Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention, 53556-53616 [2022-18249]

Download as PDF 53556 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 68 [EPA–HQ–OLEM–2022–0174; FRL–5766.6– 01–OLEM] RIN 2050–AH22 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to amend its Risk Management Program (RMP) regulations as a result of Agency review. The proposed revisions include several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, increased public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. These proposed amendments seek to improve chemical process safety; assist in planning, preparedness, and responding to RMP-reportable accidents; and improve public awareness of chemical hazards at regulated sources. DATES: Comments must be received on or before October 31, 2022. Public Hearings: EPA will hold virtual public hearings on September 26, 2022; September 27, 2022; and September 28, 2022, at https://www.epa.gov/rmp/ forms/virtual-public-hearings-riskmanagement-program-safercommunities-chemical-accident. Please refer to the SUPPLEMENTARY INFORMATION section of this preamble for additional information on the public hearings. ADDRESSES: You may send comments, identified by Docket ID No. EPA–HQ– OLEM–2022–0174, by any of the following methods: • Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments. • Mail: U.S. Environmental Protection Agency, EPA Docket Center, EPA–HQ–OLEM–2022–0174 Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. • Hand delivery or courier (by scheduled appointment only): EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center’s hours of operations are 8:30 lotter on DSK11XQN23PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 a.m. to 4:30 p.m., Monday through Friday (except Federal holidays). Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https:// www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and more information on the rulemaking process, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this preamble. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets. The virtual hearings will be held at https://www.epa.gov/rmp/forms/virtualpublic-hearings-risk-managementprogram-safer-communities-chemicalaccident. The hearing on September 26, 2022, will convene at 9:00 a.m. (local time) and will conclude at 12:00 p.m. (local time). The hearing on September 27, 2022, will convene at 1:00 p.m. (local time) and will conclude at 4:00 p.m. (local time). The hearing on September 28, 2022, will convene at 5:00 p.m. (local time) and will conclude at 8:00 p.m. (local time). Refer to the SUPPLEMENTARY INFORMATION section below for additional information. FOR FURTHER INFORMATION CONTACT: Deanne Grant, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202–564– 1096; email: grant.deanne@epa.gov or Veronica Southerland, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202–564–2333; email: southerland.veronica@epa.gov. SUPPLEMENTARY INFORMATION: Preamble acronyms and abbreviations. EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here: List of Abbreviations and Acronyms ACC American Chemistry Council AN ammonium nitrate ANPI Apache Nitrogen Products Inc. ANSI American National Standards Institute API American Petroleum Institute AQMD Air Quality Management Districts ASSP American Society of Safety Professionals ASTM American Society for Testing and Materials BSEE Bureau of Safety and Environmental Enforcement PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 CAA Clean Air Act CAAA Clean Air Act Amendments CDC Centers for Disease Control and Prevention CDR Chemical Data Reporting CCPS Center for Chemical Process Safety CFATS Chemical Facility Anti-Terrorism Standards CFR Code of Federal Regulations CGA Compressed Gas Association CSB Chemical Safety and Hazard Investigation Board DHS Department of Homeland Security DIR California Department of Industrial Relations DOJ Department of Justice DOT Department of Transportation EHS Extremely Hazardous Substances EJ Environmental Justice E.O. Executive Order EPA Environmental Protection Agency EPCRA Emergency Planning and Community Right-To-Know Act FEMA Federal Emergency Management Agency FOIA Freedom of Information Act FR Federal Register FRS Facility Registry Service GDC General Duty Clause GMARD Guide for Making Acute Risk Decisions HF hydrofluoric acid HHC highly hazardous chemical IEEE Institute of Electrical and Electronics Engineers IIAR International Institute of Ammonia Refrigeration IPAWS Integrated Public Alert & Warning System ISD inherently safer design IST inherently safer technology LEPC local emergency planning committee LPG liquefied petroleum gas MACT Maximum Achievable Control Technology NAICS North American Industry Classification System NASTTPO National Association of SARA Title III Program Officials NESHAP National Emission Standards for Hazardous Air Pollutants NFPA National Fire Protection Association NJAC New Jersey Administrative Code NJDEP New Jersey Department of Environmental Protection NREL National Renewable Energy Laboratory NSPS New Source Performance Standards NTTAA National Technology Transfer Advancement Act OCA offsite consequences analysis OSHA Occupational Safety and Health Administration PHA process hazard analysis PRA Paperwork Reduction Act PSM process safety management RAGAGEP recognized and generally accepted good engineering practices RFA Regulatory Flexibility Act RFI request for information RIA Regulatory Impact Analysis RMP Risk Management Program or risk management plan SARA Superfund Amendments and Reauthorization Act SCCAP Safer Communities by Chemical Accident Prevention E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules SDS Safety Data Sheet SEMS Safety and Environmental Management Systems SOCMA Society of Chemical Manufacturers and Affiliates STAA safer technology and alternatives analysis TCPA Toxic Catastrophe Prevention Act TEPC Tribal emergency planning committee TNT trinitrotoluene TQ threshold quantity UMRA Unfunded Mandates Reform Act lotter on DSK11XQN23PROD with PROPOSALS2 Organization of this document. The information in this preamble is organized as follows: I. Public Participation A. Written Comments B. Comment Headings C. Participation in Virtual Public Hearings II. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency’s authority for taking this action? D. What are the costs and benefits of this action? 1. Summary of Estimated Costs 2. Baseline Damages 3. Summary of Estimated Benefits III. Background A. Overview of EPA’s Risk Management Program B. Events Leading to This Action C. EPA’s Authority To Revise the RMP Rule IV. Proposed Action A. Prevention Program 1. Hazard Evaluation Amplifications a. Introduction b. Natural Hazards c. Power Loss d. Stationary Source Siting e. Hazard Evaluation Recommendation Information Availability f. Summary of Proposed Regulatory Text 2. Prevention Program Provisions a. Safer Technologies and Alternatives Analysis (STAA) i. Background on IST/ISD ii. Hydrogen Fluoride (HF) iii. Recent Public Input on STAA iv. Recent Public Input on HF v. STAA Applicability vi. Accident Frequency vii. Accident Severity viii. Discussion of Prior STAA Analysis ix. STAA Technology Transfer x. Alternative Options xi. Proposed Revisions to Regulatory Text xii. Process Hazard Analysis (40 CFR 68.67) b. Root Cause Analysis i. Root Cause Analysis Background ii. Recent Public Comments on Root Cause Analysis iii. Investigation Timeframe iv. Proposed Revisions to Regulatory Text v. ‘‘Near Miss’’ Definition c. Third-Party Compliance Audits i. Third-Party Compliance Audits in Previous RMP Rulemakings ii. Recent Public Input on Third-Party Compliance Audits iii. Proposed Third-Party Compliance Audit Requirements VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 d. Employee Participation i. Introduction ii. Recommendation Decisions iii. Stop Work Authority iv. Accident and Non-Compliance Reporting B. Emergency Response 1. Review of Emergency Response Notification, Detection, and Response a. Concerns About Notification of Accidents b. Release Detection c. Emergency Response Guidance 2. Proposed Modifications and Amplifications of Emergency Response Requirements a. Proposed Regulations to Address Community Notification of RMP Accidents b. Community Emergency Response Plan Amplifications 3. Emergency Response Exercises a. Proposed Amendments to the Emergency Response Requirements b. Field Exercise Frequency c. Exercise Evaluation Reports C. Information Availability 1. Recent Public Input on Information Availability 2. Information Availability in the 2017 Amendments and the 2019 Reconsideration Rule 3. Proposed Regulatory Revisions a. Request for Comment on Potential NonRule RMP Access Policy Changes b. Current Data Availability of Risk Management Plan Information c. Other EPA Facility Hazardous Substance Registries d. Balancing Security Risks and Community Right-to-Know D. Other Areas of Technical Clarification 1. Process Safety Information 2. Program 2 and 3 Requirements for Compliance With RAGAGEP 3. Retention of Hot Work Permits 4. Storage Incident to Transportation 5. Retail Facility Exemption 6. RAGAGEP E. Compliance Dates V. Additional Considerations VI. Statutory and Executive Orders 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 Concerning Regulations 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 53557 Populations and Low-Income Populations I. Public Participation A. Written Comments Submit your comments, identified by Docket ID No. EPA–HQ–OLEM–2022– 0174, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section, above. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA’s docket at https://www.regulations.gov any information you consider to be confidential business information or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about confidential business information or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. Due to public health concerns related to COVID–19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets. EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and its Federal partners so that it can respond rapidly as conditions change regarding COVID–19. B. Comment Headings Commentors should review the discussions in the preamble and may comment on any matter that is addressed by the proposed rule. For comments submitted through postal mail or https://www.regulations.gov, EPA is requesting commenters to identify their comments on specific issues by using the appropriate number and comment headings listed below to make it simpler for the Agency to E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53558 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules process your comment. If your comment covers multiple issues, please use all the heading numbers and names that relate to that comment. As an example of this optional method, where one individual comment relates to issue #1 and a second individual comment pertains to issues #2 and #3, a set of comments would be submitted as follows: 1. Natural Hazards—EPA requests comment on the following (See Section IV.A.1.b): • The Agency’s proposed approach. • Whether EPA should develop additional guidance for assessing natural hazards. • Natural hazard resources such as databases, checklists, or narrative discussions, as well as commenters’ recommendations for regional versus national, or sector-specific guidance. • Whether to specify geographic areas most at risk from climate or other natural events by adopting the list of areas exposed to heightened risk of wildfire, flooding, storm surge, or coastal flooding and if this approach would simplify implementation. • If the Agency should require sources in areas exposed to heightened risk of wildfire, flooding, storm surge, coastal flooding, or earthquake, to conduct hazard evaluations associated with climate or earthquake as a minimum, while also requiring all sources to consider the potential for natural hazards unrelated to climate or earthquake in their specific locations. 2. Power Loss—EPA requests comment on the following (See Section IV.A.1.c): • The Agency’s proposed approach. • The proposed provision to require air pollution control or monitoring equipment associated with prevention and detection of accidental releases from RMP-regulated processes to have standby or backup power and any potential safety issues associated with it. 3. Stationary Source Siting—EPA requests comment on the following (See Section IV.A.1.d): • The Agency’s proposed approach. 4. Hazard Evaluation Recommendation Information Availability—EPA requests comment on the following (See Section IV.A.1.e): • The Agency’s proposed approach. • Whether EPA should require declined hazard evaluation recommendations to be included in narrative form, whether the Agency should provide specific categories of recommendations for facilities to choose from when reporting or allowing the owner or operator to post this information online and provide a link to their information within their RMP. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 • Methods to provide justification for declining relevant hazard evaluation recommendations, the proposed approach or alternative categories. 5. Safer Technology and Alternatives Analysis (STAA)—EPA requests comment on the following (See Section IV.A.2.a): • The Agency’s proposed approach. • Industry understanding of the practicability assessment, and how this might differ from the findings identified in the PHA. • Additional benefits provided by the practicability assessment. • EPA’s definition of the practicability assessment. • How to determine if a facility is within a 1-mile radius and if EPA should use locational data provided by facilities, or develop a standard definition (e.g., 1 mile to the facility fenceline or 1 mile to the regulated process location). • Information that should be collected in a STAA clearinghouse. • The proposed STAA applicability criteria and alternatives. • Whether EPA should reinstate the 2017 rule provisions requiring STAA for all NAICS 324 and 325 processes. • Whether the proposal to limit the STAA provisions to NAICS 324 and 325 regulated processes within 1 mile of another NAICS 324 and 325 regulated facility is appropriate or if another distance (e.g., 3 miles) would be appropriate, and the rationale for proposed distance alternatives. • Other industries for which STAA should be required and how EPA might justify extending these provisions to other industries. • What other information or consideration EPA can use to assess probability of an accident in other industries without accident history data as well as what specific chemicals or processes may merit the most focus, and how EPA may require STAA requirements for industries without a history of accidents. • If the Agency should only require the STAA as part of the PHA, without the additional practicability assessment. • For any cited costs of implementing the STAA as part of the PHA, documentation to support cost estimates. • For any cited costs of implementing the practicability assessment of the STAA provisions, documentation to support cost estimates. 6. Root Cause Analysis—EPA requests comment on the following (See Section IV.A.2.b): • The Agency’s proposed approach. • A potential definition of ‘‘near miss’’ that would address difficulties in PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 identifying the variety of incidents that may occur at RMP facilities that could be near misses that should be investigated. • A universal ‘‘near miss’’ definition, as well as comments on strengths and limitations of the definition provided by NJDEP and how the definition may clarify requirements for incident investigations. 7. Third Party Compliance Audits— EPA requests comment on the following (See Section IV.A.2.c): • The Agency’s proposed approach. • Proposed independence criteria modified from the 2017 rule. • Whether the selected auditor should be mutually approved by the owner or operator and employees and their representatives, and if direct participation from employees and their representative should be required when a third party conducts an audit. • Whether EPA should require declined findings be included in narrative form, or whether the Agency should provide specific categories of findings for facilities to choose from when reporting. 8. Employee Participation—EPA requests comment on the following (See Section IV.A.2.d): • The Agency’s proposed approach. • Whether there should be a representative number or percentage of employees and their representatives involved in these recommendations decision teams as well as the development of other process safety elements as outlined in 40 CFR 68.83(b). • Relevant sources that have provided useful guidance in making risk decisions. • Whether owners and operators should distribute an annual written or electronic notice to employees that employee participation plans and other RMP information is readily accessible upon request and provide training for those plans and how to access the information. 9. Proposed Modifications and Amplifications to Emergency Response Requirements—EPA requests comment on the following (See Section IV.B.2): • The Agency’s proposed approach. • Additional information that is useful to share when notifying the public of RMP-accidental releases. • Impediments to accessing community emergency response plans and potential solutions to having the plans more accessible within the scope of the RMP rule. 10. Emergency Response Exercises— EPA requests comment on the following (See Section IV.B.3): • The Agency’s proposed approach. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules 11. Information Availability—EPA requests comment on the following (See Section IV.C.3): • The Agency’s proposed approach. • If the 6-mile radius for requesting information is appropriate. For alternative distances, information on the justification for these alternative distances. • Specific information on the increased likelihood of security threats arising from dissemination of this information. • Which data elements, or combinations of elements, may pose a security risk if released to the public (provided in Section 10 of the Technical Background Document). • For each element or combination of elements identified as a potential security risk: (1) Specific comments on why the element or combination of elements presents a security risk and (2) documentation or basis for these security claims, such as expert studies, intelligence assessments, a prior incident, documented security threat, or near miss incident. 12. Other Areas of Technical Clarification—EPA requests comment on the following (See Section IV.D): • The Agency’s proposed approaches. • For revisions to ‘‘storage incident to transportation’’ definition, the proposed 48-hour time frame, suggestions for other appropriate time frames, and any safety concerns that may arise from transportation containers being exempt from the RMP rule when disconnected for less than 48 hours. 13. Regulatory Impact Analysis—EPA requests comment on the following (See Section II.D): • The assumptions and information used in the analysis, including burden estimates and the likelihood of adopting safer alternatives. • The estimated costs of the proposed provisions and whether these costs should accrue to this proposal. • Cost data or studies related to the cost of practicability studies for conversion of hydrofluoric acid alkylation units to safer technologies. • The estimated benefits of the proposed provisions. 14. Regulatory Flexibility Act Analysis • The number of small entities potentially affected by the proposed provisions of this rule. • The estimated cost impacts on small entities by the proposed provisions of this rule. 15. OTHER—Any comments not falling under one of the preceding categories should be identified using ‘OTHER’ as the comment header. C. Participation in Virtual Public Hearings Please note that because of current CDC recommendations, as well as State and local orders for social distancing to limit the spread of COVID–19, EPA cannot hold in-person public meetings at this time. EPA will begin pre-registering speakers for the hearing upon publication of this preamble in the Federal Register (FR). To register to speak at the virtual hearings, please see the online registration form available at https://www.epa.gov/rmp/forms/virtualpublic-hearings-risk-managementprogram-safer-communities-chemicalaccident or contact Deanne Grant at 202–564–1096 or grant.deanne@epa.gov to register to speak at the virtual hearings. The last day to pre-register to speak at the hearings will be September 22, 2022, EPA will post a general agenda for the hearings that will list preregistered speakers in approximate order at https://www.epa.gov/rmp/ forms/virtual-public-hearings-riskmanagement-program-safercommunities-chemical-accident. EPA will make every effort to follow the schedule as closely as possible on the day of the hearings; however, please plan for the hearings to run either ahead of schedule or behind schedule. Each commenter will have 3 minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically (via email) by emailing it to Deanne Grant at grant.deanne@ epa.gov. EPA also recommends submitting the text of your oral comments as written comments to the rulemaking docket. EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that 53559 time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearings. Please note that any updates made to any aspect of the hearings are posted online at https://www.epa.gov/rmp/ forms/virtual-public-hearings-riskmanagement-program-safercommunities-chemical-accident. While EPA expects the hearings to go forward as set forth above, please monitor the Agency’s website or contact Deanne Grant, 202–564–1096, grant.deanne@ epa.gov, to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates. If you require the services of a translator or special accommodations such as audio description, please preregister for the hearings with Deanne Grant and describe your needs by September 19, 2022. EPA may not be able to arrange accommodations without advanced notice. II. General Information A. Does this action apply to me? This rule applies to those facilities (referred to as ‘‘stationary sources’’ under the Clean Air Act, or 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. Nothing in this rule would impact the scope and applicability of the General Duty Clause in CAA 112(r)(1), 42 U.S.C. 7412(r)(1). See 40 CFR 68.1. Table 1 provides industrial sectors and the associated North American Industry Classification System (NAICS) codes for entities potentially affected by this action. The Agency’s goal is to provide a guide on entities that might be affected by this action. However, this action may affect other entities not listed in this table. If you have questions about the applicability of this action to a particular entity, consult the person(s) listed in the FOR FURTHER INFORMATION CONTACT section of this preamble. lotter on DSK11XQN23PROD with PROPOSALS2 TABLE 1—ENTITIES POTENTIALLY AFFECTED BY THE PROPOSED RULE Number of facilities Sector NAICS codes Administration of environmental quality programs (i.e., governments, government-owned water). Agricultural chemical distributors/wholesalers ..... 92, 2213 (governmentowned). 11, 424 (except 4246, 4247). 325 .................................. Chemical manufacturing ...................................... VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 1,449 3,315 1,502 Chemical uses Use chlorine and other chemicals for water treatment. Store ammonia for sale; some in NAICS 111 and 115 use ammonia as a refrigerant. Manufacture, process, store. E:\FR\FM\31AUP2.SGM 31AUP2 53560 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules TABLE 1—ENTITIES POTENTIALLY AFFECTED BY THE PROPOSED RULE—Continued Number of facilities Sector NAICS codes Chemical wholesalers .......................................... Food and beverage manufacturing ...................... Oil and gas extraction .......................................... 4246 ................................ 311, 312 .......................... 211 .................................. 317 1,571 719 Other .................................................................... 246 Other wholesale ................................................... Paper manufacturing ............................................ 21 (except 211), 23, 44, 45, 48, 491, 54, 55, 56, 61, 62, 71, 72, 81, 99. 313, 314, 315, 326, 327, 33. 421, 422, 423 ................. 321, 322 .......................... Petroleum and coal products manufacturing ....... 324 .................................. 156 Petroleum wholesalers ......................................... 4247 ................................ 367 Utilities/water/wastewater ..................................... 519 Warehousing and storage .................................... 221 (non-governmentowned water). 493 .................................. 1,110 Total .............................................................. ......................................... 11,740 Other manufacturing ............................................ 375 39 55 B. What action is the Agency taking? The purpose of this action is to propose changes to the RMP rule in order to improve safety at facilities that use and distribute hazardous chemicals. 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 process safety based on lessons learned. These proposed revisions are a result of review of the existing RMP regulations and information gathered from the 2021 virtual public listening sessions (hereinafter referred to as the ‘‘2021 listening sessions’’).1 proposes in this document is based on EPA’s rulemaking authority under CAA section 112(r)(7) (42 U.S.C. 7412(r)(7)). When promulgating rules under CAA section 112(r)(7)(A) and (B), EPA must follow the procedures for rulemaking set out in CAA section 307(d) (see CAA sections 112(r)(7)(E) and 307(d)(1)(C)). Among other things, CAA section 307(d) sets out requirements for the content of proposed and final rules, the docket for each rulemaking, opportunities for oral testimony on proposed rulemakings, the length of time for comments, and judicial review. C. What is the Agency’s authority for taking this action? The statutory authority for this action is provided by section 112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each modification of the RMP rule that EPA Approximately 11,740 facilities have filed current risk management plans with EPA and are potentially affected by the proposed rule. Table 1 presents the number of facilities according to the latest RMP reporting as of December 31, D. What are the costs and benefits of this action? 1. Summary of Estimated Costs Chemical uses Store for sale. Use (mostly ammonia) as a refrigerant. Intermediate processing (mostly regulated flammable substances and flammable mixtures). Use chemicals for wastewater treatment, refrigeration, store chemicals for sale. Use various chemicals in manufacturing process, waste treatment. Use (mostly ammonia) as a refrigerant. Use various chemicals in pulp and paper manufacturing. Manufacture, process, store (mostly regulated flammable substances and flammable mixtures). Store for sale (mostly regulated flammable substances and flammable mixtures). Use chlorine (mostly for water treatment) and other chemicals. Use (mostly ammonia) as a refrigerant. 2020, by industrial sector and chemical use. 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 RMPregulated substances. Among the stationary sources potentially affected, the Agency has determined that 2,911 are regulated private sector small entities and 630 are small government entities. Table 2 presents a summary of the annualized costs estimated in the regulatory impact analysis (RIA).2 In total, EPA estimates annualized costs of $75.8 million at a 3% discount rate and $76.7 million at a 7% discount rate. TABLE 2—SUMMARY OF ESTIMATED ANNUALIZED COSTS OVER A 10-YEAR PERIOD [Millions, 2020 dollars] Total undiscounted lotter on DSK11XQN23PROD with PROPOSALS2 Cost elements Third-party Audits ................................................................. Root Cause Analysis ........................................................... Safer Technology and Alternatives Analysis ....................... Backup Power for Perimeter Monitors ................................. Employee Participation Plan ................................................ 1 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Rule Retrospection Under VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 Total discounted (3%) $102.7 7.3 518.2 0.4 8.6 $87.6 6.2 442.0 0.4 7.3 Executive Order 13990; Virtual Public Listening Sessions; Request for Public Comment; EPA–HQ– OLEM–2021–0312–0001. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Total discounted (7%) $72.1 5.1 364.0 0.4 6.0 Annualized (3%) $10.3 0.7 51.8 ** 0.0 0.9 Annualized (7%) $10.3 0.7 51.8 ** 0.0 0.9 2 Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Proposed Rule (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules 53561 TABLE 2—SUMMARY OF ESTIMATED ANNUALIZED COSTS OVER A 10-YEAR PERIOD—Continued [Millions, 2020 dollars] Total undiscounted Cost elements Total discounted (3%) Total discounted (7%) Annualized (3%) Annualized (7%) Community Notification System ........................................... Information Availability ......................................................... Rule Familiarization ............................................................. 38.0 30.3 46.5 32.4 25.8 45.2 26.7 21.3 43.5 3.8 3.0 5.3 3.8 3.0 6.2 Total Cost * ................................................................... 751.8 646.8 538.8 75.8 76.7 * Totals may not sum due to rounding. ** Totals are zero due to rounding, Unrounded totals are $44,600 at 3% and $52,200 at 7% discount rates. The largest annualized cost of the proposed rule is the safer technologies and alternatives analysis (STAA) provision ($51.8 million at both 3% and 7% discount rates), followed by thirdparty audits ($10.3 million at both 3% and 7% discount rates), rule familiarization ($5.3 million at a 3% discount rate and $6.2 million at a 7% discount rate), and information availability ($3.0 million at both 3% and 7% discount rates). The remaining provisions impose annualized costs under $1 million, including employee participation ($0.9 million at both 3% and 7% discount rates), root cause analysis ($0.7 million at both 3% and 7% discount rates), and emergency backup power for perimeter monitors (less than $0.1 million at both 3% and 7% discount rates). The Agency has determined that among the 2,911 potentially regulated private sector small entities so impacted, 2,822, or 96.9 percent, may experience an impact of less than one percent with an average small entity cost of $10,618; and 84, or 2.9 percent, may experience an impact of between one and three percent of revenues with an average small cost entity of $108,921. Among the 630 small government entities potentially affected, 488, or 77 percent would incur costs of less than $1,000; 109, or 17 percent costs ranging from $1,000 to $2,000; 18, or 3 percent costs ranging from $2,000 to $3,000; and only one would incur costs greater than $10,000, and EPA estimated that for the rule to have a larger than one percent impact on this entity, it would need to have revenue of less than $103 per resident. For detailed costs by provision and NAICS code see Chapter 8 of the RIA. EPA seeks further information on the estimated costs of these provisions and whether these costs should accrue to this proposal. EPA particularly requests cost data or studies related to the cost of practicability studies for conversion of hydrofluoric acid alkylation units to safer technologies. For more information see Chapter 4 of the RIA. 2. Baseline Damages Accidents and chemical releases from RMP facilities occur every year. They cause fires and explosions, damage to property, acute and chronic exposures of workers and nearby residents to hazardous materials and result in serious injuries and fatalities. EPA is able to present data on the total damages that currently occur at RMP facilities each year. EPA presents the data based on a 5-year baseline period, summarizes RMP accident impacts and, when possible, monetizes them. EPA expects that some portion of future damages would be prevented through implementation of a final rule. Table 3 presents a summary of the quantified damages identified in the analysis. TABLE 3—SUMMARY OF QUANTIFIED DAMAGES [Millions, 2020 dollars] Unit value 5-year total Average/ year Average/ accident On site Fatalities ........................................................................................................... Injuries ............................................................................................................. Property Damage ............................................................................................. $9.3 0.05 ........................ $111.6 27.50 2,031 $22.32 5.50 406.20 $0.23 0.06 4.16 Onsite Total .............................................................................................. ........................ 2,170.10 434.02 4.45 Fatalities ........................................................................................................... Hospitalizations ................................................................................................ Medical Treatment ........................................................................................... Evacuations * ................................................................................................... Sheltering in Place * ......................................................................................... Property Damage ............................................................................................. 9.30 0.045 0.001 0.00 0.00 ........................ 0.00 1.40 0.13 14.16 9.39 191.53 0.00 0.28 0.03 2.83 1.88 38.31 0.00 0.003 0.0003 0.029 0.019 0.39 Offsite Total .............................................................................................. ........................ 216.61 43.32 0.44 Total ................................................................................................... ........................ 2,386.71 477.34 4.89 lotter on DSK11XQN23PROD with PROPOSALS2 Off site * The unit value for evacuations and for sheltering in place are less than $300 so when expressed in rounded millions the value represented in the table is zero. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\31AUP2.SGM 31AUP2 53562 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules In total, EPA estimated monetized damages from RMP facility accidents of $477.3 million per year. These damages are divided into onsite and offsite categories where possible. EPA estimated total, average annual onsite damages from chemical releases at RMP facilities of $434.0 million. The largest monetized category was property damage, valued at $406.2 million. The next largest impacts were onsite fatalities ($22.3 million) and injuries ($5.5 million). EPA estimated total, average annual offsite damages of $43.3 million. Property damage again was the highest value category, estimated at approximately $38.3 million. In decreasing order, the next largest average annual offsite impact was from evacuations ($2.8 million), then sheltering in place ($1.9 million), hospitalizations ($0.3 million), and medical treatment ($0.03 million). 3. Summary of Benefits EPA anticipates that promulgation and implementation of this proposed rule would result in a reduced frequency and magnitude of damages from releases, including damages that are quantified in Table 3 such as fatalities, injuries, property damage, hospitalizations, medical treatment, sheltering-in-place and so on. EPA also expects that the proposed rule provisions would reduce baseline damages that are not quantified in Table 3 such as lost productivity, responder costs, property value reductions, damages from catastrophes, and so on. Although EPA was unable to quantify the reductions in damages that may occur as a result of the proposed rule provisions, EPA expects that a portion of future damages would be prevented by the proposed rule. 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—SUMMARY OF SOCIAL BENEFITS OF PROPOSED RULE PROVISIONS Broad benefit category Explanation Specific benefit categories Accident Prevention ........................................... Prevention of future RMP facility accidents ..... Accident Mitigation ............................................. Mitigation of future RMP facility accidents ....... Non-RMP Accident Prevention and Mitigation .. Prevention and mitigation of future non-RMP accidents at RMP facilities. Avoided Catastrophes ........................................ Prevention of rare but extremely high consequence events. Information Availability ....................................... Provision of information to the public and emergency responders. • • • • • • • Reduced Fatalities. Reduced Injuries. Reduced Property Damage. Fewer People Sheltered-in-Place. Fewer Evacuations. Avoided Lost Productivity. Avoided Emergency Response Costs. • Avoided Transaction Costs. • Avoided Property Value Impacts.* • Avoided Environmental Impacts. • Improved Efficiency of Property Markets. • Improved Resource Allocation. * These impacts partially overlap with several other categories. EPA seeks further information on the estimated benefits of these provisions. For more information see Chapter 6 of the RIA. III. Background lotter on DSK11XQN23PROD with PROPOSALS2 A. Overview of EPA’s Risk Management Program EPA originally issued the RMP regulation in two stages. The Agency published the list of regulated substances and TQs in 1994: ‘‘List of Regulated Substances and Thresholds for Accidental Release Prevention; Requirements for Petitions Under Section 112(r) of the Clean Air Act as Amended’’ (59 FR 4478, January 31, 1994), hereinafter referred to as the ‘‘list rule.’’ 3 The Agency published the RMP final regulation, containing risk management requirements for covered sources, in 1996: ‘‘Accidental Release 3 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. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)’’ (61 FR 31668, June 20, 1996), hereinafter referred to as the ‘‘1996 RMP rule.’’ 4 5 Subsequent modifications to the list rule and the 1996 RMP rule were made as discussed in the 2017 amendments rule published in 2017 (‘‘Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act’’; 82 FR 4594, January 13, 2017, at 4600, hereinafter referred to as the ‘‘2017 amendments rule’’). Prior to development of EPA’s 1996 RMP rule, the Occupational Safety and Health Administration (OSHA) published its Process Safety Management (PSM) standard in 1992 (57 FR 6356, February 4 Documents and information related to development of the 1996 RMP rule can be found in EPA docket number A–91–73. 5 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. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 24, 1992), as required by section 304 of the 1990 Clean Air Act Amendments (CAAA), using its authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29 Code of Federal Regulations (CFR) 1910.119. Both the OSHA PSM standard and EPA’s 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 any covered source to submit (to EPA) a document summarizing the source’s risk management program—called a risk management plan (or RMP). EPA’s risk management program requirements include conducting a worst-case scenario analysis and a review of accident history, coordinating emergency response procedures with local response organizations, conducting a hazard assessment, E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules documenting a management system, implementing a prevention program and an emergency response program, and submitting a risk management plan that addresses all aspects of the risk management program for all covered processes and chemicals. A process at a source is covered under one of three different prevention programs (Program 1, Program 2, or Program 3) based directly or indirectly on the threat posed to the community and the environment. Program 1 has minimal requirements and is for processes that have not had an accidental release with offsite consequences in the last 5 years before submission of the source’s risk management plan, and that have no public receptors within the worst-case release scenario vulnerable zone for the process. Program 3 applies to processes not eligible for Program 1, has the most requirements, and applies to processes covered by the OSHA PSM standard or classified in specified industrial sectors. Program 2 has fewer requirements than Program 3 and applies to any process not covered under Programs 1 or 3. Programs 2 and 3 both require a hazard assessment, a prevention program, and an emergency response program, although Program 2 requirements are less extensive and more streamlined. For example, the Program 2 prevention program was intended to cover in many cases simpler processes at smaller businesses and does not require the following process safety elements: management of change, pre-startup review, contractors, employee participation, and hot work permits. The Program 3 prevention program is fundamentally identical to the OSHA PSM standard and designed to cover those processes in the chemical industry. lotter on DSK11XQN23PROD with PROPOSALS2 B. Events Leading to This Action On January 13, 2017, EPA published amendments to the RMP rule (82 FR 4594). The 2017 amendments rule was prompted by E.O. 13650, ‘‘Improving Chemical Facility Safety and Security,’’ 6 which directed EPA (and several other Federal agencies) to, among other things, modernize policies, regulations, and standards to enhance safety and security in chemical facilities. The 2017 amendments rule contained various new provisions applicable to RMP-regulated facilities addressing prevention program elements (safer technology and alternatives analysis (‘‘STAA’’); incident 6 Available at https://obamawhitehouse. archives.gov/the-press-office/2013/08/01/executiveorder-improving-chemical-facility-safety-andsecurity. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 investigation root cause analysis; and third-party compliance audits), emergency response coordination with local responders (including emergency response exercises), and availability of information to the public. EPA received three petitions for reconsideration of the 2017 amendments rule under CAA section 307(d)(7)(B).7 In December 2019, EPA finalized revisions to the RMP regulations to reconsider the rule changes made in January 2017 (‘‘Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,’’ 84 FR 69834, December 19, 2019, hereinafter referred to as the ‘‘2019 reconsideration rule’’). The 2019 reconsideration rule rescinded certain information disclosure provisions of the 2017 amendments rule, removed most new accident prevention requirements added by the 2017 rule, and modified some other provisions of the 2017 amendments rule. The rule changes made by the 2019 reconsideration rule reflect the current RMP regulations to date. There are petitions for judicial review of both the 2017 amendments and the 2019 reconsideration rules. The 2019 reconsideration rule challenges are being held in abeyance until October 3, 2022, by which time the parties must submit motions to govern. The case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case. On January 20, 2021, President Biden issued E.O. 13990, ‘‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.’’ 8 E.O. 13990 directed Federal agencies to review existing regulations and take action to address priorities established by the current Administration, which include bolstering resilience to the impacts of climate change and prioritizing environmental justice (EJ). As a result, EPA was tasked to review the current RMP regulations. While the Agency reviewed the RMP rule under E.O. 13990, the E.O. did not specifically direct EPA to publish a solicitation for comment or information from the public. Nevertheless, EPA held virtual public listening sessions on June 16 and July 8, 2021, and had an open docket for public comment (86 FR 28828; May 28, 2021). In the request for public comment, the Agency asked for information on the adequacy of 7 Available at https://www.epa.gov/petitions/ petitions-office-land-and-emergency-management. 8 Available at https://www.whitehouse.gov/ briefing-room/presidential-actions/2021/01/20/ executive-order-protecting-public-health-andenvironment-and-restoring-science-to-tackleclimate-crisis/. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 53563 revisions to the RMP regulations completed since 2017, incorporating consideration of climate change risks and impacts into the regulations and expanding the application of EJ. EPA received a total of 27,828 public comments in response to the request for comments. This includes 27,720 received at regulations.gov,9 35 provided during the listening session on June 16, 2021,10 and 73 provided during the listening session on July 8, 2021.11 Most of the comments received in the docket were copies of form letters related to four different form letter campaigns. The remaining comments included 302 submissions containing unique content. Of the 302 unique submissions, a total of 163 were deemed to be substantive (i.e., the commenters presented both a position and a reasoned argument in support of the position). Information collected through these comments has informed the review. EPA seeks comment on the proposed amendments. Any suggestions for alternative options should include an appropriate rationale and supporting data for the Agency to be able to consider it for a final action. To the extent submitted comments will repeat or rely on material submitted in the docket used for the 2017 amendments rule or the 2019 reconsideration rule, include the relevant material in the submitted comment with a specific reference to the portion of the material cited as support. C. EPA’s Authority To Revise the RMP Rule Congress granted EPA authority to establish accident prevention rules under two provisions in CAA section 112(r)(7). Under CAA section 112(r)(7)(A), EPA may set rules addressing the prevention, detection, and correction of accidental releases of substances listed by EPA by rule (‘‘regulated substances’’ listed in the Tables 1 through 4 to 40 CFR 68.130). Such rules may include requirements related to monitoring, data collection, training, design, equipment, work practice, and operations. In promulgating its regulations, EPA may draw distinctions between types, classes, and kinds of facilities by taking into consideration various factors including size and location. This section also indicates that EPA has discretion regarding the date rules will take effect. Regulations become effective ‘‘as determined by the Administrator, 9 EPA–HQ–OLEM–2021–0312. 10 EPA–HQ–OLEM–2021–0312–0011. 11 EPA–HQ–OLEM–2021–0312–0020. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53564 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules assuring compliance as expeditiously as practicable.’’ Under CAA section 112(r)(7)(B), Congress directed EPA to develop ‘‘reasonable regulations and appropriate guidance’’ that provide for the prevention and detection of accidental releases and the response to such releases ‘‘to the greatest extent practicable.’’ Congress required an initial rulemaking under this subparagraph by November 15, 1993. Section 112(r)(7)(B) sets out a series of mandatory subjects to address, interagency consultation requirements, and discretionary provisions that allowed EPA to tailor requirements to make them reasonable and practicable. The regulations needed to address ‘‘storage, as well as operations’’ and emergency response after accidental releases, and EPA was to use the expertise of the Secretaries of Labor and Transportation in promulgating the regulations. This provision gave EPA the discretion to recognize differences in factors such as ‘‘size, operations, processes, class, and categories of sources’’ and the voluntary actions taken by owners and operators of regulated sources to prevent and respond to accidental releases (CAA section 112(r)(7)(B)(i)). At a minimum, the regulations had to require any stationary source with more than a threshold quantity of regulated substances to prepare and implement a risk management plan (RMP). Such an RMP needed to provide for compliance with rule requirements under CAA section 112(r) and include a hazard assessment with release scenarios, an accident history, a release prevention program, and a response program (CAA section 112(r)(7)(B)(ii)). Plans were to be registered with EPA and submitted to various planning entities (CAA section 112(r)(7)(B)(iii)). These initial rules had to apply to sources 3 years after promulgation or 3 years after a substance was first listed for regulation under CAA section 112(r) (CAA section 112(r)(7)(B)(i)). EPA fulfilled its initial obligations under section 112(r)(7)(B) with the 1996 RMP rule, but the agency views section 112(r)(7)(B) to give EPA continuing authority to improve the RMP regulations to achieve the statutory directives. In addition to the direction to use the expertise of the Secretaries of Labor and Transportation in CAA section 112(r)(7)(B), the statute more broadly requires EPA to consult with these secretaries when carrying out the authority of CAA section 112(r)(7) and to ‘‘coordinate any requirements under [CAA section 112(r)(7)] with any requirements established for comparable VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 purposes by’’ OSHA (CAA section 112(r)(7)(D)). This consultation and coordination language derives from and expands upon provisions on hazard assessments in the bill that passed in the Senate as its version of what eventually became the 1990 CAAA, section 129(e)(4) of S.1630. The Senate committee report on this language notes that the purpose of the coordination requirement is to ensure that ‘‘requirements imposed by both agencies to accomplish the same purpose are not unduly burdensome or duplicative.’’ 12 The mandate for coordination in the area of safer chemical processes was incorporated into CAA section 112(r)(7)(D). In the same legislation, Congress directed OSHA to promulgate a process safety standard that became the PSM standard (see CAAA of 1990 section 304). EPA used its authority under CAA section 112(r)(7) to issue the 1996 RMP rule (61 FR 31668; June 20, 1996), the 2017 amendments rule (82 FR 4594; January 13, 2017), and the 2019 reconsideration rule (84 FR 69834; December 19, 2019). The Agency is also implementing this authority in this proposed rulemaking. These proposed amendments address three requirements of the Risk Management Program: accident prevention program requirements, emergency preparedness requirements, and information availability requirements. The prevention program provisions in this rule address the prevention and detection of accidental releases and include the following topics: stationary source siting, safer technologies and alternatives analysis (STAA), root cause analysis incident investigation, thirdparty compliance auditing, and employee participation. The emergency response provisions in this rule modify existing provisions that provide for owner or operator responses to accidental releases. The information availability provisions discussed in this document generally assist in the development of emergency response procedures and measures to protect human health and the environment after an accidental release (CAA section 112(r)(7)(B)(i)).13 When determining 12 Committee on Environment and Public Works, 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 (December 20, 1989), https://www.regulations.gov/document/EPA-HQOEM-2015-0725-0645. EPA–HQ–OEM–2015–0725– 0645. 13 Incident investigation, compliance auditing, and STAA are also authorized as release prevention requirements pertaining to stationary source design, equipment, work practice, recordkeeping, and PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 which amendments would result in the prevention and detection of accidental releases of regulated substances to the greatest extent practicable, EPA took into consideration multiple factors including—but not limited to—the size of the facility, the quantity of the substances handled, and the location of the facility in relation to other RMP facilities in accordance with both CAA sections 112(r)(7)(A) and (B)(i). The rule distinguishes among classes and categories of sources by industry and process type, as well as likelihood of an accidental release that may impact a community. This rulemaking action therefore proposes substantive amendments to 40 CFR part 68 and is authorized by CAA section 112(r)(7)(A) and (B), as explained herein. In considering whether it is legally permissible for EPA to modify provisions of the RMP rule while continuing to meet its obligations under CAA section 112(r), the Agency notes that it has made discretionary amendments to the 1996 RMP rule several times without dispute over its authority to issue discretionary amendments. (See 64 FR 964, January 6, 1999; 64 FR 28696, May 26, 1999; 69 FR 18819, April 9, 2004.) According to the decision in Air Alliance Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018), ‘‘EPA retains the authority under Section 7412(r)(7) [CAA section 112(r)(7)] to substantively amend the programmatic requirements of the [2017 RMP amendments] . . . subject to arbitrary and capricious review’’ (906 F.3d at 1066). Therefore, EPA is authorized to modify the provisions of the current RMP regulations if it finds that it is reasonable to do so.14 The Supreme Court has also recognized that agencies have broad discretion to reconsider a regulation at any time so long as the changes in policy are ‘‘permissible under the statute, . . . there are good reasons for [them], and that the agency believes [them] to be better’’ than prior policies. (See Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); emphasis reporting. Information disclosure is also authorized as reporting (CAA section 112(r)(7)(A)). 14 See Motor Vehicle Manufacturers. Association of the United States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983). In addressing the standard of review to reconsider a regulation, the Supreme Court stated that the rescission or modification of safety standards ‘‘is subject to the same test’’ as the ‘‘agency’s action in promulgating such standards [and] may be set aside if found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ ’’ (463 U.S. at 41, quoting 5 U.S.C. 706). The same standard that applies to the promulgation of a rule applies to the modification or rescission of that rule. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 in quote original).15 As explained in detail above, the policy changes proposed in this action are permissible under the statute. Additionally, there are good reasons for the policies adopted in this rule. Accidental releases remain a significant concern to communities and cost society more than $477 million yearly.16 The risk of being impacted by an accidental release is even more apparent in communities where multiple RMP facilities are in close proximity to residential areas. Lowering the probability and magnitude of accidents by putting more of a focus on prevention reduces the risks posed by these RMP facilities, which is one of the objectives of the present RMP proposed amendments. In the 2019 reconsideration rule, the Agency justified rescinding the prevention program provisions of the 2017 amendments rule, STAA, incident investigation, root cause analysis, and third party compliance audits based on two main rationales: (1) That a case-bycase compliance-driven approach to oversight focusing on problematic sources (generally, sources that have had releases) could obtain many of the accident-reduction benefits of a rule without broadly burdening sources that were less likely to have a release under regulatory mandates, and (2) that the Agency was being consistent with the OSHA PSM prevention provisions. The Agency discusses each rationale in turn below. The conclusion in the 2019 reconsideration rule that a case-by-case, compliance-driven approach relying on traditional tools such as compliance outreach and administrative and judicial enforcement could provide many of the same benefits as a rule without imposing broad burdens rested upon an observation that accidents are declining and concentrated among few sources, allowing for concentrated compliance oversight. See 84 FR 69843– 44 (Dec. 19, 2019). While focusing on accident and impact rates, the rate analysis did not account for the likelihood that low-probability, high consequence events could impact 15 The full quote from Fox states: ‘‘But [the Agency] need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates’’ (Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. at 515; emphasis original). 16 A full description of costs and benefits for this proposed rule can be found in the Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Proposed Rule (April 19, 2022). This document is available in the docket for this rulemaking (EPA–HQ–OLEM–2022–0174). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 trends. Thus, in the 2019 reconsideration rule, EPA acknowledged the decline in yearly total count of accidents and accident rates. For the 2017 amendments rule and 2019 reconsideration rule, EPA analyzed accidents for the periods 2004 to 2013, and 2014 to 2016, respectively.17 Using a yearly average for the 2017 amendments rule (2004–2013) and the 2019 reconsideration rule (2014–2016), in 2019 EPA found declining yearly averages for every metric of onsite and offsite damage.18 As part of this proposed rule, EPA analyzed accidents from 2016 to 2020.19 The impacts of high consequence RMP-reportable accident events between 2017 and 2020 demonstrate the impact of lowprobability, high consequence events on annual averages. For example, using the same methods used in the 2019 rule, current data show the average annual rate of those seeking medical treatment increased by 230% (10 per year in the 2019 reconsideration rule and 33 per year for this proposed rule); evacuations increased by 75% (1,868 per year versus 3,268 per year) and accidents resulting in sheltering in place increased by 18% (12,534 per year versus 14,845 per year). The more current data since the 2019 analyses shows that reliance on a declining trend in accidents and impacts to conduct selective, often postincident oversight may prove insufficiently effective over time and make it difficult to stay ahead of reversals in trends. Recent accidents also highlight EPA’s improper reliance on only annual count of total accidents to address the lowprobability, high-consequence nature of accidental releases. For example, while the annual count of accidents decreased overall between 2016 and 2020, in 2019, the TPC Group explosion and fire in Port Neches, Texas, reported the largest number of persons ever evacuated (n=50,000) as a result of an RMPreportable incident, as well as $153 million in offsite property damage. Large events are rare, but to the extent that CAA 112(r) was intended as a prevention program for large catastrophic releases, selective oversight through a ‘‘compliance-driven’’ approach that relies heavily on determining if the facility was compliant with accident prevention regulations after an accident occurred 17 Exhibit 6–2, Page 77, EPA–HQ–OEM–2015– 0725–2089. 18 The exception being a higher annual average offsite property damage for the period of 2014–2016 as compared to 2004–2013. 19 In the RIA for this proposed rule, EPA includes 2016 again to account for accidents not reported prior to the 2019 reconsideration rule analysis. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 53565 would not meet the goal of preventing the initial accident. The RMP rule must be broader based, and rule-driven in order to have stationary sources handling dangerous chemicals work to prevent potentially catastrophic incidents. Additionally, the 2019 reconsideration rule failed to acknowledge that mostly relying on relief like post-accident settlement, particularly at those industries that already have a history of frequent accidents, entails significant transaction costs, delays, and uncertainty of obtaining necessary prevention improvements. While such delays and transaction costs are inherent in compliance oversight and the enforcement process, the failure of the 2019 reconsideration rule to address this important limitation on the feasibility and utility of a ‘‘compliancedriven’’ approach is a flaw in the determination made in 2019 that such an approach is a reasonable substitute for a rule-driven approach to prevention. While enforcement of the RMP regulation has and will continue to occur, EPA expects under a rule-drive approach most facilities will proactively make the necessary prevention improvements to be in compliance with the rule to avoid enforcement. The 2019 reconsideration rule does not acknowledge that settlements often involve compromises, and that, in the course of settlement, EPA cannot always obtain all appropriate relief. The history of one of EPA’s largest enforcement actions under the RMP rule involving Chevron’s operations illustrates many of these points. EPA’s enforcement engagement with Chevron began shortly after a fire at the Richmond, CA, refinery in August 2012. Subsequent accidents at Chevron refineries in El Segundo, CA, and Pascagoula, MS, led EPA to investigate all five Chevron refineries in the United States, including refineries in Salt Lake City, UT and Kapolei, HI (no longer owned by Chevron). EPA concluded a final civil judicial settlement with Chevron in October 2018, more than 6 years after the investigation began.20 Moreover, as discussed in more detail below, even when individual facilities have not yet experienced an accident, certain classes of facilities are more likely to have accidents near communities. Communities surrounding these classes of facilities would benefit from rule-based prevention prior to 20 U.S. Environmental Protection Agency, Chevron Settlement Information Sheet, https:// www.epa.gov/enforcement/chevron-settlementinformation-sheet. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53566 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules incidents, rather than the case-by-case oversight approach of the 2019 reconsideration rule. Regarding alignment with OSHA PSM prevention provisions, the 2019 reconsideration rule indicated that the 2017 amendments rule only represented a departure from PSM requirements. The 2019 reconsideration rule acknowledged there were no legal requirements to defer to OSHA in rulemaking, or for EPA and OSHA to proceed on identical timelines in making changes to the RMP rule and PSM standard, and that some divergence between the RMP rule and PSM standard may at times be necessary given the agencies’ separate missions. See 83 FR 24863–64. While EPA, in the 2019 reconsideration rule, decided to take a traditional approach of maintaining consistency with OSHA PSM because benefits were recognized at that time, EPA now believes the benefits of a rule-based prevention for certain high-risk classes of facilities could help prevent high consequence accidents that affect communities, such as the TPC Group explosion. Furthermore, the statute’s consult-andcoordinate requirements are to ensure the agencies are working together to ensure rules are compatible and not conflicting. The proposed prevention program provisions presented today are compatible and do not conflict with the prevention provisions of OSHA PSM, as detailed further in the discussions of each provision. In contrast to the 2019 approach, the approach taken in this proposal for the prevention program provision, STAA, incident investigation root cause analysis, and third-party compliance audits, refines the focused regulatory approach found in the 2017 amendments rule, and proposes provisions modified from those in the 2017 amendments rule, to better identify risky facilities to prevent accidental releases before they can occur. As explained in further detail in following sections of this preamble, EPA therefore maintains that by taking a rule-based, prevention-focused approach in this action rather than the 2019 reconsideration rule’s compliancedriven, mostly post-incident, approach, the proposed rule revisions could further protect human health and the environment from chemical hazards through PSM advancement without undue burden. Similarly, other proposed modifications to approaches adopted in 2019 to information disclosure and emergency response will also better balance security concerns with improved community awareness and lead to better community VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 preparedness for accidents.21 To the extent that both approaches are reasonable, the approach of this proposed rule would be more protective, and thus provide for release prevention, detection, and response ‘‘to the greatest extent practicable’’ among the reasonable approaches. IV. Proposed Action 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, but major accidents continue to occur. More importantly, even though there has been a long-term trend of reducing accidents and the gravity of accidents, this trend can be improved to further protect human health and the environment. Below EPA presents several proposed amendments for consideration and public comment. Many of these amendments would better focus new prevention program elements on particular classes of facilities than the 2017 amendments rule, and promote more information availability, employee participation and emergency response measures than the 2019 reconsideration rule. As a result of the changes in this proposal, the Agency, as described in further detail below, considered the possibility of potential reliance interests associated with portions of the 2019 reconsideration rule. The Agency views these proposed measures and other aspects of this proposed rule as integrated and reinforcing. As discussed below, some of the proposed rule changes focus enhanced prevention measures like STAA and third-party auditing on individual sources and classes of sources with a history of accidental releases. Were the proposed rule adopted, EPA believes that many if not most sources are likely to respond to this approach of triggering requirements based on accident history by undertaking enhanced prevention measures to comply with the rule and avoid accidents. However, some sources may try to evade these enhanced accident prevention requirements by avoiding reporting incidents that trigger additional requirements. The employee participation, public information availability, and emergency response measures would make it more difficult to evade the accident history-triggered requirements by leveraging workers and the public in facility oversight. Thus, in 21 The term ‘‘information disclosure’’ refers to specific provisions adopted in 2017 that the 2019 reconsideration rule rescinded. EPA uses the term ‘‘information availability’’ in the current rulemaking to mean the broader set of measures the Agency is adopting today. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 addition to the merits of each proposed provisions as considered in isolation, the proposed rule changes can be seen as complementary to each other. Adopting these provisions together will help ensure owners and operators have these complementing measures in place to prevent or minimize accidental release of their regulated substances to protect human health and the environment. Nevertheless, while many of the provisions reinforce each other, EPA also views each one as merited on its own if it ultimately adopted, and thus severable should there be judicial review. A. Prevention Program 1. Hazard Evaluation Amplifications a. Introduction A hazard evaluation is defined as the identification of individual hazards of a system, determination of the mechanisms by which they could give rise to undesired events, and evaluation of the consequences of these events on health (including public health), environment, and property. These evaluations often use qualitative techniques to pinpoint weaknesses in the design and operation of facilities that could lead to incidents.22 Current requirements exist within the RMP rule to conduct these evaluations. RMP hazard evaluation regulations require, among other things, owners or operators with Program 2 processes to conduct hazard reviews under 40 CFR 68.50(a) that identify: (1) The hazards associated with the process and regulated substances; (2) opportunities for equipment malfunctions or human errors that could cause an accidental release; (3) the safeguards used or needed to control the hazards or prevent equipment malfunction or human error; and (4) any steps used or needed to detect or monitor releases. Owners or operators with Program 3 processes are required to conduct process hazard analyses (PHAs) under 40 CFR 68.67(c) that address: (1) The hazards of the process; (2) the identification of any previous incident which had a likely potential for catastrophic consequences; (3) engineering and administrative controls applicable to the hazards and their interrelationships, such as appropriate application of detection methodologies to provide early warning of releases (acceptable detection methods might include process monitoring and control instrumentation 22 Center for Chemical Process Safety (CCPS), ‘‘CCPS Process Safety Glossary,’’ accessed January 28, 2022, https://www.aiche.org/ccps/resources/ glossary?title=hazard+evaluation#views-exposedform-glossary-page. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules with alarms, and detection hardware such as hydrocarbon sensors); (4) consequences of failure of engineering and administrative controls; (5) stationary source siting; (6) human factors; and (7) a qualitative evaluation of a range of the possible safety and health effects of failure of controls. The hazard evaluation requirements are key to understanding how to operate safely and prevent accidents and the release of hazardous substances. In developing the initial 1996 RMP rule, the Agency recognized that many workplace hazards also threaten public receptors and that most accident prevention steps taken to protect workers also protect the public and the environment. Consequently, EPA adopted and built on much of the existing accident prevention language from OSHA’s PSM standard, including the process hazard analysis (PHA) language from 29 CFR 1910.119(e). EPA’s understanding of the PHA was based on OSHA’s: 23 a PHA analyzes potential causes and consequences of fires, explosions, releases of toxic or flammable chemicals, and major spills of hazardous chemicals. The PHA focuses on equipment, instrumentation, utilities, human actions (routine and nonroutine), and external factors that might impact the process. These considerations assist in determining the hazards and potential failure points or failure modes in a process. OSHA pointed to detailed industry guidance that serves as the basis for understanding what hazards are widely recognized as threats to safe chemical process operations. For example, the American Institute of Chemical Engineers’ Center for Chemical Process Safety (CCPS) developed the publication ‘‘Guidelines for Hazard Evaluation Procedures,’’ 24 which EPA and OSHA agree generally addresses the most common categories of hazards relevant to facilities that handle hazardous chemicals. While EPA and OSHA have not explicitly added language in their regulations on certain hazard evaluation elements that were assumed implicit and recognized as hazards among industry, EPA seeks to emphasize that some hazards should be explicitly addressed by facilities to further protect human health and the environment. EPA is not proposing additional regulatory requirements from what already exists in the RMP regulations, rather EPA is proposing adding 23 See 58 FR 54190, October 20, 1993, p. 54204. CCPS Guidelines for Hazard Evaluation Procedures, 3rd Edition (New York: American Institute of Chemical Engineers, 2008). 24 CCPS, VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 regulatory text to emphasize that natural hazards and loss of power are among the hazards that must be addressed in hazard reviews and PHAs. EPA is also proposing to emphasize that facility siting should be addressed in hazard reviews, and to explicitly define the facility siting requirement for Program 2 and Program 3 hazard evaluations. EPA seeks to better reflect its longstanding regulatory requirement rather than impose additional regulatory requirements (and potential additional costs) that diverge from the OSHA PSM regulatory requirements. EPA has coordinated with OSHA throughout the development of this proposed rule to ensure the intent of adding specificity to these hazard evaluation requirements is consistent with the intent and meaning of the OSHA PSM standard to avoid inconsistencies between the two regulatory programs. b. Natural Hazards Natural hazards (e.g., extreme temperatures, high winds, floods, earthquakes, wildfires) are hazards for chemical facilities because they have the potential to initiate accidents and challenge hazardous chemical process equipment and operations. If not properly managed, these hazards can trigger chemical accidents that threaten human health and the environment. EPA believes many facilities with RMP processes are generally managing natural hazards well; however, some RMP accidents are still being reported as linked to natural hazards. Climate change increases the threat of extreme weather as a natural hazard. Therefore, EPA is proposing to emphasize that natural hazards should explicitly be included in the hazards evaluated in hazard reviews and PHAs for Program 2 and Program 3 RMP-regulated processes. EPA believes making more explicit this already-existing accident prevention program requirement 25 will ensure the threats of natural hazards are properly evaluated and managed to prevent or mitigate releases of RMPregulated substances at covered facilities. CCPS’ ‘‘Guidelines for Hazard Evaluation Procedures’’ 26 includes external events as a hazard evaluation category that should be addressed. It defines these as events external to the system/plant caused by: (1) A natural hazard (e.g., earthquake, flood, tornado, extreme temperature, lightning) or (2) a human induced event (aircraft crash, missile, nearby industrial activity, fire, sabotage, etc.). At the time of initial RMP rule development, EPA had not explicitly added language about considering external events to the rule. However, EPA did acknowledge that sources must consider the hazards created by external events. In the 1996 RMP final rule Response to Comments,27 EPA indicated the following: ‘‘As part of a properly conducted PHA, sources would normally consider whether a process is vulnerable to damage caused by external events, such as earthquakes, floods, high winds, and evaluate the potential consequences if such events damaged the integrity of the process.’’ To further express this expectation, EPA’s RMP guidance states: ‘‘Natural Events and Other Outside Influences: Whichever [hazard review/process hazard analysis] approach you use, you should consider reasonably anticipated external events as well as internal failures. If you are in an area subject to earthquakes, hurricanes, or floods, you should examine whether your process would survive these natural events without releasing the substance. In your hazard review, you should consider the potential impacts of lightning strikes and power failures.’’ 28 In comments submitted during the 2021 listening sessions,29 some industry trade associations stated that the current provisions of the RMP rule are sufficient to protect against climate-related impacts.30 Specifically, one industry trade association remarked that ‘‘under requirements in the current program, the impact of severe weather events such as storms and flooding on operations and consequently the risk they pose for an accidental release, must already be considered and addressed in the plans submitted to EPA.’’ 31 Despite this general knowledge that natural hazards are process hazards that should be evaluated and addressed during hazard reviews and PHAs, EPA’s recent review of the RMP National Database indicates that when reporting accidents, some RMP facilities report ‘‘natural’’ and ‘‘unusual weather conditions’’ as the respective initiating event or as a contributing factor to their 27 A–91–73–IX–C–1-Volume-1[H], pp. 9–23. General Guidance on Risk Management Programs for Chemical Distributors, Ch. 6: Prevention Programs (2004), pp. 6–10 to 6–11, https://www.epa.gov/sites/default/files/2013-11/ documents/chap-06-final.pdf. 29 EPA–HQ–OLEM–2021–0312. 30 EPA–HQ–OLEM–2021–0312–0005; 0045. 31 EPA–HQ–OLEM–2021–0312–0005. 28 EPA, 25 Existing requirements of the hazards to be evaluated in hazard evaluations are found at 40 CFR 68.50(a) for Program 2 processes and at 40 CFR 68.67(a)–(c) for Program 3 processes. 26 CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd Edition (New York: American Institute of Chemical Engineers, 2008). PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 53567 E:\FR\FM\31AUP2.SGM 31AUP2 53568 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 accidents.32 According to the Agency’s data from 2004–2020, facilities reported 38 RMP-reportable accidents as having a natural cause as the initiating event of their accident and another 46 RMPreportable accidents as having unusual weather conditions as a contributing factor of their accident.33 In addition to these natural hazardlinked accidents, RMP data indicate that the locations of many RMP facilities leave them exposed to natural hazards. In a review of the National Oceanic and Atmospheric Administration’s Storm Events Database from the last two decades, EPA generally found that extreme weather events are common in counties with RMP facilities. For example, during 2000–2020, over 90 percent of counties with RMP facilities experienced flooding, 1 in 4 counties with RMP facilities suffered damage from hurricanes, and counties with RMP facilities have on average experienced 30 floods (over one per year) and 40 extreme winter weather events (approximately two per year), such as blizzards. Some counties with RMP facilities also experience extreme weather events much more often than average. For instance, many regions in Florida, Louisiana, and South Carolina were impacted by more than 30 hurricanes over the prior 20 years. Similarly, regions of northern California and Oregon suffered from over 500 days of wildfires during the same period.34 With new studies showing that the threat of natural hazards is increasing, actions to ensure natural hazards are evaluated and properly managed are critical. A recent report by the Center for Progressive Reform, Earthjustice, and the Union of Concerned Scientists— entitled ‘‘Preventing ‘Double Disasters’’ 35—indicates that one-third of RMP facilities are at risk of climaterelated events, such as wildfire, flooding, hurricane storm surge, and/or coastal flooding. This finding is nearly 32 These fields are options when reporting accidents on RMP reports. Description of these options: EPA, Risk Management Plan: RMP*eSubmit User’s Manual (2019), pp. 76–77. https://www.epa.gov/sites/default/files/2019-03/ documents/rmpesubmit_user_guide_-_march_2019_ final_0.pdf. 33 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 34 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 35 David Flores, et al., Preventing ‘‘Double Disasters’’ (2021), https://www.ucsusa.org/sites/ default/files/2021-07/preventing-double-disasters% 20FINAL.pdf. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 identical to the estimate of the Government Accountability Office in its recent report, ‘‘Chemical Accident Prevention: EPA Should Ensure Regulated Facilities Consider Risks from Climate Change.’’ 36 The 2018 National Climate Assessment 37 and several publications from the Intergovernmental Panel on Climate Change, which are authoritative sources for the impacts of climate change on the severity and frequency of weather events, found that there is a scientific consensus that the future holds increased risks of more severe and frequent extreme weather events, including tropical cyclones, coastal flooding, wildfire, tornados, severe thunderstorms, and extreme precipitation. EPA must consider the increased risk to RMP facilities. The Chemical Safety and Hazard Investigation Board (CSB) and many public listening session commenters identified the August 2017 Arkema Inc. chemical plant fire in Crosby, Texas, as a significant accident caused by natural hazards.38 39 40 Flooding from Hurricane Harvey disabled the refrigeration system at the Arkema plant, which allowed the temperature of organic peroxides to increase and spontaneously combust. Twenty-one people sought medical attention from reported exposures to the fumes. More than 200 residents living near the facility were evacuated and could not return home for a week. While this part of the Arkema facility was not an RMP-regulated process, the increased occurrence of extreme-weather-caused events like this highlight the importance of ensuring proper evaluation of natural hazards on process operations. As a result of the Arkema incident, CSB developed a safety alert that includes guidance for chemical plants during extreme weather events.41 In the final report on the Arkema incident,42 CSB recommended CCPS develop broad 36 U.S. Government Accountability Office, Chemical Accident Prevention: EPA Should Ensure Regulated Facilities Consider Risks from Climate Change (2022), https://www.gao.gov/assets/gao-22104494.pdf. 37 U.S. Global Change Research Program, Fourth National Climate Assessment (2018), https:// nca2018.globalchange.gov/. 38 CSB, ‘‘Arkema Inc. Chemical Plant Fire,’’ last modified May 24, 2018, https://www.csb.gov/ arkema-inc-chemical-plant-fire-/. 39 Center for Progressive Reform, Preventing Double Disasters (2021), https:// www.regulations.gov/comment/EPA-HQ-OLEM2021-0312-0035. EPA–HQ–OLEM–2021–0312– 0035–10. 40 EPA–HQ–OLEM–2021–0312–0004; 0080, 0081. 41 CSB, 2020 Hurricane Season: Guidance for Chemical Plants during Extreme Weather Events (n.d.), https://www.csb.gov/assets/1/6/extreme_ weather_-_final_w_links.pdf. 42 CSB, ‘‘Arkema Inc. Chemical Plant Fire,’’ last modified May 24, 2018, https://www.csb.gov/ arkema-inc-chemical-plant-fire-/. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 and comprehensive guidance to help companies assess their U.S. facility risk from potential extreme weather events. As a result, CCPS produced the monograph, ‘‘Assessment of and Planning for Natural Hazards.’’ 43 In addition to outlining the importance of rising threats, it outlines resources that many of its member companies—many of which have RMP-regulated processes—have successfully used to identify natural hazards, gather data and identify equipment to be addressed in natural hazard assessments, and evaluate and meet design criteria of equipment according to recognized and generally accepted good engineering practices (RAGAGEP). With climate change-related natural hazards as a global concern, other countries are also expanding efforts to address natural hazards at chemical facilities. For example, the Organisation for Economic Co-operation and Development Programme on Chemical Accidents started work on natural hazards triggering technological accidents (‘‘NaTech’’) risk management in 2008 in partnership with the European Commission Joint Research Center, the United Nations Environment Programme, and the United Nations Economic Commission for Europe. The project aimed to investigate NaTech prevention, preparedness, and response to chemical accidents; exchange experience across countries; and provide guidance on NaTech risk management. Studies, databases, and information continue to be collected and published to help countries manage this increasing threat.44 While well-prepared hazard evaluations under the RMP rule already address NaTech, EPA is proposing to emphasize that natural hazards, including those associated with climate change, be explicitly addressed in RMP Program 2 hazard reviews and Program 3 PHAs. EPA is proposing to make language changes that include requiring hazard evaluations under 40 CFR 68.50(a)(5) and 68.67(c)(8) to address external events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release. EPA is also proposing to define natural hazards in a way that is similar 43 CCPS, CCPS Monograph: Assessment of and Planning For Natural Hazards (American Institute of Chemical Engineers, 2019), https:// www.aiche.org/sites/default/files/html/536181/ NaturalDisaster-CCPSmonograph.html. 44 Organisation for Economic Co-operation and Development, ‘‘Risks from Natural Hazards at Hazardous Installations (Natech),’’ accessed January 28, 2022, https://www.oecd.org/chemicalsafety/ chemical-accidents/risks-from-natural-hazards-athazardous-installations.htm. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules to the description used by CCPS. Under the proposed rule, natural hazards would be defined as naturally occurring events with the potential for negative impacts, including meteorological hazards due to weather and climactic cycles, as well as geological hazards. EPA seeks comment on this approach. EPA continues to expect facilities to utilize all available resources to properly evaluate what natural hazards could potentially trigger accidental releases from their regulated processes. EPA understands that natural hazards and process operations vary throughout the United States. However, because the RMP rule is performance-based, EPA believes that all regulated RMP facilities can be successful in addressing natural hazards within their risk management programs. Because natural hazards continue to be a factor in RMP accidents and present a growing threat to process safety at RMP facilities, a requirement to evaluate and control natural hazards should be explicitly stated in the RMP regulation. While EPA will continue to rely on available industry guidance to evaluate compliance with this provision, the Agency requests public comment on whether EPA should develop additional guidance (beyond the Agency’s existing RMP general guidance for risk management programs) 45 to help regulated facilities comply with this provision. EPA is particularly interested in comments related to suggested information resources such as databases, checklists, or narrative discussions, as well as commenters’ recommendations for regional versus national, or sectorspecific guidance. As an alternative to the preferred approach, EPA seeks comment on whether to specify areas most at risk from climate or other natural events by adopting the list of areas exposed to heightened risk of wildfire, flooding, storm surge, or coastal flooding identified in, ‘‘Preventing Double Disasters,’’ discussed above. EPA could also add areas prone to earthquake to this list of areas, which presents a significant risk of NaTech that is unrelated to climate. Would this more definite, but limited, approach be easier to implement for stationary sources? Would this be simpler for public oversight by providing a specific reference such that all parties would know whether there is a heightened risk for a potential climate or earthquake impact at a facility? Should the Agency 45 EPA, ‘‘Guidance for Facilities on Risk Management Programs (RMP),’’ last modified December 20, 2021, https://www.epa.gov/rmp/ guidance-facilities-risk-management-programsrmp#general. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 require sources in these areas to conduct hazard evaluations associated with climate or earthquakes as a minimum, while also requiring that all sources consider the potential for natural hazards unrelated to climate or earthquakes in their specific locations? c. Power Loss Whether caused by a natural hazard or some other event, power loss at hazardous chemical facilities can lead to a variety of negative impacts. Pumps and compressors may stop running, stirrers may quit mixing, lights may go out, and instruments and controls may malfunction. These equipment outages can lead to tank overflows, runaway chemical reactions, temperature or pressure excursions, or other process upsets which could lead to a spill, explosion, or fire. Even if there is no immediate release, thermal shock or other factors could result in a delayed effect that compromises the mechanical integrity of equipment during subsequent operations. When power is restored even after a brief interruption, some equipment may automatically restart before process operations are ready, while other equipment may need to be reset and manually restarted. When a facility relies on electrical power for any aspect of its process operations, it is imperative to anticipate how power loss affects the safeguards that prevent releases of hazardous chemicals. Power loss has resulted in serious accidents at RMP-regulated facilities. The aforementioned 2017 Arkema incident highlighted the hazard of power loss on process safety; other previous incidents have also highlighted this hazard and offered lessons on potential safeguards that could be applied to prevent accidental chemical releases. The accidents described below—all associated with power failure—are examples of these situations and their potential severity. They also highlight the in-depth evaluation needed to prevent loss of power from resulting in an accidental release. On May 1, 2001, at General Chemical Corp., in Richmond, California, a truck struck a utility pole, causing a power interruption and total plant shutdown. Shortly after, sulfur dioxide and sulfur trioxide began to escape from a boiler exit flue. When power was restored a short time later, a steam turbine that was required to keep the boiler exit flue under negative pressure could not be immediately restarted. While the turbine could not be restarted, residents near the plant were instructed to remain indoors. Somewhere between 50 to 100 individuals sought medical attention PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 53569 following the release. Troubleshooting revealed that an automatically controlled governor valve had malfunctioned.46 On August 23, 2010, at the Millard Refrigerated Services in Theodore, Alabama, hydraulic shock caused a roofmounted suction pipe to catastrophically fail, leading to the release of more than 32,000 pounds of anhydrous ammonia. The hydraulic shock occurred during the restart of the plant’s ammonia refrigeration system following a 7-hour power outage. Downwind of the ammonia release were crew members on the ships docked at Millard and over 800 contractors working outdoors at a clean-up site for the Deepwater Horizon oil spill. Nine ship crew members and 143 of the offsite contractors downwind reported exposure. Of the victims, 32 required hospitalization and four were placed in intensive care.47 National Response Center data also include information on 3,077 reported accidents from 2004–2020 that were associated with power loss.48 While most of these incidents did not involve RMP chemicals, processes, or accidental releases as defined in CAA 112(r)(2), these events demonstrate a connection between the loss of power, loss of containment, and release into the environment. The European Union published a 2021 bulletin that presents lessons learned from incidents worldwide involving power supply failures. The findings point to the importance of understanding the scenarios triggered by a primary failure in external power supply systems, power loss attributed to failures of onsite electrical equipment or electrical components, and even failures of redundant power supplies. In addition to providing statistics on the effects of power outages at chemical facilities, data provided by the European Union indicate that power failures at hazardous sites have resulted in 21 fatalities and over 9,500 injuries worldwide since 1981, as well as significant property damage and production loss from resulting fires and explosions. The most catastrophic event in the study occurred in Sakai (Osaka), 46 EPA, Chemical Accidents from Electric Power Outages (Office of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/ files/2013-11/documents/power.pdf. 47 CSB, ‘‘Millard Refrigerated Services Ammonia Release,’’ last modified January 15, 2015, https:// www.csb.gov/millard-refrigerated-servicesammonia-release/. 48 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 53570 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Japan, in 1982. It killed six people, injured 9,080 others (of which 8,876 were offsite), and destroyed 1,788 buildings.49 EPA has long recognized that loss of power can threaten hazardous chemical processes and cause accidental releases if not properly managed. While EPA did not specifically require power loss to be evaluated for Program 2 and Program 3 hazard reviews and PHAs, EPA and OSHA guidance has referred to it. In addition to acknowledging power failure in the Agency’s ‘‘General Guidance on Risk Management Programs for Chemical Distributors,’’ 50 in 2001 EPA issued the safety alert, ‘‘Chemical Accidents from Electric Power Outages.’’ 51 These guidelines warned RMP facilities that power outages and restarts could potentially trigger serious chemical accidents. The alert outlined some of the accidents previously discussed and warned that process operations must be evaluated for the consequences of power outages to ensure that the process remains safe. It also indicates that if there is critical equipment that needs to operate to ensure the safety of the process or work area, facilities should install backup power supplies and services. In 2008, OSHA published an interpretation letter 52 that addressed the concern about utility systems and their evaluation within the scope of PSM. OSHA indicated that the proper, safe functioning of all aspects of a process, whether they contain a highly hazardous chemical 53 or not, are important for the prevention and mitigation of catastrophic releases of highly hazardous chemicals. OSHA’s position is that any engineering control (including utility systems) which does not contain a highly hazardous chemical (HHC) but can affect or cause a release of an HHC or interfere in the mitigation of the consequences of a release must be, at a minimum, evaluated, designed, installed, operated (with appropriate training and procedures), changed, and inspected/tested/maintained per OSHA PSM requirements. OSHA provided the 49 Chemical Accident Prevention & Preparedness (European Commission, 2021), https://minerva.jrc. ec.europa.eu/en/shorturl/minerva/mahb_bulletin_ 15_on_power_failuresfinalpubsypdf. 50 EPA, General Guidance on Risk Management Programs for Chemical Distributors, Ch. 6: Prevention Programs (2012), pp. 6–10 to 6–11, https://www.epa.gov/sites/default/files/2013-11/ documents/chap-06-final.pdf. 51 EPA, Chemical Accidents from Electric Power Outages (Office of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/ files/2013-11/documents/power.pdf. 52 OSHA, ‘‘Standard Interpretation 1910.119,’’ accessed January 28, 2022, https://www.osha.gov/ laws-regs/standardinterpretations/2008-01-31. 53 Term similar to ‘‘RMP-regulated substance.’’ VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 example of an employer that identifies, through its PHA, that safe operation of its covered process relies on the electrical utility system. In response, the employer could determine that an uninterruptible power supply would be an appropriate safeguard against the loss of electrical utility to the process equipment. EPA believes making more explicit this already-existing accident prevention program requirement, to evaluate hazards of the process 54 will ensure the threats of power loss are properly evaluated and managed to prevent or mitigate releases of RMPregulated substances at covered facilities. EPA believes many facilities with RMP processes are managing the hazard of power loss. However, some recent RMP accidents are linked to power loss. EPA’s review of RMP accident history data from 2004–2020 shows that at least 20 accident history reports have specifically indicated that power failure was a contributing factor to an accident. However, only 63 percent (310) and 44 percent (1,971) of facilities with Program 2 and Program 3 processes, respectively, have implemented backup power at their facilities, despite identifying that the loss of cooling, heating, electricity, and instrument air is a major potential hazard to their process operations.55 56 The frequency and severity of extreme weather events may exacerbate power failure events if the impacts of potential power failures are not identified, and control strategies are not implemented. Climate change poses long-term challenges because it affects the frequency, intensity, and duration of weather events that represent the largest source of disruptions to the U.S. electricity grid. New studies have shown that the threat of power loss is increasing for utility customers. The Department of Energy reported that an increase in extreme weather events has led to an increase in power outages in recent years. Specifically, the Department of Energy’s U.S. Energy Information Agency’s data showed that electric power for U.S. customers was interrupted for an average of 7.8 hours (470 minutes) in 2017, nearly double the average total duration of interruptions 54 Existing requirements of the hazards to be evaluated in hazard evaluations are found at 40 CFR 68.50(a) for Program 2 processes and at 40 CFR 68.67(a)–(c) for Program 3 processes. 55 EPA recognizes that not all RMP-regulated processes will need emergency backup power (for example, certain RMP-regulated storage processes). 56 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 experienced in 2016. Data indicate that more major weather events, such as hurricanes and winter storms, occurred in 2017 than in previous years, and the total duration of power interruptions caused by major events was longer.57 58 Recent major power outages also provide examples of this threat. In February 2021 in Texas, Winter Storm Uri left 4.5 million customers without power, some for several days.59 In January 2022, one of the five worst winter storms in Virginia’s history resulted in approximately 400,000 Dominion Energy customers experiencing a power outage when heavy snow and high winds impacted utility services.60 Events like these also have the potential to impact hazardous chemical process operations. Therefore, EPA is proposing to further emphasize loss of power in the hazards evaluated in hazard reviews and PHAs for Program 2 and Program 3 RMPregulated processes. EPA believes further emphasis on these accident prevention program provisions will ensure that the risk of power failure is properly evaluated and managed to prevent or mitigate releases of RMPregulated substances at covered facilities. EPA is proposing to include emphasizing that hazard evaluations under 40 CFR 68.50(a)(3) and 68.67(c)(3) address standby or emergency power systems. EPA expects facilities to continue to use available resources to properly evaluate whether power loss is a hazard to their process and, if so, implement appropriate controls to prevent or reduce that hazard. In addition to the hazard evaluation guidance offered by CCPS and other industry-specific resources, below are resources that broadly discuss options for evaluation of power loss and standby power: • National Fire Protection Association (NFPA) 70: National Electrical Code.61 57 U.S. Energy Information Administration, ‘‘Today in Energy,’’ last modified November 30, 2018, https://www.eia.gov/todayinenergy/ detail.php?id=37652#. 58 Department of Energy, ‘‘Electric Disturbance Events (OE–417) Annual Summaries,’’ accessed January 28, 2022, https://www.oe.netl.doe.gov/ OE417_annual_summary.aspx. 59 Chris Stipes, ‘‘New Report Details Impact of Winter Storm Uri on Texans,’’ University of Houston, last modified March 29, 2021, https:// uh.edu/news-events/stories/2021/march-2021/ 03292021-hobby-winter-storm.php. 60 Dominion Energy, ‘‘Dominion Energy Making Significant Progress Restoring Power, Preparing for Second Winter Storm,’’ last modified January 5, 2022, https://news.dominionenergy.com/2022-0105-Dominion-Energy-Making-Significant-ProgressRestoring-Power,-Preparing-for-Second-WinterStorm. 61 NFPA, NFPA 70, National Electric Code (2020), https://www.nfpa.org/codes-and-standards/all- E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 • NFPA 110: Standard for Emergency and Standby Power Systems.62 • NFPA 1600: Standard on Continuity, Emergency, and Crisis Management.63 • 3005.4–2020: Institute of Electrical and Electronics Engineers (IEEE) Recommended Practice for Improving the Reliability of Emergency and Stand By Power Systems.64 • 3006.7–2013: IEEE Recommended Practice for Determining the Reliability of 7x24 Continuous Power Systems in Industrial and Commercial Facilities.65 • National Renewable Energy Laboratory (NREL), ‘‘Backup power cost of ownership analysis and incumbent technology,’’ NREL, NREL/TP–5400– 60732, Golden, CO (2014).66 • NREL, ‘‘A comparison of fuel choice for backup generators,’’ NREL, NREL/TP–6A50–72509, Golden, CO (2019).67 The Agency is concerned that the threat of extreme weather events has and will be used by some owners or operators to justify disabling equipment designed to monitor and detect chemical releases of RMP-regulated substances at their facility. EPA is concerned that air monitoring and control equipment is often removed from service before natural disasters to potentially prevent damage to equipment or, conceivably in some cases, evade monitoring requirements and therefore may not become operational again until much later, after the event or threat has passed. To prevent accidents, RMP owners or operators are required to develop a program that includes monitoring for accidental releases. EPA does not believe natural disasters should be treated as an exception to this codes-and-standards/list-of-codes-and-standards/ detail?code=70. 62 NFPA, NFPA 110, Standard for Emergency and Standby Power Systems (2022), https:// www.nfpa.org/codes-and-standards/all-codes-andstandards/list-of-codes-and-standards/ detail?code=110. 63 NFPA, NFPA 1600, Standard on Continuity, Emergency, and Crisis Management (2019), https:// www.nfpa.org/codes-and-standards/all-codes-andstandards/list-of-codes-and-standards/ detail?code=1600. 64 IEEE, IEEE Recommended Practice for Improving the Reliability of Emergency and Stand By Power Systems (2020), https://standards. ieee.org/ieee/3005.4/6218/. 65 IEEE, IEEE Recommended Practice for Determining the Reliability of 7x24 Continuous Power Systems in Industrial and Commercial Facilities (2013), https://ieeexplore.ieee.org/ document/6493367. 66 Kurtz, J., et al., Backup Power Cost of Ownership Analysis and Incumbent Technology Comparison (2014), https://www.nrel.gov/docs/ fy14osti/60732.pdf. 67 Ericson, S., and Olis, D., A Comparison of Fuel Choice for Backup Generators (2019), https:// www.nrel.gov/docs/fy19osti/72509.pdf. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 requirement. A large-scale natural disaster may threaten multiple RMP facilities in a community simultaneously, leaving communities to endure the direct effects of a natural disaster without receiving warning of associated chemical releases. EPA wants to ensure RMP-regulated substances at covered processes are continually being monitored so that potential exposure to chemical substances can be measured during and following a natural disaster. Some industry standards already require continuous monitoring of process chemicals. For example, the International Institute of Ammonia Refrigeration’s (IIAR’s) ‘‘Minimum Safety Requirements for Existing Closed Circuit Ammonia Refrigeration Systems’’ requires facilities with ammonia refrigeration systems to provide a means for monitoring the concentration of an ammonia release in the event of a power failure.68 While EPA is not requiring implementation of standby or emergency power for the entirety of an RMP process, EPA is proposing to require air pollution control or monitoring equipment associated with prevention and detection of accidental releases from RMP-regulated processes to have standby or backup power to ensure compliance with the intent of the rule. EPA seeks comment and data on this proposed provision, particularly on any potential safety issues associated with it. d. Stationary Source Siting 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, it may allow such effects to dissipate prior to reaching receptors. Siting of processes and equipment within a stationary source can impact the surrounding community not only through the proximity of the accidental release to offsite receptors adjacent to the facility boundary (e.g., people, infrastructure, environmental resources), but also through increasing the likelihood of a secondary ‘‘knockon’’ release by compromising nearby processes. EPA is proposing to emphasize the requirement to consider stationary source siting in regulatory 68 IIAR, IIAR–9–2020 Minimum Safety Requirements for Existing Closed Circuit Ammonia Refrigeration Systems 7.4.7.2. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 53571 text to make sure that the intent of the requirement is properly incorporated in siting hazard evaluations. The lack of sufficient distance between the source boundary and neighboring residential areas was a significant factor in the severity of several chemical accidents in the United States and internationally. The following are examples which illustrate the potential of such effects: • 1984, Bhopal, India: Union Carbide release of approximately 40 tons of methyl isocyanate into the air killed over 3,700 people. Most of the deaths and injuries occurred in a residential area near the plant.69 • 1984, Juan Ixhuatepec, Mexico: Pemex liquefied petroleum gas (LPG) tank farm LPG pipeline rupture resulted in a large ground fire that spread to nearby LPG storage vessels, initiating a series of massive explosions. The cascading explosions and fires ultimately destroyed the entire facility and many nearby residences, resulting in over 500 fatalities and thousands of severe injuries.70 • 1994, Port Neal, Iowa, United States: Terra Industries explosion involving ammonium nitrate (AN) killed four workers and damaged onsite ammonia tanks, creating an ammonia cloud that resulted in the evacuation of 2,500 people in nearby neighborhoods.71 • 2009, Belvidere, Illinois, United States: NDK Crystal facility catastrophic rupture of a pressure vessel resulted in one public fatality and one public injury. A building fragment propelled by the force of the blast traveled nearly 650 feet and killed a member of the public at a highway rest stop parking lot. An 8,600-pound vessel fragment traveled 435 feet and impacted a neighboring business, injuring one offsite worker and causing significant property damage.72 • 2013, West, Texas, United States: West Fertilizer Company explosion involving AN damaged an apartment complex and a nursing home located approximately 450 feet and 600 feet, respectively, from the source of the explosion, resulting in 3 public fatalities 69 Lees, Frank P. Loss Prevention in the Process Industries, Volume 3, 2nd ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann, 1996). 70 Lees, Frank P. Loss Prevention in the Process Industries, Volume 3, 2nd ed. Appendix 4, Mexico City (Oxford: Butterworth-Heinemann, 1996). 71 EPA. Chemical Accident Investigation Report: Terra Industries, Inc., Nitrogen Fertilizer Facility (2014), https://archive.epa.gov/emergencies/docs/ chem/web/pdf/cterra.pdf. 72 CSB, ‘‘NDK Crystal Inc. Explosion with Offsite Fatality,’’ last modified November 14, 2013, https:// www.csb.gov/ndk-crystal-inc-explosion-with-offsitefatality-/. E:\FR\FM\31AUP2.SGM 31AUP2 53572 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 (out of a total of 15 people killed in the explosion). The explosion also caused over 260 injuries, as well as damage to over 350 homes and 3 schools located near the plant.73 • 2018, Superior, Wisconsin, United States: Superior Refining Company, LLC, explosion and subsequent fire in the refinery’s fluid catalytic cracking unit resulted in 36 people (workers and community members) seeking medical attention. In addition, a portion of Superior, Wisconsin, had to be evacuated.74 • 2020, Visakhapatnam, Andhra Pradesh, India: LG Polymers styrene release incident produced a toxic cloud that caused at least 11 fatalities and hundreds of injuries in the nearby community.75 This list of accidents provides examples of the numerous accidents with offsite consequences resulting from the close proximity of industrial facilities to public receptors, demonstrating that selection of locations of processes and process equipment within a stationary source can impact the surrounding community. Communities are affected not only by the proximity of accidental releases to offsite receptors (e.g., people, infrastructure, environmental resources) near the facility boundary, but also by the increased likelihood of subsequent releases from other nearby processes compromised by the initial release. As accidents continue to happen, EPA is proposing to emphasize the intent of the required siting evaluation to ensure protection of human health and the environment. The OSHA PSM standard and RMP rule both require that facility siting be addressed as one element of a PHA (29 CFR 1910.119(e)(3)(v), and 40 CFR 68.67(c)(5)). In response to comments on the proposed PSM rule, OSHA indicated that facility siting should always be considered during PHAs and therefore decided to emphasize this element by specifically listing siting evaluation in regulatory text.76 With the adoption of PHA regulatory text, EPA also 73 CSB, ‘‘West Fertilizer Explosion and Fire,’’ last modified January 28, 2016, https://www.csb.gov/ west-fertilizer-explosion-and-fire-/. 74 CSB, ‘‘Husky Energy Refinery Explosion and Fire,’’ accessed January 28, 2022, https:// www.csb.gov/husky-energy-refinery-explosion-andfire/. 75 Doyle, Amanda, ‘‘Hundreds Hospitalized After Styrene Gas Leak in India,’’ The Chemical Engineer, last modified May 7, 2020, https:// www.thechemicalengineer.com/news/hundredshospitalised-after-styrene-gas-leak-in-india. 76 OSHA, Final Rule on Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part 1910 (1992), https://www.osha.gov/laws-regs/ federalregister/1992-02-24. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 recognized the offsite benefits of siting evaluations. EPA’s approach to the siting requirement is consistent with its general approach to PSM in the 1996 RMP rule: sound, comprehensive PSM systems can protect workers, the public, and the environment.77 The Agency chose to include additional guidance in a frequently asked questions section of its website to not only indicate the Agency’s expectations, but also to provide guidance on the RMP rule’s coverage of facility siting evaluation to include consideration of offsite receptors. The guidance states: ‘‘The requirement to consider stationary source siting during the process hazard analysis means that you should consider the location of the covered vessels and evaluate whether their location creates risks for offsite public or environmental receptors, as well as onsite receptors. This analysis should consider the proximity of the vessels that could lead to a release of a regulated substance. The proximity of the vessels to onsite equipment or activities nearby will have been considered for OSHA; the proximity of the vessels in relation to offsite receptors will be considered if not already considered for OSHA. The analysis may be done qualitatively. The analysis addresses whether the location of the vessels creates risks that could be reduced by changing the location or taking other actions, such as installing mitigation systems.’’ 78 As with other aspects of the RMP rule, EPA expects regulated facilities to rely on industry guidance to help adequately address stationary source siting in PHAs. The following examples of relevant industry guidance on siting considerations are available to facility owners and operators: • American Petroleum Institute (API) Recommended Practice 752, Management of Hazards Associated with Location of Process Plant Buildings.79 • API Recommended Practice 753, Management of Hazards Associated with Location of Process Plant Portable Buildings.80 77 61 FR 31687; June 20, 1996. ‘‘Is EPA’s PHA Stationary Source Siting Requirement Analogous to OSHA’s PSM?’’ accessed January 31, 2022, https://www.epa.gov/rmp/epaspha-stationary-source-siting-requirementanalogous-oshas-psm. 79 API, Recommended Practice 752, Management of Hazards Associated with Location of Process Plant Buildings, 3rd Edition (December 2020), https://www.api.org/oil-and-natural-gas/healthand-safety/refinery-and-plant-safety/process-safety/ process-safety-standards/rp-752. 80 API, Recommended Practice 753, Management of Hazards Associated with Location of Process Plant Portable Buildings, 1st Edition (June 2007), https://www.api.org/oil-and-natural-gas/health78 EPA, PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 • CCPS Guidelines for Evaluating Process Plant Buildings for External Explosions, Fires, and Toxic Releases.81 • CCPS Guidelines for Siting and Layout of Facilities.82 • NFPA Separation Distances in NFPA Codes and Standards.83 The CCPS ‘‘Guidelines for Siting and Layout of Facilities’’ addresses external factors influencing site selection, as well as factors internal to the source that could influence site layout and equipment spacing. The most recent edition of this CCPS publication was updated to address many developments in the last decade that have improved how companies survey and select new sites, evaluate acquisitions, and expand their existing facilities.84 The title was also updated to emphasize not only siting of buildings and unit operations within a facility, but also siting of facilities within a community. The guidance addresses identifying the process hazards and risks, selecting a facility location, selecting process unit layout within a facility, selecting equipment within a process unit, and managing changes. As an industry-specific example for siting, the Compressed Gas Association’s (CGA’s) ‘‘G–2.1— Requirements for the Storage and Handling of Anhydrous Ammonia,’’ 85 among other things, requires facilities with anhydrous ammonia systems to apply specific location requirements for processes, such as tank loading and unloading operations, and equipment, such as ammonia storage containers, piping, and nurse wagons. It also includes specific minimum separation distances from storage containers to railroad mainlines, highways, lines of and-safety/refinery-and-plant-safety/process-safety/ process-safety-standards/rp-753. 81 CCPS, Guidelines for Evaluating Process Plant Buildings for External Explosions, Fires, and Toxic Releases, 2nd Edition (2012), https:// www.aiche.org/resources/publications/books/ guidelines-evaluating-process-plant-buildingsexternal-explosions-fires-and-toxic-releases-2nd. 82 CCPS, Guidelines for Siting and Layout of Facilities, 2nd Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/ books/guidelines-siting-and-layout-facilities-2ndedition. 83 Argo, Ted, and Evan Sandstrom, Separation Distances in NFPA Codes and Standards (The Fire Protection Research Foundation, 2014), https:// www.nfpa.org/-/media/Files/News-and-Research/ Fire-statistics-and-reports/Hazardous-materials/ RFSeparationDistancesNFPACodesAnd Standards.ashx. 84 CCPS, Guidelines for Siting and Layout of Facilities, 2nd Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/ books/guidelines-siting-and-layout-facilities-2ndedition.). 85 ANSI/CGA, Requirements for the Storage and Handling of Anhydrous Ammonia (an American National Standard) (2014), https:// webstore.ansi.org/standards/cga/ansicga2014. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules adjoining properties, and places of public assembly and residential and institutional occupancy. Asmark Institute,86 a well-known agricultural industry organization, developed an RMP Program 2 Hazard Review checklist as a resource for its industry to apply CGA G–2.1 and other applicable industry standards.87 Despite enforcement and the consequences of catastrophic accidents, issues of siting continue to threaten process safety. For example, in 2018, EPA took an enforcement action against an agricultural anhydrous ammonia sales operation in Missouri that failed to identify the hazards associated with the proximity of the facility to a home and a nearby firehouse.88 In 2021, EPA took an enforcement action against a chemical manufacturing facility in Maine that did not address the facility’s proximity to a nearby bay; lack of proximity to external trained emergency responders; and process layout— specifically, the proximity of shutdown valves to operations.89 EPA reviewed data from OSHA PSM PHA enforcement actions. In 2018, 16 cases were filed where facility siting was cited as a serious violation 90 that could cause an accident or illness that would most likely result in death or serious physical harm.91 One of those cases was also reported as an RMP accident that occurred on September 1, 2016, at the Brookshire Grocery Company’s distribution center in Tyler, Texas. A failure in the piping on the roof of the cold storage building caused an ammonia leak. The leak caused 16 injuries and resulted in the evacuation of the building, the closure of a nearby intersection, and the need for nearby residents to shelter in place.92 Given the 86 Asmark Institute, https://www.asmark.org/. Institute, MyRMP Hazard Review Worksheet for Program 2 Facilities with Anhydrous Ammonia (2015), https://www.asmark.org/myRMP/ Forms/P2AnhydrousWorksheet.pdf. 88 Available at https://yosemite.epa.gov/oa/rhc/ epaadmin.nsf/Filings/E54E9167BD7A4EF6 852582C0001BCFD5/$File/CAA-07-20180214%20United%20Cooperatives%20CAFO.pdf. 89 Available at https://yosemite.epa.gov/OA/RHC/ EPAAdmin.nsf/Filings/D26E190D9 B6DA9E18525875F006CA916/$File/CAA-01-20210070%20CAF)%20ViewPDF%20(8).pdf. 90 Identified as a ‘‘serious’’ violation under OSHA in: OSHA, ‘‘Federal Employer Rights and Responsibilities Following an OSHA Inspection1996,’’ accessed January 31, 2022, https:// www.osha.gov/publications/fedrites#:∼:text= SERIOUS%3A%20A% 20serious%20violation%20exists,have% 20known%20of%20the%20violation. 91 U.S. Department of Labor, ‘‘Data Catalog; OSHA Enforcement Data; osha_violation’’ accessed March 17, 2022, https://enforcedata.dol.gov/views/data_ summary.php. 92 Louanna Campbell, ‘‘Tyler Fire Marshal’s Office Releases Cause of Ammonia Leak at lotter on DSK11XQN23PROD with PROPOSALS2 87 Asmark VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 potential risk demonstrated by recurring accidents, EPA seeks to ensure that emphasis is placed on the importance of all aspects of a proper facility siting evaluation. In a 2014 RMP request for information (RFI),93 EPA requested comments on whether to consider stationary source location requirements for future rulemaking. EPA specifically asked whether it should amend the RMP rule to include more specific siting requirements as part of the PHA. Though EPA received comments on the issue, EPA chose not to move forward with additional action on siting in the amendment’s final rule but indicated that the Agency would consider comments for a future rulemaking. In response to the RFI, commenters opposed adding additional provisions to address stationary source siting, citing as rationale that: • Existing facilities have limited flexibility to alter locations onsite.94 • Specifying or requiring buffer or setback zones is a complicated issue and must be looked at differently for new and existing facilities.95 • EPA would be intruding on local zoning codes when establishing siting criteria.96 • Existing industry guidance is sufficient.97 • Requiring additional siting requirements for both new and existing facilities could result in significant cost to the regulated entity.98 One opposing commenter specifically indicated that, to date, EPA has allowed for siting considerations to be included under performance-based elements of the RMP program. The commenter stated that any modification of the existing requirements would be inconsistent with a risk-based management system approach.99 Another commenter, although generally Brookshire’s Warehouse,’’ last modified September 5, 2017, https://tylerpaper.com/news/local/tylerfire-marshals-office-releases-cause-of-ammonialeak-at-brookshires-warehouse/article_3a7581b263b9-57b9-96c2-0b163f546668.html. 93 EPA, Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7), Proposed rule, 79 FR 44603 (July 13, 2014), pp. 44603–44633, https://www.federalregister.gov/documents/2014/ 07/31/2014-18037/accidental-release-preventionrequirements-risk-management-programs-underthe-clean-air-act-section. 94 EPA–HQ–OEM–2014–0328–0121; 0543, 0548, 0605, 0616, 0624. 95 EPA–HQ–OEM–2014–0328–0543; 0546, 0584, 0616, 0632. 96 EPA–HQ–OEM–2014–0328–0543; 0584, 0614, 0616, 0624, 0626, 0646, 0667. 97 EPA–HQ–OEM–2014–0328–0121; 0543, 0546, 0605, 0620, 0624, 0640, 0665. 98 EPA–HQ–OEM–2014–0328–0624; 0626. 99 EPA–HQ–OEM–2014–0328–0691. PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 53573 in opposition to new siting requirements, stated that for existing facilities, the owner/operator should demonstrate that other technologies, such as early detection, early communication, prevention measures, and mitigation measures, are applied to manage risk within acceptable levels. This commenter also stated that in some cases, it may be necessary to make process changes, and in unique cases where the risk cannot be abated, owners/operators should consider relocation of part or all facility operations.100 There were also commenters who argued stationary source siting should be expanded in the RMP rule. For example, one commenter stated the PHA must address issues of co-location both in terms of adjacent facilities and in terms of vulnerable populations and infrastructure. This commenter stated that at a minimum, facilities must address hazards to and from adjacent facilities—including impacts that a release from their facility would have on other facilities and the impact that a release from other facilities would have on their facility—and further expansion should address buffer zones for nearby residents, hospitals, and infrastructure. The commenter argued that new facilities or expansion of facilities must consider the cumulative impacts from adjacent facilities and look at the threat that a release from the new facility or expansion would pose to other facilities, infrastructure, populations, and environmental resources.101 Additionally, CSB encouraged EPA to incorporate more explicit requirements for identifying, evaluating, and addressing facility siting during a PHA to assess both offsite consequences and onsite receptors within that stationary source that may be impacted by chemical fire, explosion, or release.102 EPA believes that many matters outlined in comments about the current stationary source siting provision, while not explicitly addressed within the current regulatory text, are implicit and mandatory. Therefore, at this time, EPA is only choosing to make more explicit what is required to be addressed in a stationary source siting evaluation. Rather than propose additional requirements, EPA is expounding on the current regulatory text to ensure that siting evaluations properly account for hazards resulting from the location of processes, equipment, building, and proximate facilities, and their effects on the surrounding community. In addition 100 EPA–HQ–OEM–2014–0328–0543. 101 EPA–HQ–OEM–2014–0328–0637. 102 EPA–HQ–OEM–2014–0328–0689. E:\FR\FM\31AUP2.SGM 31AUP2 53574 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 to providing some detail on what is intended by the Program 3 regulatory text on stationary source siting, EPA is also proposing to revise language to Program 2 hazard evaluations to ensure that all RMP facilities with the potential to cause offsite consequences to public receptors account for these hazards. Therefore, EPA is proposing to amend regulatory text for Program 2 and Program 3 under 40 CFR 68.50(a)(6) and 68.67(c)(5), respectively, to define stationary source siting evaluation as inclusive of the placement of processes, equipment, buildings, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to the public and public receptors. The proposed amendments would make more explicit the requirement that hazard evaluations for processes under both Program 2 (hazard review) and Program 3 (PHA) need to address the matters in the siting evaluation. Because there is a breadth of guidance on siting, EPA believes there is adequate information available for facilities to comply with the proposed text. EPA expects facilities to continue to use available resources, including those previously mentioned, and any additional industry-specific guidance to properly evaluate siting hazards. e. Hazard Evaluation Recommendation Information Availability Ensuring that communities, local planners, local first responders, and the public have appropriate chemical facility hazard-related information is critical to the health and safety of responders and the local community. In this action, EPA is proposing ways to enhance information sharing and collaboration between chemical facility owners/operators, Tribal and local emergency planning committees (TEPCs/LEPCs), first responders, and the public in a manner that EPA believes balances security and proprietary considerations. In addition to the information accessibility provisions in section IV.C of this preamble, EPA is also proposing that recommendations resulting from hazard evaluations discussed in this section be included in a facility’s risk management plan submitted under 40 CFR part 68, subpart G. Specifically, facilities would be required to implement recommendations or list in their risk management plans the recommendations from their natural hazard, loss of power, and siting evaluations that were not adopted and the justification for those decisions. EPA believes this will enable the public to ensure facilities have conducted VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 appropriate evaluations to address potential hazards that can affect communities near the fenceline of facilities. In response to comments in the RFI on increased public disclosure of information, one commenter stated that it is important to help the public understand how the facilities address the hazard present in their community and keep the risk at or below the ‘‘acceptable level.’’ EPA believes that when local citizens have adequate information and knowledge about facility hazards, facility owners and operators may be motivated to further improve their safety in response to community pressure and oversight.103 EPA is proposing to require facilities to list in section 7 (Program 3) and section 8 (Program 2) of their risk management plans, for each process, recommendations resulting from hazard evaluations of natural hazards, loss of power, and facility siting that the owner/operator chooses to decline. EPA realizes that the number of hazard evaluation recommendations may vary widely, depending on the complexity of the process or facility. Therefore, EPA seeks comments on the format of listing the recommendations, whether EPA should require recommendations to be included in narrative form, or whether the Agency should provide specific categories of recommendations for facilities to choose from when reporting. Another option would be to allow the owner or operator to post this information online and provide a link to the information within their risk management plan. Regarding the requirement to provide justification for not implementing recommendations, EPA is proposing to allow facilities to choose from preselected categories. Under OSHA guidance, an employer may decline to adopt a PHA recommendation if, based upon adequate evidence, the employer can document that one or more of the following conditions is true:104 • The analysis upon which the recommendation is based contains material factual errors. • The recommendation is not necessary to protect the health and safety of the employer’s own employees, or the employees of contractors. • An alternative measure would provide a sufficient level of protection. • The recommendation is infeasible. 103 EPA–HQ–OEM–2014–0328–0543–27. 104 OSHA, Process Safety Management of Highly Hazardous Chemicals—Compliance Guidelines and Enforcement Procedures, 29 CFR 1910.119 (September 13, 1994), https://www.osha.gov/sites/ default/files/enforcement/directives/CPL02-02-045_ CH-1_20150901.pdf. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 EPA is proposing to adopt these same categories in the risk management plan as justification for declined recommendations, with a modification to account for public receptors (i.e., the recommendation is not necessary to protect public receptors). EPA seeks public comment on this approach and on alternative categories or methods to provide justification for declining relevant recommendations. EPA wants to ensure a balanced approach to providing beneficial data to the public as well as a straightforward method of reporting for facility owners/operators. Proposed revisions to regulatory text include, requiring risk management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8), reporting declined natural hazard, power loss, and siting hazard evaluation recommendations and their associated justifications in the risk management plan submitted to EPA. f. Summary of Proposed Regulatory Text EPA is proposing to emphasize that Program 2 hazard reviews and Program 3 PHAs identify and address natural hazards, loss of power, and facility siting (as described in this document) in order to effectively prevent or minimize accidental releases of regulated substances to protect human health and the environment. EPA is also proposing to require the owner or operator to report any recommendations arising from these evaluations that are declined, along with the owner or operator’s justification for declining them, within the risk management plan submitted to EPA. A summary of the proposed regulatory text changes are described below: • Hazard evaluations under 40 CFR 68.50(a)(5) and 68.67(c)(8) to explicitly address external events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release. • Hazard evaluations under 40 CFR 68.50(a)(3) and 68.67(c)(3) to explicitly address standby or emergency power systems. • Hazard evaluations under 40 CFR 68.50(a)(6) and 68.67(c)(5) to explicitly define stationary source siting as inclusive of the placement of processes, equipment, buildings within the facility, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to the public and public receptors. • Risk management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8) to include declined natural hazard, power loss, and siting hazard evaluation recommendations and their associated justifications. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules EPA realizes, and commenters have indicated in the past,105 that only a small number of facilities are responsible for a significant percentage of RMP accidents. EPA expects the proposed language will ensure that those owner/operators who are not properly evaluating these hazards will be explicitly required to do so, which will better ensure owner/operators do their due diligence in preventing or minimizing accidental releases of regulated substances to protect human health and the environment. EPA seeks comment on the proposed language or alternative language that will not unnecessarily expand the scope of hazard evaluations. 2. Prevention Program Provisions The following section describes proposed modifications to the prevention program provisions of the RMP rule. Several of these changes address issues that have been the subject of both the 2017 amendments rule and the 2019 reconsideration rule, including safer technologies and alternatives analysis, root cause analysis incident investigations, and third-party audits. As detailed below, the Agency’s preferred options for these topics adjust the scope of the provisions adopted and rescinded by the prior rulemakings. EPA also proposes new requirements for improved employee participation in prevention programs. The options proposed below should enhance community safety, especially in communities facing elevated probability of accidents, without unduly burdening overly broad classes of stationary sources. lotter on DSK11XQN23PROD with PROPOSALS2 a. Safer Technologies and Alternatives Analysis (STAA) EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some Program 3 regulated processes to consider and document the feasibility of applying safer technologies and alternatives as part of their PHA. This requirement applies to petroleum and coal products manufacturing processes (classified in NAICS code 324) and chemical manufacturing processes (NAICS code 325) that are located within 1 mile of another RMP-regulated facility with these same processes (classified in NAICS 324 and 325). EPA is also proposing that all facilities with petroleum and coal products processes (in NAICS 324) using hydrofluoric acid (HF) in an alkylation unit (approximately 45 facilities) consider safer alternatives to HF alkylation, 105 EPA–HQ–OEM–2015–0725–1628. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 regardless of proximity to another NAICS 324- or 325-regulated facility. Current PHA requirements (40 CFR 68.67) under the RMP rule include some aspects of the hierarchy of controls analysis.106 As discussed in the proposed regulation that became the 2017 amendments rule, Program 3 processes are required to address process hazards using engineering and administrative controls since 1996. However, as EPA pointed out, there is no explicit requirement for owners and operators to address inherent safety— the first tier of the hierarchy of controls. EPA is proposing to expand upon these requirements by requiring the owners or operators to consider safer technology and alternative risk management measures that could eliminate or reduce risk from process hazards. In addition to engineering and administrative controls, owners and operators of facilities with Program 3 processes covered under this provision would have to consider the application of the following safer technology measures, in the following order: inherently safer technology (IST) or inherently safer design (ISD), passive safeguards, active safeguards, and procedural safeguards. In this proposed regulation, EPA is not requiring facilities to implement identified inherent safety measures; rather, EPA is requiring owners and operators to include an evaluation, including the results of the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e), and, to document the feasibility of inherent safety measures based on more than cost alone. Submission of STAA analysis summaries to EPA is discussed in further detail under ‘‘STAA technology transfer.’’ Finally, EPA is proposing that a facility’s STAA team include, and document the inclusion of, one member who works in the process and has expertise in the process being evaluated. EPA is also proposing to include a more comprehensive practicability assessment, in addition to the STAA evaluation requirements as part of the PHA. As part of this analysis, owners and operators would be required to identify, evaluate, and document the practicability of implementing inherent safety measures, including documenting the practicability of publicly available safer alternatives. 106 Safety experts have developed a way to group types of controls in an order or ‘‘hierarchy of controls’’ that prefers those that are least likely to fail. As discussed in more detail in in section IV.A.2.a.i, below, controls that eliminate the hazard are preferred over those that do not require power or activation, which are preferred over those that do require power or activation, which are preferred over those that depend simply on rules of operation. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 53575 i. Background on IST/ISD EPA discussed safer technology and alternatives at length in its proposed RMP rule amendments published in 2016. ‘‘Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act’’ (81 FR 13638, March 14, 2016). ‘‘Safer technology and alternatives’’ refers to risk reduction or risk management strategies developed through analysis using a hierarchy of process risk management strategies (or hierarchy of controls). In this context, the hierarchy of controls consists of controls that are inherent, passive, active, and procedural. STAA involves considering IST or ISD, which refer to strategies that permanently reduce or eliminate hazards associated with the materials and operations of a process. As discussed in EPA/OSHA’s 2015 chemical safety fact sheet,107 the four major inherently safer strategies are: (1) substitution: replacing hazardous materials with less hazardous substances; (2) minimization: using smaller quantities of hazardous substances; (3) moderation: creating less hazardous conditions or using less hazardous forms or facility designs to minimize the impact of potential releases of hazardous materials or energy; and (4) simplification: designing facilities to eliminate unnecessary complexity and make operating errors less likely. Inclusion of IST/ISD in the RMP regulations is consistent with several CSB investigations that demonstrated that incidents could have been prevented or consequences mitigated by using IST/ISD.108 109 110 111 In the supplemental proposed RMP rule for the initial requirements under CAA 112(r)(7), EPA solicited comments on requiring IST. ‘‘Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)’’ (60 FR 13526, March 13, 1995) (1995 supplemental proposal). Prior to the 2017 final RMP amendments, however, EPA had never 107 EPA and OSHA, Chemical Safety Alert: Safer Technology and Alternatives (June 2015), https:// www.epa.gov/sites/default/files/2015-06/ documents/alert_safer_tech_alts.pdf. 108 CSB, ‘‘Chevron Refinery Fire,’’ last modified January 28, 2015, https://www.csb.gov/chevronrefinery-fire/. 109 CSB, ‘‘Tesoro Refinery Fatal Explosion and Fire,’’ last modified May 1, 2014, https:// www.csb.gov/tesoro-refinery-fatal-explosion-andfire/. 110 CSB, ‘‘Kleen Energy Natural Gas Explosion,’’ last modified June 28, 2010, https://www.csb.gov/ kleen-energy-natural-gas-explosion/. 111 CSB, ‘‘Bayer CropScience Pesticide Waste Tank Explosion,’’ last modified January 1, 2011, https://www.csb.gov/bayer-cropscience-pesticidewaste-tank-explosion/. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53576 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules required RMP facilities to conduct an STAA or implement identified IST/ISD. The 2017 amendments rule added a requirement to the PHA for regulated sources in specified industrial sectors to identify and address hazards at least every 5 years. Specifically, owners or operators of facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) were required to conduct an STAA as part of their PHA and evaluate and document the practicability of any IST identified. The provision was 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. EPA adopted STAA based on recommendations from CSB and other engineering experts, as well as lessons learned from case studies and investigations of accidents. EPA identified the sectors covered by this requirement by using sector-wide accident rates. EPA believes that some of the practicability of implementation will be identified in the course of the PHA and that for many processes, owner/operators will already know if implementing a particular technology is practicable. EPA solicits comments on the industry understanding of the practicability assessment, and how this might differ from the findings identified in the PHA, as well as the additional benefit of such a provision. In the 2019 rule completing the process of reconsidering the 2017 rule, EPA removed the new regulatory STAA requirement on all facilities in NAICS 322, 324, and 325 that are in the RMP program. ‘‘Accidental Release Prevention Requirements: Risk Management Programs Under the CAA’’ (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA analyzed accident history data in the RMP database, both nationally and in States and localities with programs that contained some or all the elements of the prevention program provisions. EPA discusses accident trends overall in Section III.C of this preamble. The analysis suggested that accident rates in jurisdictions that adopted STAA-like programs were not lower than national accident rates. Based on this assessment, EPA stated that STAA regulations would likely not be effective at reducing accidents if applied on a national scale, relative to the pre-2017 program. Instead, EPA decided to take a source-specific, compliance-driven VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 approach, using oversight and enforcement tools to identify sources that would appear to benefit from STAA and to then seek STAA adoption at such sources. ii. Hydrogen Fluoride Hydrogen fluoride (HF) is an extremely toxic chemical that is lethal at 30 ppm. It is covered by RMP when more than 1,000 pounds are used in a process. HF is an extremely toxic chemical used for alkylation at 27 percent of facilities in NAICS 324 (45 of 163). HF has been the subject of recent catastrophic near-miss investigations by CSB. One of these investigations involved an explosion at the Husky Refinery in Superior, Wisconsin, wherein debris impacted processes at a further distance from the explosion than the refinery’s HF storage tank.112 CSB also investigated a near-miss in Torrance, California, wherein the explosion of ExxonMobil’s electrostatic precipitator resulted in debris landing near the refinery’s modified HF tanks.113 There are recognized potentially safer alternatives available for HF alkylation that have been successfully implemented by refineries, such as sulfuric acid alkylation, ionic liquid alkylation, or solid acid catalyst alkylation.114 115 EPA contends that the practicability of these potentially safer alternatives is situation-specific and that owners and operators are usually in the best position to make these determinations. Phasing out HF or switching to an inherently safer alternative may require construction of a new alkylation unit. Depending on the production levels of the refinery, implementation of alternatives to HF alkylation could cost between $35 million and $900 million (see RIA, Appendix A). iii. Recent Public Input on STAA During EPA’s 2021 listening sessions, approximately 245 commenters provided feedback on STAA. Many commenters, including individual 112 CSB, ‘‘Husky Energy Refinery Explosion and Fire,’’ accessed February 10, 2022, https:// www.csb.gov/husky-energy-refinery-explosion-andfire/. 113 CSB, ‘‘ExxonMobil Refinery Explosion,’’ last updated May 3, 2017, https://www.csb.gov/ exxonmobil-refinery-explosion-/. 114 Chevron, ‘‘Chevron and Honeywell Announce Start-up of World’s First Commercial ISOALKYTM Ionic Liquids Alkylation Unit,’’ last modified April 13, 2021, https://www.chevron.com/stories/ chevron-and-honeywell-announce-start-up-ofisoalky-ionic-liquids-alkylation-unit. 115 United Steelworkers, A Risk Too Great: Hydrofluoric Acid in U.S. Refineries (April 2013), https://www.usw.org/workplaces/oil/oil-reports/ARisk-Too-Great.pdf. