capabilities. In the preamble to the original rule, EPA acknowledged 
that small businesses would often be unable to manage these duties.
d. Emergency Response Coordination Activities
    Many commenters, including industry trade associations, advocacy 
groups, facilities, government agencies, professional organizations, 
and others supported EPA's proposed requirements for improved emergency 
response coordination between facilities and local responders. Several 
commenters recommended EPA clarify what is meant by ``coordination.'' 
Some commenters opposed EPA's proposed coordination requirements on the 
basis that these activities were already required under other 
regulations, or were being carried out voluntarily. Other commenters 
expressed concerns about an historical lack of participation by LEPCs 
in emergency response coordination activities, or that the proposed 
coordination provisions would place increased burdens on local 
responders.
    In the final rule, EPA has adopted as proposed the emergency 
response coordination provisions of Sec.  68.93, with some changes. One 
significant change relates to the modified applicability provisions 
discussed previously. In addition to removing the two provisions from 
Sec.  68.90 of the final rule that would have made the owner or 
operator's decision to develop an emergency response program contingent 
on the outcome of local coordination activities, and required the owner 
or operator to develop an emergency response program upon receiving a 
written request to do so from the LEPC or local response authorities, 
EPA has also removed the proposed language in Sec.  68.93 that placed 
the focus of coordination on ensuring response resources and 
capabilities are in place. This language has been replaced with 
language that places the focus of coordination on sharing information 
related to emergency planning.
    EPA has also clarified what coordination activities are required. 
In the final rule, under Sec.  68.93 the owner or operator is required 
to provide local authorities with information about the regulated 
substances at the source, their quantities, the risks presented by 
covered processes, and the resources and capabilities at the facility 
to respond to an accidental release of a regulated substance. Section 
68.93(a) requires coordination to occur at least annually, and under 
Sec.  68.93(b), the owner or operator is also required to provide the 
facility's emergency response plan if one exists, the emergency action 
plan required under 29 CFR 1910.38, updated emergency contact 
information, and any other information local emergency planning and 
response organizations identify as relevant to local emergency 
planning. EPA notes that under 29 CFR 1910.38(b), OSHA requires 
emergency action plans to be kept in writing, unless an employer has 10 
or fewer employees, in which case they may communicate the plan orally 
to employees. Under the final rule, if the owner or operator has a 
written emergency action plan, that written plan should be provided to 
local authorities, but if the plan is an oral plan, the owner or 
operator may also communicate the plan orally to local authorities.
    In requiring ``any other information that local emergency planning 
and response organizations identify as relevant to local emergency 
planning,'' EPA is encouraging local emergency officials to consider 
what other facility information may aid them in preparing for 
emergencies at the source beyond those specific elements identified in 
Sec.  68.93 and Sec.  68.93(b), and request such information from the 
owner or operator when conducting annual coordination activities. Such 
information could include accident histories, portions of incident 
investigation reports relevant to emergency response, incident after-
action reports, records of notification exercises, field and tabletop 
exercise evaluation reports, etc. The owner or operator is required to 
provide any information requested by local emergency planning and 
response organizations, to the extent the information is relevant to 
local emergency planning.

[[Page 4656]]

    EPA disagrees with commenters who suggested not adopting the 
proposed emergency response coordination requirements on the basis that 
they are already required under other regulations, or are being carried 
out voluntarily. While it is true that in some cases, other Federal or 
state regulations contain emergency response coordination provisions 
similar to those in the final rule, many regulated sources are not 
subject to other regulations with requirements comparable to those in 
the final rule. Also, in locations without functional LEPCs, other 
local response authorities may be carrying out local emergency planning 
functions, and these organizations may be unable to rely on authorities 
granted to LEPCs under EPCRA to obtain needed information. Where 
regulated sources are already subject to other Federal or state 
emergency response coordination requirements comparable to those in the 
final rule, compliance with those regulations may be used to 
demonstrate compliance with the final rule, to the extent the 
activities meet the specific requirements of the rule. Similarly, while 
EPA agrees that some facilities may already voluntarily carry out the 
coordination activities required under the final rule, not all 
regulated facilities do so. Facilities that already carry out these 
activities voluntarily may also use them to demonstrate compliance with 
the final rule to the extent the activities meet the specific 
requirements of the rule.
    EPA understands some communities do not have functional LEPCs, but 
has accounted for this possibility by requiring coordination to be with 
``local emergency planning and response organizations.'' This term is 
intended to encompass all manner of local public emergency planning and 
response organizations. In many cases this will be the LEPC, but in 
other cases it may be a local emergency management agency, a local fire 
department, or another local response organization (or, if appropriate, 
multiple organizations). These non-LEPC planning entities can use this 
provision to obtain necessary planning information even when they lack 
the authority granted LEPCs under EPCRA 303(d)(3). Regardless of 
whether or not their community has an active LEPC, EPA expects owners 
and operators of regulated sources to make good faith efforts to carry 
out the coordination activities required in the final rule. If local 
emergency planning and response organizations decline to participate in 
coordination activities, or the owner or operator cannot identify any 
appropriate local emergency planning and response organization with 
which to coordinate, the owner or operator should document their 
coordination efforts, and continue to attempt to perform coordination 
activities at least annually.
    EPA is also aware that increasing regulated facilities' emergency 
response coordination obligations will often place increased demands on 
local emergency planning and response organizations through increased 
coordination requests made by the owners or operators of regulated 
sources located in their communities. This is an unavoidable 
consequence of increasing the owner or operator's emergency response 
coordination obligations. However, the final rule's emergency response 
coordination requirements are intended to be a straightforward 
information exchange for both regulated sources and local response 
organizations, and therefore should not be highly burdensome for either 
party. Also, the regulatory requirements for coordination have been 
placed on the owner or operator, rather than local emergency planning 
and response organizations. Therefore, local response organizations are 
not obligated to participate in the coordination activities specified 
in the final rule. In our estimate of the burden of the rule, we have 
conservatively projected an estimate of the cost of coordination on 
local responders. EPA expects in most cases, local responders will 
participate in these coordination activities because it is in their 
best interest to have up-to-date information about the risks posed by 
regulated stationary sources in their community and sources' emergency 
response plans.
e. Frequency of Emergency Response Ccoordination Activities
    Many commenters, including state or local agencies and industry 
trade associations, expressed support for EPA's proposal to require 
annual emergency response coordination activities between owners and 
operators and local emergency response officials. Commenters noted such 
ongoing coordination could help clarify roles and responsibilities and 
refresh contacts. Some commenters expressed concerns that annual 
coordination may be difficult or impractical if a source is remote or 
if local authorities refuse to participate. One commenter suggested 
that coordination activities should occur on a regular basis at an 
appropriate frequency determined by the facility and when there is a 
significant change to the source's emergency plan.
    EPA has decided to finalize as proposed the requirement at Sec.  
68.93(a) for coordination to occur at least annually and more 
frequently if necessary. EPA agrees with the majority of commenters 
that believe that regular ongoing coordination is useful to address 
changes at the source and in the local community emergency plan. EPA 
believes most sources are located close enough to local responders to 
make annual coordination activities practical. Where necessary, owners 
and operators and local authorities may conduct coordination activities 
remotely (e.g., using conference calls, webinars, email, etc.). EPA 
does not agree the frequency of coordination should be left completely 
up to the source. Sources and local response organizations may choose 
to coordinate more frequently than annually, but the Agency believes 
annual emergency coordination between regulated sources and local 
responders is necessary to the development and maintenance of effective 
response plans,\109\ and unlikely to impose an undue burden on any 
source.
---------------------------------------------------------------------------

    \109\ See preamble discussion in proposed rulemaking, 81 FR 
13671, March 14, 2016.
---------------------------------------------------------------------------

f. Annual Coordination Meetings
    In the proposed rulemaking, EPA did not specifically propose to 
require that the owner or operator ``meet with'' local authorities to 
conduct annual coordination. However, in the preamble to the proposal, 
EPA did indicate that as part of the coordination, the owner or 
operator and the local response authorities should ``work together'' to 
determine who will respond if an incident occurs, and what would be an 
appropriate response. Additionally, in the information availability 
section of the preamble to the proposed rulemaking, EPA requested 
comment on whether the Agency should require owners and operators to 
meet with LEPCs and emergency responders. Several commenters 
recommended EPA clarify that coordination activities should include 
regular meetings between the owner or operator and local authorities. 
These commenters noted that such regular meetings would provide 
opportunities for both parties to exchange, update, and discuss 
information relating to emergency response planning. One commenter 
noted that annual meetings would allow the owner or operator to 
communicate potentially security-sensitive information needed for 
emergency preparedness and response. A few commenters noted that while 
they were in favor of coordination meetings, the owner or operator 
should not be held to a requirement for such meetings in situations 
where local authorities are

[[Page 4657]]

unable or unwilling to participate. Another commenter stated that 
coordination meetings should occur, but the frequency of such meetings 
should be left up to the owner or operator and local authorities to 
decide.
    In Sec.  68.93(b) of the final rule, as part of the required annual 
coordination activities, EPA is requiring the owner or operator to 
request an opportunity to meet with the local emergency planning 
committee (or equivalent) and/or local fire department. The purpose of 
the annual coordination meeting is to allow the owner or operator to 
update and discuss the information being provided to local authorities, 
and to allow local authorities to provide the owner or operator with 
updated information on how the source is addressed in the community 
emergency response plan. The annual coordination meeting will also 
provide an opportunity for local authorities to request any other 
information that may be relevant to local emergency planning, and for 
the owner or operator to provide this information. In the final rule, 
EPA has worded the meeting requirement to only require the owner or 
operator to request such a meeting, so that the owner or operator would 
not be required to hold a meeting if local authorities are unable or 
unwilling to participate. The forum for coordination meetings is left 
up to the reasonable judgement of the owner or operator and local 
response authorities. They may choose to hold a meeting specifically 
for this purpose, or combine the coordination meeting with another 
appropriate meeting, such as a regularly scheduled LEPC meeting, if 
both parties agree to the arrangement. Where necessary, owners and 
operators and local authorities may hold meetings remotely (e.g., via 
conference call or webinar).
    g. Coordination of Exercise Frequencies and Plans
    In Sec.  68.96(b) of the final rule the owner or operator of a 
responding stationary source is required, as part of their emergency 
response coordination activities, to consult with local emergency 
response officials to establish appropriate frequencies and plans for 
tabletop and field exercises. This provision was added because numerous 
commenters, including industry associations, facilities, government 
agencies, and others, objected to the potentially high burden 
associated with conducting field exercises every five years and 
tabletop exercises every year. An association of government agencies 
noted that requiring field exercises every five years and tabletop 
exercises every year would place substantial burdens on LEPCs and 
response agencies, particularly as these organizations are often 
composed of volunteers. This commenter recommended that the frequency 
and scope of field and tabletop exercises be determined as part of the 
coordination process. EPA adopted a modified form of this provision 
(which is discussed further in the following preamble section on 
Emergency Response Exercises) in the final rule, and therefore added 
language to Sec.  68.93 (b) to also require that for responding 
stationary sources, coordination must include consulting with local 
emergency response officials to establish appropriate schedules and 
plans for field and tabletop exercises.
    EPA understands there may be cases where local emergency response 
agencies are unable or unwilling to coordinate with a regulated 
stationary source on exercise frequencies and plans, or to participate 
in exercises. In such cases, the owner or operator may establish 
appropriate exercise frequencies and plans on their own, provided they 
meet the minimum requirements set forth in Sec.  68.96. Also, the owner 
or operator should revisit their exercise schedules and plans at the 
next annual coordination opportunity with local response officials, so 
that these officials are given an opportunity for input on exercise 
schedules and plans, even if they remain unable to participate in the 
exercises.
h. Documentation of Coordination Activities
    Many commenters, including state and local agencies and industry 
trade associations, expressed support for EPA's proposal to require 
documentation of coordination activities. Several commenters requested 
EPA clarify how facilities should document coordination activities when 
local responders are not available or responsive to a facility's 
attempts to coordinate. Some commenters suggested that EPA require 
facilities make a reasonable attempt to make arrangements to coordinate 
with local responders and document any failure to complete such 
arrangements. One commenter suggested facilities should be required to 
seek a written or electronic acknowledgement from local responders of 
coordination efforts, or, if unavailable, document any efforts made to 
coordinate. A few commenters expressed opposition to the requirement 
for documentation of coordination. One indicated that such 
documentation could ``serve as a basis for mutual accusations or 
second-guessing between first responders and the RMP-regulated facility 
in the aftermath of an emergency.'' Another indicated that fire 
departments in California have found CalARP requirements to document 
emergency coordination to be a large burden. A third commenter stated 
that if facilities are included in the community response plan, this 
should be all the documentation needed to demonstrate coordination.
    EPA has decided to finalize the requirement at Sec.  68.93(c) for 
coordination to be documented, as proposed (the final rule reverses the 
order that the coordination and documentation provisions appear in the 
regulatory text). The final rule does not specifically require the 
owner or operator to seek acknowledgement from local responders of 
coordination efforts. The owner or operator may seek such 
acknowledgement if desired, but local authorities are not required to 
provide it. EPA believes the required documentation elements, which 
include the names of individuals involved in coordination activities 
and their contact information, the dates of coordination activities, 
and the nature of coordination activities, should clearly demonstrate 
whether local responders were involved in coordination, without 
requiring any other specific acknowledgement from local responders. EPA 
agrees with commenters that suggested the owner or operator should 
document any unsuccessful attempts to coordinate with local response 
organizations. The final rule does not specifically require the owner 
or operator to document unsuccessful coordination attempts, but EPA 
believes it will be in the owner or operator's best interest to do so, 
and allow the owner or operator to demonstrate their good faith efforts 
to conduct coordination activities in the event an implementing agency 
requests this information.
    EPA does not agree with commenters' objections to documentation of 
coordination activities. If response to an emergency goes badly, 
documentation of prior coordination is more likely to clarify 
deficiencies than obscure or exacerbate them. The objection that 
documentation could cause a large burden on fire departments is not 
applicable to this provision, as the requirement for documentation in 
this rule is placed on the owner or operator rather than local 
responders, and in any case, the Agency does not view the documentation 
requirement as highly burdensome. Most of the documents the final rule 
requires the owner or operator to provide to local authorities are 
either already required to exist (i.e., emergency response plan and 
emergency action plan), or should require minimal effort

[[Page 4658]]

to produce (i.e., updated emergency contact information, names and 
contact information of individuals involved in coordination activities, 
dates of coordination activities, and the nature of coordination 
activities). EPA views these documentation requirements as 
straightforward and minimally burdensome.
    During coordination meetings, EPA encourages owners and operators 
to provide local emergency response officials with additional 
documentation relating to emergency planning if those officials request 
it. The annual coordination provisions require the owner or operator to 
ensure local response organizations are aware of the regulated 
substances at the source, their quantities, the risks presented by 
covered processes, and the resources and capabilities at the facility 
to respond to an accidental release of a regulated substance. The final 
rule also requires the owner or operator to provide any other 
information local emergency planning and response organizations 
identify as relevant to local emergency planning. In most cases, the 
Agency believes the most efficient way for the owner or operator to 
provide such information is to not only discuss it during annual 
coordination meetings, but also to provide appropriate documentation to 
local authorities.
    Lastly, EPA does not agree that a facility's inclusion in the 
community response plan is sufficient documentation to demonstrate 
annual coordination. EPA notes that community emergency response plans 
are not prepared or maintained by stationary sources, and that EPCRA 
does not require community emergency plans to be updated annually. 
Without regular emergency response coordination activities involving 
local authorities, the owner or operator could remain unaware of 
important changes in the community emergency plan, and local responders 
could remain unaware of changes at the source that could potentially 
affect the response to an accidental release.
    EPA believes there is a wide range of potential outcomes from 
emergency response coordination activities, but the primary purpose of 
such coordination should be the regular sharing of information between 
the owner or operator and local response authorities. Both the owner or 
operator and local responders should benefit from this exchange by 
becoming more aware of each organization's response capabilities, 
resources, and procedures. Based on these increased coordination 
activities, both regulated sources and local response organizations 
will be better able to adapt their response plans and procedures to 
updated information. This information exchange could also prompt some 
facilities to enhance their existing response capabilities, and even to 
develop a full emergency response program where none previously 
existed. Conversely, such increased coordination could result in local 
authorities, in consultation with an owner or operator, deciding that 
local public responders are better positioned to respond to releases of 
regulated substances at the source than the facility itself. 
Additionally, coordination could lead to development of mutual aid 
agreements with neighboring facilities, arrangements with response 
contractors, or other means to improve community and/or facility 
response plans, procedures, and resources. Such measures could enhance 
both the community's and facility's ability to effectively respond to 
emergencies without necessarily requiring a facility to maintain its 
own hazardous materials response team and/or fire brigade, unless the 
owner or operator, after coordinating with local authorities, decides 
this is the most effective approach.
i. Changes to Emergency Response Program Provisions
    The proposed rulemaking contained two substantive changes to the 
emergency response program provisions of Sec.  68.95. The first change 
would have modified the emergency response plan provision in Sec.  
68.95(a)(1)(i) that requires the plan to include procedures for 
informing the public and local emergency response agencies about 
accidental releases, to also require these procedures to inform 
appropriate Federal and state emergency response agencies about 
accidental releases. EPA received no comments on this provision, and 
therefore is finalizing it as proposed.
    The second change would have modified Sec.  68.95(a)(4). Under the 
existing rule, this provision requires the emergency response program 
to include procedures to review and update the emergency response plan 
to reflect changes at the stationary source and ensure employees are 
informed of changes. The proposed change would have required the owner 
or operator to review and update the emergency response plan annually, 
or more frequently if necessary, to incorporate recommendations and 
lessons learned from emergency response exercises, incident 
investigations, or other available information.
    Some commenters stated that requiring annual updates to the 
facility emergency response plan is unnecessary, and that EPA should 
allow updates to be performed less frequently, such as every three or 
five years, unless changes occur. Others stated that the proposed 
requirement was vague and should be clarified. A few commenters, 
including an industry trade association and a private citizen, 
commented that EPA's proposed requirement to require annual updates to 
emergency response plans incorrectly assumes the owner or operator will 
know when changes in community emergency response resources and 
capabilities occur. One facility requested EPA clarify in the final 
rule that facilities would not be deemed noncompliant if changes in 
local authorities' response plans or capabilities occur without 
notification to the facility. A private citizen suggested EPA add a 
requirement for local response authorities to provide a copy of the 
local community emergency response plan to the facility.
    The final rule has adopted a modified version of the proposed 
emergency response plan update provision. Under the final rule, the 
owner or operator must review and update the emergency response plan as 
appropriate based on changes at the source or new information obtained 
from coordination activities, emergency response exercises, incident 
investigations, or other available information, and ensure that 
employees are informed of the changes. EPA agreed with commenters who 
stated that requiring annual emergency response plan updates is 
unnecessary. EPA is not finalizing a requirement to update the 
emergency response plan annually, because while coordination activities 
will occur annually, they may not always generate information that 
necessitates changes to the facility's emergency response plan. Other 
events that could trigger updates to the emergency response plan, such 
as incident investigations and field and tabletop exercises, may also 
occur less frequently than annually, and may or may not produce 
information that could affect the emergency response plan. Therefore, 
EPA has decided to finalize a more flexible update provision. Under the 
final rule, the owner or operator is required to update the emergency 
response plan, but only when changes at the source, or new information 
obtained from coordination activities, exercises, incident 
investigations, or other information sources make it appropriate to 
change the plan.
    EPA disagrees with commenters who stated the owner or operator will 
be unaware of changes in community

[[Page 4659]]

emergency response resources that could affect the source's emergency 
response plan. EPA believes the annual coordination provision should 
ensure the owner or operator is kept up to date on relevant changes in 
the community emergency response plan. EPA agrees with commenters that 
the owner or operator should not be held responsible for updating the 
facility emergency response plan to reflect changes in the local 
community emergency response plan if local response officials do not 
provide the necessary information. However, the Agency is not requiring 
local authorities to provide a complete copy of the local community 
emergency plan to the owner or operator. Local authorities may provide 
it if they choose, and in some cases the community emergency response 
plan may be publicly available information. However, the local 
community emergency response plan may also contain a significant amount 
of information that is not relevant to the owner or operator, so local 
response authorities may prefer to provide only the information from 
the community emergency response plan that relates to the stationary 
source.
    In the final rule, the Agency has also included a requirement to 
ensure employees are informed of any changes to the emergency response 
plan. This requirement was already in Sec.  68.95(a)(4) of the existing 
rule, but had inadvertently been omitted from the proposed rulemaking 
language that revised this section. One commenter noted this issue, and 
stated that workers should continue to be involved in reviewing the 
emergency response plan. EPA agrees, and therefore has restored this 
provision in the final rule.
    Lastly, EPA is finalizing the proposal to replace the term ``local 
emergency planning committee'' with the acronym ``LEPC.'' EPA received 
no comments on this issue.

B. Facility Exercises

1. Summary of Proposed Rulemaking
    In Sec.  68.96 of the NPRM, EPA proposed to require three types of 
emergency response exercises under Subpart E of the RMP rule--
notification, field, and tabletop exercises. Under Sec.  68.96(a), EPA 
proposed to require all stationary sources with any Program 2 or 
Program 3 process to conduct annual notification exercises that 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. EPA also proposed that 
these exercises be documented and written records maintained for a 
period of five years.
    Under Sec.  68.96(b), EPA proposed that responding stationary 
sources develop and implement an exercise program that includes field 
and tabletop exercises. Under Sec.  68.96(b)(1), field exercises would 
have been required at least once every five years, and within one year 
of any accidental release meeting the accident history reporting 
requirements of Sec.  68.42. Under Sec.  68.96(b)(2), tabletop 
exercises would have been required annually, except during the calendar 
year when a field exercise was conducted. Also under these provisions, 
when planning field and tabletop exercises, EPA proposed to require the 
owner or operator to coordinate with local public emergency responders 
and invite them to participate in exercises.
    Lastly, under Sec.  68.96(b)(3), EPA proposed to require the owner 
or operator to prepare an evaluation report for both field and tabletop 
exercises, within 90 days of the exercise. The report would require 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. In the 
preamble to the proposed rulemaking, EPA indicated the report would 
also include an evaluation of the adequacy of coordination with local 
emergency response authorities, and other external responders, as 
appropriate.
2. Summary of Final Rule
    EPA is finalizing the notification exercise provisions of Sec.  
68.96(a) as proposed but with modifications. Under Sec.  68.96(b), the 
final rule requires responding stationary sources to develop and 
implement an exercise program that includes both field and tabletop 
exercises; however, EPA is modifying the exercise frequency to allow an 
owner or operator to establish a schedule in coordination with local 
officials, with minimum timeframes prescribed in the rule. Exercises 
must involve facility emergency response personnel and, as appropriate, 
emergency response contractors. When planning emergency response field 
and tabletop exercises, the owner or operator must coordinate with 
local public emergency response officials and invite them to 
participate in the exercise.
a. Field Exercises
    Section 68.96(b)(1) requires the owner or operator to conduct field 
exercises involving a simulated accidental release of a regulated 
substance. Under Sec.  68.96(b)(1)(i), as part of the coordination with 
local emergency response officials required by Sec.  68.93, the owner 
or operator is required to consult with these local officials to 
establish an appropriate frequency for field exercises. However, in all 
cases, the owner or operator must conduct a field exercise at least 
once every ten years.
    Section 68.96(b)(1)(ii) identifies the scope of the field exercises 
including tests of: Notification procedures; procedures and measures 
for emergency response actions (including evacuations and medical 
treatment); and communications systems. Field exercises must also 
involve: Mobilizing of facility emergency response personnel, including 
contractors, as appropriate; coordinating with local emergency 
responders; deploying emergency response equipment; and any other 
action identified in the emergency response program, as appropriate.
b. Tabletop Exercises
    Section 68.96(b)(2) requires the owner or operator to conduct 
tabletop exercises involving the simulated accidental release of a 
regulated substance. Under Sec.  68.96(b)(2)(i), as part of the 
coordination with local emergency response officials required by Sec.  
68.93, the owner or operator is required to consult with these 
officials to establish an appropriate frequency for tabletop exercises. 
However, in all cases, the owner or operator must conduct a tabletop 
exercise at least once every three years.
    Section 68.96(b)(2)(ii) requires tabletop exercises to include 
discussions 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 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.
c. Documentation and Alternatives
    EPA is finalizing the documentation provisions of Sec.  68.96(b)(3) 
as proposed. The owner or operator must prepare an

[[Page 4660]]

exercise evaluation report within 90 days of each field and tabletop 
exercise.
    The final rule also adds Sec.  68.96(c) to describe alternative 
means of meeting RMP exercise requirements. Under Sec.  68.96(c)(1), 
the owner or operator may satisfy the requirement to conduct 
notification, field and/or tabletop exercises through exercises 
conducted to meet other Federal, state or local exercise requirements, 
provided such exercises meet the RMP exercise requirements of Sec.  
68.96(a) and/or (b), as appropriate.
    Under Sec.  68.96(c)(2), the owner or operator may satisfy the 
requirement to conduct notification, field and/or tabletop exercises by 
responding to an accidental release, provided the response includes the 
actions indicated in Sec.  68.96(a) and/or (b), as appropriate. When 
response to an accidental release is used to meet field and/or tabletop 
exercise requirements, the final rule requires the owner or operator to 
prepare an after-action report comparable to the exercise evaluation 
report required in Sec.  68.96(b)(3), within 90 days of the incident.
3. Discussion of Comments and Basis for Final Rule Provisions
    Many commenters, including industry trade associations, facilities, 
government agencies, environmental advocates, private citizens, and 
others supported EPA's proposal to incorporate emergency response 
exercise requirements into the RMP rule. Most commenters supported 
EPA's proposal to require notification exercises. Many commenters also 
supported incorporating requirements for field and tabletop exercises 
into the RMP rule, but some of these commenters also recommended 
various changes to the proposed provisions. Other commenters, including 
industry trade associations, facilities, and others, recommended 
eliminating field and/or tabletop exercises. The approach adopted in 
this rule increases the flexibility for local responders and stationary 
source owners and operators to tailor their exercises to their 
communities and to their resources. Public comments on each proposed 
requirement within the emergency response exercise provisions of 
Subpart E are discussed further in this preamble, along with EPA's 
decisions for the final rule.
a. Notification Exercises
    Almost all commenters that addressed EPA's proposed notification 
exercise requirements supported those requirements as proposed. Many of 
these commenters stated notification systems must be tested regularly 
to ensure they function successfully in the event of an emergency. A 
few commenters recommended changes to the notification exercise 
requirement. One commenter suggested notification exercises should 
occur every five years unless changes occur (e.g., management, 
operation, or physical changes), in which case they should occur within 
60 days of the change. Another commenter supported a requirement to 
confirm emergency contact information but opposed a requirement to send 
an actual ``test'' notification, stating this would be an unnecessary 
burden on facilities and responding organizations. A different 
commenter requested EPA exempt RCRA-permitted facilities from annual 
notification exercise requirements, where the RMP-regulated process is 
also covered by a RCRA permit, stating the proposed requirements are 
duplicative of RCRA requirements.
    EPA disagrees notification exercises should occur every five years 
unless changes occur, because the Agency believes five years is too 
long of a gap to confirm whether emergency notification information is 
correct and emergency notification systems function properly. For 
example, EPA notes that emergency contact information provided in RMPs 
frequently changes, particularly when facilities go several years 
between RMP updates. For this reason, in 2004 the Agency modified the 
RMP submission requirements to require emergency contact information 
provided in RMPs to be corrected within one month of any change in that 
information. EPA also disagrees management, operational, and physical 
changes at the facility necessarily represent appropriate triggers for 
verification of emergency response contact information. In some cases, 
such changes may affect emergency notification, but notification 
systems and procedures may also be affected by other changes, such as 
changes in the community emergency response plan. While EPA believes it 
would be beneficial for the owner or operator to update their emergency 
contact information and confirm the functionality of notification 
systems whenever relevant changes occur, in some cases changes that 
affect emergency contact information and notification systems may be 
infrequent, and result in facility personnel and local responders 
becoming unfamiliar with stationary source emergency notification 
procedures. EPA believes a requirement for annual notification 
exercises will ensure that emergency contact information and 
notification systems remain relatively current, and also provide 
regular training for facility personnel and local responders.
    EPA also disagrees that requiring an actual test of the facility's 
notification system is unnecessary. Requiring annual testing of 
notification systems should prevent situations where emergency 
notification systems are only found to be ineffective when they are 
most needed. Short of actually using the emergency notification system 
during an accidental release, performing a test of the facility's 
emergency notification system is the most practical way to evaluate 
whether or not the system is functional.
    EPA expects the notification exercise will involve testing of on-
site notification equipment and procedures, including contacting each 
entity listed on the facility's notification list to verify the contact 
information and identify that the facility is conducting a notification 
exercise. Therefore, EPA does not believe testing notification 
mechanisms is unduly burdensome. EPA also disagrees with exempting 
RCRA-permitted facilities from the notification exercise requirement. 
However, in the final rule, EPA has added Sec.  68.96(c) to clarify 
that exercises conducted to meet other Federal, state, or local 
exercise requirements will also satisfy the requirements of this rule, 
provided such exercises meet all of the applicable requirements of the 
RMP exercise provision.
    Due to the significant support for and minimal opposition to the 
proposed notification exercise requirements of Sec.  68.96(a), EPA is 
finalizing those requirements without modification. Therefore, under 
the final rule, all regulated sources with any Program 2 or Program 3 
process must conduct an exercise of the source's emergency response 
notification mechanisms at least once each calendar year. During 
listening sessions conducted under Executive Order 13650, members of 
the public expressed significant concerns about ineffective emergency 
notification systems and procedures during accidental release events at 
regulated sources, and about receiving little or no information on 
procedures for evacuation and sheltering-in-place. In most cases, 
community notification, evacuation, and sheltering are managed by local 
authorities after receiving an emergency notification from the 
regulated source. EPA encourages owners and operators to work with 
local authorities to perform joint comprehensive testing of facility 
and community notification systems where possible, and to provide 
updated information to local communities on

[[Page 4661]]

evacuation and sheltering procedures. In some cases, regulated 
facilities provide direct notification to nearby residents and other 
members of the community when an accident has occurred. These may 
include audible and/or visual alarms and sirens, reverse 911 calling 
systems, or other direct notification systems. Where such systems are 
in place, annual notification exercises should include tests of those 
systems during the exercise. In either case, EPA recommends regulated 
sources and communities work together after conducting notification 
exercises to evaluate the effectiveness of notification, evacuation, 
and sheltering systems and procedures, and make improvements to those 
systems and procedures as appropriate, based on lessons learned during 
exercises.
b. Field and Tabletop Exercises
    EPA received numerous comments on the proposed field and tabletop 
exercise provisions. Most commenters, including industry trade 
associations, facilities, government agencies, environmental advocates, 
and others provided general support for including field and tabletop 
exercise requirements in part 68, although many also recommended 
changes to the required frequency of field and tabletop exercises, 
expressed concerns regarding any requirement for local public 
responders to be involved in exercises, or recommended other changes to 
the proposed requirements. Several other commenters entirely opposed 
adding field and tabletop exercise requirements to the rule. In 
general, these commenters stated that field and tabletop exercises were 
unduly burdensome on both facilities and local responders, and 
exercises are unnecessary because annual coordination activities would 
be sufficient to prepare facility employees and local responders to 
respond to accidental releases.
    EPA disagrees with comments that recommend completely eliminating 
requirements for field and/or tabletop exercises in the final rule. The 
Agency views exercises as an important component of an emergency 
response program for responding stationary sources, because it allows 
these sources to implement their emergency response plans, test their 
actual response procedures and capabilities, identify potential 
shortfalls, and take corrective action. EPA also continues to believe 
both field and tabletop exercises will provide essential training for 
facility personnel and local responders in responding to accidental 
releases, and will ultimately mitigate the effects of such releases at 
RMP facilities. Therefore, in the final rule, EPA is requiring all 
responding stationary sources to perform field and tabletop exercises. 
However, in the final rule EPA has also modified some provisions of 
Sec.  68.96 in order to address public comments. These changes are 
discussed in more detail in the following sections.
c. Frequency of Exercises
    The greatest number of comments on the proposed field and tabletop 
exercise provisions related to the required frequency for exercises. 
While several commenters supported EPA's proposed requirements for 
annual tabletop exercises and field exercises every five years, some 
commenters recommended requiring more frequent field exercises, while 
others recommended requiring field and/or tabletop exercises less 
frequently, and still others argued that EPA should retain the 
requirement for field and tabletop exercises but allow owners and 
operators to have flexibility in the scheduling of exercises.
    Support for more frequent field exercises. Commenters who argued 
for more frequent field exercises included non-governmental 
organizations, government agencies, and others. These commenters stated 
that EPA's proposed five-year frequency for field exercises was 
insufficient. One commenter argued a five-year timeframe for field 
exercises does not conform to CAA section 112(r)(7)(B)(i), which states 
``the Administrator shall promulgate reasonable regulations and 
appropriate guidance to provide, to the greatest extent practicable, 
for the prevention and detection of accidental releases of regulated 
substances and for response to such releases by the owners or operators 
of the sources of such releases.'' This commenter also stated that more 
frequent exercises are necessary so that response personnel would gain 
more experience. Several other commenters who recommended more frequent 
exercises noted that sources subject to the New Jersey Toxic 
Catastrophe Prevention Act (TCPA) regulations are required to conduct 
annual field exercises. Other commenters argued more frequent field 
exercises are needed due to the potential for personnel turnover that 
results in the loss of institutional knowledge and collaborative 
relationships between covered facility owners/operators and community 
emergency responders.
    EPA disagrees that CAA section 112(r)(7) requires EPA to establish 
a requirement for more frequent exercises. The statute itself in CAA 
section 112(r)(7)(B)(i) does not contain a requirement for emergency 
response exercises, therefore, nothing in the statute mandates a 
frequency for such exercises if the EPA decides some exercises may be 
reasonable. The requirement to conduct emergency response exercises 
derives from EPA's authority to set ``reasonable regulations'' that 
include ``procedures and measures for emergency response after an 
accidental release of a regulated substance in order to protect human 
health and the environment.'' CAA section 112(r)(7)(B)(ii) further 
requires owners and operators to prepare and implement a risk 
management plan that includes, among other things, ``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.'' This statutory language 
provides the Administrator with discretion to decide what components of 
an emergency response program are reasonable to include in regulations.
    EPA believes exercising emergency response plans is a reasonable 
requirement in order to ensure that emergency response programs will 
work well in the event of an accidental release. However, EPA is 
cognizant of the resources (e.g., staffing, cost, expertise) that 
exercises demand both from stationary sources and from local 
responders. To ensure the reasonableness of the exercise requirement, 
EPA has provided flexibility for stationary sources and local emergency 
responders to set schedules for such exercises. Given the differences 
among communities and stationary sources impacted by the national Risk 
Management Program rule, the reasonable minimum frequency for exercises 
will vary by locale from that which is appropriate under the NJ TCPA 
requirements.
    EPA disagrees with commenters who recommended requiring field 
exercises more frequently than every five years. EPA notes that its own 
regulatory impact analysis for the NPRM projected the emergency 
response exercise provisions to be the costliest provision of the NPRM, 
and the Agency is concerned that a requirement for even more frequent 
field exercises could be prohibitively expensive for some facilities 
and local responders.
    Regarding commenters' concerns about the potential that less 
frequent exercises may result in response personnel gaining less 
experience, and for personnel turnover to result in the

[[Page 4662]]

loss of institutional knowledge and relationships between facility 
operators and community emergency responders, EPA shares such concerns, 
but must balance those concerns with the potentially higher burdens 
that more frequent exercises could place on facility response personnel 
and community responders. Also, EPA believes the annual emergency 
response coordination requirements of Sec.  68.93 will foster strong 
ongoing relationships between facility personnel and local responders, 
and prevent the loss of institutional knowledge. Furthermore, the 
timeframes EPA is establishing in the final rule are minimum 
expectations and we encourage owners and operators to establish 
appropriate schedules for exercises, in consultation with local 
officials, considering factors such as hazards, organizations 
(including facility personnel training needs and personnel turnover), 
budgets, resource demands, regulations, or other factors.
    Arguments for less frequent exercises. Commenters who argued for 
less frequent field and/or tabletop exercises included industry 
associations, government agencies, facilities, local responders, 
private citizens, and others. These commenters stated that requiring 
field exercises every five years and tabletop exercises every year 
would be overly burdensome on facilities and local responders. Some of 
these commenters submitted data to EPA to substantiate their burden 
estimates. One commenter recommended reducing the required exercise 
frequency because holding exercises as frequently as proposed by EPA 
would discourage regular participation by facility personnel and local 
responders. Several commenters recommended the frequency of field and 
tabletop exercises be left to the discretion of the source and/or local 
responders, so that the exercise schedule could be tailored to the 
individual circumstances of sources and local communities. These 
commenters also stated that exercises--and particularly field 
exercises--can be very costly for both sources and local responders. 
They also indicated that setting a single exercise frequency for all 
sources does not account for the differing situations faced by 
different sources and communities. In some cases, these commenters 
argued, requiring too-frequent exercises could potentially divert 
resources away from other important safety activities. One commenter 
representing an association of state emergency planning officials 
supported an exercise requirement, but recommended the frequency for 
both field and tabletop exercises be determined by collaboration 
between the source and local responders during the emergency response 
coordination process.
    EPA found these comments compelling. EPA's own projections in the 
Regulatory Impact Analysis for the proposed rulemaking indicated that 
exercises would be the costliest provision of the proposed rulemaking, 
and in order to limit these costs, one alternative considered in the 
NPRM was to require only tabletop exercises. Additionally, the Agency 
is sympathetic to the concerns raised by emergency response officials 
and others that participation in exercises by local responders can be 
burdensome, particularly in smaller communities with volunteer 
responders and fewer response resources, as well as in communities 
where multiple RMP facilities are present--which would place 
proportionally greater demands on responders who desire to participate 
in the RMP facility exercises held within their jurisdiction. EPA is 
also mindful of the concerns raised by small business owners and their 
representatives both during SBAR panel process and in comments 
submitted to EPA, who pointed out that exercises could potentially 
place a relatively larger burden on small businesses.
    For these reasons, in the final rule EPA has modified the provision 
for frequency of both field and tabletop exercises to allow sources and 
local responders to work together to establish an exercise frequency 
appropriate to their situation. However, as EPA continues to believe 
that both field and tabletop exercises are an important component of an 
emergency response program, the Agency does not believe any responding 
source should be allowed to reach an agreement that practically exempts 
the source from the exercise program requirements. This could happen if 
a source reached agreement with local responders to hold exercises 
extremely infrequently. Therefore, the Agency is also establishing a 
minimum required exercise frequency of ten years for field exercises, 
and three years for tabletop exercises. The Agency believes even the 
smallest sources will be able to hold field exercises at least once 
each decade, and in many cases EPA expects sources will hold field 
exercises more frequently. The Agency set the frequency for tabletop 
exercises to be more frequent than field exercises because tabletop 
exercises require less time and fewer resources to plan and conduct 
than field exercises, and therefore EPA believes sources will be able 
to perform tabletop exercises at least every three years.
    Under the final rule, owners and operators are required to 
coordinate with local responders to establish an exercise frequency 
that works for both organizations. In establishing the exercise 
frequency, owners or operators and local responders may account for 
whatever factors they deem appropriate. Owners or operators and local 
authorities may also adjust exercise frequencies as needed to account 
for changes in hazards, organizations, budgets, resource demands, 
regulations, or other factors, provided that field exercises occur at 
least every ten years, and tabletop exercises occur at least every 
three years. The agency notes that some RMP facilities may be subject 
to a more frequent schedule for exercises under other (e.g., state or 
local) regulations. In such cases, the owner or operator should comply 
with the more stringent exercise frequency requirement. By doing so, 
they will ensure that they also meet the required exercise frequency 
for the RMP exercise requirements.
d. Local Responder Participation in Exercises and Exercise Planning
    EPA proposed to require owners and operators to coordinate with 
local public emergency response officials when planning emergency 
response field and tabletop exercises, and invite them to participate 
in exercises. While most public comments on this issue supported the 
idea that local response officials should be involved in exercise 
planning and execution, many comments submitted by industry 
associations, facilities, government agencies, and others expressed 
concerns that local responders could easily become overburdened by any 
requirement to participate in planning or conducting exercises. These 
commenters pointed out that in many communities, local response 
organizations may be staffed with volunteers, or may have multiple RMP 
facilities within their jurisdiction, such that local response 
organizations could be significantly impacted by a requirement to 
participate in exercises. These commenters agreed that local responders 
should be invited to participate in exercises, but recommended that EPA 
not require local authorities to participate in planning or conducting 
exercises, and not hold facilities accountable if local response 
organizations decline to participate. Comments submitted by industry 
associations and facilities also recommended EPA address the 
possibility that exercises may

[[Page 4663]]

sometimes need to be postponed if local response organizations are 
unable to participate due to actual emergencies or lack of resources. 
These commenters recommended that EPA allow extensions of the required 
timeframe for conducting the next exercise, or allow the owner or 
operator to meet the exercise requirement by conducting the exercise as 
soon as possible without participation by local responders, if 
necessary.
    In addition to coordinating with local response authorities to 
establish an exercise frequency, the final rule also requires the owner 
or operator to coordinate with local public emergency response 
officials when planning field and tabletop exercises, and to invite 
local responders to participate in exercises. EPA agrees with the many 
commenters who stated that any requirement for local responders to 
participate in planning or conducting exercises could in some cases 
overburden local response organizations or make it difficult for 
regulated facilities to timely meet the exercise requirements. EPA is 
aware of, and various public comments have noted, the fact that in the 
past some sources have been unable to locate local response 
organizations who are able or willing to perform such coordination 
activities. Therefore, while the final rule requires the owner or 
operator to coordinate with local public responders to establish field 
and tabletop exercise frequencies and plan exercises, and invite local 
emergency responders to participate in exercises, the final rule does 
not require local responders to participate in any of these activities.
    In most cases, the LEPC, fire department, or equivalent local 
emergency response authority would be the appropriate party for the 
owner or operator to conduct exercise planning and coordination. EPA 
believes these local response authorities will usually be willing to 
perform emergency response coordination activities, including exercise 
coordination activities, with regulated sources. In many cases, EPA 
expects that exercise planning can be included as part of the annual 
coordination meetings required under Sec.  68.93. In other cases, the 
owner or operator and local responders may choose to hold separate 
exercise planning meetings. EPA also understands that in some cases 
local responders may elect to limit their participation in exercise 
coordination activities because of limitations on their available time 
and resources. However, if the owner or operator is unable to identify 
a local emergency response organization with which to coordinate field 
and tabletop exercise schedules and plans and participate in exercises, 
or the appropriate local response organizations are unable or unwilling 
to participate in these activities, then the owner or operator may 
unilaterally establish appropriate exercise frequencies and plans, and 
if necessary hold exercises without the participation of local 
responders. In these cases, the owner or operator must still ensure 
that field exercises occur at least every ten years, and tabletop 
exercises occur at least every three years. Additionally, the owner or 
operator should continue to make ongoing efforts to locate appropriate 
local public response officials for purposes of emergency response and 
exercise coordination and participation.
    As EPA believes the final rule provides the owner or operator with 
ample flexibility to establish and modify exercise schedules, EPA sees 
no reason to provide for additional extensions of time for conducting 
exercises in the event that local responders cannot participate, or if 
for some other reason the exercise must be rescheduled. EPA recommends 
that owners and operators and local response organizations take such 
contingencies into account when establishing exercise schedules, so 
there is still time to complete the field or tabletop exercise within 
the allotted timeframe (i.e., at least every ten years for field 
exercises and at least every three years for tabletop exercises) in the 
event the exercise must be postponed.
e. Exercise Scope
    Some commenters recommended EPA clarify the required scope of 
exercises. One commenter indicated that if EPA does require exercises, 
the Agency should allow some variation in the scope of exercises based 
on the needs and resources of the community.
    In the preamble to the proposed rulemaking, EPA explained that 
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. Field exercises 
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, 
including contractors as appropriate;
     Coordination with local emergency responders;
     Equipment deployment, and
     Other actions identified in the source's emergency 
response plan, as appropriate.
    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. Tabletop exercises 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/or contractors and their responsibilities;
     Coordination with local emergency responders;
     Procedures for deploying emergency response equipment, and
     Other actions identified in the source's emergency 
response plan, as appropriate.
    EPA believes these elements allow ample flexibility for the owner 
and operator, in consultation with local emergency response officials, 
to choose appropriate exercise scenarios. Involving local response 
officials in selecting exercise frequencies and in planning exercises 
should ensure that RMP facility exercises are consonant with the needs 
and resources of regulated facilities and local communities. By 
involving local public responders in the exercise scenario itself, 
responders may also be able to test or simulate important offsite 
emergency response actions that are usually managed by local public 
emergency response officials, such as community notification, public 
evacuations, and sheltering in place, and EPA encourages sources and 
local response officials to design exercise

[[Page 4664]]

scenarios where these functions are also tested. Responding stationary 
sources that rely on response contractors to perform emergency response 
functions during accidental releases should also ensure that response 
contractors participate in field and tabletop exercises.
    In preparing the exercise evaluation report required under Sec.  
68.96(b)(3), the owner or operator should evaluate all aspects of the 
exercise, including, to the extent possible, any offsite aspects of the 
exercise such as community notification, evacuation, and sheltering in 
place. In many cases, this will require the owner or operator to 
involve local response officials in the exercise evaluation.
f. Post-Accident Exercises
    In the NPRM, in addition to requiring periodic field and tabletop 
exercises, EPA proposed to require the owner or operator to hold a 
field exercise within one year of any accidental release required to be 
reported under Sec.  68.42. Many commenters objected to this 
requirement. These commenters stated that this provision could 
potentially overtax facility and local responders, who would be 
required to deploy once for the incident, and again for the exercise 
following the incident.
    EPA agrees with these comments, and therefore has decided not to 
finalize the requirement to conduct a field exercise within one year of 
an accidental release.
g. Alternatives for Meeting RMP Exercise Requirements
    Several commenters indicated EPA should allow sources to meet the 
periodic field exercise requirements through the actual deployment of 
emergency response resources and personnel during accidental release 
events. Other commenters indicated that many regulated facilities are 
already subject to exercise requirements under other Federal, state, or 
local regulations, or through an industry code of practice, and these 
exercises should suffice to meet the exercise requirements of the 
proposed rulemaking. Comments from state regulatory agencies indicated 
that one agency already requires more frequent field exercises under 
state law, and another state government agency is considering imposing 
more frequent exercise requirements.
    EPA generally agrees with these comments. The Agency does not want 
to establish exercise requirements that conflict with other Federal, 
state, or local laws. Therefore, in the final rule, EPA has added Sec.  
68.96(c) to describe alternative means of meeting exercise 
requirements. This section allows the owner or operator to meet 
requirements for notification, field, and/or tabletop exercises either 
through exercises conducted to meet other Federal, state, or local 
exercise requirements (or under a facility's industry code of practice 
or another voluntary program) or by responding to an actual accidental 
release event, provided the exercise or response includes the actions 
required for exercises under Sec.  68.96(a) and (b), as appropriate.
h. Joint Exercises
    Several commenters, including industry associations and regulated 
facilities, indicated that some companies have formed mutual aid 
associations among several neighboring or nearby facilities so that 
participating facilities can share response personnel and resources in 
order to aid one another in responding to accidental release events at 
any member's facility. These commenters recommended that in such 
situations, or situations where there are clusters of regulated 
facilities located close together, EPA should not require each facility 
to conduct a field exercise, but rather allow these facilities to meet 
their periodic field exercise obligation by conducting a single joint 
exercise, where all participating facilities perform simulated response 
actions to an exercise scenario staged at one member-facility's site. 
These commenters indicated that this approach would reduce the exercise 
demands on small and medium-sized facilities, as well as local 
responders.
    EPA agrees with these comments, and encourages owners and operators 
of neighboring RMP facilities to consider planning and conducting joint 
exercises. However, sources that participate in joint exercises must 
ensure that their participation meets all of the provisions of Sec.  
68.96(a) and/or (b), as appropriate. As commenters have noted, RMP 
facilities participating in mutual aid agreements with other nearby 
facilities already coordinate response actions and resources with those 
facilities, and EPA believes conducting joint exercises among these 
facilities will more accurately simulate their behavior in the event of 
an actual release event, and further enhance the ability of these 
facilities and surrounding communities to effectively respond to 
accidental releases. Even where such mutual aid agreements are not 
currently in place, EPA believes the owners and operators of 
neighboring regulated facilities should consider whether joint facility 
exercises may have benefits for participating facilities, local 
responders, and surrounding communities. Such benefits could include 
improved identification and sharing of response resources, enhanced 
training for facility personnel and local responders, improvements in 
facility procedures and practices resulting from information sharing, 
and others. EPA also agrees that joint exercises may be particularly 
beneficial for small businesses. While the Agency believes that even 
small sources can design and conduct field and tabletop exercises that 
are appropriate to the size, hazards, and capabilities of the source, 
joint exercises involving multiple neighboring small sources would 
allow these sources to pool resources together in order to carry out 
more extensive exercise scenarios that could better simulate serious 
accidental release events. In areas where multiple RMP facilities are 
located close together, joint exercises could also reduce the overall 
burden of exercises on local response organizations, who might 
otherwise be asked to participate in multiple separate exercises.
i. Exercise Documentation
    While most commenters who addressed the issue of exercise 
documentation acknowledged the need for exercise evaluation reports to 
be prepared, some commenters expressed concerns about specific aspects 
of the proposed exercise documentation requirements. Some commenters 
objected to the proposed rulemaking's requirement to prepare the 
evaluation report within 90 days, stating that evaluation reports for 
large exercises could take longer than 90 days to prepare, and that EPA 
should allow extensions of the required timeframe where appropriate. 
Still other commenters objected to the possibility that exercise 
evaluation reports that indicate deficiencies outside the control of an 
owner or operator could potentially be used by EPA in an enforcement 
action against the owner or operator. Other commenters stated EPA 
should not require exercise reports to include the names and 
associations of exercise participants, because this information could 
be difficult to obtain and would risk the privacy of exercise 
participants without any benefit.
    EPA is finalizing the exercise documentation requirements of Sec.  
68.96(b)(3) as proposed. EPA is also requiring in Sec.  68.96(c)(2), 
documentation of a response to an accidental release in order for the 
response to be used to satisfy the RMP field exercise requirements. The 
owner or operator must prepare an after-action report comparable to 
(and in lieu of) the exercise evaluation report required in Sec.  
68.96(b)(3), within 90 days of the incident, when the owner or operator

[[Page 4665]]

uses the response to an accidental release to meet their field or 
tabletop exercise requirement. This provision is necessary because 
documenting the response to an accidental release may differ from 
documenting the results of an exercise. For example, instead of 
documenting the ``exercise scenario,'' the owner or operator would 
document the nature of the accidental release prompting the response. 
Also, there may be additional aspects of the response to an accidental 
release that should be documented, such as any injuries, first aid and/
or medical treatment that occurred. To the extent possible, the owner 
or operator should ensure that additional items such as these are 
documented in the after-action report, as well as information 
equivalent or comparable to that documented in an exercise evaluation 
report.
    EPA disagrees with commenters who contend that 90 days is 
insufficient time to develop an exercise evaluation report (or after-
action report), or that extensions of time should be granted for 
development of evaluation reports in certain circumstances. Unlike 
incident investigations, where report completion may require extensive 
and time-consuming evidence collection and forensic analysis, the basic 
elements required to be documented in an exercise evaluation report 
should be known relatively quickly after the conclusion of the 
exercise.
    Regarding commenters concerns about the use of exercise evaluation 
reports in enforcement actions--an exercise report is like any other 
record required to be developed under 40 CFR part 68. Whether or not an 
exercise evaluation report would be used in an EPA enforcement action 
would depend on the specific facts and circumstances of the case.
    EPA disagrees that exercise evaluation reports should not contain 
the names and associations of exercise participants. Under the final 
rule, the frequency of both field and tabletop exercises is mainly left 
to the reasonable judgement of the owner or operator and local response 
officials. In some cases, exercises may occur infrequently, and EPA 
believes that maintaining a written record including, among other 
things, the identification and affiliation of exercise participants 
will be useful in planning future exercises.

VI. Information Availability Requirements

    EPA proposed requirements for making information available to LEPCs 
or emergency response officials, and the public in order to ensure that 
communities have the necessary chemical hazard information to protect 
the health and safety of first responders and residents. The following 
sections provide an overview of the proposed and final rule provisions, 
public comments received, and EPA's responses.