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 commenters, professional associations, advocacy groups, labor organizations, an association of government agencies, and a Federal agency, supported EPA restoring the 2017 amendments rule requirement for facilities to assess safer technologies and substitute safer alternatives in their processes where feasible.116 A group of retired Federal agency officials said that facilities should share this analysis with communities and emergency responders, and EPA should establish a ‘‘publicly accessible clearinghouse of safer alternatives.’’ 117 Individual commenters stated that STAAs should include an assessment of environmental justice, including the burden on surrounding communities,118 while another commenter stressed that STAAs would be very beneficial for communities with environmental justice concerns.119 An environmental advocacy group suggested that RMP facilities should be required to develop and submit a hazard reduction plan made by facility experts and workers that would start at the top of the hierarchy of controls and include considerations of an EPA-generated list of inherently safer chemicals.120 Another advocacy group stated that it is interested in having facilities incorporate solutions data into STAAs and—along with a State regulatory agency, labor organizations, advocacy groups, and an individual commenter— supported requiring STAAs from every RMP facility in sectors such as water treatment, not just in oil manufacturing, chemical manufacturing, and paper manufacturing.121 A State regulatory agency mentioned that many safer technology alternative opportunities exist in other sectors and expressed that there should not be any limit on how many NAICS sectors are included.122 An advocacy group suggested that EPA implement an even more robust alternatives analysis and implementation process than that of the STAA proposed during the 2017 amendments rule. The commenter said that, rather than basing the universe of facilities subject to the STAA requirement on the results of data analysis performed in 2017, EPA should require this type of assessment at all facilities. The commenter proposed that, 116 EPA–HQ–OLEM–2021–0312–0028; 0035, 0039, 0044, 0051, 0057, 0058, 0081, 0095, 0387, 0388. 117 EPA–HQ–OLEM–2021–0312–0004. 118 EPA–HQ–OLEM–2021–0312–0013; 0380. 119 EPA–HQ–OLEM–2021–0312–0028. 120 EPA–HQ–OLEM–2021–0312–0149. 121 EPA–HQ–OLEM–2021–0312–0014; 0039, 0057, 0152. 122 EPA–HQ–OLEM–2021–0312–0039. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules should EPA determine that ‘‘tiered protection should be implemented,’’ it should require IST assessment and implementation at facilities in sectors with known hazard elimination or reduction methods, in areas with climate risks and other natural hazard risks, in communities with more than one RMP facility, and at facilities that are using or storing the highest quantity and toxicity of regulated chemicals and are most accident-prone.123 A few industry trade associations stated that STAAs and IST evaluations would not generate tangible safety outcomes beyond the current PHA requirements.124 One of the industry trade associations also discussed EPA’s decision to limit the number of facilities covered by STAA provisions in the 2017 amendments rule, which the commenter described as lacking evidentiary support.125 An industry trade association that strongly opposed the STAA provision in the 2017 amendments rule supported its removal in the 2019 reconsideration rule, stating that such a STAA requirement would not improve the effectiveness of the rule in relation to protecting communities with environmental justice concerns; instead, it would divert resources.126 An industry trade association stated that some industries already adopt inherently safer processes and technologies without direction from EPA.127 iv. Recent Public Input on HF During EPA’s 2021 listening sessions, many commenters, including individual commenters and advocacy groups, discussed the dangers of HF and modified HF and argued that facilities should be required to transition to safer alternatives.128 An individual commenter said that HF is often located in facilities in communities with environmental justice concerns that are already exposed to many other hazards. A State elected official said that EPA should require refineries to evaluate the replacement of these chemicals and report their findings to EPA within a year.129 A form letter campaign recommended an amendment to 40 CFR 68.169 which, if implemented, would convert all HF refineries to safer alternatives within 4 years.130 A few lotter on DSK11XQN23PROD with PROPOSALS2 123 EPA–HQ–OLEM–2021–0312–0170. 124 EPA–HQ–OLEM–2021–0312–0037; 0053, 0071. 125 EPA–HQ–OLEM–2021–0312–0071. 126 EPA–HQ–OLEM–2021–0312–0077. 127 EPA–HQ–OLEM–2021–0312–0077. 128 EPA–HQ–OLEM–2021–0312–0013; 0035, 0043, 0054, 0036, 0319, 0146, 0067, 0068, 0096. 129 EPA–HQ–OLEM–2021–0312–0043. 130 EPA–HQ–OLEM–2021–0312–0067. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 individual commenters and an advocacy group expressed general support for this amendment.131 Another individual commenter in support of this amendment stated that over 40 refineries containing large quantities of HF endanger 19 million people, including children, young adults, unhoused people, and more.132 v. STAA Applicability EPA is proposing to limit the applicability of the STAA provisions to sources in the petroleum and coal products manufacturing (NAICS 324) and chemical manufacturing (NAICS 325) sectors, located within 1 mile of another RMP-regulated 324 or 325 facility. EPA is also proposing that all facilities in NAICS 324 using HF in an alkylation unit (approximately 45 facilities) conduct an STAA for the use of safer alternatives compared to HF alkylation. EPA believes that while most sectors regulated under 40 CFR part 68 could identify safer technology and alternatives, sources involved in complex manufacturing operations have the greatest range of opportunities to identify and implement safer technologies and alternatives, particularly related to 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. Multiple factors led EPA to propose focusing the STAA requirement on densely co-located petroleum refining and chemical manufacturing facilities (i.e., facilities with processes in NAICS codes 324 and 325 that are within 1 mile of another facility in those NAICS codes). The distance of 1 mile represents the median distance of facilities with 324 and 325 NAICS processes that have had accidents in the period from 2016 to 2020 to the nearest facility with a process in these NAICS in 324 or 325. Facilities in these NAICS codes experience more frequent accidental releases (see IV.A.2.vi, below). In the period from 2016 to 2020, communities near densely co-located facilities in these NAICS codes have experienced more frequent accidents than communities near other facilities in these NAICS codes and have had more offsite impacts from releases than other communities have experienced (see IV.A.2.vii, below). Additionally, 80% of 324 and 325 facilities located within 1 mile of another 324/325 facility 131 EPA–HQ–OLEM–2021–0312–0354; 0379, 0382, 0384. 132 EPA–HQ–OLEM–2021–0312–0380. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 53577 have toxic worst case release scenario distance to endpoints reaching or exceeding 1 mile. The proximity of densely co-located refining and chemical manufacturing facilities creates a greater risk of an accident at one facility impacting safety at the nearby facility, thereby increasing the potential for a release at the second facility (a ‘‘knock-on’’ release). Communities in areas with such densely co-located petroleum refining and chemical manufacturing facilities face overlapping vulnerability zones and a heightened risk of being impacted by an accidental release relative to other communities. The heightened risk of community impacts presented by densely co-located refineries and chemical manufacturers make it reasonable for EPA to propose the 1 mile criterion for additional prevention measures such as STAA. The 1 mile criterion also serves to limit the burden on portions of both the petroleum refining and chemical manufacturing industries relative to the 2017 amendments rule while promoting accident prevention to a greater extent than the approach taken in the 2019 reconsideration rule (see IV.A.2.viii, below). EPA is proposing that all HF alkylation processes at petroleum refineries (NAICS 324) conduct a STAA review primarily due the recent incidents discussed above where HF was nearly released when there were explosions, fires, and other releases that could have triggered releases of HF. The recent incident involving Philadelphia Energy Solutions,133 where some of the HF stored apparently was released in a fire but a worse release was prevented by trained staff activating release mitigation systems close to the time the event started, raises the question of whether a more inherently safe process could have completely avoided a potential catastrophe, or whether reliance on operational procedures and trained staff is adequate. As mentioned above, there are recognized potentially safer alternatives available for HF alkylation that have been successfully implemented by refineries, such as sulfuric acid alkylation, ionic liquid alkylation, or solid acid catalyst alkylation. While EPA is not proposing that all existing refinery processes undergo STAA review, the process of HF alkylation, with several known alternatives and with recent incident 133 CSB, ‘‘Philadelphia Energy Solutions (PES) Refinery Fire and Explosions,’’ last modified October 16, 2019, https://www.csb.gov/ philadelphia-energy-solutions-pes-refinery-fire-andexplosions-/. E:\FR\FM\31AUP2.SGM 31AUP2 53578 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules history, EPA believes may merit a rulebased prevention approach rather than selective oversight. vi. Accident Frequency EPA notes that RMP facilities in the two selected sectors have been responsible for a relatively large number of accidents, deaths, injuries, and property damage.134 Although the perfacility accident rate between 2016 and 2020 for all regulated facilities was 3 percent (n = 382 facilities reporting at least one accident out of 12,855 unique facilities reporting between 2016 and 2020), the sector accident rates (number of unique facilities with accidents per sector divided by the number of unique facilities in each sector) for petroleum and coal manufacturing were seven times higher (23 percent, n = 41 out of 177) and two times higher for chemical manufacturing (6 percent, n = 96 out of 1631). Moreover, of the 70 facilities experiencing two or more incidents between 2016 and 2020, 43 (60 percent) of these facilities were NAICS 324 and 325. Implementation of safer technology and alternatives by these facilities in the chemical manufacturing and petroleum refining sectors may prevent serious accidental releases in the future. lotter on DSK11XQN23PROD with PROPOSALS2 vii. Accident Severity EPA is proposing to apply STAA requirements to processes at facilities in NAICS 324 and 325 located within 1 mile of another NAICS 324 or 325 facility, as the increased accident frequency found in these industries is exacerbated when examining those facilities in more facility-dense areas (here defined as facilities within 1 mile of another facility). Based on accidents occurring between 2016 and 2020, communities located near facilities in NAICS 324/325 that are located within 1 mile of another 324/ 325 facility are 1.5 times more likely to have been exposed to accidents at these facilities as compared to communities near facilities in NAICS 324/325 that are not located within 1 mile of another 324/325 facility. This increased accident frequency in facility-dense areas has resulted in considerably larger offsite impacts, including over 47,000 people sheltering in place, 56,800 people evacuating, and over 153 million dollars in offsite property damage.135 134 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 135 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 Using RMP data from 2016 to 2020, EPA estimates the proposed approach impacts approximately 563 unique, active facilities. EPA is making available in the Technical Background Document, a list of sources it believes would be required to conduct STAA based on the location information currently provided in facility risk management plans. In estimating these facilities, EPA used the latitude and longitude reported to EPA by facilities, which can vary in the measurement of facility location. For example, facilities can report location based on the regulated process, facility fenceline or facility centroid. EPA is proposing to define facility location based on distance to the facility fenceline but seeks comment on other definitions of facility proximity. Although accident rates for the paper manufacturing sector (NAICS 322, 17 percent, 20 accidents at 11 out of 65 facilities between 2016 and 2020) were similar to NAICS 324, EPA has not proposed STAA requirements at facilities in NAICS 322 due to the low actual number of incidents and comparatively fewer accident consequences. While 30 workers were injured (non-fatally) as a result of these accidents, the accidents resulted in no other reported offsite consequences (i.e., sheltering in place, evacuation, or offsite property damage).136 viii. Discussion of Prior STAA Analysis In its 2019 decision to rescind STAA requirements, EPA relied on data analysis of RMP accidents from States with STAA- and IST-like regulations, primarily New Jersey’s Toxic Catastrophe Prevention Act (TCPA) regulation and the Massachusetts Toxic Use Reduction Act. Using the accident data EPA provided in the rulemaking docket, EPA compared accident data for New Jersey and Massachusetts RMP facilities from 2008 through 2016 to the same measures for the national set of RMP facilities.137 EPA interpreted the results as showing that New Jersey and Massachusetts RMP facilities reported more RMP-reportable accidents than RMP facilities nationally over the same period. Although the rate of RMP facility accidents in New Jersey and Massachusetts have declined, EPA found that this decline is less than the decline in accidents for RMP facilities nationally over the same period. New Jersey and Massachusetts exhibited a 1.7 percent and 3.5 percent annual decline 136 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 137 EPA–HQ–OEM–2015–0725–2063. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 in accident frequency, respectively, whereas nationally, RMP facilities experienced a 4.1 percent decline in accident frequency over the same period. The normalized accident rate in New Jersey and Massachusetts declined by approximately 2 percent and 3 percent per year, respectively, whereas the normalized accident rate at RMP facilities nationwide declined by 3.3 percent per year. Regarding accident severity, EPA examined the impacts of RMP-reportable accidents in New Jersey over the same period and could discern no declining trend in accident severity in New Jersey. Based on this data analysis, EPA concluded the New Jersey and Massachusetts programs had not resulted in a reduction in either accident frequency or severity at RMPregulated facilities subject to the provision, and therefore the costs were disproportionate to the benefits. Comments provided by the New Jersey Department of Environmental Protection (NJDEP) point out information that questions the validity of these assumptions.138 First, EPA based its decision to rescind STAA requirements for NAICS codes 324 and 325 on accident information for all regulated NAICS codes, thereby applying assumptions based on analysis of all accidents, rather than analysis of NAICS 324 and 325 specifically, to the subset of facilities it intended to regulate. Second, NJDEP points out that IST is only one measure to prevent accidental releases; therefore, the absence of a decrease in accidents should not be solely attributed to ineffectiveness of IST. NJDEP also points out that facilities with better accident investigation requirements and release reporting systems may be reporting more accidents than those without additional reporting programs. EPA believes these arguments apply to the 2019 Massachusetts analysis as well. EPA now acknowledges that applying a rate developed through analysis of all regulated facilities cannot be applied to the specific sectors that were selected for regulation (NAICS codes 324 and 325) as a conclusion based on comparing New Jersey’s overall accident rate to the national overall accident rate is inconclusive about sectors that would have been subject to the RMP STAA requirement. Additionally, EPA realizes it may have been important to consider that its conclusions were derived from analysis of a small number of accidents from a small sample size with a high degree of intra-year variability. For example, RMP 138 EPA–HQ–OLEM–2021–0312–0039. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 data from New Jersey 139 demonstrate that the facility accident rates were 2 per 86 in 2008 and 2 per 80 in 2016, extrapolating a slope showing a 1.7 percent decrease per year. Yet accidents ranging from 0 to 4 and demonstrating a high amount of intra-year variability are inconclusive. EPA examined data for NAICS 324 and 325—those proposed to be regulated in this action—and found similarly low accident counts (0 to 2 per year), prohibiting meaningful conclusions and leaving the Agency unable to determine if STAA provisions are ineffective. Therefore, EPA contends that it is more appropriate to emphasize in this rulemaking factors like the expert views of CSB and other researchers, case studies, and EPA’s technical judgment rather than the analysis comparing accident rates under the New Jersey TCPA to national rates for RMP facilities that helped form the basis for rescinding STAA in the 2019 reconsideration rule. Finally, in proposing to reestablish STAA requirements for facilities in NAICS 324 and 325 located within 1 mile of another NAICS 324 or 325 facility and those refineries with HF alkylation processes, EPA has determined that there are likely limited legitimate reliance interests associated with the 2019 reconsideration rule’s elimination of these requirements. The compliance date for this requirement on affected facilities is proposed to be three years after this rule becomes final, which, based on EPA’s announced plans in the Unified Regulatory Agenda, would be sometime in August 2026. For those sources who last performed a PHA prior to August 2021, they would be able to integrate STAA in their next PHA. For those performed since August 2021 and before this proposed rule (approximately one year), they would need to perform the STAA outside the normal PHA timeframe. This should be a relatively small number of facilities in part because of the limited applicability of the preferred approach and the pattern of years ending in 4s and 9s being the heaviest years for RMP submittals. Sources performing PHAs after this proposed notice are on notice of EPA’s intent, so whatever reliance interest there was on the 2019 reconsideration rule to this proposal should be minimal. ix. STAA Technology Transfer Since the inception of RMP, the required elements of risk management plans have been a narrative executive summary and primarily fields of check boxes, dates, and numbers that summarize RMP rule compliance 139 EPA–HQ–OEM–2015–0725–2063, VerDate Sep<11>2014 18:07 Aug 30, 2022 p. 36. Jkt 256001 activities. The format facilitates electronic submission and data analysis. EPA established central processing and handling to relieve states of data handling burdens while also promoting easy access for stakeholders. As a result of legislation in 1999 and a general increase in security concerns postSeptember 11, 2001, portions of the risk management plan are restricted, either on a ‘‘need to know’’ basis (much of the release scenario information) or only released on compact discs/drives when requested through the Freedom of Information Act (FOIA). In practice, the minimal narrative in risk management plans and the restrictions on access to these plans have minimized the transfer of knowledge of successful accident prevention practices among all stakeholders (e.g., regulated industry, communities, labor, researchers, planners, responders). In the 2017 amendments rule, EPA added an STAA requirement to the PHA portion of the prevention program requirements for three industry sectors: petroleum refining (324), chemical manufacturing (325), and paper production (322). In addition to the previously existing requirement to report on any changes since the last PHA (40 CFR 68.175(e)(6)), EPA added a requirement for sources to report on whether IST/ISD—one STAA technique—had been adopted since the last PHA, and if yes, to report on the broad technology category (i.e., chemical substitution or minimization, process simplification, and/or moderation of the process conditions). The 2019 final reconsideration rule eliminated the additional reporting requirement when EPA eliminated the STAA prevention provision. EPA is now proposing to reinstate the provisions to 40 CFR 68.175(e)(7) to report whether the current PHA addresses the STAA requirement proposed in 40 CFR 68.67(c)(9), whether any IST/ISD was implemented as a result of 40 CFR 68.67(c)(9)(ii), and if any IST/ISD was implemented, to identify the measure and technology category. During EPA’s 2021 listening sessions and public comment period, some stakeholders supporting IST/ISD advocated for promoting better reporting and public availability of ‘‘solutions data’’—the successful practices companies are using to reduce and remove RMP chemical hazards—about IST/ISD and other measures adopted by sources to reduce risk. For example, a few advocacy groups expressed that solutions data should be incorporated into RMP by reporting it in risk management plans from STAAs, reporting it on RMP deregistration PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 53579 forms, including it in public meetings after incidents to address the best options at the top of the hierarchy of prevention, and compiling it into a hazard reduction clearinghouse, through which EPA could collect and disseminate lessons learned from successful industry practices.140 This sentiment was echoed by another advocacy group, which recommended that EPA ensure that facilities that are no longer regulated under RMP coordinate with regulatory agencies and share practices or approaches with other RMP facilities.141 These comments suggest ways of promoting accident prevention technology transfer and improving on not only the existing rule, but also the reporting provisions of the 2017 amendments rule. EPA has examples of existing information centers which aggregate best practices, such as the Pollution Prevention Resource Exchange.142 EPA has included an outline of the potential information that would be collected from deregistering facilities as well as in the STAA documentation in Section 10 of the Technical Background Document. EPA intends for this not to be a cumbersome exercise, but rather, one that is based on information facilities likely already have, with EPA making it available for other industries to identify safer alternatives. EPA solicits comment on any additional information which would be useful for such a repository. x. Alternative Options EPA considered other options and is seeking comment on these alternative approaches. In contrast to the 2017 amendments rule, EPA is not proposing to apply STAA to NAICS 322 (pulp mills) based on the smaller number of accidents at these facilities in the last 5 years (n = 20).143 EPA considered applying STAA requirements to facilities in NAICS 324 and 325 with a reportable accident within the last 5 years, estimating that this would apply to approximately 140 RMP facilities during their 5-year PHA schedule. EPA also considered applying these provisions to all NAICS 324 and 325 140 EPA–HQ–OLEM–2021–0312–0014; 0058, 0148. 141 EPA–HQ–OLEM–2021–0312–0149–18. 142 EPA. Pollution Prevention Resource Exchange (P2RX). Available at: https://www.epa.gov/p2/ pollution-prevention-resource-exchange-p2rx#:∼: text=The%20Pollution%20Prevention%20 Resource%20Exchange,and%20measured% 20P2%20program%20results. 143 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53580 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules facilities, which would be similar to provisions promulgated in the 2017 amendments rule and be estimated to apply to 1,660 active RMP facilities at least every 5 years. Given the high accident rates in NAICS 324 and 325 industries without considering proximity to other facilities, EPA solicits comment on whether the RMP rule should simply reinstate the 2017 rule provisions requiring STAA for NAICS 324 and 325. As discussed above regarding recent public comments, EPA is aware that some commenters would like for all regulated facilities to implement inherently safer technologies. With respect to whether the Agency should require implementation of IST/ISD, in this rulemaking, EPA does not intend to require facilities implement identified IST. Instead, EPA has required evaluation of STAA as part of the PHA, as well as employee involvement in the STAA evaluation. EPA believes facility owners and operators will adopt IST and other safer technology alternatives when it is practicable technically and economically and when the risk reduction is significant even in the absence of a mandate. Part of the basis for this belief is due to most of the economic savings resulting from reduced accidents will be from reduced on-site property damage to the owner or operator’s facility. However, EPA seeks comment on whether the Agency should require implementation of technically practicable IST/ISD and STAAs. With respect to whether all industries should be required to conduct STAA analysis or investigate ISTs, as discussed above, while in theory considering IST may reduce the probability of accidents, the accident history for most industries does not establish that IST would substantially reduce accident likelihood or impacts, and that EPA judges lack as many opportunities for STAA to successfully reduce accidents. To the extent that commenters have additional considerations relating to probability and the effectiveness of STAA provisions if extended to all industries, EPA requests commenters provide this information to EPA. In this proposed rulemaking, EPA is only requiring STAA in industries with the most frequent and severe accidents with offsite consequences. As discussed in section IV.A.2.v., above, EPA has identified densely co-located refineries and chemical manufacturing facilities (i.e., facilities with processes in NAICS 324 and 324 within 1 mile of another facility with processes in these NAICS) as a class of facilities that present a heightened risk to nearby communities. EPA seeks comment on whether the VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 proposal to limit the STAA provisions to 324 and 325 regulated processes within 1 mile of another 324 and 325 regulated facility is appropriate or if another distance would be appropriate; commenters should provide rationales for proposed distance alternatives. EPA also solicits comment on other industries for which STAA analysis should be required and seeks comment on how EPA might justify extending these provisions to other industries with fewer accidents. Finally, EPA considered requiring implementation of IST identified in the course of an STAA, both for the proposed regulated industries and for alternative options examined. The known costs of certain STAA changes range from less than $1,000 to over $100 million. For many significant STAA changes, the costs would be facilityspecific, and EPA has little information on the potential costs of large STAA projects. Due to the uncertainty of STAA provision implementation, it is challenging to identify the benefits that offset implementation costs. Commenters have identified industries for which EPA should require the assessment and specifically suggested implementation of safer technologies for water treatment facilities; 144 however, EPA is not requiring STAA analysis for water treatment facilities for specific reasons. EPA relies on two reasons for not requiring STAA analysis for water treatment facilities: our view that the probability of an incident is low, and our understanding that such a requirement would unreasonably burden State and local governments, especially when applied to existing sources. First, in evaluating the potential for large offsite consequences based on the numbers of persons potentially exposed, only one of 22 incidents in NAICS 2213 between 2016 and 2020 reported an offsite impact: an evacuation of 125 people caused by an ammonia leak.145 Risk to communities is a function of probability, hazard, and exposure. Commenters who asked that the Agency mandate IST for water treatment facilities or at least an assessment have identified the number of persons potentially exposed in the event of an accidental release, but generally do not address the accident history data showing the low probability of an incident when discussing the risk 144 EPA–HQ–OLEM–2021–0312–0014; 0017, 0039, 0149. 145 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022), Appendix A. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 to be addressed by requiring IST or STAA analysis at water treatment facilities. Second, most water treatment facilities are operated by local and State governments. When conducting discretionary rulemaking, EPA considers the costs to State and local governments. The benefits of requiring STAA for these facilities would have to be justified in relation to the costs and EPA needs more information on such costs before applying any requirements to these facilities. Therefore, EPA solicits comments on the actual and updated costs to government-owned water treatment facilities. Additionally, EPA solicits comments on a provision which would require consideration of ISD in the design of new water treatment facilities, when the costs of designing in safer technologies are recognized to be less than the cost of retrofitting existing facilities. EPA has used accident history data to provide insight into the probability with which these accidents have actually occurred to support requiring STAA analysis for portions of particular industries. However, EPA recognizes that substance and process-specific accident history may not always be an appropriate metric for probability of an accident or the risk communities face. For example, the consequences of an HF release are so potentially catastrophic, and with known alternatives existing, EPA has proposed that facilities with HF alkylation evaluate and document STAA as part of their PHA. In this case, EPA focused on numerous accidental releases that had the potential to cause a secondary release of HF from alkylation units rather than actual HF releases and their consequences. EPA solicits comment on what other information or consideration it can use to assess probability of an accident in other industries without substantial accident history data as well as what specific chemicals or process may merit the most focus, and how EPA may require STAA requirements for industries without a history of accidents. xi. Proposed Revisions to Regulatory Text Definitions (40 CFR 68.3). EPA is proposing to add several definitions that relate to the STAA in 40 CFR 68.3. EPA is adding these definitions to describe risk reduction strategies that the owner or operator can use when considering safer technology and alternatives. First, EPA is proposing a similar definition for IST/ISD as in the 2017 amendments rule. The proposed definition includes risk management measures that would eliminate, replace, E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 or reduce the use of regulated substances or make operating conditions less hazardous or less complex. As in the 2017 amendments rule, EPA is also proposing definitions for ‘‘passive,’’ ‘‘active,’’ and ‘‘procedural’’ measures. EPA proposes that ‘‘passive measures’’ (in 40 CFR 68.3) be defined as those that rely on measures that reduce a hazard without human, mechanical, or other energy input. EPA also proposes to define ‘‘active measures’’ as those that involve engineering controls that rely on mechanical, or other energy input to detect and respond to process deviations. Examples of active measures include alarms, safety instrumented systems, and detection hardware (e.g., hydrocarbon sensors). Lastly, EPA proposes a definition for ‘‘procedural measures’’ that includes policies, operating procedures, training, administrative controls, and emergency response actions to prevent or minimize incidents. Examples of procedural measures include administrative limits on process vessel fill levels and procedural steps taken to avoid releases. Finally, EPA is proposing to define ‘‘practicability’’ as the capability of being successfully accomplished within a reasonable time, accounting for technological, environmental, legal, social, and economic factors. EPA clarifies in this definition that environmental factors would include consideration of potential transferred risks for new risk reduction measures. EPA is not requiring owners or operators to implement identified IST/ ISD. Although an owner or operator may choose not to implement a safer technology or design identified on account of its cost, EPA is proposing that the evaluation of practicability be first based on technological, environmental, legal, and social factors, with economic considerations evaluated last. EPA proposes that the practicability assessment be documented with the technological, environmental, legal, social and economic factors outlined, along with any methods or processes used to determine practicability. xii. Process Hazard Analysis (40 CFR 68.67) EPA is proposing to modify the process hazard analysis (PHA) provisions by adding paragraph (c)(9) to 40 CFR 68.67 to require that the owner or operator of a facility with Program 3 processes in NAICS codes 324 and 325 located within 1 mile of another 324 and 325 regulated facility address safer technology and alternative risk management measures applicable to VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 eliminating or reducing risk from process hazards. EPA proposes that ‘‘1 mile’’ be interpreted to mean ‘‘1 mile to the nearest fenceline’’ for a facility in NAICS 324 or 325. EPA is proposing to add paragraph (c)(9)(i) to specify that the analysis include, in the following order, IST or ISD, passive measures, active measures, and procedural measures. The owner or operator may evaluate a combination of risk management measures to reduce risk. By incorporating these requirements into the PHA, EPA proposes to require facilities to address STAA in processes that already exist, rather than only during the design phase. The results of the STAA must be documented as part of the current PHA provisions in 40 CFR 68.67(e), which require the owner or operator to document actions to be taken and resolution of recommendations. EPA is also proposing that a summary of this information be submitted to EPA as part of the STAA Technology Transfer section. Finally, EPA is proposing to add paragraph (c)(9)(iii) to require that the STAA team include and document the involvement of one member who works in the process and has expertise in the process being evaluated. EPA is also proposing to add paragraph (c)(9)(ii) to require that the owner or operator determine and document the practicability of the IST or ISD considered. EPA intends for this process to be separate and additional to the PHA requirements described above. EPA solicits comment on if it should only require the STAA as part of the PHA, without the additional practicability assessment. The PHA must be updated and revalidated at least every 5 years in accordance with paragraph 40 CFR 68.67(f). This provides the owner or operator opportunities to evaluate the practicability of IST or ISD considered since the last PHA review. EPA contends that 5-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 as a result of changes in cost and technology. EPA seeks comment on these proposed revisions. b. Root Cause Analysis EPA is proposing to require all facilities with Program 2 and 3 processes to conduct a root cause analysis as part of an incident investigation for an RMP-reportable accident as defined under 40 CFR 68.42. This includes requiring the root cause analysis to include specific elements, PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 53581 requiring the use of a recognized investigation method, and requiring that investigations are completed within 12 months. Based on RMP-reportable accidents from 2016 to 2020, EPA estimates this provision will apply to an average of 100 facilities per year. In the 2017 amendments rule, EPA amended 40 CFR 68.81 to add that incident investigations shall include ‘‘the factors that contributed to the incident including the initiating event, direct and indirect contributing factors, and root causes’’ and that ‘‘root causes shall be determined by conducting an analysis for each incident using a recognized method.’’ In the 2019 reconsideration rule, EPA rescinded the root cause analysis requirements, stating that EPA was ‘‘unable to make a direct connection between the presence or absence of these provisions and a number of accidents prevented’’ (84 FR 69834). EPA also stated that it did not rely exclusively on a comparison of costs and benefits to justify the rescission, but also acted to maintain consistency with the OSHA PSM standard. As a result of the 2019 removal of root cause analysis requirements, EPA’s current causal incident investigation requirements under 40 CFR 68.60 and 68.81 require investigation into only ‘‘the factors that contributed to the incident.’’ Since the 2019 reconsideration rule, EPA has coordinated with OSHA to ensure that any proposed incident investigation root cause analysis provisions do not contradict OSHA PSM requirements. In the 2019 reconsideration rule, EPA also indicated that it had not conducted any overall analysis of data from RMP accident investigations conducted by regulated facilities to determine how well these investigations identified causes and contributing factors (84 FR 69834). However, this is in part because EPA has not required the investigation of root causes and therefore cannot analyze such data. EPA therefore revisited commenters’ points concerning facilities with more than one accident. Updated analysis of EPA’s RMP accident reporting data identified repeated accidents in facilities within the same process.146 For the 2019 reconsideration rule, EPA relied upon data demonstrating that only a subset of facilities experience accidents. This holds true for the updated analysis, with only 3 percent (n = 382) of facilities between 146 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 53582 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 2016 and 2020 reporting one RMPreportable accident and 0.5 percent (n = 70) of all RMP facilities reporting two or more RMP-reportable accidents during that period. Among facilities reporting accidents, facilities who reported one often have multiple accidents, indicating a failure to properly address circumstances leading to subsequent accidents. For example, between 2016 and 2020, these facilities accounted for 36 percent (n = 176) of all accidents reported (n = 488). Additionally, of these 70 facilities, 61 percent (n = 43) had experienced another accident prior to 2016. Between 2004 and 2020, 18 facilities had more than 10 accidents each, with two facilities reporting over 20 incidents each to EPA.147 These accidents may have been preventable if root cause analyses had been required. EPA believes multiple accidents result, in part, from a failure to thoroughly investigate and learn from prior accidents. Although EPA cannot be certain that in all cases, subsequent accidents are due to a failure to conduct a root cause analysis of an earlier incident, EPA finds that of the 70 facilities with multiple accidents between 2016 and 2020, 60 percent (n = 42) reported repeat causal factors within the same process.148 While this could be a failure to implement incident investigation findings or could be unrelated to the earlier incident, multiple accidents within the same process with the same causal factors indicate a likely failure to rectify prior failures and root causes of these incidents. EPA believes the occurrence of such subsequent incidents indicates an overall failure to identify and implement controls that may have prevented future incidents. In proposing to reestablish the rootcause analysis requirements, EPA has determined that there are likely no legitimate reliance interests associated with the 2019 reconsideration rule’s elimination of these requirements. The 2019 rule has only been in place for three years and any accident investigation in the past, under way, or that otherwise would be required that predate the proposed rule will not have to be revised or changed in scope should EPA finalize the proposed change. Further, the burden of the 147 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 148 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 proposed root cause analysis is relatively small. Few sources will have to conduct one because accidents occur at a small number of sources and many sources perform root cause analyses already in a manner consistent with industry or company protocols. The potential benefit from improved incident investigations is apparent from the significant percentage of sources and processes that have another accident after the first. Rather than relying on negotiations in enforcement actions as a basis for promoting root cause analyses as necessary under the approach of the 2019 reconsideration rule, EPA believes the delays of negotiations and the transaction costs of such an approach, and the benefit of a root cause approach to incident investigations, makes it more prudent and reasonable to impose a rule requirement for root cause analysis in incident investigations rather than the approach adopted in 2019. i. Root Cause Analysis Background EPA discussed root cause analysis at length in the 2016 proposed amendments. As discussed, CCPS defines root cause analysis as: ‘‘A formal investigation method that attempts to identify and address the management system failures that led to an incident. These root causes often are the causes, or potential causes, of other seemingly unrelated incidents. Root cause analysis identifies the underlying reasons the event was allowed to occur so that workable corrective actions can be implemented to help prevent recurrence of the event (or occurrence of similar events).’’ 149 EPA also discussed that causes of incidents are commonly referred to as ‘‘causal factors’’ (also known as contributing causes, contributory causes, contributing factors, or critical factors). CCPS defines a causal factor as a ‘‘major unplanned, unintended contributor to an incident (a negative event or undesirable condition), that if eliminated would have either prevented the occurrence of the incident or reduced its severity or frequency.’’ 150 Causal or contributing factors usually have underlying reasons for why they occurred, which are known as ‘‘root causes.’’ CCPS defines a root cause as a ‘‘fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management 149 CCPS, ‘‘Root Cause Analysis (RCA),’’ accessed February 15, 2022, https://www.aiche.org/ccps/ resources/glossary/process-safety-glossary/rootcause-analysis-rca. 150 CCPS, Guidelines for Investigating Process Safety Incidents, 3rd Edition (2019). PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 systems.’’ 151 EPA proposed that root causes shall be determined by conducting a root cause analysis for each incident using a recognized method or approach. CCPS’ ‘‘Guidelines for Investigating Chemical Process Incidents’’ discusses incident investigation approaches and techniques and root cause analysis methods.152 EPA previously discussed that identifying and addressing incident contributing factors and their root causes helps eliminate or substantially reduce the risk of reoccurrence of the incident and other similar incidents, citing notable incidents that CSB investigated. These CSB investigations of the 2004 Formosa Plastics Corporation incident,153 the 2005 BP Texas City Refinery incidents,154 and the 2010 Millard Refrigerated Services incident 155 found that root causes of prior, similar incidents were not identified, a lack that contributed to subsequent incidents. In the 2016 proposed amendments, EPA also discussed that root cause analysis of accidents is an accepted safe management practice used by many industries, noting that the American Chemistry Council (ACC) conducts root cause analyses as part of its Responsible Care program.156 In addition, New Jersey’s TCPA,157 as well as California’s PSM for Refineries,158 Contra Costa County Health Services,159 and the City of Richmond, California, Industrial Safety Ordinances, already require root cause analyses for major chemical accidents.160 151 CCPS, Guidelines for Investigating Process Safety Incidents, 3rd Edition (2019). 152 CCPS, Guidelines for Investigating Process Safety Incidents, 3rd Edition (2019). 153 CSB, ‘‘Formosa Plastics Vinyl Chloride Explosion,’’ last modified March 6, 2007, https:// www.csb.gov/formosa-plastics-vinyl-chlorideexplosion/. 154 CSB, ‘‘BP America Refinery Explosion,’’ last modified March 20, 2007, https://www.csb.gov/bpamerica-refinery-explosion/. 155 CSB, ‘‘Millard Refrigerated Services Ammonia Release,’’ last modified January 15, 2015, https:// www.csb.gov/millard-refrigerated-servicesammonia-release/. 156 EPA–HQ–OEM–2014–0328–0694. 157 NJDEP, Toxic Catastrophe Prevention Act Program, TCPA Program Consolidated Rule Document, section 68.42 (February 1, 2016), p. 38, https://www.nj.gov/dep/rules/rules/njac7_31_ consolidated.pdf. 158 California General Industry Safety Orders, Process Safety Management for Petroleum Refineries, General Industry Safety Orders section 5189.1(o) (2017). 159 Contra Costa County, Chapter 450–8—Risk Management, Ord. 98–48 (1998), https:// cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISKMANAGEMENT.pdf. 160 City of Richmond, California, Chapter 6.43— Industrial Safety (2016), https://cchealth.org/ hazmat/pdf/iso/RISO-Chapter-6-43-INDUSTRIALSAFETY.pdf. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules ii. Recent Public Comments on Root Cause Analysis EPA received comments on root cause analysis during its 2021 listening sessions. For instance, a labor organization expressed support for requiring RMP facilities to conduct root cause analyses as part of incident investigations, as root cause analyses can prevent similar events from occurring; this commenter suggested that a lot can be learned from near misses and smaller incidents.161 The commenter suggested that the definition of ‘‘root cause’’ could be revised to read, ‘‘a fundamental, underlying, systemrelated reason why an incident occurred that identifies a correctable failure(s) in management systems or process design.’’ The commenter also suggested that EPA should implement a timeline for near-miss investigations, requiring initiation of the incident investigation within 48 hours of an incident, a preliminary report within 90 days, and a final report within 6 months. Further, the commenter suggested that EPA require incident investigation teams including experts involved in the process and the root cause analysis method, as well as employees and their representatives and applicable contractors. Similarly, an advocacy group suggested that the incident investigation should be completed within 12 months of the incident.162 The advocacy group went on to conclude that incident investigations should include a root cause analysis, and that facilities should investigate near misses as well as accidents where the affected process was decommissioned or destroyed. Another commenter stated that owners or operators should report serious near misses to EPA and that these incidents should be compiled in a publicly available online database.163 EPA also received comments that did not support root cause analysis provisions. A regional industry trade association expressed concern about the ‘‘near-miss’’ standard of the root cause analysis.164 This commenter stated that the quality of safety reviews under the 2017 amendments rule could be diluted by applying them to high-frequency, low-consequence events. The commenter also stated that the nearmiss requirement would impose significant administrative burdens and economic costs on regulated facilities, especially without a clear threshold for a near-miss event. The commenter requested that EPA not adopt this proposal from the 2017 amendments rule. Similarly, another industry trade association stated that facilities do not benefit from a burdensome, one-sizefits-all requirement.165 This commenter went on to say that near-miss incidents are often examples of active process protections working as designed and requiring a root cause analysis of nearmiss events would create a disincentive for reporting. An industry trade association stated that the root cause analysis under the 2017 amendments rule is duplicative of the root cause analysis conducted for incident investigations under OSHA PSM regulations, as well as some State regulations.166 An individual commenter also expressed general opposition to the root cause analysis requirement, stating that most companies already have a tiered process for conducting incident investigations— including root cause analyses—and that the size of the investigation should match the size of the incident.167 Meanwhile, an industry trade association stated that EPA’s definition of ‘‘root cause’’ in 2017 was too narrow and would potentially exclude nonsystem-related root causes, such as human error.168 Another industry trade association stated that requiring an incident investigation before ‘‘deregistering’’ a process would provide no benefit.169 iii. Investigation Timeframe In the 2017 amendments rule, EPA discussed that conducting incident investigations as soon as possible after an incident may yield better quality data and information, although it may take time to collect, validate, and integrate data from a range of sources. EPA has discovered situations where owners or operators of regulated facilities indefinitely delayed completing incident investigations. EPA’s own experience with accident investigation has shown that a major accident investigation can take up to a year, or even longer. Taking into consideration the need to complete an investigation while allowing the proper time to determine the correct root causes, EPA is again proposing to require that facility owners or operators complete an incident investigation report as soon as reasonably practicable, but no later than 12 months after an RMP-reportable accident. For very 165 EPA–HQ–OLEM–2021–0312–0078. 161 EPA–HQ–OLEM–2021–0312–0057. 166 EPA–HQ–OLEM–2021–0312–0045. 162 EPA–HQ–OLEM–2021–0312–0170. 167 EPA–HQ–OLEM–2021–0312–0050. 163 EPA–HQ–OLEM–2021–0312–0076. 168 EPA–HQ–OLEM–2021–0312–0071. 164 EPA–HQ–OLEM–2021–0312–0037. 169 EPA–HQ–OLEM–2021–0312–0078. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 53583 complex incident investigations that cannot be completed within 12 months, EPA is allowing an extension of time if the implementing agency (i.e., EPA and delegated authorities) approves the extension in writing. EPA believes that 12 months is long enough to complete most complex accident investigations but will allow facilities more time if they consult with their implementing agency and receive approval for an extension. In the 2017 amendments rule, EPA noted that the Agency’s own requirements under the Petroleum Refinery Maximum Achievable Control Technology (MACT) and New Source Performance Standards (NSPS) regulations already require root cause and corrective action analyses for certain release events 170 with a more stringent timeframe (i.e., 45 days) for completing these analyses than the 12 months specified in this proposed rule. RMP-regulated facilities that are also required to meet the MACT and NSPS root cause analysis requirements must continue to meet the timeframes specified under those rules, as applicable. EPA again proposes that root cause analyses conducted to meet those requirements may also be used to comply with the root cause analysis requirements proposed herein, provided that the analysis meets the requirements of 40 CFR 68.60 or 68.81. EPA did not receive substantive comments on this provision, but again invites comments on this approach. iv. Proposed Revisions to Regulatory Text EPA is proposing to define ‘‘root cause’’ as a fundamental, underlying, system-related reason why an incident occurred. For incidents that meet the accident history reporting requirements under 40 CFR 68.42, EPA is also proposing to amend 40 CFR 68.81 and 68.60 to require the owner or operator to investigate the factors that contributed to an incident. In the proposed amendment, these factors will now include root causes, and these root causes shall be determined by conducting an analysis for each incident using a recognized method (such as CCPS). EPA is also amending both 40 CFR 68.81 and 68.60 to require that a report be prepared at the conclusion of the investigation and completed within 12 months of the incident (though it will allow for facility owners or operators to request an extension from the implementing agency). 170 40 CFR 63.648(j)(6) and (j)(7)), and 40 CFR 60.103a(d). E:\FR\FM\31AUP2.SGM 31AUP2 53584 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 v. ‘‘Near Miss’’ Definition In the 2017 amendments rule, EPA considered, but elected not to finalize, a regulatory definition of ‘‘near miss’’ to identify incidents that require investigation. At the time, EPA stated that the criteria for determining incidents that require investigation would continue to include events that ‘‘could reasonably have resulted in a catastrophic release.’’ As discussed, adding the term ‘‘near miss’’ was not intended to expand the types of incidents required to be investigated, but rather, was intended as a clarification of incidents that may have reasonably resulted in a catastrophic release and were already required to be investigated. EPA notes that even without a ‘‘near miss’’ definition, these incidents are still currently required to be investigated. EPA also notes that the definition of ‘‘near miss,’’ as described here, is unrelated to the root cause analysis provisions described above; 40 CFR 68.42 criteria would not be applicable to near misses. EPA may ultimately believe that adding a definition of a ‘‘near miss’’ may help clarify incident investigation requirements overall. During the 2017 rulemaking, however, comments demonstrated that adding the ‘‘near miss’’ definition as discussed at that time instead resulted in confusion about incident investigation requirements. EPA is not proposing a definition of ‘‘near miss’’ as part of this rulemaking. Nevertheless, it solicits comments on a potential definition of ‘‘near miss’’ that would address difficulties in identifying the variety of incidents that may occur at RMP facilities that could be near misses that should be investigated. For example, CCPS defines a ‘‘near miss,’’ as ‘‘an incident in which an adverse consequence could potentially have resulted if circumstances (weather conditions, process safeguard response, adherence to procedure, etc.) had been slightly different.’’ 171 During the 2019 proposed RMP reconsideration rule comment period, NJDEP provided recommended draft text for 40 CFR 68.81 that would require investigation of all accidental releases and near misses (instead of incidents that resulted in or could reasonably have resulted in a catastrophic release) and included a definition of ‘‘near miss’’ to mean ‘‘an unplanned, unforeseen, or unintended incident, situation, condition, or set of circumstances which does not directly or indirectly result in a regulated substance release. Examples 171 CCPS, Guidelines for Investigating Process Safety Incidents, 3rd Edition (2019). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 of a near miss include, but are not limited to, 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. A near miss also includes an incident at a nearby process or equipment outside of a regulated process if the incident had the potential to cause an unplanned, unforeseen, or unintended incident, situation, condition, or set of circumstances at the regulated process.’’ 172 EPA solicits comments on a universal ‘‘near miss’’ definition, as well as comments on strengths and limitations of the definition provided by NJDEP and how the definition may clarify requirements for incident investigations. Based on these comments, in a future rulemaking, EPA may propose a definition of ‘‘near miss.’’ c. Third-Party Compliance Audits Section IV.A.2.b of this preamble, ‘‘root cause analysis,’’ explains that incident investigations following an accident often reveal multiple causal factors related to prevention program elements. However, incident investigations generally evaluate only the affected process; they do not necessarily address all covered processes 173 at a facility or even all prevention program elements for the affected process. EPA expects that the proposed requirement to conduct a formal root cause analysis after an RMPreportable accident will be helpful to ensure deficient prevention program areas are thoroughly investigated for the specific covered processes involved in the accident. Compliance audits, in contrast, help to ensure a systematic evaluation of the full prevention program for all covered processes. EPA’s RMP general guidance explains, ‘‘A compliance audit is a way for you to evaluate and measure the effectiveness of your risk management program. An audit reviews each of the prevention program elements to ensure that they are up-to-date and are being implemented and will help you identify problem areas and take corrective actions.’’ 174 172 EPA–HQ–OEM–2015–0725–0973. 173 See 2019 RMP reconsideration rule discussion of ‘‘representative sampling’’ to satisfy compliance audit evaluation of multiple processes, 84 FR 69882–69883. 174 EPA, General Risk Management Program, Ch. 6: Prevention Programs (2012), p. 6–24, https:// www.epa.gov/sites/default/files/2013-11/ documents/chap-06-final.pdf. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 As discussed in the 2019 reconsideration rule, EPA recognizes that a relatively small number of RMPregulated facilities have RMP-reportable accidents. However, EPA continues to be concerned with RMP facilities that— despite current RMP regulations, enforcement, and lessons learned from previous accidents—continue to have accidents and, in some cases, multiple accidents. EPA RMP accident history data show that while 97 percent of all RMP facilities had no RMP-reportable accidents from 2016–2020, 3 percent of all RMP facilities had at least one RMPreportable accident and 0.5 percent of all RMP facilities had two or more RMPreportable accidents. Facilities responsible for two or more accidents in those 5 years generally were within industry sectors where regulated facilities have multiple RMP-regulated processes. RMP facilities within the chemical manufacturing (NAICS 325) and petroleum and coal products manufacturing (NAICS 324) industries represent over 50 percent of the facilities with two or more accidents in 5 years, and they have on average two and eight RMP-regulated processes, respectively, at their facilities.175 When RMP facilities have multiple accidents within a 5-year period, EPA is concerned that those facilities have not been able to identify measures on their own (through incident investigations, hazard evaluations, and compliance self-audits) to properly evaluate and apply appropriate prevention program measures to stop accidents from occurring. EPA also has similar concerns for facilities with NAICS code 324 and 325 Program 3 processes that have had one RMP-reportable accident and are located within a 1-mile radius of another 324 and 325 regulated facility. EPA discusses the increased accident severity, frequency, and consequences for these facilities in the STAA section (IV.A.2.a) of this preamble. Between 2016 and 2020, 66 accidents occurred among facilities in NAICS codes 324 and 325 located within 1 mile of another 324 or 325 facility.176 Stationary sources that have had multiple accidents within a short period; substantial non-compliance with RMP requirements; and/or high accident 175 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 176 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules severity, frequency, and consequences pose a greater risk to surrounding communities. EPA therefore believes it is appropriate to require such stationary sources to undergo auditing by competent and independent third-party auditors. lotter on DSK11XQN23PROD with PROPOSALS2 i. Third-Party Compliance Audits in Previous RMP Rulemakings EPA discussed third-party compliance audits at length in the 2016 proposed amendments. EPA discussed that selfauditing may be insufficient to prevent accidents, determine compliance with the RMP rule’s prevention program requirements, and ensure safe operation. In the preamble to the 1996 RMP rule, EPA identified the potential to use independent third-party auditors for RMP compliance audits as an issue for further consideration. In the 2016 proposed amendments, EPA explained that poor compliance audits have been cited by EPA and CSB as a contributing factor to the severity of past chemical accidents and that in some cases, EPA has required third-party audits in enforcement settlement agreements. The 2016 proposed amendments noted that other Federal programs require third-party audits in existing rules to ensure safe operations. The Administrative Conference of the United States’ ‘‘Third-Party Programs Final Report’’ (October 22, 2012) describes a variety of third-party programs in Food and Drug Administration, Consumer Product Safety Commission, and Federal Communications Commission regulations.177 The Bureau of Safety and Environmental Enforcement (BSEE) also promulgated revisions to their Safety and Environmental Management Systems (SEMS II) requirements (78 FR 20423, April 5, 2013) to help ensure the safe operations of offshore oil and natural gas drilling and production facilities. The 2016 proposed amendments also discussed how industry recognizes the benefits of third-party auditing programs and has established programs and standards for third-party audits for some types of operations, many of which are also subject to the RMP rule. Some of these programs still in use are: • National Association of Chemical Distributors (NACD)—Responsible Distribution.178 177 McCallister, Lesley. October 22, 2012. ThirdParty Programs Final Report (2012). https:// www.acus.gov/report/third-party-programs-finalreport. 178 National Association of Chemical Distributors, ‘‘About Responsible Distribution,’’ accessed February 15, 2022, https://www.nacd.com/ VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 • ACC—Responsible Care program.179 • API—Process Safety Site Assessments.180 • Society of Chemical Manufacturers & Affiliates (SOCMA)—ChemStewards program.181 In the 2017 amendments rule, EPA added compliance audit provisions under 40 CFR 68.58 and 68.79 to require independent third-party compliance audits after an RMP-reportable accident or findings of significant noncompliance by an implementing agency for facilities with Program 2 and Program 3 processes. EPA explained that independent third-party auditing can assist owners and operators, EPA (or the implementing agency), and the public to better determine whether the procedures and practices developed by owners or operators for the prevention program requirements are adequate and being followed. The 2019 reconsideration rule rescinded the third-party compliance audit requirements. EPA’s decision to rescind the third-party audit requirements was to ‘‘allow for coordination of process safety requirements with OSHA before proposing future regulatory changes, and to reduce unnecessary regulatory costs and burdens of a broad rule-based approach to third-party audits rather than a case-by-case approach (84 FR 69875)’’; it was not based on a determination that third-party audits are not beneficial or justified in certain cases. In the 2019 reconsideration rule, EPA further indicated that ‘‘while EPA cannot inspect every RMP facility every year, the Agency performs approximately 300 RMP facility inspections each year and prioritizes inspections at facilities that have had accidental releases. Therefore, EPA’s enforcement resources and posture are capable of addressing accident-prone facilities without additional broad regulatory mandates. The Agency’s choice to use a more surgical approach to accident prevention at these facilities responsible-distribution/about-responsibledistribution/. 179 ACC, ‘‘Responsible Care®: Driving Safety & Industry Performance,’’ accessed February 15, 2022, https://www.americanchemistry.com/chemistry-inamerica/responsible-care-driving-safety-industryperformance?gclid=EAIaIQobChMIov_ h7qbw9QIVj67ICh3g5guDEAAYASAAEgLHCfD_ BwE. 180 API, ‘‘Process Safety Site Assessments (PSSAP®),’’ accessed February 15, 2022, https:// www.api.org/products-and-services/site-safety. 181 Society of Chemical Manufacturers & Affiliates (SOCMA), ‘‘SOCMA’S ChemStewards® Program,’’ accessed February 15, 2022, https:// www.socma.org/operations-manufacturing/ chemstewards/. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 53585 is reasonable and practicable (84 FR 69853).’’ In proposing to reestablish third-party compliance audits, EPA has determined that there are likely no legitimate reliance interests associated with the 2019 reconsideration rule’s elimination of these requirements. Similar to the possible reliance interests regarding root cause analysis, the 2019 rule has only been in place for three years, and any compliance audit in the past, under way, or that otherwise would be required that predate the proposed rule will not have to be revised or changed in scope should EPA finalize the proposed change. Since the 2019 reconsideration rule, EPA has coordinated with OSHA to ensure that any proposed third-party compliance audit provisions do not contradict OSHA PSM requirements. The Agency continues to require third parties to conduct compliance audits for the settlement of some RMP civil enforcement cases. Facilities in those cases are often required to also comply with the OSHA PSM standard, and conflicts between the third-party audit provisions of settlement agreements and the compliance self-auditing requirements of the PSM standard have not arisen with OSHA.182 183 184 The Agency now recognizes that there are some impracticalities of relying on EPA inspections, particularly in the wake of the COVID–19 pandemic and in consideration of the long time period over which some enforcement matters are settled. EPA realizes that a better approach is to be more proactive with respect to prevention and aim to prevent further accidents at facilities, particularly facilities that have proven to be accident-prone. ii. Recent Public Input on Third-Party Compliance Audits Commenters provided feedback on third-party audits during the two 2021 listening sessions and in written comments submitted in response to an associated request for comments. Several commenters expressed general support for the third-party audit requirement of the 2017 amendments 182 United States of America v. Harcros Chemicals Inc, No. 2:17–cv–02432, Document 3–1 (January 31, 2017), https://www.justice.gov/enrd/consentdecree/file/1280071/download. 183 United States of America and the State of Kansas, ex rel. Kansas Department of Health and Environment v. HollyFrontier El Dorado Refining LLC, No. 2:20–cv–02270, Document 1 (May 28, 2020), https://www.justice.gov/opa/press-release/ file/985591/download. 184 United States of America v. Formosa Plastics Corporation, Texas, No. 6:21–cv–00043, Document 2–1 (September 13, 2021), https://www.justice.gov/ opa/press-release/file/1432401/download. E:\FR\FM\31AUP2.SGM 31AUP2 53586 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 rule.185 A labor organization expressed support for requiring third-party audits after an accidental release or discovery of significant non-compliance. The commenter stated that these audits are critical to protecting high-risk facilities and suggested that EPA ensure these audits are not used to merely satisfy a requirement. The commenter also suggested that EPA require auditors to be accredited by an auditing accreditation organization and prohibit auditors from developing relationships with facilities.186 Another individual commenter supported including a requirement for third-party audits in the RMP rule and said that auditors should engage with employees and their representatives to become more familiar with the facilities; this commenter also suggested that auditors should include comments provided by employee representatives in the draft and final audit report.187 Another commenter suggested that it is feasible to train engineers and chemists to be auditors so that they ensure industry standard practices are being followed, but noted that there should not be a ‘‘revolving door’’ between auditors and industry employees.188 Several commenters expressed opposition to the third-party audit requirement of the 2017 amendments rule. An industry trade association stated that the third-party audit requirement is not realistic, would not support better audits of RMP facilities, and would potentially ‘‘degrade rather than improve safety.’’ 189 This commenter and others expressed concern about the potential costs and availability of third-party auditors.190 One commenter stated that the industry would be subject to third-party consultant pricing demands, as well as administrative and recordkeeping burdens. The commenter stressed that third-party auditors may be unacquainted with certain processes, industries, or businesses, and argued that the 3-year disqualifier for auditors who have conducted past research, development, or consulting with the owner or operator of a facility is unrealistic, overly restrictive, and especially difficult for facilities in more rural areas.191 Other commenters, including industry trade associations and an individual commenter, expressed concerns about 185 EPA–HQ–OLEM–2021–0312–0170; 0057, 0076. 186 EPA–HQ–OLEM–2021–0312–0057. 187 EPA–HQ–OLEM–2021–0312–0076. 188 EPA–HQ–OLEM–2021–0312–0383–2. 189 EPA–HQ–OLEM–2021–0312–0037. 190 EPA–HQ–OLEM–2021–0312–0037; 0077. 191 EPA–HQ–OLEM–2021–0312–0037. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 the auditors’ lack of industry and process knowledge.192 An industry trade association said that the audit teams at facilities are highly trained and report directly to a chief executive officer. These teams visit different facilities under one company and transfer safety knowledge from one facility to another without concerns about disclosing confidential information. The commenter explained that the potential disclosure of confidential information would be a concern with independent third-party auditors who observe production processes at many facilities.193 Another industry trade association expressed agreement, saying that independent auditors do not hold certain industry knowledge and cannot be trusted.194 Another industry trade association said that because the audit mandate would not enhance chemical safety at facilities, it supported EPA’s decision to rescind this provision in 2019. This commenter suggested that EPA use its own inspection powers to better enforce auditing practices at facilities, focusing on facilities responsible for the majority of the accidents.195 Another industry trade association stated that requiring a third-party audit after a release would be redundant due to the current requirement to perform a root cause analysis.196 The industry trade association further commented that requiring a compliance audit for each covered process every 3 years under Program 2 and Program 3 would impose substantial burdens and cause inefficiencies and operation disruptions. iii. Proposed Third-Party Compliance Audit Requirements 2017 provisions. EPA is proposing to adopt the independent third-party compliance audit provisions as outlined in the 2017 amendments rule with modifications to account for EPA’s recent review of the current RMP rule, which included data analyses and solicitation of comments. The proposed provisions for this action reflect that the most accident-prone facilities have not been able to properly evaluate and apply appropriate prevention program measures to regulated processes to stop accidents from occurring and that the availability of some qualified third-party auditors may be limited. EPA is proposing to use the same definition of ‘‘third-party audit’’ as in 40 192 EPA–HQ–OLEM–2021–0312–0077; 0045, 0050, 0071. 193 EPA–HQ–OLEM–2021–0312–0045. 194 EPA–HQ–OLEM–2021–0312–0071. 195 EPA–HQ–OLEM–2021–0312–0077. 196 EPA–HQ–OLEM–2021–0312–0078. PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 CFR 68.3 in the 2017 amendments rule. Regarding when a third-party audit must be performed, EPA is proposing to modify the first condition from the 2017 amendments rule (at 40 CFR 68.58 and 68.79) that requires a third-party audit after one accidental release meeting the criteria in 68.42, instead requiring it after two accidental releases within a 5year period. Based on RMP-reportable accidents from 2016 to 2020, EPA estimates this will apply to an average of 70 facilities. Additionally, EPA is proposing to require all facilities with regulated NAICS code 324 and 325 Program 3 processes that have had one RMP-reportable accident and are located within a 1-mile radius of another facility with a regulated NAICS code 324 and 325 process to conduct a third-party audit after one accident. EPA discusses the increased accident severity, frequency, and consequences for these facilities in the STAA section (IV.A.2.a) of this preamble. Between 2016 and 2020, 66 accidents occurred among facilities in NAICS codes 324 and 325 located within 1 mile of another 324 or 325 facility.197 Regarding requirements for thirdparty auditors and third-party audits in new sections 68.59 and 68.80, EPA is proposing to restore the provisions from the 2017 amendments rule but remove the following auditor independence requirements contained in 40 CFR 68.59 and 68.80(c)(2)(iii) and (iv) to allow more flexibility in choosing auditors: • Auditors cannot have conducted past research, development, design, construction services, or consulting for the owner or operator within the last 2 years. • Auditors cannot provide other business or consulting services to the owner or operator, including advice or assistance to implement the findings or recommendations of an audit report, for a period of at least 2 years following submission of the final audit report. As noted earlier in this section, several trade associations in the chemical manufacturing and petroleum refining industries have third-party auditing as part of their industry programs on process safety (NACD, ACC, API, SOCMA). For owners and operators with processes in NAICS codes 324 and 325, the Agency expects that there would be ample auditors experienced in the relevant industries and knowledgeable of the processes available for sources in these particular NAICS codes. The 2017 final RMP 197 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules amendments approach to the independence criteria assumed that the RMP rule would establish a market for parties meeting the more stringent independence criteria, but the Agency’s approach now is to be more flexible and take the market as it is and to better recognize within the rule structure the voluntary measures of industry. EPA solicits comment on this proposed independence criterion modified from the 2017 rule. EPA also seeks comment on whether the selected auditor should be mutually approved by the owner or operator and employees and their representatives, and if direct participation from employees and their representative should be required when the third party conducts the audit. EPA contends that the remaining third-party compliance audit provisions, when restored, will help ensure that owners and operators of RMP facilities without strong prevention programs objectively and adequately explore all opportunities to prevent or minimize accidental releases of regulated substances to protect human health and the environment. Third-Party-Issued Compliance Audit Findings Information Availability. As discussed in section IV.A.1.e of this preamble, ensuring that communities, local planners, local first responders, and the public have appropriate chemical facility hazard-related information is critical to the health and safety of responders and the local community. EPA is proposing ways to enhance information sharing and collaboration between chemical facility owners and operators, LEPCs/TEPCs, first responders, and the public in a manner that EPA believes balances security and proprietary considerations with the need for public and local responder information availability. In addition to the information availability provisions in section IV.C of this preamble, EPA is proposing to require facilities conducting third-party compliance audits for the proposed provisions under 40 CFR 68.58, 68.79, 68.59 and 68.80 to list in section 7 (Program 3) and section 8 (Program 2) of their risk management plans, for each process, findings resulting from the audit that the owner or operator chooses to decline. EPA realizes that the number of third-party-issued findings may vary widely, depending on the complexity of the process or facility. Therefore, as in section IV.A.1.e of this preamble, EPA seeks comments on the format of listing the findings—whether EPA should require findings to be included in narrative form, or whether the Agency should provide specific categories of findings for facilities to choose from VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 when reporting. Another option would be to allow the owner or operator to post this information online and provide a link to the information within their risk management plan. EPA is also proposing to adopt the same categories outlined in section IV.A.1.e of this preamble for owners and operators to justify declined third-partyissued compliance audit findings. EPA seeks public comment on this approach and on alternative categories or methods for providing justification for declining relevant findings. EPA wants to ensure a balanced approach to providing beneficial data to the public as well as a straightforward method of reporting for facility owners and operators. d. Employee Participation i. Introduction Employees directly involved in operating and maintaining a process are most exposed to its hazards. These same employees are typically the most knowledgeable about the daily requirements for safely operating the process and maintaining process equipment; they may sometimes be the only source of process-specific knowledge—knowledge that has been gained through their unique experiences. Their direct participation and involvement in ensuring and enhancing the safety of process operations are often essential to protecting their own welfare.198 199 Such actions help keep communities safe as well. A long-standing premise of the RMP rule is that actions that promote worker safety as part of a well-designed process safety system generally help protect the public and the environment.200 Employee participation is a key element of a company’s commitment to process safety. The CCPS’s ‘‘Guidelines for Risk Based Process Safety’’ 201 outlines how to design and implement—or further correct and improve—effective PSM practices to prevent accidents based on process risks. It identifies essential 198 CCPS, ‘‘Introduction to Workforce Involvement,’’ accessed February 3, 2022, https:// www.aiche.org/ccps/introduction-workforceinvolvement. 199 CCPS, Guidelines for Risk Based Process Safety (March 2007), https://www.aiche.org/ resources/publications/books/guidelines-risk-basedprocess-safety, p. 47. 200 See EPA, Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7), 61 FR 31687 (June 20, 1996). 201 CCPS, Guidelines for Risk Based Process Safety (March 2007), https://www.aiche.org/ resources/publications/books/guidelines-risk-basedprocess-safety. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 53587 characteristics of strong commitment to employee participation such as: • Empowering individuals to successfully fulfill their safety responsibilities. • Deferring to expertise. • Ensuring open and effective communication. • Fostering mutual trust. • Providing timely responses to process safety issues and concerns. Employee participation and a company’s commitment to process safety can be critical to preventing accidents. CSB recently identified ineffective worker participation as a contributing factor to certain catastrophic accidents because workers and their representatives were not properly engaged in process operations to help identify and mitigate hazards and reduce risks. To highlight this issue, in September 2019, CSB published ‘‘Safety Digest: The Importance of Worker Participation.’’ 202 The digest discusses four catastrophic incidents that led to 13 employee deaths, 179 employee injuries, and, in one case, 15,000 residents living near the facility having to seek medical evaluation. The incidents took place at an explosives manufacturing site in Nevada, a chemical production facility in Louisiana, and oil refineries in Washington and California. The digest concludes that workers and their representatives play a critical role in hazard identification, risk reduction, and incident prevention. Each of these CSB investigations found that employee participation programs were inadequate, despite the existence of current Federal regulations and industry standards.203 Recommendations from CSB to create an effective worker participation program include: • Creating or improving opportunities for workers to participate directly in matters involving PSM and major incident prevention. • Empowering workers to provide input on how work is performed, whether through safety-related committees, special projects, inspections and audits, hazard analyses, and/or other specific measures. • Sharing safety information or communicating safety improvements as a part of strengthening a company’s or 202 CSB, Safety Digest: The Importance of Worker Participation (n.d.), https://www.csb.gov/assets/1/6/ worker_safety_digest.pdf. 203 The CSB Safety Digest identifies applicable regulations and industry standards including OSHA PSM, EPA RMP, Bureau of Safety and Environmental Enforcement’s Safety and Environmental Management Systems rule, and the American National Standard-Occupational Safety and Health management Systems, ANSI/AIHA Z10. E:\FR\FM\31AUP2.SGM 31AUP2 53588 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 facility’s overall safety management system. • Enabling workers to bring safety issues to the attention of management without fear of retaliation or reprisal. • Collecting data to help ensure critical information is retained and used to continuously improve safety. • Worker training opportunities and information sharing regarding the nature of hazards present in the workplace, lessons learned from other sites, the outcomes of incident investigations, and exposure to both established industry best practices and the results of safetyrelated research relevant to a company’s or facility’s operations. • Strengthened worker participation requirements in industry standards and State and Federal regulations. Although process industries are aware of the value of worker participation programs, opportunities exist to strengthen these programs and requirements for RMP-regulated facilities in a way that will protect human health and the environment. A 2017 study by Dupont Sustainable Solutions of 80 executives in highhazard industries, such oil and gas, chemical and petrochemical, utilities, metals and mining, and manufacturing, found that employee participation to reduce catastrophic accidents that threaten their businesses could be improved. The study found that ‘‘executives acknowledge there is an organizational disconnect and misalignment among leadership and employees with respect to risk management, which greatly contributes to the likelihood of a catastrophic event.’’ One of the most notable discoveries of the study was that 88 percent of company executives felt workforce engagement was important to risk management, but only 35 percent believed it to be a strong part of their organization.204 Many commenters, including labor unions, advocacy groups, and individual commenters from the 2021 listening sessions, stated that EPA must strengthen the RMP rules to support and facilitate effective participation by workers and their representatives, arguing that worker participation is an 204 DuPont Sustainable Solutions, ‘‘Lack of Internal Alignment and Commitment of Resources to Manage Risk Threaten Corporate Business Performance,’’ last modified 2017, https:// www.consultdss.com/global-operational-riskmanagement-survey-report/#: ∼:text=Lack%20of%20Internal%20Alignment %20and,Risk%20Threaten%20 Corporate%20Business% 20Performance&text=Instead%2C% 20better%20understanding%20operational% 20risks,new%20value%20from%20emerging% 20opportunities. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 essential component of incident prevention and safety management systems.205 One advocacy group remarked that doing so would be essential to protecting public health and safety.206 A labor union asserted that genuine worker involvement in RMP development, program enforcement, and corrective actions would translate to better communication and engagement with local communities and more effective response plans.207 In discussing the need for updated regulations relating to worker participation, an individual commenter pointed out that the current RMP rule provides opportunities for employee participation, but these elements have not been updated since the regulations were first issued.208 The existing RMP rule already requires owners or operators of regulated facilities to include employees in RMP-regulated process operations. At 40 CFR 68.83, owners or operators with Program 3 processes are required to: (1) Develop a written plan of action regarding the implementation of employee participation requirements; (2) consult with employees and their representatives about the conduct and development of process hazards analyses and the development of the other elements of PSM; and (3) provide employees and their representatives with access to PHAs and all other information required to be developed under the rule. In development of the initial 1996 RMP rule, the Agency recognized that many workplace hazards also threaten public receptors and that most accident prevention steps taken to protect workers also protect the public and the environment. Therefore, EPA adopted and built on much of the existing accident prevention language from OSHA’s PSM standard, including the employee participation language in 29 CFR 1910.119(c). EPA considers these employee participation requirements to be a good basis for promoting a commitment to process safety because workers who are intimately familiar with the process, equipment operation, and possible failure modes and consequences of deviations serve as a mechanism for greater communication and understanding of specific process hazards (as opposed to general chemical hazards).209 205 EPA–HQ–OLEM–2021–0312–0079; 0170, 0151, 0058, 0032, 0057. 206 EPA–HQ–OLEM–2021–0312–0094. 207 EPA–HQ–OLEM–2021–0312–0044. 208 EPA–HQ–OLEM–2021–0312–0076. 209 EPA, Accidental Release Prevention Requirements: Risk Management Programs Under PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 Taking into account lessons learned from accidents, current guidance, and recent discussions within regulated industry sectors indicating there is room for improvement in this area, EPA believes that further worker involvement in process safety could help prevent and mitigate accidents. Therefore, EPA is proposing to add additional regulatory provisions to the employee participation requirements for owners and operators of regulated facilities with Program 2 and Program 3 processes. EPA is specifically proposing to require employers to consult with employees when making decisions on implementing recommendations from PHAs, compliance audits, and incident investigations; provide employees the opportunity to stop work under certain circumstances; and provide opportunities for employees to report late or unreported accidents and other areas of RMP non-compliance to EPA and other relevant authorities. EPA is proposing these provisions so that owners and operators without strong employee participation programs will have further measures in place to ensure process safety and to prevent or minimize accidental releases of hazardous substances. EPA does not expect these new provisions to be a burden to owners and operators that already have made this commitment. ii. Recommendation Decisions Although employees may be involved in the development of plans and procedures (through 40 CFR 68.83 or otherwise), they may not be guaranteed ‘‘a seat at the table’’ when final decisions are made about process operations they are directly involved in that could threaten their health and safety. EPA realizes that practicable recommendations from hazard evaluations, incident investigations, and compliance audits that may reduce hazards at RMP facilities are not always implemented, for various reasons. The Agency believes that involving directly affected employees in these discussions and decisions will help ensure that the most effective recommendations for reducing hazards and mitigating risks to employees and the public are given the proper consideration. In 2019, CCPS published its ‘‘Guide for Making Acute Risk Decisions (GMARD)’’ 210 to complement its Risk Based Process Safety (RBPS) guidelines. The GMARD is a source for recognized Clean Air Act Section 112(r)(7), (June 20, 1996), 61 FR 31697. 210 CCPS, Guide for Making Acute Risk Decisions (October 2019), https://www.aiche.org/ccps/ resources/publications/books/guide-making-acuterisk-decisions. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 good industry practices on how to conduct risk decision-making in the chemical industry. This publication aims to guide the decision process of common and practical risk evaluation and risk analysis tools to analyze decisions. The guidance outlines specific considerations when making decisions in chemical process safety regarding implementation of hazard assessments, audits, and incident investigation recommendations. The GMARD indicates that selection of members to analyze decisions—like a PHA team—should be based on the skills needed to analyze the problem and define solutions and the level of responsibility required to authorize the decision team’s recommendations. Stakeholders who may be affected by the risk decision should also be represented. These groups may include production and plant stakeholders such as those in engineering, operations, maintenance, safety, and health; and environmental managers. Ultimately, the team composition should be appropriate to the level of risk and the complexity of the potential resolution actions. The American National Standards Institute (ANSI)/American Society of Safety Professionals (ASSP) Z10.0–2019 standard 211 offers additional guidance on health and safety management systems for different types of organizations and risks. It explains that organizations must establish a process to ensure effective worker participation by those most threatened by hazards. Worker involvement helps determine and validate acceptable levels of risks and provides transparency when alternate decisions are made. This standard reflects industry consensus and was in part developed by the ACC and API—both major stakeholders representing RMP-regulated facilities. In 2017, the California Department of Industrial Relations (DIR) formalized including employees in all phases of PSM by making additions and modifications to its regulations on ‘‘Process Safety Management for Petroleum Refineries.’’ 212 Specifically, in the employee participation section of the rule, it added that employee participation shall occur ‘‘throughout all phases’’ and required involvement of affected operating and maintenance 211 ANSI and ASSP, ANSI/ASSP Z10.0—2019 Occupational Health and Safety Management Systems (2019), https://store.assp.org/ PersonifyEbusiness/Store/Product-Details/ productId/197785872. 212 DIR, Process Safety Management for Petroleum Refineries, CCR Title 8: section 5189.1 (July 27, 2017), https://www.dir.ca.gov/title8/5189_ 1.html. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 53589 employees and employee representatives in developing, training, implementing, maintaining, and performing various process safety elements. DIR indicated that this modification would ensure meaningful participation and decision-making for employees and employee representatives from all program teams for all analyses required by their PSM regulations.213 Additionally, the United Kingdom has had regulations in place since 1996 that address consulting employees on matters that affect their health and safety. The Health and Safety (Consultation with Employees) Regulations of 1996,214 specifically Regulation 4A, require employers to consult their health and safety representatives before making decisions involving work equipment, processes, or the organization that could have health and safety consequences for employees.215 One of the accident investigations from the CSB safety digest highlights the severe consequences of a lack of an effective employee participation program. On April 2, 2010, the Tesoro Refining and Marketing Company LLC (Tesoro) petroleum refinery in Anacortes, Washington, experienced a catastrophic rupture of a heat exchanger. Hydrocarbons released from the ruptured heat exchanger ignited, causing an explosion and an intense fire that burned for more than 3 hours. The rupture fatally injured seven Tesoro employees who were working in the immediate vicinity of the heat exchanger at the time of the incident. Prior to the incident, workers had repeatedly provided input on how to improve the safety of the process. During a 2006 PHA revalidation on the unit involved in the accident, workers noted 31 near misses in the unit during the previous 5 years. The PHA team requested a review of experience and training for relevant operators to address their safety concerns. 