A. Disclosure Requirements to LEPCs or Emergency Response Officials

1. Summary of Proposed Rulemaking
    EPA proposed that owners and operators of all RMP-regulated 
facilities provide certain information to LEPCs or local emergency 
response officials upon request. EPA stated that the facility should 
make this information available in a manner that is understandable and 
avoids technical jargon, convey it without revealing CBI or trade 
secret information, and adequately explain any findings, results, or 
analysis being provided.
    EPA proposed that the owner or operator be required to develop the 
following chemical hazard information for all regulated processes and 
provide it, upon request, to the LEPC or local emergency response 
officials:
     Information on regulated substances. Information related 
to the names and quantities of regulated substances held in a process;
     Accident history information. The facility's five-year 
accident history information required to be reported under Sec.  68.42;
     Compliance audit reports. Summaries of compliance audit 
reports developed in accordance with Sec. Sec.  [thinsp]68.58, 68.59, 
68.79, or 68.80, as applicable;
     Incident investigation reports. Summaries of incident 
investigation reports developed in accordance with Sec.  
[thinsp]68.60(d) or Sec.  [thinsp]68.81(d), as applicable;
     Inherently Safer Technologies (IST). For each process in 
NAICS codes 322, 324, and 325, a summary of the IST or ISD identified 
that the owner or operator has implemented or plans to implement;
     Exercises. Information on emergency response exercises 
required under Sec.  68.96 including, at a minimum, schedules for 
upcoming exercises, reports for completed exercises, and other related 
information.
2. Discussion of Comments and Basis for Final Rule Provisions
    Overall, commenters agreed that providing communities, local 
planners, and local first responders with appropriate chemical hazard-
related information is critical to ensuring the health and safety of 
the first responders and local communities. Commenters that supported 
the proposed requirements provided general support and offered no 
suggested changes other than to expand the IST requirement to apply to 
all facilities; require facilities to submit IST analyses to the LEPC; 
and make IST analyses available to the public.
    However, most commenters, including professionals (e.g., 
consultants or technical/process safety experts), state agencies, 
facilities, and industry trade associations, did not support the 
requirement for facilities to submit specific chemical hazard-related 
information to LEPCs and local emergency response agencies, as the 
appropriate mechanism to ensure that local responders and planners have 
the information they need to mitigate chemical risks. Commenters 
provided several reasons for their objections including:
     A lack of data supporting the Agency's concern that LEPCs 
are not receiving the information they need to develop local emergency 
response plans;
     Unnecessary redundancy with existing requirements, such as 
data reported under EPCRA;
     Data proposed is too broad and does not provide useful 
information pertinent to emergency response planning;
     The data may overwhelm LEPCs with technical information 
and the concern that most LEPCs lack the expertise needed to use this 
information to develop local emergency response plans; and
     Security concerns regarding how the information is 
maintained and handled by the LEPC or emergency response officials.
    Of those commenters that did not support the proposed requirements, 
several stated that EPA provided no data supporting the Agency's 
concern that some LEPCs were not receiving the information they needed 
to develop local emergency response plans. These commenters pointed to 
EPA's 2008 National Survey of Local Emergency Planning Committees 
(LEPCs),\110\ which did not reveal any concerns about RMP facilities 
withholding information from LEPCs. According to these commenters, 
LEPCs indicated in the survey that they were able to obtain RMP data 
from EPA, the state, or RMP facilities and noted their greatest 
obstacle was lack of funding. In addition, commenters pointed out that 
the Executive Order 13650 Working Group report, Actions to Improve 
Chemical Facility Safety and

[[Page 4666]]

Security--A Shared Commitment, May 2014 \111\ contains no findings 
about facilities ignoring LEPC requests for information or that lack of 
information provided to the LEPCs was an issue, but rather the report 
stated that LEPCs had concerns about managing all of the information 
provided under various laws and regulations, understanding how each 
chemical is regulated, and how to properly respond to an emergency 
involving specific chemicals. In addition, these commenters stated that 
while some CSB investigations 112 113 114 highlighted a lack 
of emergency preparedness and recommended strengthening local 
infrastructures supporting LEPCs, they did not find that facilities 
refused to cooperate with the community or withheld chemical 
information from LEPCs.
---------------------------------------------------------------------------

    \110\ 2008 Nationwide Survey of Local Emergency Planning 
Committees (LEPCs). https://www.epa.gov/epcra/nationwide-survey-local-emergency-planning-committees.
    \111\ Executive Order 13650 Actions to Improve Chemical Facility 
Safety and Security--A Shared Commitment, May 2014. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.
    \112\ 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, 242. http://csb.gov/west-fertilizer-explosion-and-fire-/.
    \113\ 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.
    \114\ 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/.
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    Multiple commenters, including professionals, state and local 
government agencies, facilities, and industry trade associations, also 
stated that the information elements that EPA proposed to require 
facilities to share with LEPCs are already available to them through 
the EPCRA or reported in RMPs, which are also already available to the 
LEPCs. Several commenters noted that communication between LEPCs and 
facilities is satisfactory via the EPCRA process and stated that LEPCs 
were able to obtain RMP data from EPA. One commenter requested the EPA 
refocus its efforts into collecting required data from ``outlier 
facilities who are not providing required chemical hazard information'' 
rather than impose a duplicative requirement for the creation and 
distribution of data.
    Many commenters also asserted that the scope of information 
required by the proposed provision was too broad. These commenters 
argued that incident investigation summaries, compliance audit 
summaries, and IST or ISD implementation summaries would not provide 
useful information for emergency planning and that the proposed 
information requirements were unnecessarily detailed. Several of these 
commenters also suggested that the type and format of the information 
should be determined by individual LEPCs. Furthermore, commenters 
expressed concern that the information in these summaries would be too 
technical and LEPC staff may not have the expertise to understand the 
information being submitted or extrapolate information that may be 
useful.
    Multiple commenters raised concerns regarding the security of 
sensitive chemical and facility information that would be shared with 
LEPCs under the proposed requirements. These commenters indicated that 
LEPCs would be unable to keep the information secure because they lack 
procedures and resources to properly vet those who would have access to 
the information, and that the information would be considered ``public 
information'' once it is provided to the LEPC. These commenters 
indicated that there are multiple ways for the public to access 
sensitive information from LEPCs through information requests from the 
public. Commenters also suggested that these requirements to disclose 
information to LEPCs interfere with the Department of Homeland 
Security's (DHS) Chemical Facility Anti-Terrorism Standards (CFATS). 
Commenters further suggested that since much of this information might 
reveal security vulnerabilities at facilities, providing this 
information to LEPCs increases the risk of terrorism or criminal use of 
the information which could cause harm to first responders and the 
community.
    EPA also received comments regarding how the information should be 
provided to LEPCs and the timeframe for providing that information. 
Many commenters suggested the information should be provided through 
existing systems in a format which is useful to LEPCs or local 
emergency responders for developing their local emergency plans. 
Several states and a state association suggested LEPCs and emergency 
response officials should determine what information is useful and 
necessary to developing preparedness and response plans. An industry 
trade association suggested that information should not be in an 
electronic format but should be communicated to LEPCs, local emergency 
officers, neighbor groups, and Community Advisory Panels at regular 
intervals. Two state agencies commented that RMP information should be 
incorporated into existing management systems and that providing 
information in a stand-alone single document was of little value to 
emergency planners. A few commenters suggested that the format of the 
information should be determined by the individual LEPC. Finally, 
several commenters proposed that the information be relayed during the 
annual coordination meeting between LEPCs and facility personnel.
    In response to these comments, EPA maintains that it is very 
important to ensure that LEPCs or local emergency response officials 
have the chemical information necessary for developing local emergency 
response plans, however, EPA believes it is unnecessary to specify in 
the RMP rule the types or format of information that LEPCs or emergency 
response officials may request. EPCRA section 303(d)(3) already 
provides the necessary authority to allow LEPCs to request information 
needed to develop the local emergency response plan. Additionally, 
EPCRA requires facilities to provide Safety Data Sheets (SDSs) and 
inventory information to LEPCs to assist emergency planners and 
responders. Under EPCRA section 312(f), fire departments have the 
authority to inspect these facilities to better understand the risk 
associated with these chemicals and how to deal with those risks in the 
local emergency response plan.
    As pointed out by the commenters, the proposed requirements could 
be perceived as limiting the flexibility of LEPCs and emergency 
response officials to collect the information they need to develop a 
local emergency response plan that addresses their community's specific 
chemical risks. Furthermore, the proposed requirements would have 
owners or operators preparing information summaries on an annual basis, 
regardless of whether the LEPC requests the information, and EPA agrees 
that this is overly burdensome for facility owners and operators. This 
could also result in reports being sent to the LEPCs or emergency 
response officials without the necessary context to help officials to 
understand the information contained within the reports and utilize it 
for planning purposes.
    Without acknowledging any inconsistency with CFATS or other 
regulatory structure, EPA recognizes both the security concerns that 
commenters expressed and the challenges associated with securing 
arguably sensitive information.

[[Page 4667]]

Therefore, EPA has decided not to finalize Sec.  68.205 of the proposed 
rulemaking, and is instead adding language to the emergency response 
coordination provisions of Sec.  68.93, which requires the owner or 
operator to provide ``any other information that local emergency 
planning and response organizations identify as relevant to local 
emergency planning.'' (For more information see section V.A. of this 
preamble.) Under this structure, assertions of Chemical-terrorism 
Vulnerability Information (CVI) status for certain information can be 
addressed on a case-by-case basis by the stationary source, the LEPC, 
DHS, and other appropriate entities.
    EPA agrees with commenters that this approach will allow LEPCs and 
other local emergency officials to obtain the information they require 
to meet their emergency response planning needs. It will also allow 
local emergency planners and response officials to ask questions of 
facility personnel about the risks associated with the chemical hazards 
at the facility and about appropriate mitigation and response 
techniques to use in the event of a chemical release. It further allows 
the facility owner or operator and the LEPC to identify information 
that may need to be maintained securely and discuss strategies to 
secure the information or to provide only information that is pertinent 
to emergency response planning without revealing security 
vulnerabilities.
    The LEPC or local emergency response officials may request 
information such as accident histories, portions of compliance audit 
reports relevant to emergency response planning, incident investigation 
reports, records of notification exercises, field and tabletop exercise 
evaluation reports, or other information relevant to community 
emergency planning. For example, this may include requesting 
information on changes made to the facility that affect risk such as 
incorporating safer alternatives. Furthermore, EPA directs commenters 
who indicated that the IST analyses should apply to all facilities and 
be submitted to the public to refer to sections IV. C. and VI. B. in 
this preamble.

B. Information Availability to the Public

1. Summary of Proposed Rulemaking
    Under Sec.  68.210(a), EPA proposed to add a reference to 40 CFR 
part 1400, which addresses the restrictions on disclosing ``offsite 
consequence analysis'' (OCA) information under the CSISSFRRA.
    Under Sec.  68.210(b), EPA proposed 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, such as on a company Web site. EPA proposed to 
require the owner or operator to distribute, as applicable:
     Names of regulated substances held in a process;
     SDSs for all regulated substances at the facility;
     The facility's five-year accident history required under 
Sec.  68.42;
     Emergency responses program information concerning the 
source's compliance with Sec.  68.10(f)(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 proposed to add Sec.  68.210(c), to require that the owner or 
operator update and submit information required under Sec.  68.210(b) 
every calendar year, including all applicable information that was 
revised since the last update.
    EPA also proposed to redesignate the current Sec.  68.210(b), which 
addresses the non-disclosure of classified information by the 
Department of Defense or other Federal agencies or their contractors, 
as Sec.  68.210(e). In new Sec.  68.210(f), EPA proposed to require 
that an owner or operator asserting CBI provide a sanitized version of 
the information required under this section to the public. Assertion of 
claims of CBI and substantiation of CBI claims was proposed to be in 
the same manner as currently required in Sec. Sec.  68.151 and 68.152 
for information contained in the RMP required under subpart G.
2. Summary of Final Rule
    EPA is finalizing Sec.  68.210(b) with changes to address public 
comments. Under the final rule, Sec.  68.210(b) requires the owner or 
operator to make certain chemical hazard information for all regulated 
processes at a stationary source available to the public upon request. 
The information that shall be provided is the same as proposed, except 
EPA is revising the exercise information element. Under Sec.  
68.210(b)(5) of the final rule, upon receiving a request for the 
information from a member of the public, the owner or operator is 
required to provide a list of scheduled exercises required under Sec.  
68.96, rather than summary information for those exercises, as 
proposed.
    Section 68.210(c) is now titled ``Notification of availability of 
information,'' and it changes the manner by which the facility informs 
the public about what chemical hazard information is available upon 
request and how the public may obtain such information. The owner or 
operator shall provide the public with an ongoing notification of the 
following: (1) The required information elements in Sec.  68.210(b)(1) 
through (6) that is available to the public upon request, (2) 
instructions for requesting the information elements and (3) where to 
access any other available information on community emergency 
preparedness.
    Section 68.210(d) requires that the owner or operator provide the 
requested information listed under Sec.  68.210(b) to the public within 
45 days of receiving a request.
    Finally, EPA is finalizing several sections as proposed, including:
     Sec.  68.210(a), RMP availability;
     Sec.  68.210(f), which addresses the non-disclosure of 
classified information by the Department of Defense or other Federal 
agencies or their contractors (this was formerly proposed as Sec.  
68.210(e)); and
     Sec.  68.210(g), which relates to CBI, redesignated from 
Sec.  68.210(f).
3. Discussion of Comments and Basis for Final Rule Provisions
a. Legal Issues
    An industry trade association and a facility stated that 
legislation subsequent to the CAA narrowed EPA's authority to mandate 
public disclosure of RMP information. Relevant legislation described by 
the commenters includes (1) the 1999 CSISSFRRA, (2) the Critical 
Infrastructure Information Act (CIIA), (3) the Chemical Facilities 
Anti-Terrorism Standards Act of 2007, and (4) the Protecting and 
Securing Chemical Facilities from Terrorist Attacks Act of 2014.
    Another industry trade association commented that requiring private 
companies to publish qualitative or

[[Page 4668]]

quantitative environmental information inappropriately seeks to 
delegate EPA's own duties to communicate with and deal with public 
requests to the regulated entity.
    A few industry trade associations argued that the proposed 
information disclosure requirements are compelled speech that may 
violate the first amendment. An industry trade association commented 
that EPA's proposal to require disclosure of RMP information and 
chemical hazard information raises constitutional issues, as it amounts 
to compelled commercial speech. The commenter described compelled 
commercial speech as subject to an intermediate-level of scrutiny, and 
asserted that, unless EPA can affirmatively prove that (1) its asserted 
interest is substantial, (2) the speech regulation directly and 
materially advances that interest, and (3) the regulation is narrowly 
tailored to that interest, then the compelled commercial speech will 
likely be found to be unconstitutional.
    The information disclosures required by the final rule are fully 
consistent with the statutes and regulatory programs identified by the 
commenters as enacted after the 1990 CAA Amendments. CSISSFRRA 
specified that portions of RMPs containing OCA information, any 
electronic data base created from those portions, and any statewide or 
national ranking derived from such information is subject to 
restrictions on disclosure (CAA sections 112(r)(7)(H)(i)(III) and 
112(r)(7)(H)(v)). Regulations promulgated jointly by EPA and the 
Department of Justice further define OCA information in 40 CFR 
1400.2(j). The final rule does not require disclosure of release 
scenarios or rankings based on such scenarios, nor does it make 
available any information based on such scenarios. The CIIA restricts 
information ``not customarily in the public domain.'' CFATS creates a 
category of information, CVI, which further restricts certain 
information generated to implement CFATS (see 6 CFR 27.400). In 
promulgating CFATS, DHS announced its intent to preserve Federal 
release disclosure, emergency planning, and accident prevention 
statutes, including EPCRA and CAA section 112(r) (72 FR 17714, April 9, 
2007). In this final rule, EPA has not promulgated the new mandatory 
disclosure of STAA and incident investigation information that we had 
proposed, thereby eliminating the tension between these after-enacted 
programs and modernization of the risk management program. The 
information required to be disclosed by this rule largely draws on 
information otherwise in the public domain and simplifies the public's 
access to it.
    This final rule requires an owner or operator of a stationary 
source to alert the public, via any one of a wide variety of methods, 
of how to access information about the source that is publicly 
available. Other statutes and regulatory programs, or other provisions 
of the risk management program, require the stationary source to 
assemble the information that the rule would make available upon 
request (e.g., accident history, SDSs, and aspects of the emergency 
response program). The burden of making this information directly 
available from the source is minimal. The public's ability to 
participate in emergency planning and readiness is materially advanced 
by being better informed about accident history, types of chemicals 
present, and how to interact with the stationary source. EPA has been 
selective in identifying what information a source must make available; 
for example, we have not required the facility to provide an RMP to the 
public. Having the source provide the information set out in Sec.  
68.210 directly to the public promotes accident prevention by 
facilitating public participation at the local level.
b. RMP Availability (Sec.  68.210(a))
    EPA did not receive any comments on this issue.
c. Chemical Hazard Information (Sec.  68.210(b))
    Comments on making information available to the public. EPA 
received multiple comments that supported the proposed provisions. 
These comments generally indicated that the revisions would strengthen 
the community's ``right to know.'' A mass mail campaign joined by 
approximately 450 commenters provided general support for the 
disclosure of information to the public. EPA also received comments 
stating that the RMP and accompanying chemical hazard information would 
be valuable to communities in order to understand the risks involved.
    Many commenters opposed the proposed information provisions. 
Multiple commenters, including state agencies, facilities, and industry 
trade associations, argued that the proposed provisions for public 
disclosure of information have the potential to create a security risk, 
with several commenters expressing opposition to the proposed 
provisions because they appear to conflict with CFATS or other existing 
information security requirements. Two diverse groups of commenters 
remarked that OCA data should remain accessible to the public only 
through Federal reading rooms, but an advocacy group remarked that 
keeping information solely in reading rooms would limit access by the 
public. Some commenters stated that the information requirement was 
already available through EPCRA or Freedom of Information Act (FOIA) 
requests, while others stated that EPA had not given enough reasoning 
for how the increase in information disclosure to the public would 
result in a safer community in proportion to the burdens imposed on 
facilities.
    EPA continues to believe that providing chemical hazard 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 believes that this information should be more easily 
accessible to the public than the existing approaches to access 
information under EPCRA or through FOIA requests. However, EPA 
acknowledges the security concerns raised by commenters and is 
committed to ensuring a balance between making information available to 
the public and safeguarding that information. Therefore, EPA is 
finalizing an approach that requires facility owners and operators to 
notify the public that certain information is available upon request. 
This allows community members \115\ an opportunity to request chemical 
hazard information from a facility, so they can take measures to 
protect themselves in the event of an accidental release, while 
allowing facility owners and operators to identify who is requesting 
the information. EPA worked closely with Federal partners, including 
DHS, to develop information availability requirements that strike a 
balance between security concerns and the need for sharing chemical 
hazard information with the public. EPA believes that this approach is 
consistent with existing requirements to secure sensitive information 
under CSISSFRRA and CFATS. Furthermore, EPA is committed to 
safeguarding OCA information in accordance with requirements specified 
in CSISSFRRA, which allows for any member of the public to access paper 
copies of OCA information for a limited number of facilities. This OCA 
information remains accessible to the public only in Federal Reading 
Rooms.
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    \115\ Community members can include a wide variety of 
stakeholders that work or live near an RMP-regulated facility.
---------------------------------------------------------------------------

    EPA believes that the current approach to notify the public that 
information is available upon request

[[Page 4669]]

strikes an appropriate balance between various concerns, including 
information availability, community right-to-know, minimizing facility 
burden, and minimizing information security risks.
    Scope of information to be shared. Commenters provided suggestions 
on the scope of information to be disclosed. An advocacy group 
commented that information on chemical hazards, safer alternatives 
(such as information on ISTs), incidents, inspections, and training 
should all be made publically available. Some commenters remarked that 
the public should be given information on the schedules and types of 
emergency response drills performed; how to adequately protect oneself 
during a release; where to evacuate; how the decision to evacuate will 
be made and communicated; and how the all-clear signal will be given. 
However, several commenters objected to making exercise reports 
available to the public. These commenters stated that providing the 
public with information about potential weaknesses in a facility or 
community field response could reveal security vulnerabilities. A few 
other commenters stated that only information that could improve 
community awareness of risks should be made available to the public, 
such as names of regulated substances held in a process above threshold 
quantities, names and phone numbers of local emergency response 
organizations, and LEPC contact information.
    Some commenters recommended making available to the public the same 
information elements proposed for disclosure to LEPCs (i.e. STAA/IST, 
incident investigation reports and third-party compliance audits), 
while several other commenters opposed these suggestions. For example, 
a mass mail campaign suggested that facilities disclose STAA directly 
to the public. However, one trade association opposed publicly 
disclosing STAA, citing that the information would be highly technical 
and potentially confusing to the general public and may involve the 
disclosure of confidential, proprietary or other sensitive information. 
The association further argued that facilities would be put in a 
position where they must publicly defend IST evaluations and decisions.
    Some commenters stated that incident investigation reports should 
be included in the scope of information delivered to the general 
public, while others said that providing such reports would be 
burdensome and confusing to the public. Other commenters argued 
specifically against making root cause analyses available to the public 
indicating that this greatly increases the likelihood that facilities 
will have to respond to lawsuits. One commenter expressed concern that 
disclosing root cause analyses would discourage facilities from 
performing meaningful analyses.
    A state agency commented that third-party compliance audit reports 
should be made publicly available to assure the public that appropriate 
investigation has been done and appropriate steps are being taken to 
avoid future incidents. A group of commenters argued that emergency 
contact information should not be shared publicly online because it 
will encourage unwanted telemarketing and email spam and solicitations.
    EPA agrees with commenters that who suggested that only information 
that could improve community awareness of risks should be made 
available to the public. EPA disagrees with commenters that suggest 
making additional information available to the public, such as STAA 
reports, incident investigation reports (with root cause analyses), and 
third-party audit reports. As some commenters indicated, much of the 
information in these reports can be technically complicated and 
potentially confusing for the general public. Furthermore, this 
information is not always relevant to community emergency preparedness 
and could potentially reveal CBI or security vulnerabilities. 
Therefore, the Agency is finalizing the following chemical hazard 
information elements to be made available to the public, upon request:
     Names of regulated substances held in a process;
     SDS for all regulated substances located at the facility;
     Five-year accident history information required to be 
reported under Sec.  68.42;
     The following summary information concerning the source's 
compliance with Sec.  68.10(f)(3) or the emergency response provisions 
of subpart E:
    [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 owner or operator last coordinated 
emergency response efforts, pursuant to Sec.  68.180; and
    [cir] For responding stationary sources (i.e., those subject to 
Sec.  68.95), procedures for informing the public and local emergency 
response agencies about accidental releases;
     A list of scheduled exercises required under Sec.  68.96; 
and
     LEPC contact information, including the LEPC name, phone 
number, and Web address as available.
    EPA expects that making the information available upon request will 
minimize security vulnerabilities as well as unwanted telemarketing and 
email spam and solicitations.
    EPA agrees with commenters that members of the public do not 
necessarily need access to exercise evaluation reports. Therefore, to 
address concerns that summary information of facility exercise may be 
confusing to the public and could reveal security vulnerabilities, EPA 
is revising Sec.  68.210(b)(5) to remove the requirement to provide 
summary information about exercises and only require a list of 
scheduled exercises required under Sec.  68.96. EPA believes that one 
benefit of sharing exercise schedules is to avoid unnecessary public 
alarm when exercises are conducted. However, EPA expects that facility 
owners and operators will use good security practices when revealing 
details about upcoming exercises.
d. Notification of Availability of Information (Sec.  68.210(c))
    EPA proposed requiring the owner or operator to make chemical 
hazard information publicly available and update the information every 
calendar year. Many commenters supported the use of a streamlined, one-
stop Web format for disseminating information to the public. Several 
commenters opposed posting information for the public on facility Web 
sites due to security concerns. Some commenters argued that EPA should 
utilize existing online public information resources (such as the 
Agency's Web site or available RMP*Info or Enforcement and Compliance 
History Online (ECHO) \116\ databases) to share information, while a 
few commenters concluded that appropriate state level agencies should 
be responsible for making information available to the public.
---------------------------------------------------------------------------

    \116\ https://echo.epa.gov/?redirect=echo.
---------------------------------------------------------------------------

    Many other commenters remarked on the variety of options to 
disseminate information suggested by EPA, including local libraries, 
government buildings, or the Internet, and stated that this fragmented 
approach would not improve public access to information. One commenter 
cited that EPA should ensure availability of information to those 
without Internet or electronic media access, and another commenter 
suggested that hard copies should be made available for those without 
access to online resources, in addition to information published on an 
EPA Web site. Another commenter remarked that information should be 
made available only after an email

[[Page 4670]]

request is made directly to the facility. An advocacy group commented 
that information on accidental releases should be reported, 
immediately, to the public through the Internet, radio, telephone, and 
television.
    Commenters also provided suggestions on the format of the 
information. Some of these commenters suggested that a one to two-page 
summary of information would be sufficient for the public.
    EPA is committed to ensuring that chemical hazard information is 
available to the public in an easily accessible manner; however, the 
Agency acknowledges commenters' security concerns associated with 
providing information to the public and the additional burden that may 
fall on owners or operators that do not have Web sites or other means 
to publicly and routinely post such information. In response to these 
concerns, EPA is requiring that owners and operators notify the public 
that certain information is available along with instructions on how to 
request the information. The facility owner or operator must ensure 
that the notification is ongoing through a publicly accessible means, 
such as a Web site or social media platform.
    The facility owner or operator can notify the public that 
information is available in a variety of ways. For example, the owner 
or operator could make the notification of information availability by 
using free or low cost Internet platforms, file sharing services, and 
social media tools that are designed to be able to share information 
with the public. As another option, the facility could post hard copy 
notices at publicly accessible locations, such as at a public library, 
or a local government office. If the facility has the means to handle 
public visitors, it could choose to have notices available at the 
facility's public visitor location. The facility could also provide 
notices that information is available to the public by email. EPA 
encourages the facility owner or operator coordinate information 
distribution with the LEPC or local emergency response officials to 
determine the best way to reach public stakeholders in their 
communities. Facility owners and operators may also want to consider 
outreach efforts that would allow the public to provide input on the 
best way to make this notification available. The owner or operator 
shall document whatever method and the location of the notification in 
the RMP pursuant to Sec.  68.160(b)(21).
    EPA believes that providing this notification to the general public 
would allow people that live or work near a regulated facility to 
gather the information they need to improve their awareness of risks to 
the community and to prepare to protect themselves in the event of an 
accidental release. The notice shall specify what information is 
available and provide instructions for how to obtain the information. 
The facility owner or operator shall also identify where to access 
information on community preparedness, if available, including shelter-
in-place and evacuation procedures. The facility should work with the 
LEPC and local emergency responders to distribute and convey relevant 
information on appropriate shelter-in-place and evacuation procedures.
e. Timeframe To Provide Information Following a Request (Sec.  
68.210(d))
    One commenter expressed concern that requiring public information 
to be updated annually would be an unnecessary burden on facilities. In 
contrast, another state agency reasoned that the public should not have 
to request information, it should be readily available. An advocacy 
group requested that a version of the chemical hazard information 
provided by the facility be made on an annual basis.
    While EPA agrees that requiring facilities to annually update their 
information could be unnecessarily time-consuming, EPA encourages 
facilities to update their chemical hazard information as needed to 
ensure that accurate information can be made available to the requester 
within the required timeframe. Therefore, Sec.  68.210(d) requires that 
the facility owner or operator provide the information under Sec.  
68.210(b) to the requester within 45 days of receiving a request. EPA 
selected 45 days because that timeframe is consistent with the 
requirement for public provision of facility chemical inventory 
information (i.e., ``Tier II information'') under Sec.  312(e)(3)(D) of 
EPCRA, which states, ``a State emergency response commission or local 
emergency planning committee shall respond to a request for Tier II 
information under this paragraph no later than 45 days after the date 
of receipt of the request.''
f. Classified Information (Sec.  68.210(f))
    EPA received no comments on this issue.
g. CBI (Sec.  68.210(g))
    Several commenters stated that the public information disclosure 
requirement would place CBI at risk, and therefore EPA should eliminate 
this requirement. Other commenters requested that EPA clarify that CBI 
would still be protected from public dissemination. Many commenters 
requested that EPA require that certain information in STAA reports 
either may not be claimed as CBI or should require up-front 
substantiation of confidentiality claims. Some commenters suggested 
that CBI claims for STAA information include a certification by the 
owner or operator or a senior official. Other commenters recommended 
that EPA prohibit STAA reports from being claimed as CBI. Two 
commenters stated that it may not be practical or possible to provide 
the public with a useful STAA document after removing appropriate CBI.
    EPA is finalizing Sec.  68.210(f) relating to CBI as proposed, but 
renumbered the paragraph as Sec.  68.210(g). EPA acknowledges and 
shares industry's concerns pertaining to protection of CBI information. 
By incorporating a CBI provision in the information availability 
section of the rule EPA is emphasizing the facility owner or operator's 
right to protect CBI. EPA has also limited the types of information to 
be disclosed to eliminate matters likely to contain CBI (e.g., names of 
regulated substances; SDSs) as well as to include information elements 
for which CBI cannot be claimed (e.g. five-year accident history 
information and emergency response program information). Section 68.151 
clearly identifies what information cannot be claimed as CBI and Sec.  
68.152 identifies the procedure for how to protect CBI. EPA believes 
that the RMP rule adequately addresses CBI concerns. Furthermore, EPA 
is not requiring STAA reports to be submitted to LEPCs or the public in 
the final rule and therefore, no CBI concerns exist for these reports.
    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 the information availability provisions of the rule. The owner 
or operator should provide a sanitized version as described in the 
RMP*eSubmit User's Manual. This policy is consistent with existing 
guidance and practices.\117\
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    \117\ For more information on CBI, see Chapter 9 of the General 
Guidance on Risk Management Programs for Chemical Accident 
Prevention (40 CFR part 68), March 2009. https://www.epa.gov/sites/production/files/2013-11/documents/chap-09-final.pdf.

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[[Page 4671]]

C. Public Meetings

1. Summary of Proposed Rulemaking
    EPA proposed to require all facilities to hold public meetings 
within 30 days after any RMP reportable accident to share information 
concerning the accident with the public including: When the accident 
occurred; the nature of the accident; chemicals involved and quantities 
released; on-site and offsite impacts; notifications made to emergency 
responders; weather conditions (if known); initiating event and 
contributing factors (if known); and operational changes (if any) that 
have resulted from the investigation of the release. EPA also proposed 
that at this public meeting, facilities would provide other relevant 
chemical hazard information such as the names and SDSs for regulated 
substances at the facility; accident history information for the 
facility; information on the emergency response and exercise programs; 
and LEPC contact information.
2. Summary of Final Rule
    In the final rule, EPA is requiring all facilities to hold a public 
meeting after an RMP-reportable accident, but is extending the 
timeframe for the public meeting to 90 days in response to comments. 
The public meeting provision proposed as Sec.  68.210(d) is 
redesignated as Sec.  68.210(e) in the final rule. The owner or 
operator shall document in the RMP whether a public meeting has been 
held following an RMP reportable accident, pursuant to Sec.  
68.160(b)(22).
3. Discussion of Comments and Basis for Final Rule Provisions
    EPA received a wide range of comments on the proposed public 
meeting requirements--comments generally in support of or against the 
requirement for public meetings; concerns about sufficient attendance 
or availability of information at public meetings; comments on the 
appropriate timeframe for the meetings; and comments on alternative 
options.
a. Attendance at Public Meetings
    Many commenters opposed requirements for public meetings. Some 
commenters opposed based on their experience that public meetings held 
under CSISSFRRA were not well attended. One commenter said the public 
would not attend a meeting after a minor incident, but a public meeting 
for an event with major offsite impacts should include a report 
summarizing the incident. Some commenters questioned the benefit of 
such a meeting if a facility is in compliance with regulatory 
requirements.
    Other commenters offered ideas for improving or gauging public 
interest. For example, one commenter suggested that EPA establish 
minimum requirements for sources to notify the public of upcoming 
meetings but did not offer suggestions for what those requirements 
should be. Another commenter suggested that polls could be used to 
prescreen members of the public who would like to attend or participate 
in the public meeting, in order to establish effective participation.
    EPA recognizes concerns about attendance at public meetings. When 
the CSISSFRRA was enacted in 1999, it required owners or operators of 
all facilities regulated under the RMP rule to hold a public meeting 
within 180 days of enactment.\118\ The purpose of the public meeting 
was to discuss the OCA information that was restricted under other 
portions of CSISSFRRA. Relatively few of these meetings were hosted by 
facilities that had recently suffered an RMP-reportable accident. The 
Agency expects that after a reportable accident occurs, attendance at 
public meetings will be higher than was the case at many public 
meetings held under CSISSFRRA because of interest generated by the 
accident itself (e.g., an emergency response or media reports). This 
public meeting requirement applies only following an RMP reportable 
accident, so this provision has a much lower burden than the CSISSFRRA 
public meeting requirement because of the relatively few number of RMP 
reportable accidents that occur annually. CSB highlighted in their 
comments that public meetings held shortly after accidents occur have 
the greatest level of participation.
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    \118\ 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.
---------------------------------------------------------------------------

    EPA supports commenters' suggestions to find practical strategies 
to increase attendance and encourages public participation at public 
meetings; however, we are not incorporating these suggestions as 
mandatory requirements in the final rule. Facilities have the 
flexibility to encourage attendance at meetings by means that are 
appropriate and effective in their communities. This could include 
methods suggested by commenters, such as polling nearby residents to 
gauge interest.
b. Applicability Criteria and Timeframe
    Comments on applicability criteria. One commenter requested 
clarification on the meaning of ``reportable accident'' that would 
trigger a public meeting. Another commenter remarked that multiple 
meetings may be necessary in certain circumstances, for instance if the 
investigation report has not been finalized. Commenters also suggested 
that public meetings should be required of all program level facilities 
while others indicated that a ``one-size-fits-all'' approach was not 
appropriate. Several commenters requested that public meetings be 
required only when an incident generated offsite impacts. Finally, 
another commenter suggested EPA require periodic public meetings 
regardless of accident history.
    The term ``reportable accident'' refers to accidents required to be 
reported in the five-year accident history required under Sec.  68.42 
of the existing rule, which include 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 
agrees that in some cases, multiple public meetings may help to fully 
describe the circumstances of an accident. While EPA is requiring the 
owner or operator to hold only one public meeting after an RMP-
reportable accident, the Agency encourages owners and operators to hold 
additional meetings if appropriate. The final rule requires public 
meetings for regulated sources, regardless of program level, if the 
facility has an RMP-reportable accident. The Agency does not view the 
public meeting requirement as a ``one-size fits all'' requirement. 
Sources have flexibility to structure public meetings as appropriate to 
their circumstances and the needs of the surrounding community. EPA 
recommends that facility owners and operators engage in community 
outreach to determine how best to structure the public meetings. 
Involving the public in advance of the meeting will help to ensure 
public participation in meetings. EPA considered requiring public 
meetings only after accidents with offsite impacts but decided to apply 
the requirement to all RMP-reportable accidents because even though 
some RMP-reportable accidents have only on-site impacts, those 
accidents are often serious enough to raise safety concerns within the 
surrounding community.
    Finally, EPA is not requiring periodic public meetings, regardless 
of accident history, in the final rule. EPA believes that public 
interest in a meeting is highest after an accident, and notes that many 
commenters indicated that public

[[Page 4672]]

meetings required by CSISSFRA were not well attended.
    Comments on timeframe. Several commenters expressed support for the 
proposed 30-day timeframe. Other commenters said that a 30-day 
timeframe would be too long, as the greatest need for a public meeting 
occurs within 2 weeks after an accident. However, many commenters 
stated the 30-day timeframe for a public meeting is too short, as a 
facility is unlikely to complete an incident investigation in that 
timeframe. Commenters warned that incomplete information would not be 
appropriate to share with the public and could breed distrust between 
the public and facilities over the lack of complete data. Some 
commenters cited the burden placed on facilities to schedule and 
prepare for a meeting, especially during an incident investigation and 
other post-incident actions. Commenters recommended alternative 
timeframes for public meetings after an accident including: 60 days, 90 
days, 120 days, six months, nine months, and 12 months or after the 
investigation is completed. One commenter suggested that EPA provide an 
opportunity to extend the public meeting timeframe with reasonable 
justification. Another commenter suggested that EPA allow the LEPC to 
consult on or determine when to hold the public meeting after an RMP 
reportable accident.
    EPA acknowledges concerns raised by commenters about diverting 
facility resources from post-accident investigations, and the potential 
for a facility to lack complete information about an accident if the 
investigation hasn't yielded sufficient information to share with the 
public within 30 days. Therefore, EPA has revised the timeframe in the 
final rule for the public meeting to be held no later than 90 days 
after an RMP reportable accident. EPA expects that sources will either 
have completed the incident investigation required under Sec.  68.60 or 
Sec.  68.81 prior to holding the public meeting, or will have developed 
sufficient information relevant to community members' concerns to allow 
a productive meeting. Even if the accident investigation is not 
complete, a 90-day timeframe should allow the owner or operator to 
share appropriate information about the accident with the local 
community. The facility could discuss the progress of the investigation 
so far and next steps planned.
    Some comments expressed the view that attendance at a public 
meeting is higher when the meeting takes place very soon after an 
accident occurs. The 90-day timeframe in the final rule is a maximum 
timeframe, and EPA encourages facilities to take into consideration 
when public interest may be highest when scheduling the public meeting. 
EPA recognizes that in some cases, such as for complex, protracted 
investigations, the facility may need to hold the 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, or sharing information about 
results of the investigation through another means, such as a Web site, 
social media, with the LEPC or local emergency response officials, or 
distributing information directly to people who attended the public 
meeting and expressed interest in the additional information.
    EPA does not believe that it is necessary to add a provision that 
would allow an extension of the 90-day timeframe with reasonable 
justification. Such a provision would add complexity to the 
requirement. Furthermore, EPA believes that by extending the timeframe 
to 90 days this allows sufficient time for the facility to gather 
information to share with the public after an accident.
    EPA is not finalizing any requirements for LEPCs or local emergency 
response officials with respect to post-accident public meetings. EPA 
received many comments that opposed increasing LEPC responsibilities in 
the final rule, citing resource limitations and significant existing 
responsibilities. While a facility should communicate closely with 
LEPCs or local emergency response officials after an RMP reportable 
accident, and may combine public meetings with LEPC meetings or other 
events as long as those events/meetings are available for public 
participation, the facility bears the responsibility for the public 
meeting. The final rule places no additional burden on LEPCs or local 
emergency response officials with respect to requirements for post-
accident public meeting.
c. Scope of Information Provided at Public Meetings
    Public commenters provided various recommendations regarding how 
much and what type of information should be provided at public 
meetings. One commenter asserted public meetings are useless since the 
local media relay information about incidents, such as when and where 
the incident occurred and emergency response information. Another 
commenter said public meetings after an accident would be redundant, as 
the information required to be shared would already be made available 
to the public for all reportable accident investigations. A few 
commenters said that completed STAAs should be covered in public 
meetings. One commenter stated that information about the nature of 
chemical risks within a community and emergency response protocols 
during an accidental release or another dangerous event would be the 
best information to share during a public meeting. Another commenter 
requested clarification about what information is required to be shared 
at a public meeting.
    EPA disagrees with commenters who stated that public meetings are 
useless or redundant to other sources of information. EPA believes that 
public meetings, particularly when held after an accident, will often 
provide easier access for community members to appropriate facility 
chemical hazard information, which can significantly improve the 
community's emergency preparedness and understanding of how the 
facility is addressing potential risks. Public meetings also provide an 
opportunity for the public to ask questions or share their concerns 
with appropriate facility staff and local government officials in 
attendance.
    Public meetings must address information about the incident as well 
as other relevant chemical hazard information such as that described in 
Sec.  68.210(b) (i.e., names of regulated substances held in a process; 
SDSs; accident history information; emergency response program 
information; a list of scheduled exercises and LEPC contact 
information). 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. It would be extremely useful to have 
LEPC and local emergency response officials participate in the meeting 
to discuss the community emergency response plan and explain how the 
facility is incorporated into that plan. This would provide an 
opportunity for the facility representative and local officials to 
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.
    In the final rule, EPA maintains the requirement for information in 
Sec.  68.42 to be addressed at the public meeting.

[[Page 4673]]

The facility will have the flexibility to structure the public meeting 
to focus on areas most relevant to a particular accident, considering 
the interests of the community. EPA is not requiring that completed 
STAAs be included, in part because this information is not pertinent to 
community emergency response planning and also in part because the 
opportunity for the public to engage in a completed STAA analysis, 
which may contain CBI or trade secret information, may compromise 
confidentiality and create security vulnerabilities at the facility.
d. Alternatives to Facility-Hosted Public Meetings
    One commenter argued that a facility hosting a public meeting would 
be redundant when LEPCs already hold public meetings. EPA also received 
comments that EPA regions or LEPCs should host and facilitate a public 
meeting instead of the facility, or that facilities should be required 
to meet with LEPCs or local emergency responders instead of the public. 
Others requested that LEPCs be able to decline to facilitate a public 
meeting required by this rule because of their already substantial 
responsibilities, or that public meetings should be held only at the 
request of LEPCs or local emergency response agencies regardless of 
whether a regulated substance was involved, or that they should be held 
only at the request of the public. Commenters also indicated that small 
businesses should be allowed to post information that is required to be 
disclosed, in lieu of a public meeting.
    EPA disagrees with the commenters. LEPCs hold meetings with the 
public to discuss issues related to community planning. The public 
meetings required by Sec.  68.210(e) in the final rule are intended to 
be a venue for facility personnel to address questions and concerns 
raised by the public following an RMP reportable accident at a 
facility. While communication between the facility and the LEPC is 
essential, it cannot replace communication between knowledgeable 
facility staff and the public. LEPCs are encouraged to participate in 
public meetings, and may collaborate with the owner or operator to host 
the meeting in conjunction with an LEPC meeting if appropriate. 
However, LEPCs are not required to co-host or participate in public 
meetings.
    Finally, EPA believes that small businesses should also host public 
meetings following an RMP reportable accident to allow community 
members an opportunity to talk with facility personnel. EPA encourages 
small businesses to find ways to reduce costs of public meetings such 
as by hosting the meetings at inexpensive venues, such as local 
schools, community centers, or churches.

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

    A stationary source subject to the RMP rule is required to submit 
an 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 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 a variety of reasons, 
including 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.
    EPA is deferring proposed revisions to delete or revise data 
elements in the current rule; however, EPA is adding several RMP data 
elements in subpart G based on the revised rule requirements discussed 
in this document. This includes data elements to address compliance 
with:
     Third-party audit requirements,
     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 rule requirements. EPA is also finalizing technical corrections 
as proposed.

A. Revisions to Sec.  68.160 (Registration)

    EPA is adding the following RMP data elements that relate to the 
information sharing provisions discussed in this document:
     Sec.  68.160(b)(21) requires the method of the 
communication and location of the notification that chemical hazard-
related information is available to the public, as set forth in Sec.  
68.210(c); and
     Sec.  68.160(b)(22) requires the date of most recent 
public meeting, as set forth in Sec.  68.210(e).
    EPA revised Sec.  68.160(b)(21) to clarify that when identifying 
how a notification is made, the owner or operator should describe both 
the method of the communication and the location. For example, if the 
owner or operator is modifying a Web site to identify that information 
is available upon request, then EPA expects that the owner or operator 
will identify in the RMP that the notification is being made through a 
Web site and then provide the Web address of the notification. 
Alternatively, if the notification is made via a printed notice, then 
the owner or operator should identify that a printed notice is 
available and explain how to obtain the printed materials. EPA received 
no comments on these provisions.

B. Revisions to Sec.  68.170 (Prevention Program/Program 2)

    EPA is revising:
     Sec.  68.170(i) by adding 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 clarifying that the date of the most 
recent incident investigation be the completion date of the 
investigation. This would be the date on the final incident 
investigation report.
    EPA received no comments on these provisions.

C. Revisions to Sec.  68.175 (Prevention Program/Program 3)

    EPA is revising:
     Sec.  68.175(e) by amending the introductory sentence in 
paragraph (e) to apply to information on the PHA or PHA update and 
revalidation information. EPA is moving the date of completion of the 
most recent PHA or update and the requirement to identify the technique 
used to subparagraph (e)(1). EPA is deleting the requirement to 
identify the expected date of completion of any changes resulting from 
the PHA. Additional PHA information moves to subparagraph (e)(2) 
through (6) and a new requirement to address inherently safer 
technology or design measures implemented (if any) and the technology 
category is in subparagraph (e)(7). This is similar to the proposed 
revisions but reorganized to simplify the proposed subparagraph (e)(2) 
and move to a new subparagraph (e)(7);

[[Page 4674]]

     Sec.  68.175(k) by adding 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; and
     Sec.  68.175(l) by clarifying that the date of the most 
recent incident investigation be the completion date of the 
investigation. This would be the date on the final incident 
investigation report.
    EPA received no comments on these provisions.

D. 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. EPA proposed revisions to 
add emergency response exercises and revise local coordination 
provisions of the rule in order to improve coordination with local 
response authorities and bolster emergency response capabilities and 
preparedness for accidental releases.
1. Summary of Proposed Rulemaking
     In Sec.  [thinsp]68.180(a) EPA proposed to delete the 
phrase ``the following information.'' The text in subparagraphs (a)(1) 
through (3) were reorganized and/or replaced and EPA proposed to delete 
subparagraphs (a)(4) through (6).
    [cir] In subparagraph (a)(1), EPA proposed to 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.  [thinsp]68.10(f)(3) or Sec.  [thinsp]68.93.
    [cir] Subparagraph (a)(2) included proposed requirements to 
identify whether coordination with the local emergency response 
organizations is occurring at least annually, pursuant to Sec.  
[thinsp]68.93(a).
    [cir] Finally, in subparagraph (a)(3) EPA proposed to require the 
RMP to identify a list of Federal or state emergency plan requirements 
to which the stationary source is subject.
     In Sec.  [thinsp]68.180(b), EPA proposed to replace the 
current text with a requirement to identify whether the facility is a 
responding or non-responding stationary source, pursuant to Sec.  
[thinsp]68.90. EPA proposed subparagraph (b)(1) to apply to non-
responding stationary sources and subparagraph (b)(2) to apply to 
responding stationary sources.
    [cir] Non-responding stationary sources. In subparagraphs (b)(1)(i) 
through (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] Responding stationary sources. In subparagraphs (b)(2)(i) 
through (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.  [thinsp]68.95; whether a notification exercises 
occurs at least annually, as required in Sec.  [thinsp]68.96(a); 
whether a field exercise is conducted every five years and after any 
RMP reportable accident, pursuant to Sec.  [thinsp]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.  
[thinsp]68.96(b)(2)(i).
    EPA proposed to delete Sec.  [thinsp]68.180(c), which required the 
owner or operator to list other Federal or state emergency plan 
requirements to which the stationary source is subject.
2. Summary of Final Rule
    EPA is completely revising and reorganizing subpart G Sec.  68.180 
into the following three parts: Requirements for all stationary sources 
under paragraph (a), requirements for non-responding stationary sources 
under paragraph (b)(1), and requirements for responding stationary 
sources under paragraph (b)(2). EPA believes that reorganizing subpart 
G Sec.  68.180 will clarify the reporting requirements, reduce errors 
in submitted RMPs, and improve compliance with the RMP requirements. 
The revisions to subpart G Sec.  68.180 will also improve EPA's ability 
to evaluate a facility's compliance with the Emergency Response Program 
requirements.
    EPA is amending and finalizing the proposed revisions to require 
specific information rather than attestations of compliance. EPA is not 
finalizing the proposed provisions that pertain to LEPCs requesting a 
stationary source to comply with emergency response program 
requirements of Sec.  68.95 so EPA is eliminating those requirements 
under Sec.  68.180.
    EPA is finalizing Sec.  68.180(a) as proposed except that 
subparagraph (a)(2) requires the RMP to identify the date of the most 
recent coordination with the local emergency response organizations, 
pursuant to Sec.  68.93(a) (rather than attesting that coordination 
occurs annually).
    EPA is finalizing Sec.  68.180(b) introductory paragraph as 
proposed. In the final rule subparagraph (b)(1) applies to non-
responding stationary sources and subparagraph (b)(2) applies to 
responding stationary sources. EPA is amending and finalizing the 
subparagraph as follows:
     Non-responding stationary sources. In subparagraphs 
(b)(1)(i) through (iii) the owner or operator is required to identify 
whether the stationary source is included in the community emergency 
response plan developed under EPCRA (for stationary sources with any 
regulated toxic substance); the date of the most recent coordination 
with the local fire department (for stationary sources with only 
regulated flammable substances); what notification mechanisms are in 
place; and the date of the most recent notification exercise.
     Responding stationary sources. In subparagraphs (b)(2)(i) 
through (iv) the owner or operator is required to identify the date of 
the most recent review and update of the emergency response plan 
required in Sec.  68.95(a)(4); the date of the most recent 
notification, as required in Sec.  68.96(a); the date of the most 
recent field exercise, pursuant to Sec.  68.96(b)(1)(i); and the date 
of the most recent tabletop exercise, as required in Sec.  
68.96(b)(2)(i).
3. Discussion of Comments and Basis for Final Rule Provisions
    EPA received one comment indicating that the revision to Sec.  
68.180 is unclear and that the `data elements' of the proposal do not 
distinguish between responding and non-responding stationary sources.
    EPA believes that the data elements do distinguish between 
responding and non-responding stationary sources. A stationary source 
will be required to identify whether they are ``responding'' or ``non-
responding'' and responding stationary sources and will answer 
questions accordingly. EPA will revise its online RMP submission 
system, RMP*eSubmit, to include the additional data elements, and 
expects that the submission system will provide clarity for stationary 
source owners and operators on how to submit responses.

E. Technical Corrections

1. Revisions to Sec.  68.10 (Applicability)
    EPA is correcting 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 revised rule 
language corrects this typographical error. EPA received no

[[Page 4675]]

comments and is finalizing this provision as proposed.
2. Revisions to Sec.  68.48 (Safety Information)
    EPA proposed 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.
    Discussion of comments on safety information provisions. A 
commenter recommended that EPA's revision to Sec.  68.48 should not 
require facilities to ensure that safety data sheets meet OSHA's hazard 
communication standard requirements. This commenter argued that 
operators are given their safety data sheets by vendors and do not have 
control over their content.
    EPA disagrees with the commenter. The current rule requires the 
owner or operator to maintain Material Safety Data Sheets (MSDS) that 
meets the OSHA hazard communication standard requirements of 29 CFR 
1910.1200(g). In 2012, OSHA made changes to its Hazard Communication 
Standard at 29 CFR 1910.1200 in order to align with the U.N. Globally 
Harmonized System of Classification and Labelling of Chemicals (GHS), 
Revision 3 (77 FR 17574, March 26, 2012). One change was in 
nomenclature from ``Material Safety Data Sheets'' to ``Safety Data 
Sheets.'' Consequently, OSHA revised the name of the MSDS to Safety 
Data Sheets (SDS) in the PSM standard at 1910.119(d)(1)(vii) (78 FR 
9311, February 8, 2013). Chemical producers and users had to comply 
with SDS requirements by June 1, 2015.\119\ EPA's technical correction 
is solely to be consistent with the revised OSHA requirements and EPA 
is finalizing this amendment as proposed.
---------------------------------------------------------------------------

    \119\ OSHA Fact Sheet--Hazard Communication Standard Final Rule. 
https://www.osha.gov/dsg/hazcom/HCSFactsheet.html.
---------------------------------------------------------------------------

3. 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 
proposed amendments to clarify that employees ``involved in'' operating 
a process are subject to the training requirements of the rule. EPA 
further proposed a provision to clarify that the term employee includes 
supervisors responsible for directing process operations. EPA is 
finalizing these amendments as proposed.
    Discussion of comments on training provisions. Several commenters 
suggested that the proposed revisions to Sec.  68.54 are unclear. These 
commenters indicated that EPA should provide greater clarification 
regarding the length of time employers should train their employees, 
which employees need training, and the distinction between employees 
``operating'' a process and employees ``involved in operating'' a 
process.
    EPA directs readers to review the Guidance for Facilities on Risk 
Management Programs for Chemical Accident Prevention (40 CFR part 68) 
(or General Risk Management Program Guidance), which clarifies 
expectations for training requirements.\120\ The guidance does not 
specify a specific amount or type of training and allows the owner or 
operator to develop a training approach that is facility-specific and 
tailored to the needs of the facility's employees. The revised language 
to require training for employees ``involved in'' operating a process 
is intended to include employees that operate a process, as well as 
supervisors of those employees, and other employees that may 
occasionally be involved in process operations, such as process 
engineers and maintenance technicians. 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.
---------------------------------------------------------------------------

    \120\ General Guidance for Facilities on Risk Management 
Programs for Chemical Accident Prevention (40 CFR part 68), March 
2009. https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp.
---------------------------------------------------------------------------

    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 
will include process operations for which the supervisor might have 
decision-making authority.
4. Revisions to Sec.  68.65 (PSI)
    EPA is revising 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. EPA is revising 
Sec.  68.65(a) to remove the phrase ``In accordance with the schedule 
set forth in Sec.  68.67'' and is adding the phrase: ``and shall keep 
PSI up-to-date.'' EPA expects that revising Sec.  68.65(a) in this 
manner will help Program 3 facilities to better comply with PSI 
requirements and further clarifies 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 
replacing ``Material Safety Data Sheet'' with ``Safety Data Sheet'' in 
the note to Sec.  68.65(b). EPA received no comments and is finalizing 
these revisions as proposed.
5. Revisions to Sec.  68.130--List of Substances
    EPA is revising Tables 1 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 correcting 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 is corrected to 107-18-6.
    Table 4 to Sec.  68.130--List of Regulated Flammable Substances and 
TQs for Accidental Release Prevention. EPA is correcting a 
typographical error to the CAS no. for 1, 3-Butadiene, to read 106-99-
0, instead of 196-99-0, revising to right justify the first CAS nos. 
column and deleting the second CAS nos. column because it is redundant. 
EPA received no comments on these provisions and is finalizing the 
revisions as proposed.
6. Revisions to Sec.  68.200 (Recordkeeping)
    EPA is revising Sec.  68.200 to clarify that records must be 
maintained at the stationary source. EPA received no comments on this 
provision and is finalizing the revision as proposed.

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 statute does not 
directly address when amendments should become applicable. The 
provisions of this action modify terms of the existing rule, and, in 
some cases, clarify existing requirements.

[[Page 4676]]

A. Summary of Proposed Rulemaking

    EPA proposed modifications to Sec.  68.10 to establish compliance 
dates for an owner operator to comply with the revised rule provisions 
as follows:
     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 (i.e., third-party compliance 
audits, root cause analyses as part of incident investigations, STAA, 
emergency response exercises, and information availability 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.

B. Summary of Final Rule

    EPA is finalizing the compliance dates as proposed, except that EPA 
is deleting language requiring the owner or operator of a non-
responding stationary source to develop an emergency response program 
following an LEPC's written request to do so. Instead, the final 
provides 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 when the owner or operator determines that 
they meet the applicability criteria for responding stationary sources 
in Sec.  68.90.