216 The action item was closed without resolution of the concerns expressed by the Tesoro workers on the PHA team. The Tesoro accident highlights what can happen when employees’ views are not considered when making comprehensive decisions about process hazards and risks. EPA analyzed OSHA PSM violations from 2018 to 2020 to better understand the breadth of unresolved or improper closure of recommendations from PHAs, compliance audits, and incident investigations.217 In these 3 years, there were 70 violations of non-compliance where PHA, incident investigation, or compliance audit recommendations were not addressed, resolved, completed, documented, or communicated to employees. Of these violations, the majority (56 percent) were violations associated with PHA recommendations, 38 percent were from compliance audits, and 6 percent were from incident investigations. Some of these violations were associated with RMP-reportable accidents, which suggests that worker involvement may have been useful in making sure options were appropriately considered.218 During the 2021 listening sessions, some commenters recommended allowing workers to be involved in making decisions about process safety. One idea was for EPA to issue specific provisions that enable workers and their unions to participate in the prevention of chemical releases by requiring the facility owner and operator to provide for meaningful employee participation when developing, implementing, maintaining, and evaluating all RMP activities—including hazard assessments, the prevention program, and emergency response activities—and to keep current a written plan that describes such opportunities.219 A commenter stated that effective worker participation includes having an employee representative with veto power. This representative—chosen by employees—would participate in all stages of developing and implementing a risk management program and have access to all documents or information pertaining to the facility’s RMP.220 221 A 213 DIR, Final Statement of Reasons, CCR Title 8: new section 5189.1 (September 15, 2016), https:// www.dir.ca.gov/oshsb/documents/Process-SafetyManagement-for-Petroleum-Refineries-FSOR.pdf. 214 John Selwyn Gummer, The Health and Safety (Consultation with Employees) Regulations 1996, 1996 No. 1513 (June 10, 1996), https:// www.legislation.gov.uk/uksi/1996/1513/made. 215 Health and Safety Executive, Consulting Workers on Health and Safety, L146 (Second edition with amendments) (2014), https:// www.hse.gov.uk/pubns/priced/l146.pdf. 216 CSB, ‘‘Tesoro Refinery Fatal Explosion and Fire,’’ last modified May 1, 2014, https:// www.csb.gov/tesoro-refinery-fatal-explosion-andfire/. 217 EPA did not use EPA RMP enforcement information because statistical data on enforcement under the 1996 RMP rule is not available at this level of detail. 218 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 219 EPA–HQ–OLEM–2021–0312–0079; 0149, 0058, 0148, 0076. 220 EPA–HQ–OLEM–2021–0312–0079. 221 Note that the current 1996 RMP rule requires the owner or the operator of a Program 3 process to ‘‘provide to employees or their representatives PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\31AUP2.SGM Continued 31AUP2 53590 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 few commenters stated that increased worker participation would reduce the occurrence of catastrophic incidents at RMP facilities because workers are an excellent source of knowledge for reducing hazards in collaboration with plant engineers.222 As a result of this concern and need for employees to be involved in decision-making, EPA is proposing to require in 40 CFR 68.83(c) that the written plan of action include consultation of employees and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations of PHAs, incident investigations, and compliance audits, at a minimum. EPA expects this would be similar to involving employees in the hazard evaluations under 40 CFR 68.83(b) but would go a step further to offer suggestions and concerns about why a recommendation should be adopted or declined or whether other alternatives should be taken. EPA expects this would address safety concerns that threaten the lives of workers and potentially others if a major chemical accident were to occur, as well as involving workers in ensuring items are completed in a timely manner. EPA seeks comment on whether there should be a representative number or percentage of employees and their representatives involved in these recommendations decision teams as well as the development of other process safety elements as outlined in 40 CFR 68.83(b). EPA also expects regulated facilities to use some of the guidance materials referenced in this section (e.g., CCPS’ RBPS and GMARD guidelines and ANSI/ASSP Z.10) to comply with the requirement to effectively involve employees in decision-making processes. EPA seeks comment on other relevant sources that have provided useful guidance in making risk decisions. iii. Stop Work Authority Allowing process operation employees to stop work when witnessing a dangerous activity could help better protect human health and the environment. In the 2014 RMP RFI, EPA requested comments on whether it should add provisions to the RMP rule giving workers the ability to stop work if they believe a situation is dangerous—an authority similar to the one that BSEE had recently provided for workers in the access to [PHAs] and to all other information required to be developed under this rule’’—that is, the current 1996 RMP rule (40 CFR 68.83(c)). 222 EPA–HQ–OLEM–2021–0312–0032. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 offshore oil industry. BSEE promulgated revisions to their SEMS II requirements to help ensure the safe operation of their regulated facilities.223 The revisions included several management system elements not addressed in the RMP regulation. In its SEMS II fact sheet, BSEE describes the stop work authority as an authority that creates procedures and authorizes offshore industry personnel who witness an imminent risk or dangerous activity to stop work.224 While the requirements of SEMS II focus on offshore facilities under the jurisdiction of BSEE, the same concept could be applied to facilities subject to RMP regulation. EPA chose not to pursue proposing stop work regulations in the 2017 amendments rule, but it is revisiting this idea to address an area that may help reduce accidents, particularly for those facilities that have not fully developed a strong prevention program. Various commenters from the 2014 RFI, including a consultant, the Mary Kay O’Connor Process Safety Center, and CCPS, supported adding this provision.225 The Mary Kay O’Connor Process Safety Center suggested adding a stop work authority to the RMP employee participation provision (40 CFR 68.83). While CSB supported EPA’s consideration of a stop work authority, it asserted that a stop work authority is a less effective measure for incident prevention than good planning and noted that its success is contingent upon the existence of a ‘‘culture of safety’’ wherein workers are encouraged and empowered to advocate for their safety on the job. CSB argued that any program that does not appropriately enable stop work authority permits risks to occur and accumulate.226 Industry commenters generally opposed adding this authority to the RMP rule.227 API and other associations noted that employees already have the right to refuse work in light of a hazardous condition that could cause serious bodily injury or death.228 API stated that stop work authority is an inherent part of the oil and gas industry and pointed to training programs and API standards that outline this 223 Bureau of Safety and Environmental Enforcement (BSEE), Oil and Gas and Sulphur Operations in the Outer Continental Shelf-Revisions to Safety and Environmental Management Systems, 78 FR 20423–20443 (April 5, 2013). 224 BSEE, Safety and Environmental Management Systems (SEMS) Fact Sheet (n.d.), https:// www.bsee.gov/fact-sheet/safety/sems-ii-fact-sheet. 225 EPA–HQ–OEM–2014–0328–0121; 0543, 0546. 226 EPA–HQ–OEM–2014–0328–0689. 227 EPA–HQ–OEM–2014–0328–0560; 0605, 0619, 0624, 0643, 0645, 0665, 0676. 228 EPA–HQ–OEM–2014–0328–0624; 0626, 0640, 0643, 0665. PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 authority.229 API indicated that their standards inform employees that: • Safety is and will always be the industry’s primary focus. • As part of the oil and gas industry, workers have a duty to work in a safe manner. • Workers have a personal responsibility to assure the safety of themselves and those around them. • Safety and safe practices should always be at the forefront when carrying out job functions. • All workers have stop work authority. • Workers should stop and ask questions when in doubt about the safety of any operations. • Workers should stop work at the jobsite if the working conditions or behaviors are considered unsafe. • If a worker is discouraged from exercising their stop work authority or is penalized for doing so, they should report this action to management immediately. After the 2012 Chevron Refinery fire in Richmond, California,230 CSB recommended that the California State Legislature/Governor of California, in its PSM regulations, should provide workers and their representatives with the authority to stop work that is perceived to be unsafe until the employer resolves the matter or the regulator intervenes. As a result, in DIR’s modifications to their Process Safety Management for Petroleum Refineries rule,231 they included stop work procedures. In the employee participation section, the rule indicates that the employer, in consultation with employees, must develop and implement stop work procedures that ensure there is authority for employees to refuse to perform a task or recommend an operation or process be partially or completely shut down. It also provides authority for a qualified operator in charge of a unit to partially or completely shut down an operation or process based on process safety hazards.232 In addition, the regulation 229 API, ‘‘Stop Work Authority,’’ accessed February 3, 2022, https://www.api.org/oil-andnatural-gas/health-and-safety/worker-and-worksitesafety-resources/worker-safety-rules-to-live-by/stopwork-authority. 230 CSB, ‘‘Chevron Refinery Fire,’’ last modified January 28, 2015, https://www.csb.gov/chevronrefinery-fire/. 231 DIR, Process Safety Management for Petroleum Refineries, CCR Title 8: section 5189.1 (September 26, 2017), https://www.dir.ca.gov/title8/ 5189_1.html. 232 DIR, Process Safety Management of Acutely Hazardous Materials, CCR Title 8: section 5189, https://www.dir.ca.gov/title8/ 5189.html#:∼:text=%C2%A75189., Management%20of%20Acutely%20Hazardous% 20Materials.&text=The%20establishment% 20of%20process%20safety,(b)%20Application. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 requires that employers document and respond in writing to employee reports of hazards or requests to shut down a process. CSB also made a similar recommendation to the State of Washington to address related issues after the fatal explosion and fire at Tesoro Refinery.233 The State of Washington is currently considering changes to its PSM rule for refineries.234 Recent articles and studies have attempted to examine stop work authority, how it is applied, and the perception of its usefulness. A 2018 article in Safety+Health magazine indicated that while specific stop work authorities are not mandatory, safety professionals insist on their use. According to the article, key elements of a successful stop work authority policy include employee recognition, empowering employees in the stop work authority process, ensuring leadership supports the program, identifying expectations, promoting positive outcomes and correct application, and publishing effective stop work authority efforts as examples for employees.235 In a 2018 study, Weber et al. examined the factors that support or hinder stopping work for safety.236 Thirty-four workers from different roles in the LPG industry in Australia were interviewed in focus groups. The study found that having a stop work policy supports stopping work for safety and that support from management positively affects its use. It also found that the training, experience, and seniority of employees were factors in employees choosing whether to use the stop work authority. The study concluded that a stop work authority is a starting point. To encourage, promote, and alleviate drawbacks to stopping work, a stop work authority has to be embedded in and supported by a work environment that provides the necessary conditions for people to discontinue work. The authors believe this can only be achieved when company leadership 233 CSB, ‘‘Tesoro Refinery Fatal Explosion and Fire,’’ last modified May 1, 2014, https:// www.csb.gov/tesoro-refinery-fatal-explosion-andfire/. 234 Washington State Department of Labor & Industries, ‘‘Semi-Annual Rules Development Agenda: January 1, 2022–June 30, 2022’’ (January 31, 2022), https://lni.wa.gov/dA/ad667425ad/Rules Agenda.pdf. 235 Bush, J., ‘‘Stop-Work Authority,’’ last modified July 26, 2018, https://www.safetyandhealth magazine.com/articles/17242-stop-workauthority#:∼:text=Stop%2Dwork%20authority% 20permits%20any,Health%20insist%20on% 20its%20use. 236 David E. Weber et al., ‘‘We Can Stop Work, but then Nothing Gets Done.’ Factors that Support and Hinder a Workforce to Discontinue Work for Safety,’’ Safety Science 108 (2018): 149–160, doi: 10.1016/j.ssci.2018.04.032. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 53591 collaborates with its workforce to identify hazards and help resolve the challenges of everyday work. In a 2021 study, Havinga et al. continued the conversation about factors that influence stopping work.237 Taking an ethnographic approach, the researchers followed 10 employees of a municipal water provider over 3 months. The aim of the study was to understand how decisions to stop work were made and when work was expected to be stopped based on procedures. The study concluded that these employees did not generally find stop work decisions to be important or difficult, as they often found an alternative method for completing work, rather than stopping work completely. Procedures were linked to considerations of stopping work, but they were unlikely to lead to a decision to stop work. These findings challenge the idea that stop work decisions are best supported through procedures, training, and policies, as these interventions suggest that workers consider stop work decisions difficult and significant. An alternative strategy to encourage workers to stop work in dangerous situations would be for organizations to provide alternative methods for workers to complete a job. EPA recognizes, and other industry commenters in the past have concluded,238 that the current RMP rule, although not containing explicit requirements for stop work, already addresses many aspects of a stop work authority that provides means to identify and resolve imminent operational risks before they occur. For example, operating procedures developed under the RMP rule (40 CFR 68.69) address how and under what circumstances a facility should conduct normal and temporary operations, emergency shutdown (including the assignment of a responsible qualified operator to do so), emergency operations, and normal shutdown. Operating procedures should also address when process operations deviate from operating limits, steps to correct and avoid deviation, safety and health conditions to consider, and safety systems and their functions. Mechanical integrity requirements (40 CFR 68.73(e)) ensure equipment deficiencies that are outside acceptable limits are corrected in a safe and timely manner or before further use to assure safe operation. The associated trainings for operating procedures (40 CFR 68.71) and maintenance (40 CFR 68.73(c)) are key to ensuring that those processes are well understood. EPA believes all these components create a stop work authority as they address the circumstances and procedures to identify unsafe operations. Furthermore, EPA believes each facility’s individual operating procedures and approach to correcting equipment deficiencies give owners and operators the flexibility to design a stop work authority for their process operations that remains adaptable to the procedures already in place. With the current provisions in the RMP rule, EPA believes many facilities with RMP processes already have the appropriate measures to identify, reduce, and mitigate the threat of an accidental release before it happens. The fact that only a small number of facilities have RMP accidents further supports this. However, RMP accidents do still occur. According to the Agency’s RMP accident data, among the most commonly instituted changes after RMP-reportable accidents were improved or upgraded equipment, revised training, and revised operating procedures.239 Rather than make significant changes to these specific prevention program areas, EPA believes a better approach would be to ensure facilities’ employees are aware of authorities to manage unsafe work, one of the last lines of defense to protect human health and the environment from a catastrophic release. Therefore, EPA is proposing to require at 40 CFR 68.83(d) that the written plan of action regarding the implementation of the employee participation for Program 3 processes include and ensure effective methods are in place so that employees and their representatives have authority to: • Refuse to perform a task when doing so could reasonably result in a catastrophic release. • Recommend to the operator in charge of a unit that an operation or process be partially or completely shut down, in accordance with procedures established in 40 CFR 68.69(a), based on the potential for a catastrophic release. • Allow a qualified operator in charge of a unit to partially or completely shut down an operation or process, in accordance with procedures established in 40 CFR 68.69(a), based on the potential for a catastrophic release. 237 Jop Havinga, Kym Bancroft, and Andrew Rae, ‘‘Deciding to Stop Work or Deciding How Work Is Done?’’ Safety Science 141 (2021): 105334, doi: 10.1016/j.ssci.2021.105334. 238 EPA–HQ–OEM–2014–0328–0605. 239 EPA Office of Land and Emergency Management, Risk Management Plan RMP*eSubmit User’s Manual (August 2019), https://www.epa.gov/ sites/default/files/2019-03/documents/rmpesubmit_ user_guide_-_march_2019_final_0.pdf. PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\31AUP2.SGM 31AUP2 53592 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Additionally, EPA is proposing to require that stop work authority processes within employee participation plans outline how employers should document and respond, in writing and within 30 days, to employee reports of hazards or employee recommendations to shut down or partially shut down a process. iv. Accident and Non-Compliance Reporting Accident history reporting provides an avenue for disseminating valuable information about potential hazards and steps needed to prevent future accidents. Accident information submitted within a risk management plan, as required by the 5-year accident history provisions, includes information that could help states and EPA learn which types of sources are having problems, understand more about accident causes, track trends in chemical accidents and prevention activities, monitor the progress of risk management programs, focus future prevention activities, and avoid overregulation of industry sectors or substances. These important activities depend on accurate and timely information provided by accident reports. Current accident reporting provisions in the RMP rule (40 CFR 68.42(a)) require that 5-year accident histories include all accidental releases from covered processes that resulted in deaths, injuries, and significant property damage onsite, and known offsite deaths, injuries, evacuations, sheltering in place, property damage, and environmental damage. When the RMP rule was first promulgated, it required that when a risk management plan was updated per 40 CFR 68.190, it had to contain an updated 5-year accident history, including all the accidents that met the 40 CFR 68.42 reporting criteria and those that occurred within 5 years of the date on which the updated risk management plan was submitted. On April 9, 2004, EPA published a final rule that amended the accident history reporting requirement and certain other provisions of the Risk Management Program.240 From that date, if an accident occurs that meets the reporting criteria, it must be reported in the RMP 5-year accident history within 6 months of the accident (as required by 40 CFR 240 EPA, Accidental Release Prevention Requirements: Risk Management Program Requirements Under Clean Air Act Section 112(r)(7); Amendments to the Submission Schedule and Data Requirements, 40 CFR part 68 (69 FR 18819; April 9, 2004), https://www.govinfo.gov/ content/pkg/FR-2004-04-09/pdf/04-7777.pdf. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 68.195) unless it is included in a risk management plan update prior to that time. EPA took this action so that government, industry, and the public would be more quickly alerted to the possibility of similar accidents occurring elsewhere.241 Commenters from the 2021 listening sessions drew attention to the issue of RMP-reportable accidents that have not been reported or have been reported late. One commentor specifically provided a data analysis showing the lag in reporting.242 In recognition of these comments, EPA further examined RMP accident history reporting from 2004 to 2020, analyzing accidents where either the risk management plan correction date or the full risk management plan submission date was more than 6 months from the date of the accident. This analysis found 163 RMP accidents reported late out of a total of 2,436 total accidents reported over this period (i.e., a 6.7 percent late accident reporting rate). One commentor indicated that there seems to be little or no consequence for failures and delays in accident reporting. This may prevent EPA from performing relevant inspections and requiring corrective action to prevent serious harm.243 Other commenters from the 2021 listening sessions, including advocacy groups and individual commenters, recommended specific changes to the RMP rule addressing worker involvement in reporting areas of RMP non-compliance. For example, an individual commenter stated that EPA must strengthen worker participation, encourage workers to take action to protect safety and avoid incidents, ensure fast compliance deadlines for all requirements, and require more reporting to EPA on compliance. Some commenters, including advocacy groups and an individual commenter, emphasized that an updated RMP rule must address near-miss reporting by workers at RMP facilities.244 A few of these commenters added that near-miss reporting must be anonymous.245 One of these advocacy groups and an individual commenter suggested that EPA provide a hotline that allows workers, contractors, and anyone else with relevant information to report 241 EPA Office of Solid Waste and Emergency Response, ‘‘Chapter 3: Five-Year Accident History,’’ General Guidance on Risk Management Programs for Chemical Accident Prevention (March 2009), https://www.epa.gov/sites/default/files/2013-10/ documents/chap-03-final.pdf. 242 EPA–HQ–OLEM–2021–0312–0058. 243 EPA–HQ–OLEM–2021–0312–0149. 244 EPA–HQ–OLEM–2021–0312–0035; 0032, 0020, 0170. 245 EPA–HQ–OLEM–2021–0312–0035; 0035, 0170, 0032. PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 anonymous near-miss and safety information directly to the Agency, remarking that this would be a valuable service that would help ensure that EPA gets important information quickly.246 EPA is also concerned about other areas of RMP non-compliance, as compliance with the regulations helps facilities operate and maintain a safe facility and consistently implement recognized good engineering practices that prevent accidents from occurring. EPA inspections have revealed significant non-compliance and an ongoing need for additional compliance assistance to decrease the likelihood of chemical accidents and reduce the risk to human health and the environment. Over the last 5 fiscal years (October 2017 to September 2021), RMP and General Duty Clause (GDC) inspections resulted in a 71 percent rate of action taken by facilities to address issues of non-compliance with the RMP rule and GDC.247 248 Further, EPA recognizes the right workers have to participate in implementing agency inspections. On February 11, 2011, EPA issued a memo that outlined EPA’s policy on involvement of facility employees and employee representatives in onsite compliance inspections as provided by CAA section 112(r)(6)(L). 249 This section states that when EPA or another authorized agency conducts an inspection of a facility, employees and their representatives shall have the same rights to participate in the inspection, as provided in the Occupational Safety and Health Act [29 U.S.C. 651 et seq.] 250 CSB also recently highlighted this authority of employees in a board addendum on October 24, 2018.251 The policy sets out to ensure opportunities for the participation of workers in the agency’s investigative process. 246 EPA–HQ–OLEM–2021–0312–0076. 247 EPA, ‘‘General Duty Clause Under the Clean Air Act Section 112(r)(1),’’ last modified December 21, 2021, https://www.epa.gov/rmp/general-dutyclause-under-clean-air-act-section-112r1. 248 EPA, ‘‘National Compliance Initiative: Reducing Accidental Releases at Industrial and Chemical Facilities,’’ last modified May 18, 2021, https://www.epa.gov/enforcement/nationalcompliance-initiative-reducing-accidental-releasesindustrial-and-chemical. 249 EPA, Involvement of Employees and Employee Representatives in Clean Air Act (CAA) Section 112(r) On-Site Compliance Inspections— Final Guidance (February 11, 2021), https:// www.epa.gov/sites/default/files/2013-10/ documents/clean_air_memo.pdf. 250 OSHA, Representatives of Employers and Employees, 1903.8 (n.d.), https://www.osha.gov/ laws-regs/regulations/standardnumber/1903/ 1903.8. 251 CSB, Worker Participation in Investigations— Board Order Addendum 40a (October 24, 2018), https://www.csb.gov/assets/record/bo40a.pdf. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 After considering the issues of late reporting of accidents, non-reporting of other compliance issues, and the role workers could plan in promoting compliance, EPA is proposing to require that facilities with Program 3 processes include in their employee participation plans explicit language addressing worker participation and reporting, along with information for how to report RMP-reportable accidents or related RMP non-compliance issues. Specifically, EPA is proposing to add additional language at 40 CFR 68.83 to indicate that written plans should include information for anonymously reporting unaddressed hazards that could lead to a catastrophic release, unreported RMP-reportable accidents, or any other issue of non-compliance with 40 CFR part 68. EPA is also proposing to add an additional section under subpart C for owners and operators of Program 2 processes to implement an employee participation plan that addresses these issues. Although facilities with Program 2 processes account for only approximately 15 percent (n = 357 out of 2,436) of all RMP-reportable accidents (83 percent (n = 2,011 out of 2,436) are Program 3; 3 percent (n = 68 out of 2,436) are Program 1)), their accidents still have the potential to affect public receptors.252 In 2017, for example, a chlorine release from a Program 2 process in Texas caused 20 people to require medical treatment and 125 people to evacuate.253 In 2018, a facility with a Program 2 process in Iowa had an ammonia release that caused 500 members of the public to evacuate and 45 people to shelter in place.254 EPA expects facilities to use available resources for their specific process operations and other appropriate RMP rule guidance to include the new anonymous reporting provisions in employee participation plans. EPA resources to help owners and operators understand what is required and how to enforce provisions include: • EPA’s Report Environmental Violations—an online portal for 252 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 253 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 254 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 reporting possible violations of environmental laws and regulations.255 • Guidance for Facilities on Risk Management Programs—an online resource hub for helping the regulated community understand the RMP rule.256 • Region 7 Risk Management Program Webinars—webinar slides that discuss the requirements of CAA 112(r)(7), common compliance pitfalls, preparing for inspections, and case studies. 257 • ‘‘Guidance for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r)’’— guidance for implementing agencies explaining how to conduct inspections of facilities subject to RMP.258 • ‘‘Final Combined Enforcement Policy for Clean Air Action Sections 112(r)(1), 112(r)(7) and 40 CFR part 68, 2012’’—guidance for determining the appropriate enforcement response and penalty amount for violations in failing to comply with RMP and GDC.259 • EPA chemical accident prevention publications—publications that address the specific need for safety and chemical emergency and preparedness measures based on enforcement and lessons learned from accidents.260 EPA recognizes that workers may often overlook hazards or areas that they know are non-compliant with standards for fear that it will affect their employment. This may particularly be the case for the stop work and accident reporting provisions. The Agency reminds owners and operators that OSHA enforces whistleblower protections provided under the CAA, the Occupational Safety and Health Act, and other Federal laws. Further information about those rights can be found at https:// www.whistleblowers.gov. 255 EPA, ‘‘Report Environmental Violations,’’ last modified January 26, 2022, https://echo.epa.gov/ report-environmental-violations. 256 EPA, ‘‘Guidance for Facilities on Risk Management Programs (RMP),’’ last modified December 20, 2021, https://www.epa.gov/rmp/ guidance-facilities-risk-management-programs-rmp. 257 EPA, ‘‘Region 7 Risk Management Program Webinars,’’ last modified February 24, 2021, https:// www.epa.gov/rmp/region-7-risk-managementprogram-webinars. 258 EPA Office of Solid Waste and Emergency Response and EPA Office of Enforcement and Compliance Assurance, Guidance for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r) (January 2011), https:// www.epa.gov/sites/default/files/2013-10/ documents/clean_air_guidance.pdf. 259 EPA, Transmittal of the Final Combined Enforcement Policy for Clean Air Act Sections 112(2)(1), 112(r)(7) and 40 C.F. R. Part 68 (June 20, 2012), https://www.epa.gov/sites/default/files/ documents/112rcep062012.pdf. 260 EPA, ‘‘Chemical Accident Prevention Publications,’’ last modified November 16, 2021, https://www.epa.gov/rmp/chemical-accidentprevention-publications#advisories. PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 53593 In addition to employee participation, CCPS’ RBPS guidance identifies compliance with standards as a key element in committing to process safety. It indicates that this element helps identify, develop, acquire, evaluate, disseminate, and provide access to applicable standards, codes, regulations, and laws that affect a facility and the process safety requirements applicable to a facility.261 As with the other new provisions proposed in this employee participation section, EPA is proposing these RMP accident and noncompliance employee participation provisions because it wants to ensure that owners and operators who have not fully developed strong employee participation programs have further measures in place to ensure their commitment to process safety in order to prevent and minimize accidental releases of hazardous substances. EPA seeks comment on these proposed RMP accident and non-compliance employee participation provisions. EPA also seeks comments on whether owners and operators should distribute an annual written or electronic notice to employees that employee participation plans and other RMP information is readily accessible upon request and provide training for those plans and how to access the information. B. Emergency Response 1. Review of Emergency Response Notification, Detection, and Response Subpart E of the RMP rule, the emergency response provisions, applies to facilities with Program 2 or 3 processes. These provisions require owners or operators of regulated facilities with Program 2 or 3 processes to coordinate with local response authorities and, in some cases, develop an emergency response program in accordance with 40 CFR 68.95 to address how the owner or operator of the facility will respond to accidental releases. The rule requires the owner or operator to prepare and implement an emergency response program to protect public health and the environment, unless the stationary source is a ‘‘nonresponding’’ facility included in the community emergency response plan developed under section 303 of the Emergency Planning and Community Right-to-Know Act (EPCRA) (for sources with regulated toxic substances) and has coordinated response actions with the local fire department (for sources with only regulated flammable substances). 261 CCPS, Guidelines for Risk Based Process Safety (March 2007), https://www.aiche.org/ resources/publications/books/guidelines-risk-basedprocess-safety. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53594 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules An owner or operator who needs to develop an emergency response program (i.e., be a ‘‘responding’’ facility) will need to include the following elements in that program: • An emergency response plan that includes procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases; documentation of proper first aid and emergency medical treatment necessary to treat accidental human exposures; and procedures and measures for emergency response after an accidental release of a regulated substance. • Procedures for the use of emergency response equipment and for its inspection, testing, and maintenance. • Training for employees. • Procedures to review and update the emergency response plan to reflect changes at the stationary source and ensure that employees are informed of changes. The owner or operator must also coordinate with local response authorities on the emergency response plan. Facility owners or operators who rely on local responders to respond to an accidental release (i.e., a ‘‘nonresponding’’ facility) when the stationary source has been included in the community emergency response plan developed under section 303 of EPCRA (for sources with regulated toxic substances) or who have coordinated response actions with the local fire department (for sources with only regulated flammable substances and without regulated toxic substances) are not required to develop an emergency response program. However, owners or operators must also ensure that appropriate notification mechanisms are in place to notify emergency responders when there is a need for a response and must perform annual emergency response coordination and notification activities. An RMP-regulated facility must indicate in its risk management plan whether it is a non-responding facility (i.e., by indicating compliance with mandatory elements of emergency response plans required in 40 CFR 68.95(a)(1)) and identify the plans and procedures in place should an accidental release occur. EPA’s review of the RMP database has shown that approximately 47 percent of RMP facilities claim to be non-responding facilities. However, during facility inspections, EPA has often found that facilities either are not included in the community emergency plan or have not properly coordinated response actions with local authorities. State and local VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 response officials echoed this concern during the 2013 to 2014 listening sessions conducted under E.O. 13650, in responses to the 2014 RMP RFI,262 and again in the 2021 listening sessions.263 New emergency response requirements added in the 2017 amendments rule and the 2019 reconsideration rule offer opportunities to address some of these concerns, such as coordination meetings with local responders and notification, tabletop, and field exercises.264 In particular, EPA believes the annual coordination meeting and notification exercises will provide a wide range of useful outcomes, including information sharing and evaluation of the effectiveness of notification, evacuation, and sheltering systems and procedures. The annual coordination requirement is expected to help make continual improvements to emergency response systems and procedures, as appropriate. Nevertheless, in reviewing opportunities to continually improve the effectiveness of emergency responses for RMP accidents, EPA reviewed additional data points from the RMP database and carefully considered comments from the 2021 listening sessions. After reviewing the data, EPA believes that more can be done to improve emergency responses, particularly in the field of timely notification of releases to the public and detection of those releases. The following three sections provide an overview of the RMP regulations and includes background information on accidental release notifications to both the surrounding community and local emergency response agencies. These sections serve to support EPA’s proposed amendments to the emergency response requirements. a. Concerns About Notification of Accidents Communities surrounding RMP facilities need information to appropriately prepare for and respond to potential emergencies related to the facilities. Yet commentors from the 2021 listening sessions pointed out that they were first notified of chemical releases impacting their homes and families hours after the release via television news or social media; this delay in notification has created fear among the public.265 262 EPA–HQ–OEM–2014–0328–0679; 0641. 263 EPA–HQ–OLEM–2021–0312–0072. 264 EPA, Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, 84 FR 69893–69906 (December 19, 2019). 265 EPA–HQ–OLEM–2021–0312–0072; 0020. PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 During the 2021 listening sessions, the National Association of SARA (Superfund Amendments and Reauthorization Act) Title III Program Officials (NASTTPO) provided comments containing recommendations to remedy this, urging EPA to require facilities to provide community notification for releases that have the potential to cross a facility’s fenceline. NASTTPO argued that communities must receive more timely notification of chemical releases and accidents if they are to act in the ways LEPCs, emergency planners, and responders emphasize through public outreach and education. While only local response authorities can officially call for evacuations or shelter-in-place responses, the fundamental obligation to inform the public about whether a release has occurred—and about the magnitude of the release—falls upon the facility owner or operator, as they will have the best information available. NASTTPO also stated that education and awareness programs by LEPCs and others on protective actions for chemical release events cannot be successful unless the people who are expected to act receive timely and adequate warning information; the facility owner or operator must be the source of this information.266 While EPA acknowledges that the accident rate from RMP facilities has declined, EPA also recognizes that approximately 39 percent (n = 962) of reported accidents from 2004 to 2020 had offsite impacts. Further analysis shows that no offsite responders were notified in 192 of the 962 accidents with offsite impacts (19 percent). Furthermore, approximately 19 percent (n = 36) of the facilities with the 192 accidents self-identified as nonresponders and relied on local responders to handle the release and public communication efforts. To be clear, that means that in these 36 incidents, there was no notification by the facilities to the entities they had designated would respond to incidents per the submitted risk management plans. Moreover, only 10 of these 192 accident investigations indicated that there was a revised emergency response plan because of the accident. These data points suggest that there is still a disconnect between the roles of regulated facilities and local responders, particularly when there are offsite impacts or the threat of such impacts.267 266 EPA–HQ–OLEM–2021–0312–0072. 267 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Responding facilities also had problems notifying the public of releases, even though they are required to develop procedures for informing the public and the appropriate Federal, State, and local emergency response agencies. Eighty-one percent (n = 156) of responding facilities still did not notify local responders when there were offsite impacts.268 Per 40 CFR 68.95(c), responding facilities are required to promptly provide local emergency response officials with information necessary for developing and implementing the community emergency response plan.269 When local responders are not notified, they cannot implement the community response plan that communities rely on for their safety. For example, on June 10, 2014, in St. David, Cochise County, Arizona, Apache Nitrogen Products Inc. (ANPI) released 52,000 pounds of anhydrous ammonia from a rail car when a sight glass in the ammonia piping broke. The community alarm process identified in the facility’s emergency response program required the deployment of an employee to drive to the facility’s fenceline and use a handheld ammonia monitor to determine if the alarm should be activated. However, the facility did not carry out the employee deployment and fenceline ammonia monitoring needed for action, so appropriate notification did not occur. This facility’s emergency response program exemplifies that current compliance to the RMP rule’s existing public notification provision can be ineffective and that notifications can improve. In a subsequent enforcement action, in addition to requiring upgraded ammonia detection devices, EPA had the facility owner develop response procedures and training. The procedures require relevant ANPI employees and contractors to request that Cochise County send an alert to mobile phones in areas where a release of anhydrous ammonia may reach public receptors. This community notification system must also provide appropriate instructions to the public, such as shelter-in-place or evacuation warnings.270 268 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 269 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 270 Plaintiff v. Apache Nitrogen Products, Inc., an Arizona Corporation, No. 4:20–cv–00463–BGM, Document 3–1 (October 28, 2020), https:// VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 CSB also highlighted these emergency response concerns in a 2018 safety digest: ‘‘Emergency Planning and Response—The Importance of Preparation, Training and Communication.’’ 271 The digest gives examples from four major catastrophic accidents: the Bayer Crop Science pesticide waste tank explosion in Institute, West Virginia in 2008; 272 the West Fertilizer explosion and fire in West, Texas, in 2013; 273 the MGPI Processing, Inc., toxic chemical release in Atchison, Kansas, in 2016; 274 and the Arkema Inc. chemical plant fire in Crosby, Texas, in 2017.275 These examples highlight the importance of an effective emergency response to prevent injuries and fatalities from chemical accidents. The digest further highlights lessons learned from at least 16 CSB accident investigations from 2010 to 2018 wherein there was ineffective emergency response training, planning, and communication between companies, emergency responders, and the community. Among others, some of the key lessons were: • There must be effective communications and information sharing between facilities with hazardous chemicals, emergency responders, and community members before, during, and after emergencies. • Communities should have redundant communication systems in place to notify residents of a chemical emergency. b. Release Detection CAA section 112(r)(7)(B)(ii) clearly anticipated a potential regulatory requirement for facilities to detect accidental releases of their substances to protect human health and the environment. Conforming to the performance-based nature of the RMP rule, the existing regulations allow facility owners or operators to develop mechanisms to detect releases and notify local authorities and the public— www.justice.gov/enrd/consent-decree/file/1332206/ download. 271 CSB, Safety Digest: Emergency Planning and Response (2018), https://www.csb.gov/assets/1/17/ csb_emerg_resp_safety_digest.pdf?16429. 272 CSB, ‘‘Bayer CropScience Pesticide Waste Tank Explosion,’’ last modified January 20, 2011, https://www.csb.gov/bayer-cropscience-pesticidewaste-tank-explosion/. 273 CSB, ‘‘West Fertilizer Explosion and Fire,’’ last modified January 28, 2016, https://www.csb.gov/ west-fertilizer-explosion-and-fire-/. 274 CSB, ‘‘MGPI Processing, Inc. Toxic Chemical Release,’’ last modified January 3, 2018, https:// www.csb.gov/mgpi-processing-inc-toxic-chemicalrelease-/. 275 CSB, ‘‘Arkema Inc. Chemical Plant Fire,’’ last modified May 24, 2018, https://www.csb.gov/ arkema-inc-chemical-plant-fire-/. PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 53595 either directly or through local authorities—of releases at their facility. Currently, RMP facilities are required to collect information and evaluate how they will detect releases at their facility. For example, facilities with Program 2 processes are required in their hazard review to identify any steps used or needed to detect or monitor releases (40 CFR 68.50(a)(4)). Facilities with Program 3 processes are required to identify detection systems when compiling their process safety information (40 CFR 68.65(d)(1)(viii)) and address appropriate application of detection methodologies to provide early warning of releases in their PHA (40 CFR 68.67(c)(3)). RMP facilities with Program 2 and 3 processes are also required to report in their risk management plans, the monitoring and detection systems in use for their regulated processes (40 CFR 68.170(e)(5) and 68.175(e)(5)). When reporting in their risk management plans, owners and operators can select up to four categories that apply to how releases are detected from their processes: ‘‘process area detectors’’, ‘‘perimeter monitors’’, ‘‘none’’, or ‘‘other monitoring/detection system in use’’. When process area detectors or perimeter monitors are selected, no further information is collected. To better understand electronic detection methodologies available and in use among RMP facilities, EPA is proposing to require owners and operators to input, in an open text field in the risk management plan, specific information on their process area detectors and perimeter monitor technologies and models in use to detect RMP-regulated substances. Due to the numerous RMP-regulated substances—and different technologies and methods available of accurately detecting those substances—EPA expects facilities to identify the most effective method of detecting releases of their specific substances, from their specific process operations, based on RAGAGEP. For example, EPA would expect facilities with anhydrous ammonia in ammonia refrigeration systems to adopt IIAR 9–2020, ‘‘Minimum System Safety Requirements for Existing Closed-Circuit Ammonia Refrigeration Systems’’ 276 (specifically, section 7.3.12), to address the specific requirements for ammonia detection and alarms in machinery rooms. For water and wastewater treatment facilities using gaseous chlorine, EPA would expect adoption of the Chlorine Institute’s ‘‘Pamphlet 73, Atmospheric Monitoring Equipment for Chlorine 276 IIAR, E:\FR\FM\31AUP2.SGM ANSI/IIAR Standard 9–2020 (2020). 