C. Discussion of Comments

    Some commenters provided support for one or more of the compliance 
dates; however, many commenters were concerned that the timeframes were 
too long or in some cases too short.
1. General Comments
    One commenter argued that the compliance dates should be set at one 
to two years after the effective date of the rule because the rule 
provisions are procedural and do not involve capital expenditures. A 
facility requested that EPA clarify that annual compliance dates and 
required reoccurring tasks have flexible yearly due dates to allow 
facilities to perform thorough evaluations without the pressure of 
tight yearly deadlines.
    EPA agrees with commenters that annual compliance dates and 
required reoccurring tasks should have flexible yearly due dates. This 
will allow the facility owner or operator and local emergency response 
officials to schedule coordination activities or exercises based on 
availability of personnel and minimize unnecessary pressure to comply 
with a rigid timeframe.
    However, EPA disagrees that the compliance dates for all provisions 
should be shortened to one or two years. EPA believes that additional 
time is necessary for facility owners and operators to understand the 
revised rule; train facility personnel on the revised provisions, learn 
new investigation techniques, as appropriate; research safer 
technologies; arrange for emergency response resources and response 
training; incorporate change into their risk management programs; and 
establish a strategy to notify the public that certain information is 
available upon request. Furthermore, 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.
2. Third-Party Compliance Audits
    One commenter expressed concern that the lack of qualified auditors 
would result in compliance delays and the three-year timeframe could 
result in an excessive burden on facilities if there is a limited 
availability of qualified auditors. The commenter further cited the 
inability to plan for a third-party audit based on the applicability 
criteria as a reason for the owner or operator to be unable to comply 
within the timeframe.
    Other commenters urged for shorter timeframes with one commenter 
pointing out that this provision is triggered by an accident and should 
therefore be under an accelerated compliance date. Two commenters 
suggested a three-year compliance date, with the one commenter arguing 
that there already enough people to perform third-party audits.
    EPA disagrees with commenters and is finalizing a four-year 
compliance date for third-party audits. 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. The four-year compliance timeframe will allow 
potential auditors enough time to establish internal protocols and 
identify personnel that meet the competency and independence criteria 
necessary to serve as a third-party auditor. These auditors will also 
need time to advertise their availability to conduct third-party audits 
so facility owners and operators can identify potential auditors before 
there is a need to conduct a third-party compliance audit.
3. Incident Investigations and Root Cause Analysis
    Many commenters argued that the proposed four-year compliance date 
is too long. Commenters offered alternative timeframes such as 12 
months, 18 months, and three years. A local agency suggested a one-year 
compliance date, arguing that many complex facilities are already 
conducting root cause analyses. One commenter argued that provisions 
that are triggered by an accident should be required in an accelerated 
timeframe. Other commenters argued that the compliance date should be 
required as soon as possible.
    EPA disagrees with the commenters and is finalizing a four-year 
compliance date for incident investigations involving root cause 
analyses. For any incident that occurs four years after the effective 
date of the final rule and results in (e.g. an RMP reportable accident) 
or could reasonably have resulted in a catastrophic release, the owner 
or operator must investigate the incident and conduct a root cause 
analysis. This will allow facility owners and operators sufficient time 
to establish training and program development activities. EPA 
encourages facility owner or operators that are already conducting root 
cause analyses to continue to do so for any incident that resulted in 
(e.g. an RMP reportable accident) or could reasonably have resulted in 
a catastrophic release during the compliance timeframe.
4. STAA
    A local agency supported the four-year compliance timeframe but 
numerous commenters argued that the proposed timeframe is too long. 
Many commenters, including mass mail campaigns joined by approximately 
14,000 commenters and multiple advocacy groups, requested that EPA 
expedite compliance with STAA requirements. A mass mail campaign joined 
by approximately 300 commenters stated that the proposed compliance 
period is unlawful and arbitrarily long. The commenter argued that EPA 
has no lawful legal basis to extend the STAA compliance date

[[Page 4677]]

beyond three years. Another commenter suggested that EPA should 
consider following the NJ model to implement IST requirements and 
require an initial review report within 120 days of the rule's 
effective date.
    However, other commenters thought the proposed timeframe was too 
short. One commenter cited the complexity of the IST/ISD analysis as a 
reason to extend the compliance date into a second PHA cycle to allow 
more time for engineering studies and design. Another commenter 
supported the U.S. Small Business Administration (SBA) recommendation 
to defer the STAA requirement for three years for small facilities so 
that EPA can gather information on their experience and assess how 
often safer alternatives were identified and at what cost.
    EPA disagrees with commenters and is establishing a four-year 
compliance date for STAA. EPA believes that in many cases 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 this rule's effective date will 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. EPA also intends to 
publish guidance on STAA and once complete, facility owners and 
operators will need time to familiarize themselves with the new 
materials and incorporate them into their risk management programs.
    EPA disagrees with the recommendation to defer the STAA requirement 
for three years for small facilities in order to allow EPA to gather 
information. STAA for a source is a site-specific determination and 
would be difficult to compare among facilities. EPA believes it would 
be impractical to gather/analyze information on STAA implementation to 
determine the utility of the provision for small facilities.
5. Emergency Response Coordination
    EPA received comments supporting the proposed one-year compliance 
date for emergency response coordination activities. One commenter 
requested clarification on how to calculate the annual coordination 
activities, recommending that it be based on a calendar year.
    EPA agrees with commenters and is finalizing a one-year compliance 
date for emergency response coordination activities. EPA believes that 
a flexible schedule is appropriate for scheduling annual coordination 
and agrees with the recommendation to base the coordination on a 
calendar year timeframe.
6. Emergency Response Program
    One commenter suggested that EPA should allow a minimum timeframe 
of 12 months for a non-responding facility to transition to a 
responding facility. The commenter further suggested incorporating an 
extension request to local agencies in the event of compliance delays 
that fall outside the owner/operator's control (such as budget 
constraints or inability to procure response resources). Another 
commenter expressed support for the timeframe to develop an emergency 
response program; however, expressed concerns with the ongoing costs 
associated with that requirement.
    EPA is finalizing a three-year compliance date for a facility owner 
or operator to develop an emergency response program once he or she 
determines a need for a program. EPA is not incorporating an extension 
request to address compliance delays that may fall outside the owner or 
operator's control. EPA notes that the two provisions from Sec.  68.90 
of the proposed rule that would have made the owner or operator's 
decision to develop an emergency response program contingent on the 
outcome of local coordination activities, and required the owner or 
operator to develop an emergency response program upon receiving a 
written request to do so from the LEPC or local response authorities, 
were not included in the final rule. EPA believes that by making these 
changes, the regulatory provisions that would potentially have caused 
many sources to convert from being non-responding sources to responding 
sources have been removed from the final rule. However, as the 
emergency coordination provisions of the final rule require regulated 
sources to coordinate annually with local responders and to document 
coordination activities, EPA acknowledges that it is possible that 
these more frequent coordination activities may still prompt some 
sources to implement an emergency response program (i.e., for a non-
responding source to become a responding source). In such cases, EPA 
believes a three-year timeframe is appropriate to establish a program 
that meets the requirements of Sec.  68.95.
7. Facility Exercises
    One commenter objected to the proposed four-year compliance date 
for emergency response exercises arguing that exercises should be 
required within one year of when coordination activities must begin.
    EPA disagrees with the commenter and is finalizing a four-year 
compliance date for conducting emergency response exercises. This means 
that the owner or operator has four years after the effective date of 
this rule to conduct a notification exercise, consult with local 
emergency response officials to establish a schedule for conducting 
tabletop and field exercises, and complete at least one tabletop or 
field exercise. EPA believes that this timeframe will allow owners and 
operators to develop an exercise program that is appropriate for their 
facility, train personnel, and coordinate with local emergency response 
officials. EPA also expects to develop guidance on emergency response 
exercises and facility owners and operators will require time to 
familiarize themselves with the guidance.
8. Information Availability
    A professional organization stated that the proposed timeline for 
information sharing should be shortened to three years for information 
that is shared with the public. The commenter recommended that 
information sharing with facility workers should begin immediately 
after the implementation of the rule. Another commenter asserted that 
the proposed rulemaking provisions and compliance dates are 
inappropriate for the sharing of information, arguing that provisions 
triggered by an accident should be required in an accelerated 
timeframe.
    EPA disagrees with commenters and is finalizing a four-year 
compliance date for information availability provisions. This means 
that four years after the effective date of the rule, the facility 
owner or operator must have notifications in place to inform the public 
that information specified in Sec.  68.210(b) is available upon 
request. 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 hold a public meeting within 90 days of the accident. EPA 
believes that this timeframe is sufficient to allow facility staff an 
opportunity to determine the best method for providing notifications to 
the public and to assemble and format

[[Page 4678]]

information to prepare to respond to information requests.
9. Update and Resubmit RMP
    EPA received no comments on the proposed five-year compliance date 
for owners or operators to update RMPs to reflect the new and revised 
data elements in subpart G of the rule. EPA is finalizing a five-year 
compliance date for this provision, as proposed. This timeframe 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 revise its online RMP submission system, 
RMP*eSubmit, to include the additional 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.

D. Compliance Date Examples

    The following examples demonstrate the compliance dates for the 
final rule as described in Table 6: Final Rule Provisions and 
Corresponding Compliance Dates.

    Table 6--Final Rule Provisions and Corresponding Compliance Dates
------------------------------------------------------------------------
                                                      Initiated after an
         Rule provision             Compliance date     RMP reportable
                                                           accident?
------------------------------------------------------------------------
Third-party audit...............  March 15, 2021....  Yes.
Root cause analysis.............  March 15, 2021....  Yes (also required
                                                       after near
                                                       misses).
STAA............................  March 15, 2021....  No.
Emergency response coordination   March 14, 2018....  No.
 activities.
Owner/operator determines that    Within three years  No.
 the facility is subject to the    of the
 emergency response program        determination.
 requirements of Sec.   68.95.
Emergency response exercises....  March 15, 2021....  No.
Information sharing.............  March 15, 2021....  Partially-public
                                                       meeting within 90
                                                       days.
Update RMP......................  March 14, 2022....  No (but previously
                                                       existing
                                                       correction
                                                       requirements of
                                                       Sec.   68.195
                                                       still apply).
------------------------------------------------------------------------

Example 1: Provisions That Apply to a Non-Responding Stationary Source
    Source A (see Table 7) 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 STAA 
provisions. The source has not had any RMP reportable accidents since 
the effective date of the final rule.

                      Table 7--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 provisions apply:
     Annual emergency response coordination activities in 
accordance with Sec.  68.93;
     Notification exercises (Sec.  68.96(a)); and
     Information availability provisions (Sec.  68.210).
    The owner or operator must coordinate response needs with local 
emergency planning and response organizations as described in Sec.  
68.93 (i.e., to determine how the source is addressed in the community 
emergency response plan and to ensure that local response organizations 
are aware of the regulated substances at the source, their quantities, 
the risks presented by covered processes, and the resources and 
capabilities at the facility). Coordination activities must occur 
annually and be documented.
    Source A is a non-responding facility, and the owner or operator is 
required to conduct annual notification exercises. The owner or 
operator is also required to provide ongoing public notification that 
certain information is available to the public upon request.
    Finally, beginning 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. 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 March 14, 2022 (the 
required resubmission date for the final rule).
    Table 8: Summary of provisions that apply to a non-responding 
stationary source summarizes the provisions that apply to Source A.

Table 8--Summary of Provisions That Apply to a Non-Responding Stationary
                                 Source
------------------------------------------------------------------------
                                   Additional
    Applicable provisions          information       When to complete *
------------------------------------------------------------------------
Emergency response            Occurs annually.....  Complete
 coordination activities.                            coordination
                                                     activities before
                                                     March 14, 2018 and
                                                     document
                                                     coordination.
Notification exercise.......  Occurs annually.....  Complete first
                                                     notification
                                                     exercise by March
                                                     15, 2021.
------------------------------------------------------------------------
                   Information availability provisions
------------------------------------------------------------------------
Information to the public...  Ongoing. Includes     Complete first
                               notification that     calendar year
                               specifies the         notification by
                               information that is   March 15, 2021.
                               available and
                               provides
                               instructions on how
                               to obtain, and
                               links to community
                               preparedness
                               information.
Update RMP..................  Owner's next five-    Update RMP on
                               year resubmission     regular schedule
                               date occurs prior     (by January 20,
                               to effective date     2020) and again to
                               for provision, so     include new
                               owner must update     information by
                               RMP twice.            March 14, 2022.
------------------------------------------------------------------------


[[Page 4679]]

    If the Source A's owner or operator determines that the facility is 
subject to the emergency response program requirements (i.e., the 
facility has toxic substances and is not included in the community 
emergency response plan or the facility has flammable substances and 
has not coordinated response actions with the local fire department), 
then he or she would have three years from the determination date 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: Provisions That Apply to a Responding Stationary Source
    Source B (see Table 9) is a responding stationary source with a 
process subject to Program 3 requirements. Its latest RMP update was 
submitted June 30, 2020. 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 STAA provisions, and the source has not 
had any RMP reportable accidents since the effective date of a final 
rule.

                      Table 9--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 provisions apply:
     Annual emergency response coordination activities in 
accordance with Sec.  68.93;
     Emergency response exercises (Sec.  68.96); and
     Information availability provisions (Sec.  68.210).
    The owner or operator must coordinate response needs with local 
emergency planning and response organizations as described in Sec.  
68.93. Coordination activities must occur annually and be documented.
    Additionally, since Source B is a responding facility, the owner or 
operator is required to conduct annual notification exercises and 
tabletop and field exercises. The frequency of the tabletop and field 
exercises will be determined in consultation with local emergency 
response officials, but at a minimum, shall be every three years for 
tabletop exercises and every ten years for field exercises. EPA expects 
that within four years of the effective date of the final rule, that 
the owner or operator will consult with local emergency response 
officials to establish a schedule for conducting at least one tabletop 
and/or field exercise.
    The owner or operator is also required to provide ongoing public 
notification that certain information is available the public upon 
request.
    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. Table 10: Summary of provisions that apply to 
Source B summarizes the provisions that apply in this example.

         Table 10--Summary of Provisions That Apply to Source B
------------------------------------------------------------------------
                                   Additional
    Applicable provisions          information       When to complete *
------------------------------------------------------------------------
Emergency response            Occurs annually.....  Complete
 coordination activities.                            coordination
                                                     activities before
                                                     March 14, 2018.
------------------------------------------------------------------------
               Emergency response exercises (Sec.   68.96)
------------------------------------------------------------------------
Notification exercise.......  Occurs annually.....  Complete first
                                                     notification
                                                     exercise by March
                                                     15, 2021.
Field and tabletop exercises  Tabletop exercise     Complete first
                               every three years,    tabletop or field
                               field exercise once   exercise by March
                               every ten years.      15, 2021.
------------------------------------------------------------------------
                   Information availability provisions
------------------------------------------------------------------------
Information to the public...  Ongoing. Includes     Complete first
                               notification that     calendar year
                               specifies the         notification by
                               information that is   March 15, 2021.
                               available, provides
                               instructions on how
                               to obtain, and
                               links to community
                               preparedness
                               information.
Update RMP..................  ....................  Update RMP to
                                                     include new
                                                     information by
                                                     March 15, 2021.
------------------------------------------------------------------------

Example 2B: Additional Provisions That Apply to a Responding Stationary 
Following an RMP Reportable Accident.
    See Table 11.

                     Table 11--Example 2B, 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......  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 is required to comply with the following 
additional provisions:
     Third-party audit provisions of Sec.  68.80;
     Incident investigation and root cause analysis 
requirements of Sec.  68.81; and
     Public meeting within 90 days of an RMP reportable 
accident, pursuant to Sec.  68.210(e).
    Chronologically, the first provision that applies is the 
requirement to host a public meeting. Section 68.210(e) requires the 
owner or operator to hold a public meeting within 90 days after the 
accident to inform the public about 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 the incident. The incident investigation 
provisions 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.
    The third-party audit provisions require the owner or operator to 
hire a third-party auditor to perform a third-

[[Page 4680]]

party compliance audit and complete an audit report within 12 months of 
the accident (unless the implementing agency approves an extension). 
The owner or operator must also complete an audit findings response 
report 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 or 
individual, if applicable.
    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. Finally, if the owner or operator's response 
to the incident utilizes the facility's emergency response plan, tested 
the objectives of an exercise as described in Sec.  68.96(b)(1)(ii), 
and documents response actions as described in Sec.  68.96(b)(3), then 
the owner or operator may use the response to satisfy the field 
exercise requirements of the final rule.
    Table 12 summarizes the additional provisions that 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 12--Summary of Additional Provisions That Apply to Source B Following an RMP Reportable Accident
----------------------------------------------------------------------------------------------------------------
 Applicable provisions following
   an RMP reportable accident:          Compliance date        Additional information      When to complete *
----------------------------------------------------------------------------------------------------------------
Public meeting...................  March 15, 2021...........  The accident occurred     Hold public meeting by
                                                               after the compliance      October 3, 2021.
                                                               date for this
                                                               provision, therefore,
                                                               schedule a meeting
                                                               within 90 days after
                                                               the RMP reportable
                                                               accident.
Incident investigations..........  March 15, 2021...........  The accident occurred     Complete report by July
                                                               after the compliance      5, 2022.
                                                               date for this
                                                               provision, therefore,
                                                               initiate within 48
                                                               hours, complete
                                                               investigation and root
                                                               cause analysis within
                                                               12 months.
Third-party audit................  March 15, 2021...........  The accident occurred     Complete third-party
                                                               after the compliance      audit by July 5, 2022
                                                               date for this            Complete findings
                                                               provision, therefore,     response report within
                                                               complete within 12        90 days of completing
                                                               months of the RMP         audit.
                                                               reportable accident.
Field exercise...................  March 15, 2021...........  May use the response to   Document the response
                                                               satisfy the field         within 90 days of the
                                                               exercise requirements     incident (i.e., by
                                                               of the rule when all      October 3, 2021), if
                                                               objectives of the         using response to
                                                               exercise are tested and   satisfy field exercise
                                                               the response is           requirements.
                                                               documented.
Accident history information in    .........................  Correct RMP within 6      Correct RMP by January
 RMP.                                                          months of accident        5, 2022.
                                                               (existing requirement).
----------------------------------------------------------------------------------------------------------------

Example 3: Compliance Date Example for Sources Subject to STAA 
Requirements
    Source C (see Table 13) is a petroleum refinery in NAICS 32411. Its 
latest RMP update was submitted on March 31, 2018. Its latest PHA 
revalidation was completed on March 7, 2017.

                      Table 13--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 STAA 
provisions of Sec.  68.67(c)(8). Therefore, March 15, 2021, the owner 
or operator must complete a PHA revalidation that addresses safer 
technology and alternative risk management measures, and determine the 
practicability of the ISTs and ISDs considered.
    By March 14, 2018 the owner or operator of Source C must comply 
with the emergency response coordination provisions, and by March 15, 
2021, the owner or operator must also comply with other applicable rule 
provisions including: Third-party audits; incident investigations; 
emergency response exercises; and information availability (including 
public meetings).
    By March 14, 2022, the owner or operator of Source C must update 
the RMP to include all revised data elements specified in subpart G. 
Table 14: Compliance date example for sources subject to STAA 
requirements, summarizes the STAA provisions that apply to Source C.

      Table 14--Compliance Date Example for Sources Subject to STAA
                              Requirements
------------------------------------------------------------------------
                                                        When to complete
     Applicable provisions      Additional information          *
------------------------------------------------------------------------
STAA..........................  Occurs every five       By March 15,
                                 years as part of PHA    2021.
                                 revalidation.
Update RMP....................  ......................  By March 14,
                                                         2022.
------------------------------------------------------------------------


[[Page 4681]]

IX. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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 Office of Management and Budget (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.
    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 
comments on the proposed rulemaking, SBAR panel, public hearing, RFI, 
and Executive Order listening sessions, and are finalized under the 
statutory authority provided by CAA section 112(r) as amended (42 
U.S.C. 7412(r)).
2. Description of Alternatives to the Final Rule
    EPA analyzed in the RIA the requirements finalized in this action 
as well as several alternatives for each.
a. Third-Party Audits (Program 2 Sec. Sec.  68.58 and 68.59 and Program 
3 Sec. Sec.  68.79 and 68.80)
    The existing rule requires Program 2 and Program 3 processes to 
conduct a compliance audit at least once every three years. The revised 
rule requires facilities to contract with an independent third-party, 
or assemble an audit team led by 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 applies 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 
applies every three years for all compliance audits conducted for all 
Program 3 processes. The high cost alternative applies every three 
years for all compliance audits conducted for Program 2 and Program 3 
processes.
b. Incident Investigations/Root Cause Analysis (Sec. Sec.  68.60 and 
68.81)
    The rule requires 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 applies the provision only to 
RMP reportable accidents or near misses in Program 3 processes. The 
medium/high cost alternative applies to RMP reportable accidents or 
near misses involving Program 2 and Program 3 processes.
c. STAA (Sec.  68.67)
    Under the final rule, facilities in NAICS codes 322 (paper 
manufacturing), 324 (petroleum and coal products manufacturing), and 
325 (chemical manufacturing) with Program 3 processes are required to 
conduct a STAA for each process as part of their PHA, which occurs 
every five years. The STAA includes two parts: The initial analysis to 
identify alternatives, and a practicability study to determine the 
costs and assess the reasonableness of implementing technology 
alternatives. The final rule is the low cost alternative, which applies 
to all facilities with Program 3 processes in NAICS codes 322, 324, and 
325. The medium cost alternative applies the requirement to all Program 
3 processes. The high cost alternative applies the requirement to all 
Program 3 processes and require facilities to implement practicable 
IST/ISD.
d. Emergency Response Program Coordination With Local Responders 
(Sec. Sec.  68.90, New 68.93, and 68.95)
    Under the final rule, all facilities with Program 2 or Program 3 
processes are required to coordinate with local response agencies 
annually to determine how the source is addressed in the community 
emergency response plan and to ensure that local response organizations 
are aware of the regulated substances at the source, their quantities, 
the risks presented by covered processes, and the resources and 
capabilities at the facility to respond to an accidental release of a 
regulated substance. The owner or operator must document coordination 
activities.
    Alternatives to this provision are similar to the finalized 
requirements. One alternative that imposes the same costs as the final 
rule option includes an option for local officials to request that a 
facility owner or operator comply with the emergency response program 
requirements of Sec.  68.95. 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.
e. Facility Exercises (Sec.  68.96)
    Notification exercises. All facilities with Program 2 or Program 3 
processes are required to conduct a notification

[[Page 4682]]

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 rule requires responding 
facilities to conduct exercises of their emergency response plans and 
invite local emergency response officials to participate. Under the low 
cost alternative, facilities would conduct tabletop exercises every 
three years. Under the final rule, which is the medium cost 
alternative, facilities will establish the frequency of exercises in 
consultation with local emergency response officials, but at a minimum, 
full field exercises will be conducted at least once every ten years 
and tabletop exercises conducted at least once every three years. 
Responding facilities that have an RMP reportable accident, and 
document the response activities in an after-action report comparable 
to the exercise evaluation reports may use that response to satisfy the 
field exercise requirements. Furthermore, owner and operators of 
responding facilities that conduct exercises to meet other Federal, 
state or local exercise requirements may satisfy the RMP exercise 
requirements provided that the scope of the exercise includes the 
objectives of an RMP exercise. Under the high cost alternative, 
facilities would conduct full field exercises annually.
f. Information Availability (Sec.  68.210)
    The rule requires all facilities to provide certain basic chemical 
hazard information to the public, upon request. The owner or operator 
of the facility shall provide ongoing notification of availability of 
information elements on a company Web site, social media platforms, or 
through some other publicly accessible means. 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.
    EPA proposed requirements for facilities to provide certain 
information to the LEPC, Tribal Emergency Planning Committee (TEPC) or 
other local emergency response agencies. However, rather than prescribe 
information elements that must be provided upon request, EPA is 
requiring the owner or operator of a stationary source to share 
information that is relevant to emergency response planning as part of 
the coordination activities that occur annually between facility 
representatives and local emergency response agencies.
    Finally, the rule requires facilities to hold a public meeting for 
the local community within 90 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 five years and 
within 90 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 five years and immediately 
following an RMP reportable accident.
3. Summary of Costs
    Approximately 12,500 facilities have filed current RMPs with EPA 
and are potentially affected by the revised rule. 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 15 presents the number of facilities according to the latest 
RMP reporting as of February 2015 by industrial sector and chemical 
use.

                                Table 15--Number of Affected Facilities by Sector
----------------------------------------------------------------------------------------------------------------
                                                                    Total
                  Sector                        NAICS codes      facilities             Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental quality                     924       1,923  Use chlorine and other chemicals
 programs (i.e., governments).                                                for treatment.
Agricultural chemical distributors/        111, 112, 115, 42491       3,667  Store ammonia for sale; some in
 wholesalers.                                                                 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,         248  Use chemicals for wastewater
                                                         61, 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 manufacturing                   324         156  Manufacture, process, store (mostly
                                                                              regulated flammable substances and
                                                                              flammable mixtures).
Petroleum wholesalers....................                  4247         276  Store for sale (mostly regulated
                                                                              flammable substances and flammable
                                                                              mixtures).
Utilities................................                   221         445  Use chlorine (mostly for water
                                                                              treatment) and other chemicals.
Warehousing and storage..................                   493       1,056  Use mostly ammonia as a
                                                                              refrigerant.
                                                                ------------
    Total................................  ....................      12,542
----------------------------------------------------------------------------------------------------------------

    Table 16 presents a summary of the annualized costs estimated in 
the RIA. In total, EPA estimates annualized costs of $131.2 million at 
a 3% discount rate and $131.8 million at a 7% discount rate.

[[Page 4683]]



                  Table 16--Summary of Annualized Costs
                        [Millions, 2015 dollars]
------------------------------------------------------------------------
                Provision                       3%              7%
------------------------------------------------------------------------
Third-party Audits......................            $9.8            $9.8
Incident Investigation/Root Cause.......             1.8             1.8
STAA....................................            70.0            70.0
Coordination............................            16.0            16.0
Notification Exercises..................             1.4             1.4
Facility Exercises......................            24.7            24.7
Information Sharing (Public)............             3.1             3.1
Public Meeting..........................             0.4             0.4
Rule Familiarization....................             3.9             4.6
Total Cost *............................           131.2           131.8
------------------------------------------------------------------------
* Totals may not sum due to rounding.

    The largest average annual cost of the final rule is the STAA costs 
($70.0 million), followed by the exercise costs ($24.7 million), 
coordination ($16 million), and third-party audits ($9.8 million). The 
remaining provisions impose average annual costs under $5 million each, 
including rule familiarization ($3.9 to 4.6 million), information 
sharing (public) ($3.1 million), incident investigation/root cause 
analysis ($1.8 million), notification exercises ($1.4 million), and 
public meetings ($0.4 million).
    The 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 rule does not require 
implementation of practicable IST alternatives, EPA believes it is 
possible that there may be costs associated with resolving findings 
from the 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. EPA acknowledged the wide range of outcomes from these provisions 
and the significant uncertainties associated with their costs, and 
requested information in the proposed rulemaking on whether these costs 
should accrue to the rule. EPA did not receive any data from commenters 
that illustrates the: Types of costs that result from independent 
audits (other than the cost of the audit) that are different from self-
audit costs; the types of costs that result from root cause 
investigations as compared to non-root-cause investigations; and for 
the STAA provisions, information to project what changes facilities are 
likely to voluntarily undertake (e.g., cost data or studies for 
implementation of IST changes).
4. Summary of Potential Benefits
    EPA anticipates that implementation of this rule will 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 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 this rule. Table 17 presents a 
summary of the quantified damages identified in the analysis.