31AUP2 53596 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules (2021)’’ 277 to ensure best practices for detecting chorine. For petroleum refineries using HF in alkylation units, an appropriate guideline is API’s ‘‘Safe Operation of Hydrofluoric Acid Alkylation Units (2021)’’ 278 (section K.3.2), which covers how to provide early and reliable HF detection. lotter on DSK11XQN23PROD with PROPOSALS2 c. Emergency Response Guidance Current widely accepted industry guidance indicates that timely notification is necessary during hazardous chemical release events and that relying only on emergency responders, particularly those with inadequate resources, may not be enough to protect the public. The NFPA 1600®, ‘‘Standard on Continuity, Emergency, and Crisis Management (2019),’’ 279 indicates that entities shall develop a plan and procedures to disseminate information to—and respond to requests for information from—both internal and external audiences. It states that the entity should determine its warning, notification, and communication needs; in addition, the systems must be reliable, undergo testing, and include issuing warnings through authorized agencies. It also states that facilities should establish and implement a process whereby all appropriate stakeholders have a common reference for the types of incidents that could adversely affect people, property, operations, or the environment and are able to warn, notify, and report on the circumstances. The American Society for Testing and Materials (ASTM) International’s 2020 ‘‘Standard Guide for Coordination and Cooperation between Facilities, Local Emergency Planning Committees, and Emergency Responders’’ (ASTM E3241– 20) 280 aims to provide increased coordination and cooperation among stakeholders to develop better community preparedness for accidents involving hazardous chemicals. The 277 The Chlorine Institute, Pamphlet 73) Atmospheric Monitoring Equipment for Chlorine (2021), https://bookstore.chlorineinstitute.org/ pamphlet-73-atmospheric-monitoring-equipmentfor-chlorine.html?Session_ID=66da3abed669 d2ecb4448e5c1c17ba5e. 278 API, Recommended Practice 751 (2021), https://www.api.org/oil-and-natural-gas/healthand-safety/refinery-and-plant-safety/process-safety/ process-safety-standards/rp-751. 279 NFPA, NFPA 1600: Standard on Continuity, Emergency, and Crisis Management (2019), https:// www.nfpa.org/codes-and-standards/all-codes-andstandards/list-of-codes-and-standards/ detail?code=1600. 280 ASTM International, ‘‘Standard Guide for Coordination and Cooperation Between Facilities, Local Emergency Planning Committees, and Emergency Responders,’’ last modified May 25, 2020, https://www.astm.org/e3241-20.html. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 standard indicates that facilities must be part of the preparedness effort because of their greater expertise on the properties of the hazardous chemicals present, as well as their knowledge of operating systems and procedures, hazard assessments, and their emergency response capabilities. ASTM E3241–20 specifically indicates that facilities must participate in the development of public warning and evacuation procedures and that they must collaborate with local emergency responders to mutually develop protocols for public warning and orders to shelter or evacuate. The United Nations Environment Programme’s 2015 ‘‘Awareness and Preparedness for Emergencies at the Local Level’’ handbook 281 offers processes to improve community awareness and preparedness for technological hazards and environmental emergencies. The handbook indicates that facility owners and operators are fully responsible for accident prevention and emergency response procedures for their operations. The handbook also states that the facility will best understand the hazards and risks, protective measures, and response procedures—and that these must be shared both during preparedness planning and during the response to any accident. These guidance documents outline the importance of having a coordinated effort to ensure public notification of accidental releases. They also encourage facility owners and operators to be accountable in their role for providing accurate information to the necessary authorities to ensure appropriate data are shared with the people who are affected by the release. 2. Proposed Modification and Amplifications of Emergency Response Requirements a. Proposed Regulations To Address Community Notification of RMP Accidents EPA is proposing to amend 40 CFR 68.90(b) by adding a requirement necessary for RMP facility owners and operators to designate their facility as a non-responding facility. The proposed provision would require facilities to develop and implement, as necessary, procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases of RMP-regulated 281 United Nations Environment Programme, Awareness and Preparedness for Emergencies at Local Level (2015), https://www.preventionweb.net/ files/45469_unepawarenesspreparedness emergencie.pdf. PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 substances and ensure that a community notification system is in place to warn the public within the area threatened by a release. Expanding the recordkeeping and implementation aspect of this provision to non-responding facilities would help ensure that all facilities subject to subpart E, have documented knowledge of the public notification process that would occur when there is an accidental release at the facility. Consistent with the overall performance-based nature of the RMP rule, the owner or operator of a facility has some flexibilities in the development of its procedures so long as the procedures meet the performancebased requirement to inform and notify the public and response agencies. This provides facilities with flexibility in the design of the procedures so long as the procedures are implemented in the event of an accidental release. The proposed amendment would also help clarify the facility’s role in the implementation of that notification process by requiring the owner or operator to provide the information needed to initiate a public release notification. EPA anticipates that in most cases, these notification procedures may be identical to those coordinated with and relied upon by local public responders. EPA expects that this proposed provision, in combination with the required annual emergency coordination meetings and notification exercises, would enhance coordinated notification to the public and improve documented accountability for the notification process. EPA is also proposing that these notification procedures be available by the facility upon request to the public living in close proximity (approximately within 6 miles) to RMP facilities, to help ensure that members of the public are aware of the steps the facility has taken to notify them when a release occurs. Further details pertaining to information available to the public is discussed in section IV.C of this preamble. EPA is also proposing to amend 40 CFR 68.95(a)(1)(i), which currently requires responding facilities to have procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases. This proposed amendment would ensure that a community notification system is in place in order to quickly and efficiently warn the public within the area that could be threatened by a release. EPA can expect facilities to ensure that a community notification system is available because the Federal Emergency Management Agency (FEMA) has established the Integrated E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Public Alert & Warning System (IPAWS) for community notification.282 This system provides authenticated emergency and life-saving information to the public through mobile phones using wireless emergency alerts. It also provides alerts to radio and television via the Emergency Alert System and on the National Oceanic and Atmospheric Administration’s Weather Radio. The Emergency Alert System devices found at radio, TV and cable stations can support multiple languages and wireless Emergency Alerts can support both English and Spanish.283 EPA believes that the presence of State and/or local IPAWS alerting authorities—with the designated authority to alert and warn the public when there is an impending natural or human-made disaster, threat, or dangerous or missing person 284—in all 50 states provides the necessary infrastructure for facilities to ensure that a community notification system is operational within any impact zones of releases that occur from their facility. The most applicable alerts through this system would be the imminent threat and public safety alerts. Imminent threat alerts include natural or human-made disasters, extreme weather, active shooters, and other threatening emergencies that are current or emerging. Public safety alerts contain information about a threat that may not be imminent, or about an imminent threat that has occurred.285 EPA expects local responding authorities to notify the community as authorized through IPAWS. In the RMP General Guidance, EPA states that although a non-responding facility is not responsible for developing emergency response capabilities, it is responsible for ensuring effective emergency response to any releases at the facility. If local public responders are not capable of providing such response, EPA guidance urges facilities to take steps to ensure that effective response is available.286 Therefore, EPA 282 FEMA, ‘‘Integrated Public Alert & Warning System,’’ last modified January 27, 2022, https:// www.fema.gov/emergency-managers/practitioners/ integrated-public-alert-warning-system. 283 FEMA, ‘‘Alerting People with Disabilities and Access and Functional Needs,’’ accessed March 17, 2022, https://www.fema.gov/es/emergencymanagers/practitioners/integrated-public-alertwarning-system/public/alerting-people-disabilities. 284 FEMA, ‘‘Alerting Authorities,’’ last modified January 6, 2022, https://www.fema.gov/emergencymanagers/practitioners/integrated-public-alertwarning-system/public-safety-officials/alertingauthorities. 285 FEMA, TIP 38: Imminent Threat vs. Public Safety (2021), https://www.fema.gov/sites/default/ files/documents/fema_ipaws-tip-38-it-vs-ps.pdf. 286 EPA, General Guidance on Risk Management Programs Chapter 8: Emergency Response (2021), p. 8–6, https://www.epa.gov/sites/default/files/2013- VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 expects facilities to work with the local responders to ensure that, during a release, all necessary resources are in place for a community notification system to function and operate as expected. EPA is also proposing to amend 40 CFR 68.90(b)(3) and 68.95(c) to require facilities to provide necessary entities with initial RMP accidental release information during releases of regulated substances in order to ensure that information is available to the public and the appropriate Federal, State, and local emergency response agencies. Specifically, EPA is proposing that whichever method is used to detect accidental releases,287 the facility— regardless of responding status—must ensure that the public is promptly notified by the method outlined in the facility’s emergency response plan in coordination with local responders. Facilities should do this by providing appropriate, timely data and information to local responders, and detailing the current understanding and best estimates of the nature of the release. This should include the regulated substance released, estimated time the release began, estimated quantity already released and potential quantity to be released, and potential consequences of the release to human health and the environment. EPA realizes that when facility owners and operators first detect a release, they may not have all the details of the situation. However, EPA expects RMP facility owners and operators to be familiar enough with their regulated substances, processes, and potential release scenarios to promptly notify the public to support timely protective actions. EPA would also expect owners and operators to provide follow-up information about the release to local responders as soon as possible, to either provide more accurate data or to correct erroneous data that had been previously relayed. EPA expects that the annual emergency response coordination meetings (40 CFR 68.93) and notification exercises (40 CFR 68.96(a)) will help to ensure that these plans and procedures are discussed and practiced. The Agency recognizes the possible tradeoff between early notification and accuracy. In some cases, a potential or actual release may be averted or 11/documents/chap-08-final.pdf?VersionId= vLaBwe1S2zXXrwsxM3HfR0Ko4ZvYXvWD. 287 EPA acknowledges the multiple comments received regarding fence-line monitoring of RMP releases and seeks additional comment to gather further information on the consideration of fenceline monitoring for the RMP rule. Information sought per this issue is outlined in the Technical Background Document. PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 53597 mitigated within the facility well before any exposure to toxic fumes, intense heat, or blast overpressure occurs to the community. Early notification, or even ‘‘false positives’’ have the potential to disrupt communities and divert public response resources. Nevertheless, given the gravity of potential accidental releases of regulated substances from processes subject to the RMP rule—and in light of repeated expressions of concern heard at the 2021 listening sessions—EPA believes its proposed amendments will provide a greater level of comfort and overall safety to communities surrounding RMP facilities. EPA requests public comment on the Agency’s proposed approach. While responding and nonresponding facilities should have mechanisms and procedures in place to notify the public through emergency response plans at 40 CFR 68.90(b)(3) and 68.95(a)(1)(i), amending the current requirements to explicitly include the current understanding and best estimates of data and information pertaining to the release would help ensure timely decisions about notification of those releases, particularly those with offsite impacts. EPA expects that the requirement to provide this information will help ensure that local responders have sufficient information to make the best decision on whether community notification is appropriate. Through this proposed provision, along with the recently promulgated requirements for annual coordination meetings and notification exercises, EPA expects that emergency response efforts and communications will be practiced and refined. EPA also seeks comment on what additional information would be useful to share in these scenarios. b. Community Emergency Response Plan Amplifications According to 40 CFR 68.90(b)(1) and 40 CFR 68.95(c), respective nonresponding and responding facilities are currently required to be coordinated with the community emergency response plan developed under EPCRA Section 303, 42 U.S.C. 11003, ‘‘Comprehensive Emergency Response Plans.’’ 288 The plan is prepared by LEPCs/TEPCs to evaluate the need for resources necessary to develop, implement, and exercise the emergency plan. The plan must include at least the following: 288 Comprehensive Emergency Response Plans, 42 U.S.C. 11003, (October 17, 1986), https:// www.govinfo.gov/content/pkg/USCODE-2020title42/pdf/USCODE-2020-title42-chap116subchapI-sec11003.pdf. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53598 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules • Identification of facilities within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances, and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities subject to the requirements of EPCRA subchapter I under Title 42, Chapter 116, such as hospitals or natural gas facilities. • Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances. • Designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan. • Procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred. • Methods for determining the occurrence of a release, and the area or population likely to be affected by such release. • Description of emergency equipment and facilities in the community and at each facility in the community subject to the requirements of EPCRA subchapter I under Title 42, Chapter 116, and an identification of the persons responsible for such equipment and facilities. • Evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes. • Training programs, including schedules for training of local emergency response and medical personnel. • Methods and schedules for exercising the emergency plan. EPA wants to ensure RMP-regulated facilities understand how their facility’s processes could impact the larger community emergency response plan, and the facility’s role in coordination on the required plan provisions. Therefore, EPA is proposing to explicitly state the required provisions of the community response plan in the RMP regulatory text. EPA would expect the facility to discuss the community plan with appropriate LEPC officials as part of the facility’s coordination activities. Only if the LEPC plan was clearly deficient would EPA consider any action against the facility for relying on it for response. Additionally, the Agency realizes community emergency response plans contain useful information for the VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 public to learn how RMP facility processes are accounted and planned for if there is an RMP-regulated accidental release. EPA seeks comment about impediments to accessing community emergency response plans and potential solutions to having the plans more accessible within the scope of the RMP regulations. 3. Emergency Response Exercises a. Proposed Amendments to the Emergency Response Requirements EPA is proposing to revise 40 CFR 68.96(b)(1)(i) to require all facilities with Program 2 and Program 3 processes and subject to the emergency response program requirements of subpart E (i.e., the responding stationary source), at a minimum, conduct field exercises involving a simulated accidental release of a regulated substance once every 10 years, unless local responders indicate that frequency is infeasible. EPA is also proposing to amend 40 CFR 68.96(b)(3) to require that the current recommended field and tabletop exercise evaluation report components be mandatory. b. Field Exercise Frequency The 2017 amendments rule added the field exercise provision to support reducing accident impacts by ensuring that emergency response personnel understood their roles in the event of an incident, that local responders were familiar with the hazards at a facility, and that the emergency response plans were up to date. The Agency believed that even the smallest sources would be able to hold field exercises at least once each decade and, in many cases, it expected sources would hold field exercises more often.289 In the 2019 reconsideration rule, EPA modified the frequency of field exercises by removing the minimum frequency requirement of at least every 10 years. The Agency removed the 10year field exercise frequency to reduce burden on local emergency responders with multiple RMP-covered facilities and on small counties with limited resources—many of which are rural and rely on volunteers.290 The final rule was therefore modified to require the owner or operator to consult with local emergency response officials to establish an appropriate frequency. Emergency response field exercise frequency was the theme of multiple comments submitted during the 2021 289 EPA, 2017 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act 82 FR 4594 (January 13, 2017). 290 EPA, 2019 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, 84 FR 69834 (December 19, 2019). PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 listening sessions. Labor unions, multiple advocacy groups, and an individual commenter all submitted comments requesting EPA to not only require emergency response exercises, but to also set deadlines for their completion.291 Further, a State regulatory agency suggested that EPA require RMP facilities to complete an annual full-scale emergency response exercise that would include testing containment, mitigation, and monitoring equipment. The commenter indicated that regular, hands-on practice is important due to the frequent turnover of RMP facility personnel.292 In contrast, an industry trade association argued that the emergency response exercises under the current regulations work well and that flexibility regarding the timing of the exercises benefits both RMP facilities and emergency response organizations.293 EPA is cognizant of the resources (e.g., staff, experts, funds) that field exercises demand, particularly in small rural communities and those with multiple RMP facilities. However, EPA maintains that exercising emergency response plans within a reasonable, frequent time frame is vital to ensuring that emergency response programs will work well in the event of an accidental release. The NFPA 1600® Standard on Continuity, Emergency, and Crisis Management takes a similar position, indicating that exercises and tests should be conducted at the frequency needed to establish and maintain required capabilities.294 A 2016 NASTTPO survey, which aimed to gather information about levels of activity of LEPCs and identify areas for improvement, found that the number of LEPCs had decreased nationwide due to complacency, time, interest, and funding.295 296 While 87 percent of LEPCs indicated that they had participated in emergency response 291 EPA–HQ–OLEM–2021–0312–0057; 0058, 0079, 0149, 0032, 0170. 292 EPA–HQ–OLEM–2021–0312–0039. 293 EPA–HQ–OLEM–2021–0312–0071. 294 NFPA, ‘‘NFPA 1600® Standard on Continuity, Emergency, and Crisis Management,’’ accessed March 1, 2022, https://www.nfpa.org/codes-andstandards/all-codes-and-standards/list-of-codesand-standards/detail?code=1600. 295 NASTTPO, 2016 Local Emergency Planning Committee (LEPC) Survey: Final Report (2016), https://webcms.pima.gov/UserFiles/Servers/Server_ 6/File/Government/Local%20Emergency %20Planning%20Committee/Meetings%20Agendas %20and%20Minutes/2016/2016%20LEPC %20Survey%20Final%20Report%20%20FInal.pdf. 296 EPA, 2008 Nationwide Survey of Local Emergency Planning Committees (LEPCs): Final Report (2008), https://www.epa.gov/sites/default/ files/2013-08/documents/2008_lepcsurv.pdf. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules exercises, over 50 percent reported that conducting drills/exercises was an area where they felt additional assistance could be provided. EPA wants to ensure that facilities are accountable to the communities in which they are located. One way to do this is to make sure that communities have mechanisms to evaluate the resources and capabilities needed to assist in a response to an accidental release and that they can perform field exercises involving actual emergency response functions to simulated release events. EPA believes many responding facilities with RMP processes are making plans and intending to conduct field exercises on a timeline that is appropriate for establishing and maintaining required emergency response capabilities. However, EPA is concerned that some responding sources may use the flexibility in the current regulation to never hold field exercises with local responders or to hold them so infrequently that the owner or operator’s response to an accidental release would be ineffective. One listening session commentor in support of setting deadlines for field exercises indicated that without a compliance frequency, the provision to conduct emergency field exercises is purely symbolic and is an empty requirement.297 EPA wants to ensure all facilities conduct regular field exercises if they have the resources and capabilities to do so. The Agency hopes to avoid a scenario where responding sources impose a schedule that practically exempts them from the exercise program requirements, particularly if the local responders know that conducting exercises would be beneficial for response efforts. Therefore, EPA is proposing to amend 40 CFR 68.96(b)(1)(i) to require all facilities with Program 2 and Program 3 processes and subject to the emergency response program requirements of subpart E (i.e., the responding stationary source) to, at a minimum, conduct field exercises involving a simulated accidental release of a regulated substance once every 10 years unless local responders indicate that frequency is impractical. EPA expects assigning this frequency to the provision, but providing for relief in specific circumstances, will work for all organizations and communities to prepare for or further assess the ability to respond to accidental releases. Because facilities have always had a requirement to do a field exercise, an added provision with a 10-year phase in should have minimal impact on sources who may have relied upon the 2019 297 EPA–HQ–OLEM–2021–0312–0170. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 provision, which has been in place for only three years. Moreover, local responders continue to have the option not to participate, which also diminishes any possible reliance interests. EPA expects that the frequency of field exercises and any justification for not being able to conduct them on a 10-year schedule will be discussed through annual coordination meetings. Although written justification from local responders will allow facilities with relief from this proposed provision, EPA expects this dialogue will address supposed barriers to carrying out field exercises with some frequency and result in creative solutions such as focusing the scope of exercises or conducting joint exercises with neighboring facilities. This proposed amendment will help ensure the safety of communities by more frequently confirming that local responders are prepared for an accidental release. c. Exercise Evaluation Reports The 2017 amendments rule added the field and tabletop exercise evaluation report provision. This provision required either the preparation of a report within 90 days of each field and tabletop exercise (40 CFR 68.96(b)(3)) or, an after-action report comparable to the exercise evaluation report required when owners or operators use a response to an accidental release to meet their field exercise requirement (40 CFR 68.96(c)(2)). The report in either situation would be required within 90 days of the exercise or accident and must include a description of the 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. EPA believed that maintaining a written record including, among other things, the identification and affiliation of exercise participants, would be useful in planning future exercises. The 2019 reconsideration rule scaled back the exercise reporting requirements, making the exercise report elements recommended rather than mandatory. The Agency indicated that making the reporting requirements non-mandatory would reduce the regulatory burden and allow emergency response personnel the flexibility to decide which exercise documentation would be most appropriate for the facility and community. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 53599 EPA now recognizes there may be an inconsistency between the recommended exercise evaluation and mandatory incident investigation documentation requirements, as one provision can be used to satisfy the other. Current incident investigation regulations under 40 CFR 68.60 and 68.81 require incident investigation reports to include specific elements: the date of incident, the date the investigation began, a description of the incident, the factors that contributed to the incident, and any recommendations resulting from the investigation. Under the current field and tabletop documentation provisions, facilities would be allowed to satisfy the documentation requirement for field and tabletop exercises through an afteraction report following an accidental release. EPA believes that, in most cases, these accidental releases would be those that need to be investigated per 40 CFR 68.60 and 68.81. Many of the incident investigation and exercise evaluation reporting requirements are similar. EPA believes it should be consistent in its requirements to ensure there is no confusion related to reports that can be used interchangeably. Therefore, EPA is proposing to amend 40 CFR 68.96(b)(3) to require that the current recommended exercise evaluation report elements be mandatory rather than recommended. EPA contends that making these exercise report components mandatory will help not only to eliminate confusion about what is required when evaluating an actual or simulated response, but also provide consistency on elements that are crucial to the exercise improvement planning process. C. Information Availability EPA is proposing to amend 40 CFR 68.210 to allow the public to request specific chemical hazard information if they reside within 6 miles of a facility. As discussed below, the 6-mile restriction would allow access to information for the vast majority of the public that are within worst case scenario impact zones. Having received such a request, the facility would be required to provide certain chemical hazard information and access to community emergency preparedness information. This proposal is similar to the 2017 amendments rule, with the added modification that information be restricted to those persons within 6 miles of the facility. 1. Recent Public Input on Information Availability During EPA’s 2021 listening sessions, approximately 210 commenters E:\FR\FM\31AUP2.SGM 31AUP2 53600 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules provided feedback on information availability requirements. Multiple commenters, including advocacy groups, individual commenters, and labor unions, expressed support for expanding information availability to improve the safety of first responders and community members.298 An association of government agencies said that LEPCs’ access to information is vital and suggested that EPA grant LEPCs the ability to request relevant information from RMP facilities, similar to the level of access under EPCRA for facilities with extremely hazardous substances.299 Multiple advocacy groups, via a joint submission, and an individual wrote that EPA’s Chemical Emergency Preparedness and Prevention Office and CSB agreed that ‘‘transparency between industry and the public improves community safety.’’ 300 An advocacy group said that many residents near RMP facilities are not aware that they are located near these facilities, as EPA has not shared a list of where the communities most at risk are located.301 Multiple advocacy groups and an individual commenter said that risk management plans should be available online—for example, through EPA’s website, the RMP facility’s corporate website, and public libraries.302 A State elected official suggested that EPA create an online database through which the public can read summaries of risk management plans; this would avoid releasing sensitive security information about RMP facilities while also informing the public of relevant community safety concerns.303 lotter on DSK11XQN23PROD with PROPOSALS2 2. Information Availability in the 2017 Amendments and the 2019 Reconsideration Rule The 2017 amendments rule added new information availability requirements, including the requirement for the owner or operator to provide— within 45 days of receiving a request by any member of the public—specified chemical hazard information for all RMP-regulated processes. The provision required the owner or operator to provide ongoing notification on a company website, on social media platforms, or through other publicly accessible means such that the information is available to the public 298 EPA–HQ–OLEM–2021–0312–0016; 0020, 0025, 0026, 0035, 0036, 0040, 0042, 0051, 0057, 0058, 0060, 0072, 0358, 0387. 299 EPA–HQ–OLEM–2021–0312–0072. 300 EPA–HQ–OLEM–2021–0312–0151; 0149. 301 EPA–HQ–OLEM–2021–0312–0170. 302 EPA–HQ–OLEM–2021–0312–0035; 0042, 0036, 0060, 0149. 303 EPA–HQ–OLEM–2021–0312–0043. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 upon request, along with the information elements that may be requested and instructions for how to request the information. In the 2019 reconsideration rule, EPA removed these elements because of a benefit versus risk calculation, observing that much RMP information was available through other means while widespread anonymous access to the consolidated information posed potential security risks. EPA stated in its 2019 reconsideration rule that part of its rationale for rescinding information availability provisions was that the 2017 amendments rule ‘‘underweighted security concerns in balancing the positive effects of information availability on accident prevention and the negative effects on public safety from the utility to terrorists and criminals of the newly available information and dissemination methods.’’ In its rationale for the 2019 reconsideration, EPA cited the Department of Justice (DOJ) report ‘‘Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the internet,’’ 304 which found that assembling the otherwise-public data is valuable in identifying and focusing on sources that have conducted criminal acts. The goal of DOJ’s assessment was to determine which variables and forms of dissemination would create vulnerabilities enabling a terrorist attack. In the 2019 reconsideration rule, EPA stated the 2017 provisions would make otherwise-public information newly anonymously accessible via the web and other means in a more consolidated fashion. EPA observed that this consolidated information ‘‘may present a more comprehensive picture of the vulnerabilities of a facility than would be apparent’’ otherwise, and thus potentially increasing terrorist risk (84 FR 69887, December 19, 2019). EPA is proposing a provision to increase information availability to communities that balances information availability to communities with the previously identified security concerns. EPA believes the proposed amendment to add a 6-mile radius ensures that even if community members obtain information related to offsite consequences analysis (OCA) data, it would require a difficult nationwidecoordinated effort among people within 304 DOJ, Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the internet (2000), https://www.regulations.gov/ document/EPA-HQ-OEM-2015-0725-2003, EPA– HQ–OEM–2015–0725–2003. PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 6 miles of each facility to create the type of online database described in DOJ’s report. The proposed provisions simply require RMP facilities to provide their chemical hazard information to communities within a 6-mile radius of the facility, when previously they were not required to. Because RMP facilities were, and will continue to be, in possession of this information, it is unlikely that such a change would result in any possible prejudice to the facilities based on their reliance on the 2019 reconsideration rule provisions, which have only been in place for 3 years. In its 2019 reconsideration rule, EPA mentioned that members of the public can view risk management plans at Federal Government reading rooms, obtain risk management plan information from State or local government officials with risk management plan data access, or submit a request to EPA under the FOIA (for non-OCA risk management plan information). EPA also mentioned that owners and operators of regulated facilities may disclose risk management plan information for their own facilities if they so choose. While current OCA provisions allow for a person visiting a reading room to request information of up to 10 facilities per year regardless of location as well as the OCA information for all facilities with a vulnerable zone that extends into the jurisdiction of the LEPC/TEPC where the person lives or works, there are a limited number of reading rooms even in large states, and these reading rooms generally are not located close to the communities potentially impacted by process safety at particular facilities. While the reading room restrictions are necessary for OCA information, the restrictions in locations and access make them an inefficient way to access information in the risk management plans that Congress chose not to restrict when it enacted the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act 42 U.S.C. 7412(r)(7)(H)(ii). By creating a 6-mile radius, EPA allows communities with more than one facility to request information on all the sources to which they may be potentially exposed in the event of a release. The 2019 reconsideration rule mentioned that community members may request information from their LEPCs; however, subsequent analysis of active facility risk management plan submissions demonstrates that 10 percent of active facilities have not provided information on the names of their LEPCs.305 Without further 305 40 E:\FR\FM\31AUP2.SGM CFR 68.160(b)(18). 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules information as to why facilities left this portion of the risk management plan submission blank, it is possible that LEPCs may not exist for those facilities, that the LEPC may have existed but is inactive, or that the facility is not in communication with its LEPC. EPA routinely receives FOIA requests for OCA and non-OCA versions of the risk management plan database from local and State emergency response entities, which may indicate that local emergency response entities also have difficulty in obtaining this information from facilities. EPA also conducted a parallel benefits assessment in 2000, describing the benefits of providing community access to risk management plan information.306 EPA found that public disclosure of risk management plan information would likely lead to a reduction in the number and severity of accidents. It also found that comparisons between facilities, processes and industries would likely lead industry to make changes and would stimulate dialogue among facilities, the public, and local officials to reduce chemical accident risks. EPA also concluded that given the opportunity, the public would use hazard information to take action, thus lead to risk reduction, citing the reduction in emissions following publicly available TRI information. EPA is proposing individuals within a 6-mile radius of RMP facilities be able to obtain specific chemical hazard information. EPA believes this distance to be reasonable as 90 percent of all toxic worst-case distances to endpoints are 6 miles or less, and almost all flammable worst-case distances are less than 1 mile. The 6-mile radius for being able to request information from facilities allows people in most areas potentially impacted by a WCS to have access to information while also providing a limit on widespread access to nationwide assembly of data. The proposed approach uses aggregate worst case scenario data and does not rely on individual worst cases for each facility because EPA cannot by rule force disclosure of OCA information to the public. EPA notes that 5 percent of worst-case distances for toxics are more than10 miles, while 67 percent of scenarios are under 3 miles. EPA seeks comment on whether the 6-mile radius is appropriate and provides the information on 10 miles and 3 miles as potential alternatives. For alternative distances supported by commenters, 306 EPA. April 18, 2000. Assessment of the incentives created by public disclosure of off-site consequence analysis information for reduction in risk of accidental releases. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 EPA requests information on the justification for these alternative distances. 3. Proposed Regulatory Revisions In the 2017 amendments rule, EPA added several new provisions to 40 CFR 68.210, ‘‘Availability of Information to the Public.’’ These included: • A requirement for the owner or operator to provide, upon request by any member of the public, specified chemical hazard information for all regulated processes, as applicable, including names of regulated substances held in a process; Safety Data Sheets (SDSs) for all regulated substances located at the facility; accident history information required to be reported under 40 CFR 68.42; and emergency response program information, including whether or not the source responds to releases of regulated substances, name and phone number of local emergency response organizations, and procedures for informing the public and local emergency response agencies about accidental releases. • A requirement for the owner or operator to provide ongoing notification on a company website, on social media platforms, or through other publicly accessible means that the above information is available to the public upon request, along with the information elements that may be requested and instructions for how to request the information, as well as information on where members of the public may access information on community preparedness, including shelter-in-place and evacuation procedures. • A requirement for the owner or operator to provide the requested chemical hazard information within 45 days of receiving a request from any member of the public. EPA is proposing to restore these provisions for community members living within 6 miles of a facility. EPA contends this will allow affected communities to obtain information from RMP facilities. Allowing all community members demonstrating residence within 6 miles of the facility to request this information would ensure information availability in areas without LEPCs/TEPCs. The proposed 6-mile limitation seeks to limit the potential security risk of allowing anonymous confidential access of this information to the entire public that was of concern to EPA in the 2019 reconsideration rule. The proposed approach strikes a better balance between those security concerns and the interests of people living near facilities who could benefit from the information: personal preparedness in PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 53601 the event of an accident, knowledge of safety conditions where one lives, and more informed participation in community safety planning. EPA seeks comment on the 6-mile limitation and whether it balances security concerns and community access to information. While much, if not all, of the information to be disclosed upon request to facilities under this proposed provision is otherwise publicly available with little geographic limitation, the additional method of access EPA is proposing make access simpler for people who are near facilities. a. Request for Comment on Potential Non-Rule RMP Access Policy Changes While these proposed regulatory changes will improve information sharing within communities, they do not resolve concern that fenceline communities are often unaware of RMP facilities near them. To request facility information, a member of the public would need to know how to access it, have the means to access it, and know that the facility exists in their community in order to determine how to access and request the information. These barriers do not appropriately facilitate community right-to-know or equitable distribution of knowledge on fenceline community risks to those most affected by potential releases. In the 2019 proposed rule comment period, commenters pointed out that reading rooms are not a realistic avenue for public access to information.307 EPA also recognizes the additional impracticalities that the COVID–19 pandemic has imposed on reading room options. Many commenters mentioned delays in accessing information and limitations on data requests from reading rooms. Further, most states only have one reading room, which complicates public access to information from that source. Commenters also mentioned equity issues given the expertise and language issues required to access information. In its 2000 benefits assessment,308 EPA also noted that obtaining information from LEPCs is difficult and a central repository would improve ease of information access. EPA’s past experience in implementing EPCRA had shown that many State and local officials needed assistance in managing the chemical information submitted to them on paper by industry under that 307 EPA–HQ–OEM–2015–0725–1598; 1869, 1925, 1969. 308 EPA. April 18, 2000. Assessment of the incentives created by public disclosure of off-site consequence analysis information for reduction in risk of accidental releases. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53602 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules law, and that the public often did not take advantage of this information since it was not conveniently available. Additionally, information on multiple RMP facilities is needed as it allows communities to compare risks between facilities, as well as potential cumulative risks owing to multiple facilities within a community. For communities with more than one facility, e.g., communities like Harris County, Texas with large numbers of facilities, residents should not be expected to request information from each of these facilities, but rather, EPA should aggregate this information in a central location. By policy, EPA has restricted access to the RMP database even though only a portion of the database is restricted by CAA 112(r)(7)(H) and its implementing regulations in 40 CFR part 1400. Other programs within EPA have demonstrated that facility and chemical information can be made publicly available, in a readily accessible format. EPA intends to, at a prospective date, begin publishing non-OCA risk management plan data annually, less any CAA 112(r)(7)(H) protected sensitive information. EPA has received comments in the past with concerns regarding confidential business information and directs these commenters to the requirements in 40 CFR 68.152 for substantive criteria set forth in 40 CFR 2.301. EPA notes that 40 CFR 1400.5 allows for the Administrator to include only the following OCA data elements in a database on the internet: (a) the concentration of the chemical; (b) the physical state of the chemical; (c) the statistical model used; (d) the endpoint used for the flammables in the worstcase scenario; (e) the duration of the chemical release for the worst-case scenario; (f) the wind speed during the chemical release; (g) the atmospheric stability; (h) the topography of the surrounding area; (i) the passive mitigation systems considered; and (j) the active mitigation systems considered. This initiative is in line with other hazardous substance reporting programs that have been long established at EPA. Further, EPA believes it can no longer not make this information available, as 5 U.S.C. 552(a)(2)(D)(ii)(II) requires that information that has been requested via FOIA three or more times be made ‘‘available for public inspection in an electronic format’’ when the information is likely to be requested again in the same format and is not otherwise privileged from disclosure. EPA is requesting comment on the variables VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 provided in the Technical Background Document (Section 10), most of which are for public availability, and which (or combination of which) pose potential significant security risks. b. Current Data Availability of Risk Management Plan Information Currently, with few exceptions as indicated below, EPA does not make any of its OCA or non-OCA data available to the public online. The public can access or request risk management plan information through the methods described below. Based on these methods, EPA contends that current, publicly available information on the risk management plan national database is insufficient for informing communities about RMP-regulated facilities. • Facility Registry Service (FRS) and Envirofacts.309 EPA’s FRS provides information about facilities regulated by a large number of EPA regulations under various statutes. Currently, the only information provided in the FRS for RMP-regulated facilities is the EPA Facility ID, EPA’s unique identifier for RMP-regulated facilities. Because Envirofacts provides a multi-system search of facilities, including FRS, RMP EPA Facility IDs are also available in Envirofacts. Currently, neither publicfacing version of the databases provides additional information or allows users to export information on more than one RMP facility. • FOIA requests. EPA has processed FOIA requests for non-OCA data 242 times since 2015, an average of 35 times a year. Because the database is provided in Microsoft Access format and requires some technical background to examine results, most requestors tend not to be individuals or nonprofit environmental groups, but rather other government entities (both Federal and State), as well as consulting groups and government contractors. • Federal reading rooms. 