                                     Table 17--Summary of Quantified Damages
                                            [Millions, 2015 dollars]
----------------------------------------------------------------------------------------------------------------
                                             Unit value       10-Year total     Average/year    Average/accident
----------------------------------------------------------------------------------------------------------------
                                                     On-site
----------------------------------------------------------------------------------------------------------------
Fatalities..............................              $8.6            $497.8             $49.8             $0.33
Injuries................................              0.05             105.2              10.5              0.69
Property Damage.........................  ................           2,054.9             205.5               1.4
                                         -----------------------------------------------------------------------
    On-site Total.......................  ................           2,657.9             265.8               1.8
----------------------------------------------------------------------------------------------------------------
                                                     Offsite
----------------------------------------------------------------------------------------------------------------
Fatalities..............................               8.6               8.6              0.86              0.01
Hospitalizations........................               0.4               6.8              0.68             0.004
Medical Treatment.......................             0.001              14.8               1.5              0.01
Evacuations *...........................               0.0               7.0              0.70             0.004
Sheltering in Place *...................               0.0              40.9               4.1              0.03
Property Damage.........................  ................              11.4               1.1             0.007
                                         -----------------------------------------------------------------------
    Offsite Total.......................  ................              89.5               8.9              0.06
                                         -----------------------------------------------------------------------
        Total...........................  ................           2,747.3             274.7               1.8
----------------------------------------------------------------------------------------------------------------
* The unit value for evacuations is less than two hundred dollars and for sheltering in place is less than one
  hundred dollars so when expressed in rounded millions the value represented in the table is zero.


[[Page 4684]]

    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 ($0.86 million), evacuations 
($0.7 million), and hospitalizations ($0.68 million).
    In total, EPA estimated monetized damages from RMP facility 
accidents of $274.7 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 provisions intend, would provide 
benefits to potentially affected members of society.
    Table 18 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 18 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 18--Summary of Social Benefits of Final Rule Provisions
------------------------------------------------------------------------
                                                       Specific benefit
     Broad benefit category           Explanation         categories
------------------------------------------------------------------------
Accident Prevention.............  Prevention of        Reduced
                                   future RMP          Fatalities.
                                   facility
                                   accidents.
Accident Mitigation.............  Mitigation of        Reduced
                                   future RMP          Injuries.
                                   facility
                                   accidents.
Non-RMP accident prevention and   Prevention and       Reduced
 mitigation.                       mitigation of       Property Damage.
                                   future non-RMP      Fewer
                                   accidents at RMP    People Sheltered
                                   facilities.         in Place.
Avoided Catastrophes............  Prevention of rare   Fewer
                                   but extremely       Evacuations.
                                   high consequence    Avoided
                                   events.             Lost
                                                       Productivity.
                                                       Avoided
                                                       Emergency
                                                       Response Costs.
                                                       Avoided
                                                       Transaction
                                                       Costs.
                                                       Avoided
                                                       Property Value
                                                       Impacts.*
                                                       Avoided
                                                       Environmental
                                                       Impacts.
Information Disclosure..........  Provision of         Improved
                                   information to      efficiency of
                                   the public.         property markets.
                                                       Improved
                                                       emergency
                                                       response resource
                                                       allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories such as
  reduced health and environmental impacts.

5. Discussion of Comments on Estimated Costs and Benefits
a. General Comments
    EPA costs underestimated or based on outdated information. Several 
commenters stated that EPA's cost estimates in the RIA for the proposed 
rulemaking were generally inaccurate and underestimated the true costs 
that facilities will face. Some commenters indicated that EPA's 
estimated labor rates were based on outdated (2014) information. 
Several commenters representing industry trade associations and 
regulated facilities expressed specific concerns about the estimated 
costs of each individual proposed rulemaking element, as well as EPA's 
estimate of the costs of rule familiarization. Some of these commenters 
provided specific cost information or estimates to support their 
claims.
    EPA considered this information and made substantial adjustments to 
the cost estimates for every rule provision, including rule 
familiarization. In addition to adjusting the cost estimate for the 
final rule to incorporate cost information submitted by commenters, EPA 
also adjusted the estimate to delete costs associated with proposed 
rulemaking provisions that were not included in the final rule (e.g., 
Information availability to LEPCs), and to account for structural 
changes between proposed and final rule provisions for certain rule 
elements (e.g., the final rule requires emergency field and tabletop 
exercises to be conducted less frequently than EPA had proposed). EPA 
also updated its estimated labor rates to the most recent (2015) values 
available from the Bureau of Labor Statistics.
    Benefit concerns. Several commenters also addressed EPA's 
assessment of benefits in their public comment submissions. While some 
commenters indicated that the proposed requirements would improve 
safety and prevent chemical releases, other commenters stated that the 
proposed requirements would not provide any benefits, or that the costs 
associated with the rule would severely outweigh any benefits. Other 
commenters indicated that EPA had failed to quantify any benefits of 
the rule, making a cost-benefit comparison impossible. Other commenters 
stated that EPA overestimated benefits or inappropriately counted 
benefits that actually accrue from OSHA's PSM standard as benefits of 
the proposed rulemaking. One commenter also stated that EPA's benefit 
categories would be offset by unstated additional costs, including 
losses in reputation or brand value, higher insurance premiums, and 
difficulty hiring and retaining workers that facilities may incur as a 
result of an accident.
    EPA disagrees that the proposed rulemaking would not provide 
benefits or that the costs of the rule would necessarily outweigh its 
benefits. As EPA explains in the RIA for the final rule, the benefits 
of the final rule include reductions in the number of people killed, 
injured, and evacuated or otherwise inconvenienced by sheltering in 
place; reductions in the damage caused to property on-site and offsite 
including product, equipment, and buildings; reductions in damages to 
the

[[Page 4685]]

environment and ecosystems; and reductions in resources diverted to 
extinguish fires and clean up affected areas. The final rule also 
provides other benefits, such as increased public information, which in 
addition to helping to minimize the impacts of accidents on the offsite 
public, may also lead to more efficient property markets in areas near 
RMP facilities.
    EPA acknowledges that it is not possible to estimate quantitative 
benefits for the final rule. EPA has no data to project the specific 
impact on accidents made by each final rule provision. The accidents 
themselves have highly variable impacts that are difficult to predict. 
However, it is clear from the RMP accident data and other available 
data that chemical accidents can impose substantial costs on firms, 
employees, emergency responders, the community, and the broader 
economy. Reducing the risk of such accidents and the severity of the 
impacts when accidents occur, and improving information provision, as 
the final rule intends, provides benefits to the potentially affected 
members of society.
    EPA disagrees that the final rule takes credit for benefits that 
should accrue to the OSHA PSM standard. None of the provisions 
contained in the final rule are duplicated in the OSHA PSM standard. 
EPA also disagrees that regulated facilities will suffer losses in 
reputation or brand value, higher insurance premiums, or have 
difficulty hiring and retaining workers as a result of the final rule. 
If, as EPA expects, the final rule results in the prevention of 
accidents, then it should have the opposite of these effects, to the 
extent they relate to chemical accidents.
b. Estimate of Rule Familiarization Costs
    Several industry trade associations stated that EPA's estimate of 
the costs of rule familiarization were too low. These commenters stated 
that EPA's estimate only included time spent by management level 
employees but should be expanded to include the cost of training all 
relevant facility employees. Some of these commenters recommended 
alternate approaches to estimating the costs of rule familiarization 
that included estimates of time spent by additional labor categories 
(e.g., attorneys, engineers, production staff, etc.). One commenter 
also recommended that EPA consider adjusting its rule familiarization 
estimate to better track with the estimate used by the NJ DEP for 
revisions to the NJ TCPA regulations.
    EPA agrees with these comments, and adjusted its rule 
familiarization estimate accordingly, resulting in an increase of the 
estimated costs of rule familiarization.
c. Third-Party Audit Costs
    Many commenters including industry trade associations and 
facilities stated that EPA's estimate of the costs of third-party 
audits was too low. Many commenters also stated that third-party 
auditor fees will be much higher than EPA's estimate, partially due to 
the low availability of qualified auditors. Several commenters 
submitted cost information from external audits to support their 
estimates.
    EPA generally agrees with these comments. Shortly after the 
proposed rulemaking was published, EPA received cost information 
relating to a series of third-party audits conducted by a facility as a 
result of an enforcement action taken by EPA under CAA section 112(r). 
The average cost of these audits was approximately double EPA's 
estimate in the proposed rulemaking, and comparable to cost estimates 
submitted by commenters. Therefore, EPA adjusted its cost estimate for 
this provision of the final rule accordingly, resulting in the 
estimated costs of third-party audits under the final rule nearly 
doubling. EPA notes that the third-party audit provisions of the final 
rule also relaxed, to some extent, the independence and competency 
criteria for third-party auditors. The Agency believes that these 
changes will increase the availability of qualified auditors, and 
therefore make such audits less costly than might otherwise have been 
the case.
d. Incident Investigation/Root Cause Costs
    Several commenters stated that EPA's estimate of costs of incident 
investigations and root cause analysis was inaccurately low. Some of 
these commenters suggested that the required number of investigations 
will increase significantly as a result of EPA's proposal to re-define 
the term ``catastrophic release,'' and that this would cause the cost 
of this rule element to increase substantially. Other commenters stated 
that incident investigations require more labor hours than were 
accounted for in EPA's cost estimate, and that the Agency needs to 
significantly raise its estimate in order to account for these issues. 
Some of these commenters submitted cost information to support their 
estimates.
    Although EPA disagrees that its proposed changes to the definition 
of ``catastrophic release'' would have increased the number of 
investigations required under the rule, the Agency elected not to 
finalize the proposed changes to that definition, so no increase in 
incident investigation costs will result from it. Regarding commenters' 
concerns that EPA had not accounted for enough labor hours for 
investigations in the RIA for the proposed rulemaking, after 
considering these comments, the Agency generally agrees that its 
estimate was too low. EPA incorporated the cost information submitted 
by commenters into its estimate for the final rule. EPA also notes that 
unlike the estimate for the proposed rulemaking, the final rule 
economic estimate did not assume that investigations of near misses 
would require fewer labor hours than investigations of actual release 
events. This change also accounted for some of the increase in the 
estimated cost of this rule element. Overall, these changes resulted in 
the estimated cost of this rule element approximately doubling for the 
final rule.
e. STAA Costs
    STAA costs too low. EPA received several comments stating that the 
Agency's estimate of costs for the proposed STAA provisions was too 
low. Most of these comments addressed both EPA's estimate of the cost 
of the initial study of safer technology options, as well as the 
Agency's estimate of costs for the required evaluation of the 
practicability of IST considered during the STAA.\121\ Some commenters 
submitted alternate cost estimate information for both the initial 
analysis of options and the practicability study.
---------------------------------------------------------------------------

    \121\ EPA used the term ``feasible'' rather than 
``practicability'' in the proposed rulemaking.
---------------------------------------------------------------------------

    EPA notes that in general, commenter's cost estimates for the 
initial analysis were higher than EPA's estimates, although not in 
every case. EPA incorporated these estimates into the RIA as 
appropriate--the Agency assumed that cost estimates for the STAA 
initial analysis submitted by trade associations representing a 
particular category of facilities (e.g., refineries, complex chemical 
manufacturers, etc.) were the best representation of estimated costs 
for those categories of facilities, and adjusted its own estimate 
accordingly. In most cases, this cause the estimated costs for the STAA 
initial analysis to increase.
    Practicability study costs. For the practicability study, several 
commenters stated that EPA's estimate was far too low, and indicated 
that EPA should adopt an alternate approach that estimated the cost of 
the practicability study as a fixed fraction of the cost of the project 
being considered.

[[Page 4686]]

    After reviewing these comments, EPA conducted additional research 
on this subject which confirmed that these commenters were generally 
correct on this point. EPA therefore adjusted its approach to 
estimating the costs of practicability studies accordingly, which 
resulted in a significant increase for the cost of this provision. 
EPA's research on this topic and the resulting cost estimation approach 
is explained in detail in Appendix D to the RIA for the final rule.
    STAA implementation. EPA also received several comments stating 
that the Agency should assume that the STAA provision will result in 
some facilities implementing safer technologies, and include the costs 
associated with such implementation in its economic estimate.
    EPA disagrees with these comments. While the Agency agrees that 
some facilities may elect to implement IST, the final rule does not 
require facilities to do so. Therefore, the Agency believes that 
implementation of IST will result from the owner or operator's own 
judgement that it is beneficial for the source, after considering all 
relevant factors. The STAA required under this rule may facilitate such 
decision making, but does not require it.
f. Emergency Response Program Coordination With Local Responders' Costs
    Emergency response program costs. The Agency received several 
comments relating to the proposed emergency coordination provisions. 
Some of the comments on this topic related to the Agency's projected 
estimate of the cost for some sources to develop an emergency response 
program, stating that EPA's estimate of these costs was too low.
    EPA is not finalizing the proposed rulemaking provisions that it 
believes would have resulted in many sources developing emergency 
response programs. Therefore, these ``new responder'' costs were not 
included in the RIA for the final rule.
    Annual coordination burden. EPA also received comments that stated 
its estimate of burden for the annual coordination provision, a 
modified form of which is included in the final rule, were too low. One 
commenter provided emergency coordination cost information for large 
complex facilities, which was substantially higher than EPA's estimate 
for the category of facilities.
    EPA incorporated the emergency coordination cost information into 
the revised economic estimate in the RIA for the final rule. EPA also 
revised its estimate for this element to account for the fact that 
changes to the annual coordination provision in the final rule, as well 
as the Agency's decision not to finalize a portion of the information 
availability provisions of the proposed rulemaking, may result in 
greater information exchange occurring during annual coordination 
meetings than was estimated under the proposed rulemaking. Under the 
information availability provisions of the proposed rulemaking, the 
owner or operator would have been required to annually provide certain 
information to local emergency responders. The final rule does not 
include this provision; however, the annual coordination provisions in 
the final rule require the owner or operator to provide local response 
officials with information relevant to emergency planning upon request. 
The net effect of these changes was to more than double the estimated 
costs of the annual emergency response coordination provision of the 
final rule.
g. Facility Exercise Costs
    Several commenters disagreed with EPA's approach to estimating the 
costs of emergency response exercises, and in general, characterized 
EPA's estimate as too low. Two of these commenters submitted alternate 
cost estimates for this provision. However, the cost estimate provided 
by one commenter did not appear to apply to facilities represented by 
the commenter's industry association. The information submitted by the 
other commenter appeared credible, but projected costs for large 
complex facilities that were lower than EPA's estimate.
    As a result of these comments EPA determined that its NPRM cost 
estimate for large complex facilities was inflated, and lowered its 
estimate to better reflect industry experience. The Agency also notes 
that the final rule requires emergency exercises to be conducted less 
frequently than was proposed in the NPRM. The net effect of the 
structural changes to the final rule and EPA's adjustment of its cost 
estimation approach resulting from public comments was to substantially 
reduce the estimated costs of this rule provision.
h. Information Availability Costs
    EPA received some comments stating that EPA's estimate of costs for 
the proposed rulemaking's information availability provisions was too 
low. These commenters indicated that EPA underestimated the time 
required for facilities to prepare information required to be disclosed 
to the public, and that EPA underestimated the cost of holding public 
meetings. One commenter indicated that renting space for a public 
meeting would cost as much as $10,000 per day.
    Based on these comments, EPA increased its cost estimate for the 
public information availability provision for large complex facilities. 
EPA did not change its cost estimate for public meetings because 
commenter's high estimates of the costs of public meeting space did not 
comport with EPA's research and prior experience with the costs of 
public meetings.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this 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 2537.02 and OMB Control Number 2050-0216. You 
can find a copy of the ICR in the docket for this rule, and it is 
briefly summarized here.
    This ICR amends 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 information requirements that are part of the revised 
rule:
    (1) Make certain information related to the risk management program 
available to the public, upon request;
    (2) Hold a public meeting within 90-days of an accident subject to 
reporting under Sec.  68.42 (i.e., an RMP reportable accident);
    (3) Hire a third-party to perform or lead a compliance audit after 
an RMP reportable accident or after an implementing agency determines 
that conditions at the stationary source could lead to an accidental 
release of a regulated substance or identifies problems with the prior 
third-party audit;
    (4) Conduct and document a root cause analysis after an RMP 
reportable accident or a near miss;
    (5) Conduct and document a STAA for a subset of Program 3 
facilities in North American Industrial Classification System (NAICS) 
codes 322 (paper manufacturing), 324 (petroleum and coal products 
manufacturing), and 325 (chemical manufacturing);
    (6) Meet and coordinate with local responders annually to exchange 
emergency response planning information;

[[Page 4687]]

    (7) Conduct an annual notification drill to verify emergency 
contact information; and
    (8) Responding facilities conduct and document emergency response 
exercises including:
     A field exercise at least every ten years, and
     A tabletop exercise at least every three years.
    EPA believes that the RMP regulations have been effective in 
preventing and mitigating chemical accidents in the United States. 
However, EPA is revising the rule 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 finalized 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 previously, 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: 14,280.
    Frequency of response: On occasion.
    Total estimated burden: 1,778,244 hours (per year). Burden is 
defined at 5 CFR 1320.3(b).
    Total estimated cost: $130,578,842 (per year), includes $8,285,600 
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. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 603 and 609(b) of the RFA the EPA prepared an 
initial regulatory flexibility analysis (IRFA) for the proposed 
rulemaking and convened a Small Business Advocacy Review (SBAR) Panel 
to obtain advice and recommendations from small entity representatives 
that potentially would be subject to the rule's requirements. Summaries 
of the IRFA and Panel recommendations are presented in the proposed 
rulemaking at 81 FR 13637, March 14, 2016.
    As required by section 604 of the RFA, the EPA prepared a final 
regulatory flexibility analysis (FRFA) for this action. The FRFA 
addresses the issues raised by public comments on the IRFA for the 
proposed rulemaking. The complete FRFA is available for review in the 
docket and is summarized here.
1. Statement of Need and Rule Objectives
    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 (on May 11, 2016, ATF ruled 
that the fire was intentionally set),\122\ 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 finalizing revisions to the Risk 
Management Program (40 CFR part 68).\123\
---------------------------------------------------------------------------

    \122\ See ATF Announces $50,000 Reward in West, Texas Fatality 
Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire.
    \123\ 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.
---------------------------------------------------------------------------

    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 comments on the proposed rulemaking, SBAR panel, 
public hearing, RFI, and Executive Order listening sessions, and are 
finalized under the statutory authority provided by CAA section 112(r) 
as amended (42 U.S.C. 7412(r)). For more information on the proposed 
rulemaking, SBAR panel and outreach efforts for this action, see the 
docket for this rulemaking (Docket ID Number EPA-HQ-OEM-2015-0725).
2. Significant Comments on the IRFA
a. General Comments
    A Federal elected official, Federal agency, facility, and multiple 
industry trade associations commented that EPA is not fulfilling its 
obligations under the Regulatory Flexibility Act because the Agency did 
not provide itself with enough time to consider the comments of either 
the SBAR panel report or the SERs in the proposed rulemaking. Many of 
these commenters asked that the SBAR panel recommendations be 
incorporated in the final rule.
    A facility stated that the proposed rulemaking will be burdensome 
to small facilities. An association of government agencies expressed 
concern that the costs of a more prescriptive risk management program 
will fall on small communities. An industry trade association and 
Federal agency claimed that the proposed rulemaking imposes a 
disproportionate burden on small facilities and asserted that EPA 
should eliminate impractical, unjustifiable, or non-cost-effective 
requirements. Several industry trade associations and a facility 
commented that the proposed rulemaking will result in more facilities 
being required to become responders, which will be costly and difficult 
for small businesses.
    Multiple facilities commented that EPA should withdraw its proposed 
rulemaking and coordinate more closely with OSHA's PSM rulemaking. An 
industry trade association stated that OSHA's PSM program and EPA's RMP 
proposal is creating confusion for small entities in the water sector. 
The commenter asked that EPA update guidance documents and delay 
further development of RMP revisions until OSHA'S PSM SBAR panel 
process is complete.

[[Page 4688]]

    EPA disagrees that the Agency did not fulfill its obligations under 
the Regulatory Flexibility Act or that the Agency did not consider the 
comments of the SBAR panel and SERs in the proposed or final rules. In 
many locations throughout the proposed rulemaking, EPA discussed SBAR 
panel recommendations and requested public comments on regulatory 
alternatives recommended by the SBAR panel. EPA also made numerous 
adjustments to the final rule to incorporate regulatory alternatives 
that were suggested by SERs where those alternatives were also 
supported by public comments and were consistent with the Agency's 
policy goals. For example, EPA incorporated SBAR panel recommendations 
by relaxing the competency and independence criteria for third-party 
auditors; reducing the frequency for conducting facility exercises; and 
not finalizing the proposed revision to the definition of 
``catastrophic release.''
    EPA also disagrees that the final rule is disproportionately 
burdensome on small entities. In fact, the costliest final rule 
provisions--STAA and facility exercises--affect relatively few small 
entities. EPA minimized the effect of the STAA provisions on small 
entities by applying these requirements to a narrowly-defined set of 
facilities in three select industry sectors. EPA minimized the impact 
of the exercise requirements on small entities by applying these 
requirements only to responding facilities, which tend to more often be 
large facilities. EPA also removed language from the final rule that 
would potentially have required numerous small entities to become 
responding facilities.
    Regarding comments requesting that EPA withdraw its rulemaking and 
coordinate more closely with OSHA, EPA notes that it did coordinate 
with OSHA in the development of the proposed and final rules, and that 
OSHA has also completed a SBAR panel as an initial step toward 
proposing potential changes to the PSM standard, which may include some 
changes that are similar to those in this rule. However, EPA does not 
believe it is necessary for the Agency to conduct its rulemaking on 
exactly the same timeline as OSHA. The 1990 CAA Amendments contained 
separate timelines for the initial OSHA and EPA rulemakings and has no 
provisions restricting timeframes for either agency amending its rules.
b. Third-Party Audits
    A facility and an industry trade association stated that EPA's 
assertion that the proposed requirements for third-party audits will 
have ``fairly low impact on small businesses'' is false and the 
requirement should be withdrawn entirely. Another industry trade 
association commented that third-party audits will be especially costly 
to small facilities. An industry trade association commented that the 
requirement for third-party audits will lead to a lack of auditor 
availability, a particularly difficult problem for small businesses.
    EPA disagrees that the final rule's third-party audit requirements 
have a disproportionately high impact on small businesses. EPA notes 
that the third-party audit provisions will only affect facilities that 
experience an RMP reportable accident. Over the last ten years, RMP 
facilities reported approximately 150 accidents per year, and over 75% 
of these accidents occurred at large businesses.\124\ Based on comments 
expressed by SERS and others, EPA also relaxed the final rule's 
independence criteria to allow the owner or operator to use third-party 
audit teams that include some non-independent members, including 
employees of the stationary source being audited. Also, the final rule 
allows a third-party audit team to include retired employees of the 
facility being audited, if their sole continuing financial attachments 
to the owner or operator are employer-financed or managed retirement 
and/or health plans. The audit team can also include other persons who 
previously provided consulting services as an employee or contractor of 
the owner or operator, provided those services were not provided within 
the last two years (whereas the proposed rulemaking would have required 
a three-year prohibition on previous employment). EPA believes these 
changes will increase the availability of auditors and therefore make 
third-party audits more cost-effective for small business owners.
---------------------------------------------------------------------------

    \124\ EPA, 2016. Regulatory Impact Analysis--Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean 
Air Act, Section 112(r)(7). Exhibit 7-9.
---------------------------------------------------------------------------

c. Facility Exercises
    Multiple state agencies, facilities and a Federal agency commented 
that the increase in mandatory field exercises for Program 2 and 
Program 3 facilities would adversely affect small RMP facilities and 
small communities. An industry trade association stated that the 
proposed rulemaking for facility coordination with local responders 
should be more flexible based on the size of the community and its 
existing local response capabilities.
    A consultant/engineer stated that small utilities who lack a local 
emergency agency with first responder capabilities will have difficulty 
meeting the proposed requirements. The commenter requested that EPA 
exempt small entities from the emergency response program requirement 
and offer increased assistance to LEPCs in small communities.
    A Federal agency stated that LEPC concerns should be addressed in a 
guidance document instead of a rulemaking.
    EPA notes that the final rule includes significant changes to the 
exercise requirements to address concerns expressed by the SBAR panel, 
individual SERs and other commenters. First, the final rule allows 
owners and operators to work with local response officials to establish 
an exercise schedule that works for both parties, provided the owner or 
operator holds a field exercise at least once every ten years, and a 
tabletop exercise at least once every three years. Second, the field 
and tabletop exercise requirements only apply to responding facilities, 
so non-responding facilities, which include the majority of small 
businesses regulated under the RMP rule, are not required to comply 
with them. Lastly, EPA did not finalize proposed rulemaking provisions 
that would have required many small businesses to become responding 
facilities.
d. Public Meetings and Information Disclosure
    A Federal agency stated that the public meeting requirement should 
include small business flexibility, allowing small business to post the 
required information to be disclosed instead of organizing a public 
meeting.
    While EPA did not implement the recommendation to allow small 
businesses to post required information in lieu of holding a public 
meeting, EPA notes that the public meeting requirement, like the third-
party audit requirement, only applies to facilities after an RMP-
reportable accident, which minimizes its impact on small businesses. 
Also, EPA revised the public meeting requirements to extend the 
timeframe within which the meeting must be held (from 30 to 90 days 
after an RMP reportable accident).
3. SBA Office of Advocacy Comments and EPA Response
    The SBA Office of Advocacy comments urged EPA to consider small 
business concerns and provide flexibility to reduce the impact of the 
proposed rulemaking on small businesses. The following sections

[[Page 4689]]

describe SBA recommendations and how EPA has revised the rule to 
provide additional flexibility that benefits small businesses.
a. Third-Party Audits
    Duplicative of existing requirements. SBA suggested that third-
party audits are too burdensome for small businesses and should be 
eliminated or reduced significantly in scope. SBA argued that the 
requirements are duplicative of the existing requirements for self-
audits and incident investigations and suggested that EPA waive the 
requirements if an implementing agency conducts an inspection as a 
result of a reportable release or facility noncompliance.
    EPA disagrees that third-party audits are duplicative of existing 
requirements. Following an accident, incident investigations often 
reveal that facilities have deficiencies in some prevention program 
requirements related to that process. Incident investigations generally 
only evaluate the affected process, and do not necessarily address all 
covered processes at a facility, or even all prevention program 
elements for the affected process. However, compliance audits entail a 
systematic evaluation of the full prevention program for all covered 
processes, and EPA expects that third-party audits should identify 
deficiencies in any other covered processes at such facilities.
    Additionally, EPA does not agree that third-party audits should be 
waived if EPA conducts an inspection. Third-party audits do not 
constitute enforcement, nor do they substitute for inspections by 
implementing agencies. The audits are designed primarily to benefit 
owners or operators by assisting them to identify both actual 
noncompliance as well as operational or equipment deficiencies, 
previously unidentified risk factors, and accident release and/or 
regulatory noncompliance precursor conditions which, if uncorrected, 
could lead to releases and/or enforcement actions. Proactively 
addressing deficiencies, risk factors, and precursor conditions to 
accidental releases and regulatory noncompliance will provide 
financial, regulatory, and environmental benefits for facility owners 
and operators, including small businesses, and communities.
    Finally, EPA has reasonably targeted third-party audit requirements 
at facilities that have had RMP reportable incidents that may 
demonstrate weaknesses in prior self-assessments and at facilities of 
heightened concern for implementing agencies. Most small businesses do 
not have RMP reportable releases and the implementing agency criterion 
focuses on conditions with the potential to lead to accidental 
releases, rather than authorizing implementing agencies to require 
third-party audits under a potentially wide range of circumstances, 
including minor noncompliance. Therefore, EPA does not expect that this 
provision will be burdensome for small facilities.
    Applicability. SBA recommended that EPA limit the requirement to 
Program 3 facilities with major accidents with offsite impacts.
    EPA disagrees with this approach. EPA based applicability of third-
party audits on whether a source had an RMP reportable accident or 
whether conditions exist that could lead to an accidental release. EPA 
believes that these criteria are potential indicators for noncompliance 
with prevention program requirements and therefore warrant an 
evaluation by a third-party.
    Auditor qualifications. SBA expressed concerns with the auditor 
qualifications in the proposed rulemaking arguing that it would be 
difficult to find auditors with no financial connection to the facility 
(such as retirees). SBA recommended that EPA allow small businesses 
with less than 250 employees to submit a waiver request of the 
independence criteria based on limited availability of independent 
auditors. SBA also expressed concern over the PE criterion for third-
party auditors and recommended that EPA consider other 
accreditations\125\ to satisfy the competency criterion for third-party 
auditors. SBA recommended EPA consider other criteria in place of the 
PE criterion to allow additional flexibility such as years of 
experience, number of audits conducted at a specific facility type, and 
active involvement in developing industry standards.
---------------------------------------------------------------------------

    \125\ SERs suggested other accreditations including: 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).
---------------------------------------------------------------------------

    In order to address concerns about the availability of auditors, 
EPA modified the third-party auditor qualification criteria in the 
final rule to enable more firms and individuals to qualify as third-
party auditors or third-party audit team leaders. The most significant 
modification to the third-party auditor qualification criteria is that 
only employees of the independent third-party audit firm must meet the 
independence criteria of Sec.  68.59(c)(2) and/or Sec.  68.80(c)(2). 
For third-party audit teams, the team leader must meet both the 
competency and independence criteria of Sec.  68.59(c) and/or Sec.  
68.80(c) and all other employees of the third-party auditor firm that 
participate on the team need only meet the independence criteria. 
Third-party audit teams may also include other personnel, such as 
consultants or facility employees and these personnel are not subject 
to the third-party qualification criteria of the final rule.
    EPA also revised the timeframe within which third-party auditors 
cannot provide business or consulting services to two years. EPA added 
language indicating that if a third-party-firm employs personnel who 
have provided business or consulting services to the facility within 
the prescribed timeframe (i.e. within two years of the audit) then the 
third-party audit firm must ensure that these personnel do not 
participate on the audit team. Additionally, EPA clarified in 
regulatory language the circumstances in which a retired employee may 
participate in a third-party audit and deleted the PE requirement from 
the final rule. Viewed as a whole, these changes serve to increase the 
types of personnel who may potentially serve as independent third-party 
auditors. Therefore, EPA believes it will be unnecessary for facility 
owners or operators to petition for a relaxation of auditor 
qualifications.
b. Incident Investigations and Root Cause Analysis
    SBA recommended that EPA limit the scope of this requirement to 
apply only to reportable releases in order to reduce the burden on 
small businesses. SBA further recommended that EPA retain the existing 
definition of ``catastrophic release.''
    EPA is finalizing the scope of the incident investigation 
requirement to apply to an incident that resulted in a catastrophic 
release or could reasonably have resulted in a catastrophic release 
(i.e. a near miss). However, EPA is not finalizing the proposed 
definition for catastrophic release and is instead maintaining the 
existing definition. In the final rule, EPA is clarifying what we mean 
by near miss to address uncertainty about the term.
c. STAA
    SBA recommended mandating an IST analysis only at the design stage 
of new processes. Alternatively, to reduce the burden for small 
entities, SBA recommended delaying the provision for small firms (with 
less than 250 employees) until three years after the rule's compliance 
date for larger firms in order to allow EPA a chance to review the 
utility of the provision. SBA

[[Page 4690]]

also recommended that EPA exclude processes that are governed by 
specifications established by a government agency or by a customer 
through a contractual relationship.
    EPA is finalizing the STAA provision as proposed. EPA disagrees 
that STAA analyses should only be required during the initial design 
phase of a facility. While the greatest potential opportunities for 
using IST occur early in process design and development, many IST 
options may still be practicable after the initial design phase. 
Furthermore, STAA involves more than just IST. Safer technology 
alternatives also include passive measures, active measures, and 
procedural measures, and these measures can be modified and improved 
after the initial design of a facility. EPA notes that many RMP-
regulated facilities were originally constructed decades ago, yet major 
enhancements have been reported in some plants that have been operating 
for many years.\126\ CCPS explains that inherently safer strategies can 
be evaluated throughout the lifecycle of a process, including 
operations, maintenance and modification, and EPA agrees with this 
approach.
---------------------------------------------------------------------------

    \126\ CCPS. 2009. Inherently Safer Chemical Processes: A Life 
Cycle Approach, 2nd ed., American Institute of Chemical Engineers, 
CCPS New York, Wiley, p. 25.
---------------------------------------------------------------------------

    EPA also disagrees with the suggestion to exempt certain groups 
(such as batch toll manufacturers) from the STAA requirement. Safer 
technology alternatives include many options beyond chemical 
substitution or minimization. Therefore, even where a contractual 
relationship or regulation requires a regulated batch toll 
manufacturing facility to use a particular regulated substance in 
specified quantities, owners and operators of batch toll manufacturing 
facilities may still consider other potential safer alternatives, such 
as passive, active, or procedural measures. Also, the final rule does 
not require regulated sources to implement IST or ISD considered, so 
there is no conflict between this final rule and other regulations that 
may apply to RMP-regulated facilities subject to STAA requirements. For 
example, an owner or operator would be in compliance with this rule if 
he or she determines that a chemical substitution is not practicable if 
the substitution is prohibited by another regulation.
    Finally, EPA is not delaying compliance dates for small businesses 
to allow time for evaluating the provision at large facilities. STAA 
for a source is a site-specific determination and would be difficult to 
compare among facilities. EPA believes it would be impractical to 
gather/analyze information on STAA implementation to determine the 
utility of the provision for small facilities.
d. Emergency Response Program Coordination With Local Responders
    SBA recommended that EPA adopt compliance flexibility for small 
businesses by limiting their responsibility to making good faith 
efforts to coordinate with local responders. SBA further suggested that 
EPA remove the provision to allow LEPCs to require sources to develop 
emergency response programs. SBA also suggested that EPA provide 
guidance to local responders, rather than expand existing regulations, 
and focus on implementing and enforcing emergency planning requirements 
for LEPCs. Finally, SBA recommended providing guidance on expectations 
for coordination between a facility and local responders as well as 
clarifying a facility's obligations for preparing an emergency response 
program.
    EPA is not finalizing the provision that would have required the 
source to develop an emergency response program following a written 
request from the LEPCs or local response authorities. Furthermore, the 
final rule clarifies requirements for coordination activities between 
facility personnel and local responders. EPA understands some 
communities do not have functional LEPCs, but has accounted for this 
possibility by requiring coordination to be with ``local emergency 
planning and response organizations.'' This term is intended to 
encompass all manner of local public emergency planning and response 
organizations. In many cases this will be the LEPC, but in other cases 
it may be a local emergency management agency, a local fire department, 
or another local response organization. These non-LEPC planning 
entities can use this provision to obtain necessary planning 
information even when they lack the authority granted LEPCs under EPCRA 
303(d)(3). Regardless of whether or not their community has an active 
LEPC, EPA expects owners and operators of regulated sources to make 
good faith efforts to carry out the coordination activities required in 
the final rule. If local emergency planning and response organizations 
decline to participate in coordination activities, or the owner or 
operator cannot identify any appropriate local emergency planning and 
response organization with which to coordinate, the owner or operator 
should document their coordination efforts, and continue to attempt to 
perform coordination activities at least annually.
    The rule also clarifies requirements for facilities that must 
develop an emergency response program in accordance with Sec.  68.95. 
Responding facilities must comply with all of the provisions of Sec.  
68.95, which include developing an emergency response plan, developing 
procedures for the use, inspection, and testing of emergency response 
equipment, conducting training for employees in relevant procedures, 
and updating the emergency response plan to reflect changes at the 
source. Any facility that plans to use its employees to take response 
actions beyond those specified in its emergency action plan under 29 
CFR 1910.38 as a result of an accidental release at the source--which 
could include, for example, donning emergency air breathing apparatus 
in order to enter an area where a toxic gas leak has occurred with the 
intention of stopping or controlling the release--would be expected to 
have obtained appropriate equipment and training, and to address these 
activities in its emergency response program, even if the facility is 
also relying on local responders to supplement its own response, or to 
manage offsite response actions such as evacuations and sheltering-in-
place.
e. Exercises
    SBA recommends requiring small businesses to only conduct tabletop 
exercises and eliminate the field exercises requirement of the proposed 
rulemaking.
    EPA is requiring that responding facilities conduct both tabletop 
and field exercises; however, we have revised the frequency to reduce 
the burden on all facilities. The rule requires the owner or operator 
to conduct both tabletop and field exercises involving a simulated 
accidental release of a regulated substance. As part of the 
coordination with local emergency response officials required by Sec.  
68.93, the owner or operator is required to consult with these local 
officials to establish an appropriate frequency for tabletop and field 
exercises. However, in all cases, the owner or operator must conduct a 
field exercise at least once every ten years and a tabletop exercises 
at least once every three years. Additionally, EPA encourages several 
nearby or adjacent facilities to conduct joint exercises, and this may 
prompt small facilities to pool their response resources, thereby 
reducing the exercise and emergency response burden on each facility.

[[Page 4691]]

f. Information Availability
    Availability of information for LEPCs. SBA suggests that EPA 
require a one-page summary of information relevant for emergency 
response to an accident at the facility. SBA also expressed concern 
with the recordkeeping requirement of the proposed provision and 
suggested that EPA require the information be provided within a 
reasonable time period after receiving a request to allow the facility 
time to develop the information.
    EPA maintains that it is very important to ensure that LEPCs or 
local emergency response officials have the chemical information 
necessary for developing local emergency response plans, however, EPA 
believes it is unnecessary to specify in the RMP rule the types or 
format of information that LEPCs or emergency response officials may 
request. Therefore, EPA has eliminated this provision in the final 
rule. EPCRA section 303(d)(3) already provides the necessary authority 
to allow LEPCs to request information needed to develop the local 
emergency response plan. Additionally, EPCRA requires facilities to 
provide SDSs and inventory information to LEPCs to assist emergency 
planners and responders. Under EPCRA section 312(f), fire departments 
have the authority to inspect these facilities to better understand the 
risk associated with these chemicals and how to deal with those risk in 
the local emergency response plan.
    EPA added language to the emergency response coordination 
provisions of Sec.  68.93, which requires the owner or operator to 
provide ``any other information that local emergency planning and 
response organizations identify as relevant to local emergency 
planning.'' This approach will allow LEPCs and other local emergency 
officials to obtain the information they require to meet their 
emergency response planning needs. It will also allow local emergency 
planners and response officials to ask questions of facility personnel 
about the risks associated with the chemical hazards at the facility 
and about appropriate mitigation and response techniques to use in the 
event of a chemical release.
    Availability of information for the public. SBA recommends that EPA 
improve public awareness of existing sources of information through its 
own Web site or other public forums rather than requiring small 
businesses to repackage existing information. Alternatively, SBA 
suggests requiring facilities to indicate where this information can be 
obtained.
    The final rule requires the owner or operator to make certain 
chemical hazard information for all regulated processes at a stationary 
source available to the public upon request. The facility must provide 
ongoing notification to the public about what chemical hazard 
information is available upon request, how the public may obtain such 
information, and where to access any other available information on 
community emergency preparedness. The facility owner or operator must 
provide information to the requester within 45 days of receiving a 
request.
    Public meetings. SBA recommends allowing small businesses to post 
information that would be disclosed at a public meeting rather than 
require them to host meetings. Furthermore, SBA suggests that EPA 
should provide a longer time period for holding a public meeting to 
allow the owner or operator more time to gather information and 
adequately prepare for the meeting.
    In the final rule, EPA is requiring all facilities to hold a public 
meeting after an RMP-reportable accident, but is extending the 
timeframe for the public meeting to 90 days in response to comments. 
EPA believes that small businesses should host public meetings 
following an RMP reportable accident to allow community members an 
opportunity to talk with facility personnel. EPA encourages small 
businesses to find ways to reduce costs of public meetings such as by 
hosting the meetings at inexpensive venues, such as local schools, 
community centers, or churches.
4. Estimate of the Number of Small Entities to Which the Final Rule 
Applies
    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. For more information on the 
analysis to estimate the number of small entities, see section 7.2 of 
the RIA.
5. Projected Reporting, Recordkeeping and Other Compliance Requirements 
of the Final Rule
    Under the final rule, all facilities are required to make certain 
information available to the public upon request. Program 2 and Program 
3 facilities are also required to provide information upon request to 
local response officials during annual coordination meetings. Program 1 
facilities will likely not have to spend more than an hour per 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 will be provided, upon request, to 
local responders relates to provisions that do not apply to Program 1 
facilities. Therefore, the FRFA has not considered Program 1 small 
facilities in the analysis of impacts.
    Program 2 and Program 3 facilities will incur the same costs for 
the other provisions except for the STAA. Each facility will 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 will have to hold exercises every 
three to ten years, including at least one full field exercise every 
ten years. Program 3 facilities in NAICS codes 322, 324, and 325 will 
have to conduct an STAA as part their PHA every five years.
    If a facility has an accident, it will incur costs to hold a public 
meeting within 90 days of an RMP reportable accident. The facility will 
also incur costs for obtaining an independent third-party to conduct 
their next scheduled compliance audit and to conduct a root cause 
analysis as part of the incident investigation. In the event of a near 
miss, facilities will also be required to conduct a root cause 
investigation. Section 7.3.1 of the RIA describes the costs of the 
final rule for small entities.
6. Steps Taken To Minimize Economic Impact to Small Entities
    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 final rule provision and explain how the 
provision minimizes impacts on small businesses and which of the SBAR 
Panel recommendations were implemented.
a. Third-Party Audits (Program 2 Sec. Sec.  68.58 and 68.59 and Program 
3 Sec. Sec.  68.79 and 68.80)
    EPA is finalizing a requirement for the owner or operator to engage 
a third-party auditor to conduct a compliance audit when required by an 
implementing agency due to conditions

[[Page 4692]]

at the stationary source that could lead to an accidental release of a 
regulated substance or following an RMP reportable accident. Limiting 
the applicability of this 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 5-18 of the RIA, the estimated cost of the high option ($196 
million annualized) is nearly 20 times higher than the estimated costs 
of the preferred option ($9.9 million annualized). Furthermore, a 
majority of the costs for the 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 19 shows 
the number of accidents from 2004--2013 that occurred at small and 
large facilities.

                 Table 19--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
NAICS 331, 332, 333, 334, 336, 339--Other          0         0         4         0        12        27        43
 Manufacturing............................
NAICS 11, 12, 15, 42491--Agricultural              0         0         0         0        91        65       156
 Chemical Distributors....................
NAICS 4246, 4247--Chemical/petroleum               0         2         0         0         7        29        38
 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 Products             2         6         0         0        15       146       169
 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 third-party audit provision should have a fairly low 
impact on small businesses, the SBAR Panel made additional 
recommendations to further minimize the impacts of this provision on 
small businesses, which EPA considered for this final rule. Of the 
suggested recommendations, EPA revised the provision to require that 
only a third-party leading the audit team must meet the independence 
and competency criteria of the rule, and also by allowing that a 
retired employee of the source can participate in the audit. EPA also 
did not finalize the competency criterion that required a PE to 
participate in the audit.
b. Incident Investigation/Root Cause Analysis (Sec. Sec.  68.60 and 
68.81)
    In the final rule, EPA is requiring a root cause investigation for 
any P2 or P3 reportable accident or near miss. Although the Agency 
chose the higher cost option, this provision is estimated to be one of 
the least costly provisions of the final rule. In fact, the costs for 
both options considered were nearly indistinguishable--as indicated in 
Exhibit 5-18 of the RIA, both the low and preferred options are 
estimated to cost approximately $1.8 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 is warranted. Of the suggested SBAR 
recommendations, EPA clarified that near miss investigations are not 
intended to cover minor accidents or minor near misses that could not 
reasonably have resulted in a catastrophic release. EPA also chose not 
to finalize the proposed definition of ``catastrophic release,'' which 
some SERs had indicated could increase the number of investigations 
required.
c. STAA (Sec.  68.67)
    For STAA, EPA is finalizing the least costly option. The final 
rule, which applies the STAA requirement to P3 processes in NAICS 322 
(paper manufacturing), 324 (petroleum and coal products manufacturing), 
and 325 (chemical manufacturing), costs $80.0 million annually and is 
approximately $40 million less costly than the medium option ($120.4 
million annually), which would have applied the requirement to all P3 
processes, and likely far less costly than the high option, which would 
require implementation of practicable safer alternatives for all P3 
processes. Although the SBAR panel provided recommendations, EPA 
finalized this provision as proposed, and estimates that it will affect 
relatively few small businesses given the narrow focus of the 
provision's applicability.
d. Emergency Response Program Coordination With Local Responders 
(Sec. Sec.  68.90, 68.93, and 68.95)
    The final rule requires all facilities with P2 or P3 processes to 
coordinate with local response agencies annually and document 
coordination activities. This provision does not have alternatives, but 
the SBAR panel did provide recommendations on streamlining the 
provision. In response to these and other recommendations, EPA modified 
the extent of required coordination, removed the requirement for the 
outcome of coordination to dictate whether a source must implement an 
emergency response program, and eliminated the ability for LEPCs to 
mandate sources' response capabilities.
e. Facility Exercises (Sec.  68.96)
    Notification Exercises. The final rule requires all facilities with 
P2 or P3 processes to annually conduct an emergency notification 
exercise to ensure that their emergency contact list is complete, 
accurate, and up-to-date. This provision is expected to be one of the 
least costly rule provisions at $1.4 million annually (only the public 
meetings provision is 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 final rule requires responding 
facilities to conduct a full field exercise at least once every ten 
years and tabletop exercises triennially. As this provision only 
affects responding facilities, which tend to more often be large 
facilities (see Exhibit 3-7 in the RIA), EPA has

[[Page 4693]]

implemented a rule that mitigates the impact on small entities. EPA 
also considered a low option that would only require triennial tabletop 
exercises. This option would have saved approximately $8 million 
annually. EPA did not implement the low option because the Agency 
believes that periodic field exercises are an important component of a 
comprehensive emergency response program. In response to SBAR panel 
recommendations, EPA reduced the required frequency of exercises to 
minimize the impact of this provision on small businesses.
f. Information Availability (Sec.  68.210)
    Under the final rule requirements, all facilities are required to 
make certain chemical hazard information available to the public, upon 
request. The owner or operator must provide an ongoing notification to 
the public that such information is available as well as instructions 
on how to request the information. Facilities are also required to hold 
public meetings within 90 days of any RMP reportable accident. Although 
EPA has not identified 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.
    In response to the SBAR recommendations, EPA eliminated the 
proposed provision that would have had required specific information to 
be disclosed to LEPCs and extended the timeline for public meetings 
from 30 days to 90 days after an RMP reportable accident. In addition, 
information to be provided to the public is only required to be 
disclosed to the public upon request.
7. Small Business Compliance Guides
    EPA is preparing a Small Entity Compliance Guide to help small 
entities comply with this rule. EPA expects that this guide will be 
made available on the EPA Web site prior to March 15, 2021, when 
facilities will have to comply with new and revised data elements for 
the final rule.

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, 
consultations, and a public hearing, 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 National Association of SARA 
Title III Program Officials (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 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). Finally, EPA hosted a public hearing on March 
29, 2016 to provide interested parties the opportunity to present data, 
views or arguments concerning the rule.
    Discussion of comments. EPA received comments concerning unfunded 
mandates. Several commenters, including state agencies and a 
professional organization, said that the proposed rulemaking adds to 
the unfunded mandate for LEPCs, which were never provided with any 
source of Federal funding. A few state agencies said that the proposed 
field exercises in particular will be a significant unfunded cost for 
LEPCs that choose to participate. A state agency, an industry trade 
association, and an association of government agencies commented that 
these additional costs will adversely affect smaller RMP facilities and 
smaller communities with municipal-owned RMP facilities. The industry 
trade association also suggested that EPA should consult with these 
municipal governments on the impact these proposed requirements will 
have on their operating budgets. A professional organization stated 
that very few LEPCs are able to support themselves with fees or other 
taxes on regulated facilities.
    EPA disagrees that this final rule adds to the burden to LEPCs and 
local emergency response organizations. EPA believes that the 
amendments to the local coordination requirements clarifies existing 
requirements. LEPCs are required to develop community emergency 
response plans and the revisions to the RMP rule are intended to ensure 
that facility representatives coordinate with LEPC and local emergency 
response officials in developing those plans. Furthermore, EPA provided 
flexibility in the final rule to allow LEPC and local emergency 
response officials to participate as their schedules allow. LEPC and 
local emergency response officials are encouraged, but not required, to 
participate in facility exercises.
    EPA agrees that the final rule will bear costs for small facilities 
and small governments; however, EPA has built flexibility into the rule 
provisions to allow facility owners and operators to tailor their risk 
management programs to their facility specific circumstances. Third-
party compliance audits, and public meetings apply only following an 
RMP reportable accident, root cause analysis applies only after a 
catastrophic release (e.g. an RMP-reportable accident) or after an 
incident that could reasonably have resulted in a catastrophic release. 
STAA analyses are limited to specific NAICS codes, and exercises apply 
only to responding facilities. EPA has further revised information 
availability requirement to be provided only upon request by a member 
of the public. These provisions should minimize costs of the final rule 
for small facilities.

E. Executive Order 13132: Federalism

    This action does not have Federalism implications. The EPA 
believes, however, that these regulatory revisions may be of 
significant interest to local governments. Consistent with the EPA's

[[Page 4694]]

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), through the SBREFA process, and a public hearing on March 29, 
2016. EPA also hosted a conference call with governmental entities on 
May 4, 2016. A copy of the presentation and notes from the meeting are 
available in the docket for this action.\127\
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    EPA received comments pertaining to Federalism implications for 
this action. An industry trade association asserted that EPA's proposal 
to allow local authorities to request that the owner or operator assume 
emergency response obligations, which the commenter argues divorces 
these organizations from their Federal, state, and/or local legal 
obligations, raises Federalism issues by undermining the fundamental 
mission of those entities and state delegations of more (or less) 
authority to local emergency response organizations. Similarly, other 
industry trade associations commented that EPA's proposed delegation of 
authority to LEPCs to designate facilities as responding stationary 
sources raises significant separation of powers and federalism 
concerns. As the basis for this argument, the commenters relied 
primarily on the Supreme Court decisions in Printz v. United States 
(521 U.S. 898 (1997)) and New York v. United States (505 U.S. 144 
(1992)), in which the court held that Federal agencies cannot 
``commandeer'' local governments to implement Federal regulatory 
programs.
    A few commenters, including an associations of government agencies 
and an industry trade association, commented that the Agency had missed 
a valuable opportunity to engage local governments prior to the rule's 
publication, which the commenter described as counter to EPA's internal 
``Guidance on Executive Order 13132: Federalism'' (Nov. 2008) that 
specifies that States and local governments must be consulted on rules 
if they impose substantial compliance costs, preempt state or local 
laws, and/or have substantial direct effects on state and local 
governments. Because the commenter does not believe that EPA has 
adequately engaged local government agencies, an association of 
government agencies requested that EPA delay advancing the proposed 
rulemaking and perform a local government impact analysis and 
consultation with the nation's cities, counties, and mayors before 
finalizing the rule.
    EPA is finalizing requirements for the stationary source owner or 
operator to coordinate annually with local emergency planning and 
response officials to ensure that the stationary source is included in 
the community emergency response plan (for toxic substances) and/or to 
coordinate response activities with local emergency responders (for 
flammable substances). However, after considering concerns raised by 
commenters related to providing LEPCs with the authority to require a 
stationary source to develop an emergency response program in 
accordance with Sec.  68.95, EPA has eliminated this provision from the 
final rule. EPA did not intend this provision to undermine the 
fundamental mission of response agencies nor as a delegation of Federal 
authority. EPA expects that some stationary source owners or operators 
will self-identify a need to develop an emergency response program if 
the result of local coordination indicates that the stationary source 
is not included in the community emergency response plan (e.g., when an 
LEPC is inactive and there is no community emergency response plan or 
the existing plan is outdated).
    EPA disagrees with comments that suggest that EPA did not engage 
local governments prior to the rule's publication. EPA followed the 
agency's internal guidance on Executive Order 13132 when determining 
whether to initiate consultation with state and local governments. 
Furthermore, through Executive Order 13650 listening sessions, 
webinars, consultations, and a public hearing, EPA has engaged states 
and local communities to discuss chemical safety issues. Additionally, 
EPA has consulted 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.

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. There are approximately 260 
RMP facilities located on tribal lands. Tribes could be impacted by the 
final rule either as an owner or operator of an RMP-regulated facility 
or as a Tribal government when the Tribal government conducts emergency 
response or emergency preparedness activities under EPCRA.
    The EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this regulation to permit them to have meaningful and 
timely input into its development. EPA hosted a public hearing on March 
29, 2016 that was open to all interested parties and hosted a total of 
two conference calls for interested tribal representatives on April 20, 
2016 and April 26, 2016. A summary of each conference call is available 
in the docket for this action.\128\ EPA did not receive any written 
comments from tribal representatives.
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    As required by section 7(a), the EPA's Tribal Consultation Official 
has certified that the requirements of the executive order have been 
met in a meaningful and timely manner. A copy of the certification is 
included in the docket for this action.

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. EPA did not 
receive any comments associated with this issue.

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

    This 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 action is not anticipated to have 
notable impacts on emissions, costs or energy supply decisions for the 
affected electric utility industry. EPA did not receive any comments 
associated with this issue.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. The EPA is requiring 
third-party auditors to be experienced with applicable RAGAGEP, which 
include

[[Page 4695]]

Voluntary Consensus Standards as well as other measures, for regulated 
processes being audited. Numerous different standards apply to 
processes regulated under the final rule and their application will 
vary depending on the particular process and chemicals involved. EPA is 
not listing 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 final rule requires 
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 did not receive 
any comments associated with this issue.

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. EPA received multiple comments 
relating to environmental justice concerns.
    Discussion of comments on access to information. Several groups 
stated that communities need better transparency and access to 
information on hazards and investigations, training on response plans, 
and access to inspection and incident reports. A few advocacy groups 
commented that the rule should include specific elements to address 
disproportionate impacts. A few advocacy groups said that EPA should 
create a centralized database available through a Web site and local 
community centers and libraries that provides this information. A 
facility commented that a Web site is a poor method to communicate 
information to individuals in poor or rural communities that may not 
have access to computers or the Internet. The commenter also said that 
LEPCs already hold public meetings to discuss emergency plans.
    A couple advocacy groups stated that the RMP rule fails to ensure 
that at-risk communities near RMP facilities have the information they 
need to participate effectively in engagement with facilities. The 
groups also argued that the rule does not improve access to summaries 
of incident investigation reports, safety audits, and STAA, among other 
things, which are essential to ensuring fair treatment. Further, the 
groups commented that at-risk communities are not given access to 
information on prevention opportunities, and are not invited to 
participate in prevention analysis and planning. Another advocacy group 
said that the RMP rule should facilitate partnerships and interactions 
between facilities, local governments, and the community. A different 
group said that EPA should require a community meeting within 30 days 
of an incident, require publication of response and evacuation plans 
for affected areas, and establish an appeals process for communities to 
report when information and engagement opportunities are not provided 
as required, among other proposals.
    EPA agrees with commenters that have requested better access to 
chemical hazard information at facilities in their communities and 
improved public transparency. EPA is finalizing a requirement for 
facility owners and operators to share information with the public that 
will assist neighboring communities to understand the hazards in their 
communities. Facility owners and operators must notify the public that 
specific information is available and provide instructions on how to 
request that information as well as how to access evacuation and 
shelter-in-place procedures for the community. Additionally, following 
an RMP reportable accident, facility owner and operators are required 
to host a public meeting within 90 days to communicate information 
about the accident. This allows sufficient time for facilities to 
gather information about the incident to share with the public. EPA 
believes that these provisions provides the public with more 
information that they can use to protect themselves and their families 
in the event of an accidental release at an RMP-regulated facility.
    EPA has included other elements in the final rule that are intended 
to address disproportionate impacts of a release to surrounding 
communities. For example, EPA is requiring paper manufacturing, 
petroleum and coal products manufacturing, and chemical manufacturing 
facilities with Program 3 processes to analyze safer technologies for 
each process in order to consider ways to reduce and remove hazards. 
EPA is also encouraging better coordination between local emergency 
response organizations and facility representatives annually and during 
facility exercises which will lead to more effective community 
emergency response plans and mitigate the impacts of an accidental 
release to the surrounding community. EPA encourages facility 
representatives to attend LEPC meetings along with the public to 
facilitate partnerships among these representatives.
    EPA disagrees with commenters that suggest creating a centralized 
database available through a Web site and local community centers and 
libraries to provide this information. Establishing such a centralized 
database would be costly, difficult to maintain, information would 
quickly become outdated, and a centralized database could create 
security vulnerabilities. See section VI.B of this preamble for more 
information on information availability to the public.
    EPA recognizes that some community residents want to participate in 
prevention planning and have access to incident investigation reports, 
safety audits, and STAA. However, community input can be effective in 
other ways that relate to community planning. EPA encourages community 
residents to become active in their LEPCs who are already working to 
reduce hazards for local communities. Providing access to facility 
reports outside of existing community planning activities could result 
in duplicative work and increased burden for communities, emergency 
responders, and facility staff.
    Furthermore, developing a risk management program involves process 
hazards analyses and hierarchies of controls developed by trained 
professionals. Investigation reports, safety audits and STAA are often 
complicated and contain technical jargon, which can be difficult to 
understand without the proper training. Information in these reports 
can also reveal security vulnerabilities which may put communities in 
greater danger of terrorism if released.
    Discussion of comments on meaningful involvement. A few commenters, 
including advocacy groups, said that the only meaningful involvement 
EPA has facilitated included collecting input to shape the proposed 
rulemaking. The commenters said that there is no analysis in the rule 
on whether or how the rule would facilitate meaningful involvement by 
at-

[[Page 4696]]

risk or environmental justice (EJ) communities.
    EPA believes there were numerous opportunities for the public to 
provide meaningful input on this final rule. This final rule was 
developed following extensive public feedback through Executive Order 
13650 listening sessions, public comments on the RFI and the proposed 
rulemaking, and the public hearing held on March 29, 2016. EPA has 
incorporated requirements in the final rule to prevent accidental 
releases, mitigate the impacts of releases that do occur, and share 
chemical hazard information with the public.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 68

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

    Dated: December 21, 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 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 adding in alphabetical order the definitions 
``Active measures'', ``CBI'', ``Inherently safer technology or 
design'', ``LEPC'', ``Passive measures'', ``Practicability'', 
``Procedural measures'', ``Root cause'', and ``Third-party audit'' to 
read as follows:


Sec.  68.3  Definitions.

* * * * *
    Active measures mean 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).
* * * * *
    CBI means confidential business information.
* * * * *
    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 mean risk management measures that use design 
features that reduce either the frequency or consequence of the hazard 
without human, mechanical, or other energy input. Examples of passive 
measures include pressure vessel designs, dikes, berms, and blast 
walls.
* * * * *
    Practicability means the capability 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.
    Procedural measures mean 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.
* * * * *
    Third-party audit means a compliance audit conducted pursuant to 
the requirements of Sec.  68.59 and/or Sec.  68.80, performed or led by 
an entity (individual or firm) meeting the competency and independence 
described in Sec.  68.59(c) or Sec.  68.80(c).
* * * * *

0
3. Amend Sec.  68.10 by:
0
a. Revising paragraph (a);
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:
    (1) June 21, 1999;
    (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 that revises this part.
    (b) By March 14, 2018 the owner or operator of a stationary source 
shall comply with the emergency response coordination activities in 
Sec.  68.93.
    (c) Within three years of when the owner or operator determines 
that the stationary source is subject to the emergency response program 
requirements of Sec.  68.95, pursuant to Sec.  68.90(a), the owner or 
operator must develop and implement an emergency response program in 
accordance with Sec.  68.95.
    (d) By March 15, 2021, the owner or operator shall comply with the 
following provisions promulgated on January 13, 2017:
    (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);
    (3) Safer technology and alternatives 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.  68.210(b) 
through (e).
    (e) By March 14, 2022, the owner or operator shall comply with the 
risk management plan provisions of subpart G of this part promulgated 
on January 13, 2017.
    (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.

* * * * *

[[Page 4697]]

    (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 68.96; 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.  68.48 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
6. 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
7. Amend Sec.  68.54 by revising paragraphs (a), (b), and (d); and 
adding paragraph (e) to read as follows:


Sec.  68.54  Training.

    (a) The owner or operator shall ensure that each employee presently 
involved in operating a process, and each employee newly assigned to a 
covered process have been trained or tested competent in the operating 
procedures provided in 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
8. 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) of this section, 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 due to 
conditions at the stationary source that could lead to an accidental 
release of a regulated substance, or when a previous third-party audit 
failed to meet the competency or independence criteria of Sec.  
68.59(c).
    (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 that describes the basis for this 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 as follows, unless a different 
timeframe is specified by the implementing agency:
    (1) For third-party audits required pursuant to paragraph (f)(1) of 
this section, within 12 months of the release; or
    (2) For third-party audits required pursuant to paragraph (f)(2) of 
this section, within 12 months of the date of the final determination 
pursuant to paragraph (g)(3) of this section. However, if the final 
determination is appealed pursuant to paragraph (g)(4) of this section, 
within 12 months of the date of the final decision on the appeal.

0
9. 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 
to conduct an audit that evaluates 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) Third-party auditors and auditing teams. The owner or operator 
shall either:
    (1) Engage a third-party auditor meeting all of the competency and 
independence criteria in paragraph (c) of this section; or
    (2) Assemble an auditing team, led by a third-party auditor meeting 
all of the competency and independence criteria in paragraph (c) of 
this section. The team may include:
    (i) Other employees of the third-party auditor firm meeting the 
independence criteria of paragraph (c)(2) of this section; and

[[Page 4698]]

    (ii) Other personnel not employed by the third-party auditor firm, 
including facility personnel.
    (c) Third-party auditor qualifications. The owner or operator shall 
determine and document that the third-party auditor(s) meet the 
following competency and independence requirements:
    (1) Competency requirements. The third-party auditor(s) 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; and
    (iii) Trained and/or certified in proper auditing techniques.
    (2) Independence requirements. The third-party auditor(s) 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 auditing services. For purposes of this 
paragraph, retired employees who otherwise satisfy the third-party 
auditor independence criteria in this section may qualify as 
independent if their sole continuing financial attachments to the owner 
or operator are employer-financed or managed retirement and/or health 
plans;
    (iii) Not have conducted past research, development, design, 
construction services, or consulting for the owner or operator within 
the last two 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. An audit firm with personnel who, before 
working for the auditor, conducted research, development, design, 
construction, or consulting services for the owner or operator within 
the last two years as an employee or contractor may meet the 
requirements of this subsection by ensuring such personnel do not 
participate in the audit, or manage or advise the audit team concerning 
the audit;
    (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 two 
years following submission of the final audit report;
    (v) Ensure that all third-party personnel involved in the audit 
sign and date a conflict of interest statement documenting that they 
meet the independence criteria of this paragraph; and
    (vi) Ensure that all third-party 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 two 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 and independence 
requirements of this section.
    (d) Third-party auditor responsibilities. The owner or operator 
shall ensure that the third-party auditor:
    (1) Manages the audit and participates in audit initiation, design, 
implementation, and reporting;
    (2) Determines appropriate roles and responsibilities for the audit 
team members based on the qualifications of each team member;
    (3) Prepares the audit report and where there is a team, documents 
the full audit team's views in the final audit report;
    (4) Certifies the final audit report and its contents as meeting 
the requirements of this section; and
    (5) Provides a copy of the audit report to the owner or operator.
    (e) Audit report. The audit report shall:
    (1) Identify all persons participating on the audit team, including 
names, titles, employers and/or affiliations, and summaries of 
qualifications. For third-party auditors, include information 
demonstrating that the competency requirements in paragraph (c)(1) of 
this section are met;
    (2) Describe or incorporate by reference the policies and 
procedures required under paragraph (c)(3) of this section;
    (3) 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;
    (4) Document the findings of the audit, including any identified 
compliance or performance deficiencies;
    (5) Summarize any significant revisions (if any) between draft and 
final versions of the report; and
    (6) Include the following certification, signed and dated by the 
third-party auditor or third-party audit team member leading 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.

    (f) 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 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 I have engaged a third-party 
to perform or lead an audit team to conduct a third-party audit in 
accordance with the requirements of 40 CFR 68.59 and 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 
making false material statements, representations, or 
certifications, including the possibility of fines and imprisonment 
for knowing violations.

    (2) Schedule implementation. The owner or operator shall implement 
the schedule to address deficiencies identified in the audit findings 
response report in paragraph (f)(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 
(f)(1) and (2) of this section, when completed, to the owner or 
operator's

[[Page 4699]]

audit committee of the Board of Directors, or other comparable 
committee or individual, if applicable.
    (g) Recordkeeping. The owner or operator shall retain at the 
stationary source, the two most recent final 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.

0
10. 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
11. 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. * * *
    (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 
paragraph (b) of this section.

* * * * *

0
12. Amend Sec.  68.67 by:
0
a. Revising paragraph (c)(2);
0
b. Amending paragraph (c)(6) by removing the word ``and;''
0
c. Amending paragraph (c)(7) by 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 
Sec.  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 practicability of 
the inherently safer technologies and designs considered.
* * * * *

0
13. 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
14. 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) of this section, 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 due to 
conditions at the stationary source that could lead to an accidental 
release of a regulated substance, or when a previous third-party audit 
failed to meet the competency or independence criteria of Sec.  
68.80(c).
    (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 that describes the basis for this 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

[[Page 4700]]

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 as follows, unless a different 
timeframe is specified by the implementing agency:
    (1) For third-party audits required pursuant to paragraph (f)(1) of 
this section, within 12 months of the release; or
    (2) For third-party audits required pursuant to paragraph (f)(2) of 
this section, within 12 months of the date of the final determination 
pursuant to paragraph (g)(3) of this section. However, if the final 
determination is appealed pursuant to paragraph (g)(4) of this section, 
within 12 months of the date of the final decision on the appeal.

0
15. 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 
to conduct an audit that evaluates 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) Third-party auditors and auditing teams. The owner or operator 
shall either:
    (1) Engage a third-party auditor meeting all of the competency and 
independence criteria in paragraph (c) of this section; or
    (2) Assemble an auditing team, led by a third-party auditor meeting 
all of the competency and independence criteria in paragraph (c) of 
this section. The team may include:
    (i) Other employees of the third-party auditor firm meeting the 
independence criteria of paragraph (c)(2) of this section; and
    (ii) Other personnel not employed by the third-party auditor firm, 
including facility personnel.
    (c) Third-party auditor qualifications. The owner or operator shall 
determine and document that the third-party auditor(s) meet the 
following competency and independence requirements:
    (1) Competency requirements. The third-party auditor(s) 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; and
    (iii) Trained or certified in proper auditing techniques.
    (2) Independence requirements. The third-party auditor(s) 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 auditing services. For purposes of this 
paragraph, retired employees who otherwise satisfy the third-party 
auditor independence criteria in this section may qualify as 
independent if their sole continuing financial attachments to the owner 
or operator are employer-financed or managed retirement and/or health 
plans;
    (iii) Not have conducted past research, development, design, 
construction services, or consulting for the owner or operator within 
the last two 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. An audit firm with personnel who, before 
working for the auditor, conducted research, development, design, 
construction, or consulting services for the owner or operator within 
the last two years as an employee or contractor may meet the 
requirements of this subsection by ensuring such personnel do not 
participate in the audit, or manage or advise the audit team concerning 
the audit;
    (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 two 
years following submission of the final audit report;
    (v) Ensure that all third-party personnel involved in the audit 
sign and date a conflict of interest statement documenting that they 
meet the independence criteria of this paragraph; and
    (vi) Ensure that all third-party 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 two 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 and independence 
requirements of this section.
    (d) Third-party auditor responsibilities. The owner or operator 
shall ensure that the third-party auditor:
    (1) Manages the audit and participates in audit initiation, design, 
implementation, and reporting;
    (2) Determines appropriate roles and responsibilities for the audit 
team members based on the qualifications of each team member;
    (3) Prepares the audit report and where there is a team, documents 
the full audit team's views in the final audit report;
    (4) Certifies the final audit report and its contents as meeting 
the requirements of this section; and
    (5) Provides a copy of the audit report to the owner or operator.
    (e) Audit report. The audit report shall:
    (1) Identify all persons participating on the audit team, including 
names, titles, employers and/or affiliations, and summaries of 
qualifications. For third-party auditors, include information 
demonstrating that the competency requirements in paragraph (c)(1) of 
this section are met;
    (2) Describe or incorporate by reference the policies and 
procedures required under paragraph (c)(3) of this section;
    (3) 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;
    (4) Document the findings of the audit, including any identified 
compliance or performance deficiencies;
    (5) Summarize any significant revisions (if any) between draft and 
final versions of the report; and
    (6) Include the following certification, signed and dated by the 
third-party auditor or third-party audit team member leading 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,

[[Page 4701]]

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.

    (f) 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 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 I have engaged a third-party 
to perform or lead an audit team to conduct a third-party audit in 
accordance with the requirements of 40 CFR 68.80 and 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 
making false material statements, representations, or 
certifications, including the possibility of fines and imprisonment 
for knowing violations.

    (2) Schedule implementation. The owner or operator shall implement 
the schedule to address deficiencies identified in the audit findings 
response report in paragraph (f)(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 
(f)(1) and (2) of this section, when completed, to the owner or 
operator's audit committee of the Board of Directors, or other 
comparable committee or individual, if applicable.
    (g) Recordkeeping. The owner or operator shall retain at the 
stationary source the two most recent final third-party audit reports, 
related findings response reports, documentation of actions taken to 
address deficiencies, and related records.

0
16. 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.
* * * * *

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


Sec.  68.90  Applicability.

    (a) Responding stationary source. Except as provided in paragraph 
(b) of this section, the owner or operator of a stationary source with 
Program 2 and Program 3 processes shall comply with the requirements of 
Sec. Sec.  68.93, 68.95, and 68.96.
    (b) Non-responding stationary source. The owner or operator of a 
stationary source whose employees will not respond to accidental 
releases of regulated substances need not comply with Sec.  68.95 of 
this part provided that:
    (1) For stationary sources with any regulated toxic substance held 
in a process above the threshold quantity, the stationary source is 
included in the community emergency response plan developed under 42 
U.S.C. 11003;
    (2) For stationary sources with only regulated flammable substances 
held in a process above the threshold quantity, the owner or operator 
has coordinated response actions with the local fire department;
    (3) Appropriate mechanisms are in place to notify emergency 
responders when there is a need for a response;
    (4) The owner or operator performs the annual emergency response 
coordination activities required under Sec.  68.93; and
    (5) The owner or operator performs the annual notification 
exercises required under Sec.  68.96(a).

0
18. 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 determine how the stationary source is addressed in the community 
emergency response plan and to ensure that local response organizations 
are aware of the regulated substances at the stationary source, their 
quantities, the risks presented by covered processes, and the resources 
and capabilities at the stationary source 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 stationary source; in the 
stationary source's emergency response and/or emergency action plan; 
and/or in the community emergency response plan.
    (b) Coordination shall include providing to the local emergency 
planning and response organizations: The stationary source's emergency 
response plan if one exists; emergency action plan; updated emergency 
contact information; and any other information that local emergency 
planning and response organizations identify as relevant to local 
emergency response planning. For responding stationary sources, 
coordination shall also include consulting with local emergency 
response officials to establish appropriate schedules and plans for 
field and tabletop exercises required under Sec.  68.96(b). The owner 
or operator

[[Page 4702]]

shall request an opportunity to meet with the local emergency planning 
committee (or equivalent) and/or local fire department as appropriate 
to review and discuss these materials.
    (c) 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.

0
19. 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 plan as 
appropriate based on changes at the stationary source or new 
information obtained from coordination activities, emergency response 
exercises, incident investigations, or other available information, and 
ensure that employees are informed of the changes.
* * * * *
    (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
20. 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 stationary 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 
paragraph (b) of this section. 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). Exercises 
shall involve facility emergency response personnel and, as 
appropriate, emergency response contractors. 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 field exercises 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. As part of coordination with local emergency 
response officials required by Sec.  68.93, the owner or operator shall 
consult with these officials to establish an appropriate frequency for 
field exercises, but at a minimum, shall conduct a field exercise at 
least once every ten years.
    (ii) Scope. Field exercises shall include: Tests of procedures to 
notify the public and the appropriate Federal, state, and local 
emergency response agencies about an accidental release; tests of 
procedures and measures for emergency response actions including 
evacuations and medical treatment; tests of communications systems; 
mobilization of facility emergency response personnel, including 
contractors, as appropriate; coordination with local emergency 
responders; emergency response 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.
    (i) Frequency. As part of coordination with local emergency 
response officials required by Sec.  68.93, the owner or operator shall 
consult with these officials to establish an appropriate frequency for 
tabletop exercises, but at a minimum, shall conduct a field exercise at 
least once every three years.
    (ii) Scope. The exercise shall include discussions 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 and/or contractors and their 
responsibilities; coordination with local emergency responders; 
procedures for emergency response 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.
    (c) Alternative means of meeting exercise requirements. The owner 
or operator may satisfy the requirement to conduct notification, field 
and/or tabletop exercises through:
    (1) Exercises conducted to meet other Federal, state or local 
exercise requirements, provided the exercise meets the requirements of 
paragraphs (a) and/or (b) of this section, as appropriate.
    (2) Response to an accidental release, provided the response 
includes the actions indicated in paragraphs (a) and/or (b) of this 
section, as appropriate. When used to meet field and/or tabletop 
exercise requirements, the owner or operator shall prepare an after-
action report comparable to the exercise evaluation report required in 
paragraph (b)(3) of this section, within 90 days of the incident.

0
21. 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:


Sec.  68.130   List of substances.

* * * * *

[[Page 4703]]



  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 quantity
               CAS No.                         Chemical name                 (lbs)           Basis for listing
----------------------------------------------------------------------------------------------------------------
60-29-7..............................  Ethyl ether [Ethane, 1,1'-                  10,000  g
                                        oxybis-].
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,                     10,000  f
                                        chloro-].
75-01-4..............................  Vinyl chloride [Ethene,                     10,000  a, f
                                        chloro-].
75-02-5..............................  Vinyl fluoride [Ethene,                     10,000  f
                                        fluoro-].
75-04-7..............................  Ethylamine [Ethanamine].....                10,000  f
75-07-0..............................  Acetaldehyde................                10,000  g
75-08-1..............................  Ethyl mercaptan                             10,000  g
                                        [Ethanethiol].
75-19-4..............................  Cyclopropane................                10,000  f
75-28-5..............................  Isobutane [Propane, 2-                      10,000  f
                                        methyl].
75-29-6..............................  Isopropyl chloride [Propane,                10,000  g
                                        2-chloro-].
75-31-0..............................  Isopropylamine [2-                          10,000  g
                                        Propanamine].
75-35-4..............................  Vinylidene chloride [Ethene,                10,000  g
                                        1,1-dichloro-].
75-37-6..............................  Difluoroethane [Ethane, 1,1-                10,000  f
                                        difluoro-].
75-38-7..............................  Vinylidene fluoride [Ethene,                10,000  f
                                        1,1-difluoro-].
75-50-3..............................  Trimethylamine [Methanamine,                10,000  f
                                        N, 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                     10,000  f
                                        [Ethene, 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,                      10,000  f
                                        oxybis-].
115-11-7.............................  2-Methylpropene [1-Propene,                 10,000  f
                                        2-methyl-].
116-14-3.............................  Tetrafluoroethylene [Ethene,                10,000  f
                                        tetrafluoro-].
124-40-3.............................  Dimethylamine [Methanamine,                 10,000  f
                                        N-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                   10,000  f
                                        oxide sulfide (COS)].
463-82-1.............................  2,2-Dimethylpropane                         10,000  f
                                        [Propane, 2,2-dimethyl-].
504-60-9.............................  1,3-Pentadiene..............                10,000  f
557-98-2.............................  2-Chloropropylene [1-                       10,000  g
                                        Propene, 2-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-                       10,000  g
                                        Propene, 1-chloro-].
598-73-2.............................  Bromotrifluorethylene                       10,000  f
                                        [Ethene, bromotrifluoro-].
624-64-6.............................  2-Butene-trans [2-Butene,                   10,000  f
                                        (E)].
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-                 10,000  f
                                        yne].
1333-74-0............................  Hydrogen....................                10,000  f
4109-96-0............................  Dichlorosilane [Silane,                     10,000  f
                                        dichloro-].
7791-21-1............................  Chlorine monoxide [Chlorine                 10,000  f
                                        oxide].
7803-62-5............................  Silane......................                10,000  f
10025-78-2...........................  Trichlorosilane [Silane,                    10,000  g
                                        trichloro-].
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
22. Amend Sec.  68.160 by adding paragraphs (b)(21) and (22) to read as 
follows:


Sec.  68.160  Registration.

* * * * *
    (b) * * *
    (21) Method of communication and location of the notification that 
chemical hazard information is

[[Page 4704]]

available to the public, pursuant to Sec.  68.210(c); and
    (22) Whether a public meeting has been held following an RMP 
reportable accident, pursuant to Sec.  68.210(e).

0
23. Amend Sec.  68.170 by revising paragraphs (i) and (j) to read as 
follows:


Sec.  68.170  Prevention program/Program 2.

* * * * *
    (i) The date of the most recent compliance audit, the expected date 
of completion of any changes resulting from the compliance audit, and 
identify whether the most recent compliance audit was a third-party 
audit, pursuant to Sec. Sec.  68.58 and 68.59.
    (j) The completion date of the most recent incident investigation 
and the expected date of completion of any changes resulting from the 
investigation.
* * * * *

0
24. Amend Sec.  68.175 by:
0
a. Revising the introductory text of paragraph (e), and paragraphs 
(e)(1), (5), and (6);
0
b. Adding paragraph (e)(7); and
0
c. Revising paragraphs (k) and (l).
    The revisions and addition read as follows:


Sec.  68.175  Prevention program/Program 3.

* * * * *
    (e) The most recent process hazard analysis (PHA) or PHA update and 
revalidation information, pursuant to Sec.  68.67, including:
    (1) The date of completion of the most recent PHA or update and the 
technique used;
* * * * *
    (5) Monitoring and detection systems in use;
    (6) Changes since the last PHA; and
    (7) Inherently safer technology or design measures implemented 
since the last PHA, if any, and the technology category (substitution, 
minimization, simplification and/or moderation).
* * * * *
    (k) The date of the most recent compliance audit, the expected date 
of completion of any changes resulting from the compliance audit, and 
identify whether the most recent compliance audit was a third-party 
audit, pursuant to Sec. Sec.  68.79 and 68.80.
    (l) The completion date of the most recent incident investigation 
and the expected date of completion of any changes resulting from the 
investigation.
* * * * *

0
25. 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(f)(3) or Sec.  68.93;
    (2) The date of the most recent coordination with the local 
emergency response organizations, pursuant to Sec.  68.93 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 in the RMP 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) For stationary sources with any regulated toxic substance held 
in a process above the threshold quantity, whether the stationary 
source is included in the community emergency response plan developed 
under 42 U.S.C. 11003, pursuant to Sec.  68.90(b)(1);
    (ii) For stationary sources with only regulated flammable 
substances held in a process above the threshold quantity, the date of 
the most recent coordination with the local fire department, pursuant 
to Sec.  68.90(b)(2);
    (iii) What mechanisms are in place to notify the public and 
emergency responders when there is a need for emergency response; and
    (iv) The date of the most recent notification exercise, as required 
in Sec.  68.96(a).
    (2) For responding stationary sources, the owner or operator shall 
identify:
    (i) The date of the most recent review and update of the emergency 
response plan, pursuant to Sec.  68.95(a)(4);
    (ii) The date of the most recent notification exercise, as required 
in Sec.  68.96(a);
    (iii) The date of the most recent field exercise, as required in 
Sec.  68.96(b)(1); and
    (iv) The date of the most recent tabletop exercise, as required in 
Sec.  68.96(b)(2).

0
26. Amend Sec.  68.190 by adding a sentence at the end of paragraph (c) 
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
27. 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
28. 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 provide, upon request by any member of the 
public, the following chemical hazard information for all regulated 
processes, 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. The following summary information 
concerning the stationary source's compliance with Sec.  68.10(f)(3) or 
the emergency response provisions of subpart E:
    (i) Whether the stationary 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 stationary sources subject to Sec.  68.95, procedures for 
informing the public and local emergency response agencies about 
accidental releases;
    (5) Exercises. A list of scheduled exercises required under Sec.  
68.96; and
    (6) LEPC contact information. Include LEPC name, phone number, and 
web address as available.
    (c) Notification of availability of information. The owner or 
operator shall provide ongoing notification on a company Web site, 
social media platforms, or through other publicly accessible means 
that:
    (1) Information specified in paragraph (b) of this section is 
available to the public upon request. The notification shall:
    (i) Specify the information elements, identified in paragraph (b) 
of this section, that can be requested; and
    (ii) Provide instructions for how to request the information (e.g. 
email,

[[Page 4705]]

mailing address, and/or telephone or Web site request);
    (2) Identify where to access information on community preparedness, 
if available, including shelter-in-place and evacuation procedures.
    (d) Timeframe to provide requested information. The owner or 
operator shall provide the requested information under paragraph (b) of 
this section within 45 days of receiving a request from any member of 
the public.
    (e) 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) of this section, no later than 90 days 
after any accident subject to reporting under Sec.  68.42.
    (f) 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.
    (g) 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 Sec. Sec.  68.151 and 68.152 
for information contained in the RMP required under subpart G of this 
part. 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.

[FR Doc. 2016-31426 Filed 1-12-17; 8:45 am]
BILLING CODE 6560-50-P