40 CFR part 1400 requires the Federal Government to allow any member of the public to obtain access to OCA information for up to 10 facilities per calendar month located anywhere in the country, without geographical restrictions, as well as any stationary sources in the jurisdiction of the LEPC where the person lives or works and for any other stationary source that has a vulnerable zone that extends into that LEPC’s jurisdiction. Although EPA does not have plans to release protected OCA information on the internet, EPA hopes 309 Facility Registry Service, https:// www.epa.gov/frs. Envirofacts, https:// enviro.epa.gov/. PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 that making non-OCA risk management plan data publicly available will reduce the need for the public to access risk management plan data only through Federal reading rooms. • Other information already publicly available. EPA notes that it appears information from the risk management plan database, less OCA sections, has been publicly available on the internet for over 20 years.310 EPA is aware of other sources of information online for risk management plan data, however, these data are often outdated. The dataset provides information on location, amount of chemical stored, emergency response capabilities (i.e., responding versus non-responding facility status), contact information, executive summary, and 5-year accident history. c. Other EPA Facility Hazardous Substance Registries EPA makes information available for several other Federal hazardous substances programs, such as the Toxics Release Inventory 311 under EPCRA and Chemical Data Reporting (CDR) 312 under the Toxic Substances Control Act, both of which have readily downloadable information (in Microsoft Excel format) 313 on facility quantity and location for facilities with regulated, threshold quantities of listed hazardous substances. EPA likewise seeks to make its non-OCA risk management plan information available in a readily accessible manner, akin to these two programs, and will coordinate with these two long-standing programs to consider relevant data quality and security concerns. d. Balancing Security Risks and Community Right-To-Know EPA maintains that public disclosure of risk management plan information would likely lead to a reduction in the number and severity of accidents.314 Although EPA does intend to make its risk management plan data publicly available, it seeks comment on an approach that balances community 310 The Right-to-Know Network, ‘‘Risk Management Plans (RMP),’’ last modified March 14, 2019, https://rtk.rjifuture.org/rmp/. 311 EPA, ‘‘Toxics Release Inventory (TRI) Program,’’ last modified January 20, 2022, https:// www.epa.gov/toxics-release-inventory-tri-program. 312 EPA, ‘‘Chemical Data Reporting Under the Toxic Substances Control Act,’’ last modified August 25, 2021, https://www.epa.gov/chemicaldata-reporting. 313 EPA, ‘‘Access CDR Data,’’ last modified November 9, 2021, https://www.epa.gov/chemicaldata-reporting/access-cdr-data#2020. 314 EPA, Assessment of the Incentives Created by Public Disclosure of Off-Site Consequence Analysis Information for Reduction in Risk of Accidental Releases (April 18, 2000). E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 right-to-know and security concerns that arise by making such data publicly available in an easily accessible, consolidated location. EPA requests public comment on which specific information would be of most benefit and most concern. EPA has long received comments on the potential security concerns in releasing risk management plan information. For example, in EPA’s recent 2021 listening sessions, some commenters, including several industry trade associations, expressed opposition to expanding risk management plan information availability due to increased risks of terrorist attacks, cyberattacks, or other intentional acts of harm.315 One industry trade association argued that certain information about RMP facilities needs to be kept confidential, such as the information deemed ‘‘Chemical-terrorism Vulnerability Information’’ or ‘‘Sensitive Security Information’’ under the Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) and the Maritime Transportation Security Act, respectively.316 However, these comments did not specifically explain how releasing risk management plan data would increase particular security risks. EPA already protects OCA information as required by the CAA and will ensure that this action does not violate the CAA. There exists no publicly available database of intentional acts upon the chemical process industries in the United States. In a 2021 study, researchers attempted to compile a database of such incidents, finding documentation of 84 incidents in the chemical and petrochemical industries.317 318 Root cause data on these incidents, which are not available, would be needed to determine if availability of information on the facility contributed to terrorist incidents, which were second to cybersecurity incidents as the most frequent overall cause. According to the database, no terrorist event in the process industries (excluding transportation and pipelines) has occurred in North America after the 315 EPA–HQ–OLEM–2021–0312–0005; 0020, 0031, 0045, 0053, 0071, 0077. 316 EPA–HQ–OLEM–2021–0312–0031. 317 Valeria Casson Moreno et al., ‘‘Analysis of Physical and Cyber Security–Related Events in the Chemical and Process Industry,’’ Process Safety and Environmental Protection 116 (2018), 621–31, doi:10.1016/j.psep.2018.03.026. 318 Matteo Iaiani et al., ‘‘Analysis of Events Involving the Intentional Release of Hazardous Substances from Industrial Facilities,’’ Reliability Engineering & System Safety 212 (2021), 107593, doi:10.1016/j.ress.2021.107593. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 1970s.319 However, a lack of incidents may result from the safeguards currently in place. DHS promulgated CFATS in accordance with the Homeland Security Appropriations Act of 2007, owing to insufficient security at industrial facilities. In promulgating CFATS, DHS did not intend for information created under CAA 112(r) to constitute ‘‘Chemical-terrorism Vulnerability Information,’’ which is sensitive information pursuant to CFATS requirements (72 FR 17714). EPA routinely coordinates with DHS as part of the Chemical Facility Security and Safety Working Group and commits to working with DHS to find regulatory solutions that balance community rightto-know with security concerns. Accidental releases occur much more often than intentional events (about 100 per year using EPA RMP-reportable accidents). Pre-incident information, such as the locations of facilities and potential disasters, allows communities to be more prepared for disasters,320 which DOJ also recognized in its 2000 risk assessment.321 With over 20 years of data now, EPA has based many of the proposed provisions on prior accident information. EPA acknowledges that the Agency must consider whether some non-OCA data elements, or combinations of elements, may not be suitable for public release and should be restricted based on potential security risks. EPA has been and will continue to work with DHS, DOJ, and other Federal partners on identifying these risks. EPA is also involving the public through seeking comment. EPA requests comments on which elements, or combinations of elements, may pose a security risk if released to the public. EPA also notes that, while several commenters offered support in the 2019 reconsideration comment period for rescinding information availability requirements on the part of the facility, no commenters 319 This is not a complete dataset, because it was developed based on publicly available information. Available in the supplemental material of Matteo Iaiani et al., ‘‘Analysis of Events Involving the Intentional Release of Hazardous Substances from Industrial Facilities,’’ Reliability Engineering & System Safety 212 (2021), 107593, doi:10.1016/ j.ress.2021.107593. 320 Holly Carter, John Drury, and Richard Amlo ˆ t, ‘‘Recommendations for Improving Public Engagement with Pre-incident Information Materials for Initial Response to a Chemical, Biological, Radiological or Nuclear (CBRN) Incident: A Systematic Review,’’ International Journal of Disaster Risk Reduction 51 (2020), 101796, doi:10.1016/j.ijdrr.2020.101796. 321 DOJ, Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the internet (2000), https:// www.regulations.gov/document/EPA-HQ-OEM2015-0725-2003, EPA–HQ–OEM–2015–0725–2003. PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 53603 provided additional information to support security concerns.322 For each element or combination of elements identified, EPA requests: (1) Specific comments on why the element or combination of elements presents a security risk and (2) documentation or basis for these security claims, such as risk or intelligence analysis, a prior incident, security threat, or near miss incident. D. Other Areas of Technical Clarification EPA has provided compliance assistance, conducted inspections, and undertaken enforcement of the RMP program since 1996. During that time, the Agency developed guidance documents, model RMPs, and answers to frequently asked questions to help facilities implement the RMP rule. Based on experience, EPA has identified various aspects of the RMP rule that use different terminology for the same requirement, have outdated definitions, or would be simpler for sources to implement with more discussion in the text of the regulation. The intent of the proposed changes to the regulatory text discussed in this section is to simplify implementation for facilities as well as oversight, thereby improving chemical safety. The proposed amendments do not change the meaning of the RMP rule. These points are raised below. 1. Process Safety Information RMP regulations require that facilities keep process safety information up to date. For processes subject to Program 2 requirements, RMP regulatory text explicitly states in 40 CFR 68.48(a) that ‘‘[t]he owner or operator shall compile and maintain the following up-to-date safety information related to the regulated substances, processes, and equipment.’’ This is also addressed in 40 CFR 68.48(c), which states: ‘‘The owner or operator shall update the safety information if a major change occurs that makes the information inaccurate.’’ For processes subject to Program 3 requirements, the process safety information requirements within 40 CFR 68.54 do not explicitly address updating process safety information. Instead, that subject is addressed in several other parts of the Program 3 requirements, including the management of change requirements in 40 CFR 68.75, the pre-startup review requirements in 40 CFR 68.77, and the requirement to document that 322 EPA–HQ–OEM–2015–0725–1461; 1867, 1904, 1909. E:\FR\FM\31AUP2.SGM 31AUP2 53604 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 equipment complies with RAGAGEP in 40 CFR 68.65(d)(2). Management of change requirements only apply to processes subject to Program 3 requirements, because there are no corresponding requirements for Program 2 processes. The management of change requirements address changes to process chemicals, technology, equipment, and procedures, as well as changes to stationary sources that affect covered processes. Pursuant to 40 CFR 68.75(d), process safety information is required to be kept up to date ‘‘If a change covered by this paragraph results in a change in the process safety information required by § 68.65 of this part, such information shall be updated accordingly.’’ The pre-startup review requirements in 40 CFR 68.77(a) apply to new stationary sources and modified stationary sources when the modification is significant enough to require a change in process safety information. Pursuant to 40 CFR 68.77(b), the pre-startup safety review must confirm that construction and equipment meets design specifications. Therefore, in order to make the regulation more consistent throughout, EPA is proposing to clarify that the requirement to keep process safety information up to date also explicitly applies to Program 3 processes. 40 CFR 68.65 states that ‘‘[t]he owner or operator shall complete a compilation of written process safety information before conducting any process hazard analysis required by the rule.’’ Refining the language of 40 CFR 68.65 to reflect existing requirements would clarify that such process safety information is required to be up to date for Program 3 processes—just as for Program 2 processes—without the need for evaluating compliance with management of change, conducting a pre-startup safety review, or meeting PHA requirements. 2. Program 2 and 3 Requirements for Compliance With RAGAGEP The current RMP regulations outline two different, albeit similar, ways to comply with RAGAGEP. First, the requirement for Program 2 processes at 68.48(b) states: ‘‘The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices. Compliance with Federal or State regulations that address industryspecific safe design or with industryspecific design codes and standards may be used to demonstrate compliance with this paragraph.’’ Second, the requirement for Program 3 processes at 40 CFR 68.65(d)(2) states: ‘‘The owner VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 or operator shall document that equipment complies with recognized and generally accepted good engineering practices.’’ EPA is therefore proposing to harmonize these two provisions so that the requirements are identical. EPA has found that the distinction between ‘‘ensure’’ for Program 2 processes and ‘‘document’’ for Program 3 processes creates confusion. Additionally, the language for Program 3 refers to ‘‘equipment,’’ while the language of Program 2 refers to the ‘‘process.’’ Requiring facilities to document compliance, rather than merely ‘‘ensure’’ compliance, removes this ambiguity. EPA is also proposing to remove the sentence ‘‘Compliance with Federal or State regulations that address industry-specific safe design or with industry-specific design codes and standards may be used to demonstrate compliance with this paragraph.’’ In some cases, Federal or State regulations lag behind current RAGAGEP and thus do not provide the same level of protection. For example, OSHA recognized that OSHA’s flammable liquid standard at 49 CFR 1910.106 is not as up to date as NFPA or International Fire Code standards for flammable liquids.323 EPA therefore proposes to replace both provisions to indicate that the owner or operator shall ensure and document that the process is designed in compliance with RAGAGEP. 3. Retention of Hot Work Permits The requirement to issue a hot work permit,324 including documentation of necessary fire protection and prevention measures, is currently in the RMP regulation only for Program 3 processes. Pursuant to 40 CFR 68.85(b), ‘‘The permit shall be kept on file until completion of the hot work operations.’’ Under the existing RMP regulations, it can be difficult for implementing agencies to determine if the facility has been conducting hot work in compliance with the requirements of 40 CFR 68.85, unless the facility is conducting hot work at the time of the inspection and has hot work permits on file. Adding a requirement to retain hot work permits after the completion of operations would address this issue. Therefore, EPA is proposing to require retention of hot work permits for 5 years, in accordance with the recordkeeping requirements in 40 CFR 323 https://www.osha.gov/laws-regs/standard interpretations/2001-08-27. 324 40 CFR 68.3: ‘‘Hot work means work involving electric or gas welding, cutting, brazing, or similar flame or spark-producing operations.’’ PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 68.200.325 Implementing agencies would be able to determine whether: (1) The owner or operator of the facility had any hot work permits, and (2) the hot work permits are in compliance with the documentation requirements of 40 CFR 68.85(b).326 EPA seeks comment on this proposed hot work provision amendment. 4. Storage Incident to Transportation Currently, under 40 CFR 68.3, the term ‘‘stationary source’’ does not apply to transportation activities, including storage incident to transportation for any regulated substance or any other extremely hazardous substance.327 A stationary source does include transportation containers connected to loading/unloading equipment or used for storage not incident to transportation, but the term ‘‘storage not incident to transportation’’ is not defined in the RMP regulations. Preamble language and responses to frequently asked questions posted on the Agency’s website clarify that a container is considered to be in transportation as long as it is attached to the motive power (e.g., truck or locomotive) that delivered it to the site.328 329 If the tank car is detached 325 40 CFR 68.200: ‘‘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.’’ 326 40 CFR 68.85(b): ‘‘The permit shall document that the fire prevention and protection requirements in 29 CFR 1910.252(a) have been implemented prior to beginning the hot work operations; it shall indicate the date(s) authorized for hot work; and identify the object on which hot work is to be performed. The permit shall be kept on file until completion of the hot work operations.’’ 327 ‘‘Stationary source’’ is defined at 40 CFR 68.3 as follows: ‘‘Stationary source means any buildings, structures, equipment, installations, or substance emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an accidental release may occur. The term stationary source does not apply to transportation, including storage incident to transportation, of any regulated substance or any other extremely hazardous substance under the provisions of this part. A stationary source includes transportation containers used for storage not incident to transportation and transportation containers connected to equipment at a stationary source for loading or unloading. Transportation includes, but is not limited to, transportation subject to oversight or regulation under 49 CFR parts 192, 193, or 195, or a State natural gas or hazardous liquid program for which the State has in effect a certification to DOT under 49 U.S.C. 60105. A stationary source does not include naturally occurring hydrocarbon reservoirs. Properties shall not be considered contiguous solely because of a railroad or pipeline right-of-way.’’ 328 EPA, List of Regulated Substances and Thresholds for Accidental Release Prevention; Amendments, 40 CFR part 68 (January 6, 1998). 329 EPA, ‘‘Are Chemicals in a Tank Car Exempt from Threshold Determinations Under 40 CFR part E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 from the motive power, and therefore no longer in transportation, the contents of the tank car must be considered in the threshold determination. EPA is proposing additional regulatory language that includes a specified number of hours that a transportation container may be disconnected from the motive power that delivered it to the site before being considered part of the stationary source. EPA believes that this provision would provide clarity for regulated parties and implementing agencies on whether a transportation container used for onsite storage must be incorporated into a facility’s risk management plan. EPA is proposing to apply a 48-hour time frame to this term based on the Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration, Carriage by Rail regulations at 49 CFR 174.14(a), that indicate rail carriers must forward each shipment of hazardous materials promptly within 48 hours after acceptance or receipt. EPA seeks comment on this 48-hour time frame, suggestions for other appropriate time frames, and any safety concerns that may arise from transportation containers being exempt from the RMP regulations when disconnected for less than 48 hours. The 48 hours would be the total amount of time, such that a railyard could not move a rail car around in the railyard using a mobile railcar mover to start the clock again. EPA is also proposing to modify the definition of stationary source to further clarify ‘‘storage incident to transportation’’ in 40 CFR 68.3 by adding an explanation to the transportation container language in the stationary source definition. The proposed regulatory text would add examples of what a transportation container could be, such as a truck or railcar, and that for RMP purposes, railyards and other stationary sources actively engaged in transloading activities may store regulated substances up to 48 hours total in a disconnected transportation container without counting the regulated substances contained in that transportation container toward the regulatory threshold. 5. Retail Facility Exemption The current definition of ‘‘retail facility’’ at 40 CFR 68.3 is ‘‘a stationary source at which more than one-half of the income is obtained from direct sales to end users or at which more than one68?’’ last modified September 1, 2021, https:// www.epa.gov/rmp/are-chemicals-tank-car-exemptthreshold-determinations-under-40-cfr-part-68. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 half of the fuel sold, by volume, is sold through a cylinder exchange program.’’ The period of sales to end users is unclear; it lacks a definite time frame in which to calculate whether more than one-half of the facility’s direct sales are to end users. Specifying a definite period of time would eliminate this uncertainty and allow owners and operators to determine more accurately whether regulated substances in a process are subject to the RMP provisions. It also may reduce the amount of sales documentation that the owner or operator of a regulated facility must provide to establish its status as a retail facility. EPA is therefore proposing to adjust the regulatory text to clarify that the definition of ‘‘retail facility’’ is one in which more than one-half of the ‘‘annual’’ income ‘‘in the previous calendar year’’ is obtained from direct sales to end users or at which more than one-half of the fuel sold over that period, by volume, is sold through a cylinder exchange program. EPA is proposing one year of sales activity because the Agency believes it captures the seasonality of propane sales at propane distribution facilities. EPA seeks comment on the proposed annual time frame for sales documentation. 6. RAGAGEP EPA initially looks to the latest version of industry codes, standards, and guidelines to determine whether an owner or operator has documented compliance with RAGAGEP under 40 CFR 68.65(d)(2), given that 40 CFR part 68 does not define the phrase ‘‘recognized and generally accepted good engineering practices.’’ EPA believes this application makes sense, because the plain meaning of the phrase is that practices should be ‘‘recognized,’’ ‘‘good,’’ and ‘‘generally accepted’’ and the latest version of RAGAGEP contains industry’s most up-to-date assessment of practices that meet these criteria. Also, under the structure of the CAA, stationary sources subject to 40 CFR part 68 are also subject to the GDC in 42 U.S.C. 7412(r)(1).330 Neither the text nor the legislative history of the GDC mentions locking obsolete industry standards into place. EPA also believes there is no practical reason to have a stricter standard for facilities that are subject to the GDC, but not to 40 CFR part 68.331 Further, a facility subject to the GDC may have RMP-regulated 330 See 40 CFR 68.1. 331 For example, subjecting facilities with 5,000 lbs. of anhydrous ammonia, which are subject only to the GDC, to higher standards than a facility with 50,000 pounds, which would be subject to 40 CFR part 68. PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 53605 substances in amounts lower than the RMP regulatory threshold. To address these concerns, EPA is proposing that the RMP regulations clarify that PHAs must include an analysis of the most recently promulgated RAGAGEP in order to identify any gaps between practices related to the facility’s design, maintenance, and operation and the most current version of RAGAGEP. EPA is also proposing to require owners or operators to specify in their risk management plans why PHA recommendations associated with adopting practices from the most recent version of RAGAGEP are not implemented. EPA is proposing to adopt three of the four rationales identified in section IV.A.1.e of this preamble.332 EPA is not proposing to adopt the rationale that ‘‘[t]he recommendation is not necessary to protect public receptors,’’ because there are many safety measures such as pipe labeling, training, and some standard operating procedures that do not directly affect public receptors, but that can have indirect or secondary effects on responders or public receptors. By allowing owners or operators to screen out recommendations that do not directly affect public receptors, the Agency is concerned that facilities may discount important recommendations. For this provision, the Agency is also proposing to modify the rationale that ‘‘[a]n alternative measure would provide a sufficient level of protection’’ by adding that the safety measures adopted in lieu of the ones recommended by the PHA team must be recognized and generally accepted. This will help ensure that facilities do not ignore updated RAGAGEP when making decisions about which PHA recommendations to accept or reject. EPA seeks comment on the proposed rationales for not adopting practices from the most recent version of RAGAGEP. E. Compliance Dates The initial 1996 RMP rule was 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 proposal modify terms of the existing rule, and, in some cases, 332 The four rationales are: 1. The analysis upon which the recommendation is based contains material factual errors. 2. The recommendation is not necessary to protect to protect public receptors. 3. An alternative measure would provide a sufficient level of protection. 4. The recommendation is infeasible. E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 53606 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules amplify or clarify existing requirements. Therefore, in modifications to 40 CFR 68.10, EPA is proposing to: • Require regulated sources to comply with new STAA, incident investigation root cause analysis, thirdparty compliance audit, employee participation, emergency response public notification and exercise evaluation reports, and information availability provisions, unless otherwise stated, 3 years after the effective date of the final rule (i.e., FR publication date). • Require regulated sources to comply with the revised emergency response field exercise frequency provision by March 15, 2027, or within 10 years of the date of an emergency response field exercise conducted between March 15, 2017, and August 31, 2022 in accordance with 40 CFR 68.96(b)(1)(ii). • Allow regulated sources 1 additional year (i.e., 4 years after the effective date of the final rule) to update and resubmit risk management plans to reflect new and revised data elements. For STAA, this means that by 3 years after the effective date of the final rule, the owner or operator of a source with a regulated RMP process involving HF alkylation, or a source with a process in NAICS code 324 or 325, located within 1 mile of another NAICS code 324 or 325 RMP facility process, must have completed or updated their PHA to include an STAA. Recognizing that some facilities may have performed PHAs recently or may be due to perform PHAs shortly after EPA issues a final rule, the Agency seeks comment on a second option for STAA compliance, which would require any stationary source that must perform STAA as part of its PHA to comply with the STAA requirement for PHAs performed after 1 year from the date of the final rule. For incident investigation root cause analysis, this means that the owner or operator of a source that experiences any RMP-reportable accident more than 3 years after the effective date of the rule must conduct a root cause analysis for their incident investigation of the accident. For third-party compliance audits, this means that the owner or operator of a source where a second RMP-reportable accident occurs within 5 years—or of a source where one reportable accident in an RMP-regulated process in NAICS code 324 or 325, located within 1 mile of another source’s RMP-regulated NAICS code 324 or 325 process, occurs after 3 years of the effective date of the final rule—must obtain a third-party audit for their next required compliance audit. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 For employee participation, this means that by 3 years after the effective date of the final rule, the owner or operator of a source must have updated or developed—and begun implementing—an employee participation plan that addresses employee consultation when resolving PHA, compliance audit, and incident investigation recommendations and decisions; stop work authorities; and RMP accident and non-compliance reporting. For emergency response, the proposed provisions means that by 3 years after the effective date of the final rule, the owner or operator of a non-responding source must have onsite documentation of emergency response public notification procedures. It also means that by 3 years after the effective date of the final rule, owners or operators of non-responding and responding sources must have the means to ensure that a community notification system is in place to warn the public of releases. It also means that for any RMP-reportable accident occurring more than 3 years after the effective date of the final rule, sources must provide appropriate and timely data and information to local responders detailing their current understanding and best estimates of the nature of the release. It also means that by 3 years after the effective date of the rule, emergency exercise evaluation reports must include documentation of specific exercise elements. For information availability, this means that by 3 years after the effective date of the final rule, the owner or operator must make the required chemical hazard information available to the public upon request and provide notification to the public that the information is available. EPA is proposing to provide this 3year phase-in for several reasons. First, the initial 1996 RMP rule required compliance per the statute within 3 years. EPA believes the proposed provisions outlined today are not as extensive as developing a full RMP program. While some may argue that some sources already had an accident prevention program in place due to the OSHA PSM standard, some facilities did not, yet the rule still required development and compliance within 3 years. Therefore, EPA does not believe compliance with these proposed provisions should require a longer time frame than compliance with the initial rule. Second, while EPA believes that for most sources, activities associated with these proposed provisions may reasonably require significant time to complete, the 3-year phase-in is as expeditious as practicable considering PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 the circumstances. For example, the new incident investigation root cause analysis, employee participation, emergency response, and information availability requirements will involve training and program development activities. For the third-party audit provisions, the extended compliance timeframe will allow potential auditors enough time to meet the competency and independence criteria necessary to serve as a third-party auditor. EPA believes that in many cases, sources subject to the STAA provisions will prefer to perform a full PHA update when implementing the STAA requirements. Sources subject to STAA provisions 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 5year 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. For the emergency response provisions, evaluating and securing resources for public notification systems and the associated training with local responders will take time to be coordinated. Lastly, EPA intends to publish guidance for certain provisions, such as STAA, incident investigation root cause analysis, third-party audits, employee participation, and emergency response. 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. For field exercises, EPA is proposing to require the owners or operators of sources to have planned, scheduled, and conducted their first field exercise by March 15, 2027. For this provision, EPA is proposing to revert to the original timeframe in the 2017 amendments rule, based on the Agency’s view that this change will allow local authorities to set longer time periods to address the major concern that the 2019 reconsideration rule identified with the practicability of the 2017 date, which was the potential inability of local authorities to voluntarily participate in the exercises when they had multiple facilities in their jurisdiction. EPA is also proposing to provide 1 additional year for owners or operators to update risk management plans to reflect proposed new or revised data elements in subpart G of the regulations. The additional year will allow owners and operators an opportunity to begin to comply with the new or revised regulatory provisions prior to certifying E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules compliance in the risk management plan. Additionally, the Agency will need to make significant revisions to its online risk management plan submission system, RMP*eSubmit, to accommodate the newly required and revised data elements, and sources will not be able to update risk management plans 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 risk management plans will prevent potential problems with thousands of sources submitting updated risk management plans on the same day. V. Additional Considerations EPA acknowledges the need for reviewing the list of RMP-regulated substances. Section 112(r)(3) requires periodic review of the RMP regulated substance list. A priority chemical for EPA’s upcoming review will be ammonium nitrate. EPA also acknowledges the need for considering expanding fenceline monitoring for RMP-regulated facilities. While EPA is considering both of these issues for a future action, they are beyond the scope of this NPRM. EPA welcomes comment on these issues which are further discussed in the Technical Background Document.333 VI. Statutory and Executive Orders Reviews Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. lotter on DSK11XQN23PROD with PROPOSALS2 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 (Docket ID Number EPA–HQ–OLEM–2022–0174). Chapters 4–6 of the RIA developed for this proposed action provide additional details on costs and benefits. 333 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 B. Paperwork Reduction Act (PRA) The information collection activities in this proposed rule will be 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 2725.01. A copy of the ICR is available in the docket for this rule, and it is briefly summarized here. This new ICR adds new information collection activities related to a previously approved ICR (1656.18), OMB Control No. 2050–0144. That ICR covers the Risk Management Program rule, originally promulgated on June 20, 1996; and the current rule, including previous amendments, codified as 40 CFR part 68. This ICR addresses the proposed information requirements that are part of the proposed revision to the rule. EPA believes that the Risk Management Program regulations have been effective in preventing and mitigating chemical accidents in the United States. However, EPA believes that revisions could further protect human health and the environment from chemical hazards through advancement of process safety management based on lessons learned. These revisions are a result of review of the existing Risk Management Program and information gathered from the 2021 listening sessions. State and local authorities will use the information in RMPs to modify and enhance their community response plans. The agencies implementing the RMP rule will use RMPs to evaluate compliance with part 68 and to identify sources for inspection because they may pose significant risks to the community. Citizens may use the information to assess and address chemical hazards in their communities and to respond appropriately in the event of a release of a regulated substance. These revisions are a result of a review of the existing Risk Management Program and are proposed under the statutory authority provided by section 112(r) of the CAA as amended (42 U.S.C. 7412(r)). Respondents/affected entities: The industries that are likely to be affected by the requirements in the proposed regulation fall into numerous NAICS codes. The types of stationary sources affected by the proposed rule 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; PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 53607 midstream gas plants; and a limited number of other sources that use RMPregulated substances. Among the stationary sources potentially affected, the Agency has determined that 2,911 are regulated private sector small entities and 630 are small government entities. 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: 14,226. Frequency of response: On occasion. Total estimated burden: 797,642 hours (per year). Burden is defined at 5 CFR 1320.3(b). Total estimated cost: $79,248,522 (per year); includes $2,817,907 annual operations and maintenance costs and $78,400 annual capital costs. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. Submit comments on the Agency’s need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. The EPA will respond to any ICRrelated comments in the final rule. You may also send your ICR-related comments to OMB’s Office of Information and Regulatory Affairs using the interface at www.reginfo.gov/ public/do/PRAMain. Find this particular information collection by selecting ‘‘Currently under Review— Open for Public Comments’’ or by using the search function. OMB must receive comments no later than October 31, 2022. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action include small businesses and small governmental entities. The Agency has determined that among the 2,911 potentially regulated private sector small entities so impacted, 2,822, or 96.9 percent, may experience an impact of less than one percent with an average small entity cost of $10,618; and 84, or 2.9 percent, may experience an impact of between one and three percent of revenues with an average small cost entity of $108,921. The industry sectors of Farm Product Warehousing and Storage, and All Other E:\FR\FM\31AUP2.SGM 31AUP2 53608 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules Miscellaneous Chemical Product and Preparations Manufacturing had the most entities potentially affected between one and three percent of revenues, with 5 and 6 entities, respectively. For detailed costs by provision and NAICS code see Chapter 8 of the RIA. Among the 630 small government entities potentially affected, 488, or 77 percent would incur costs of less than $1,000; 109, or 17 percent costs ranging from $1,000 to $2,000; 18, or 3 percent costs ranging from $2,000 to $3,000; and only one would incur costs greater than $10,000, and EPA estimated that for the rule to have a larger than one percent impact on this entity, it would need to have revenue of less than $103 per resident. EPA solicits comment on the number of small entities affected and the estimated cost impacts on small entities. Details of these analyses are presented in Chapter 8 of the proposed rule RIA, available in the docket. D. Unfunded Mandates Reform Act (UMRA) This action does not include any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any one year and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538). lotter on DSK11XQN23PROD with PROPOSALS2 E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. 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. EPA consulted with Tribal officials under the EPA Policy on Consultation VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 and Coordination with Indian Tribes on previous RMP rulemakings. EPA will consult again with Tribal officials as it develops this regulation to permit them to have meaningful and timely input into its development. Consultation will include conference calls, webinars, and meetings with interested Tribal representatives to ensure that their concerns are addressed before the rule is finalized. In the spirit of E.O. 13175 and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA specifically solicits comment on this proposed rule from Tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is not subject to E.O. 13045 because EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. This action’s health and risk assessments are contained in the Chapter 9 of the RIA for this rule, available in the docket. H. Executive Order 13211: Actions Concerning Regulations 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. I. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome populations and/or indigenous peoples, as specified in E.O. 12898 (59 FR 7629, February 16, 1994). To the extent that populations living closer to facilities are more likely to be exposed if an accidental release at an RMP facility occurs, these releases pose a greater risk to these key demographic groups. Therefore, the benefits of this regulation would reduce risk for historically underserved and overburdened populations. E.O. 12898 directs Federal agencies, to the greatest extent practicable and PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 permitted by law, to make EJ part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and lowincome populations in the United States. The consideration of EJ into EPA rulemaking is guided by two EPA documents: (1) ‘‘Technical Guidance for Assessing Environmental Justice in Regulatory Analysis’’ 334 and (2) ‘‘Guidance on Considering Environmental Justice During the Development of Regulatory Action.’’ 335 The first of these documents 336 establishes the expectation that analysts conduct the highest quality EJ analysis feasible in support of rulemakings, recognizing that what is possible will be context specific. One method recommended by the guidance documents includes screening for potential EJ concerns by identifying the proximity of regulated sources to historically underserved and overburdened communities. E.O. 12898 places a responsibility on Federal agencies for ‘‘identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and lowincome populations in the United States.’’ EPA conducted an EJ analysis using the Agency’s EJ screening tool, EJSCREEN.337 The EJ analysis shows that historically underserved and overburdened populations live within proximity to those facilities (and thus at greater risk) than other populations. The analysis also found evidence that included facilities are disproportionately located within historically underserved and overburdened communities. Thus, EPA recognizes that accidental releases of regulated chemicals from facilities regulated by this action would likely pose disproportionate risks to historically marginalized communities. However, EPA has concluded that the regulatory requirements will advance 334 EPA. (2016). Technical Guidance for Assessing Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/201606/documents/ejtg_5_6_16_v5.1.pdf. 335 EPA. (2018). Guidance on Considering Environmental Justice During the Development of Regulatory Actions. https://www.epa.gov/sites/ default/files/2015-06/documents/considering-ej-inrulemaking-guide-final.pdf. 336 EPA. (2016). Technical Guidance for Assessing Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/201606/documents/ejtg_5_6_16_v5.1.pdf. 337 https://www.epa.gov/ejscreen. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules fair treatment of those populations by reducing the disproportionate damages from accidental releases from RMPregulated facilities might otherwise inflict on those populations. EPA’s full EJ analysis is documented in the RIA, which is available in the docket for this action. 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. Michael S. Regan, Administrator. For the reasons stated in the preamble, Title 40, chapter I, part 68, of the Code of Federal Regulations is proposed to be amended as follows: PART 68—CHEMICAL ACCIDENT PREVENTION PROVISIONS 1. The authority citation for part 68 continues to read as follows: ■ Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661–7661f. 2. Amend § 68.3 by a. Adding in alphabetical order definitions for ‘‘Active measures,’’ ‘‘Inherently safer technology or design’’, ‘‘Natural hazard’’, ‘‘Passive measures’’, ‘‘Practicability’’, and ‘‘Procedural measures’’; ■ b. Revising the definition of ‘‘Retail facility’’; ■ c. Adding in alphabetical order a definition for ‘‘Root cause’’; ■ d. Revising the definition of ‘‘Stationary source’’; and ■ e. Adding in alphabetical order a definition for ‘‘Third-party audit’’. The additions and revisions read as follows: ■ ■ § 68.3 Definitions. lotter on DSK11XQN23PROD with PROPOSALS2 * * * * * 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). * * * * * 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 VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 accidental releases less likely, or the impacts of such releases less severe. * * * * * Natural hazard means naturally occurring events that have the potential for negative impact including meteorological or geologic hazards. Meteorological hazards include those that naturally occur due to the weather cycle or climatic cycles, and include flooding, temperature extremes, snow/ ice storms, wildfire, tornado, tropical cyclones, hurricanes, storm surge, wind, lightening, hailstorms, drought, etc. Geologic hazards are those occurring due to the movement of the earth and the internal earth forces, and include seismic events, earthquakes, landslides, tsunami, volcanic eruptions, and dam rupture. * * * * * 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 environmental, legal, social, technological and economic 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. * * * * * Retail facility means a stationary source at which more than one-half of the annual income (in the previous calendar year) is obtained from direct sales to end users or at which more than one-half of the fuel sold, by volume, is sold through a cylinder exchange program. * * * * * Root cause means a fundamental, underlying, system-related reason why an incident occurred. * * * * * Stationary source means any buildings, structures, equipment, installations, or substance-emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 53609 accidental release may occur. The term stationary source does not apply to transportation, including storage incident to transportation, of any regulated substance or any other extremely hazardous substance under the provisions of this part. A stationary source includes transportation containers used for storage not incident to transportation and transportation containers connected to equipment at a stationary source for loading or unloading. A transportation container is in storage incident to transportation as long as it is attached to the motive power that delivered it to the site (e.g., a truck or locomotive); however, railyards and other stationary sources actively engaged in transloading activities may store regulated substances up to 48 hours total in a disconnected transportation container without counting the regulated substances contained in that transportation container toward the regulatory threshold. Transportation includes, but is not limited to, transportation subject to oversight or regulation under 49 CFR part 192, 193, or 195, or a State natural gas or hazardous liquid program for which the State has in effect a certification to DOT under 49 U.S.C. 60105. A stationary source does not include naturally occurring hydrocarbon reservoirs. Properties shall not be considered contiguous solely because of a railroad or pipeline rightof-way. Third-party audit means a compliance audit conducted pursuant to the requirements of § 68.59 and/or § 68.80, performed or led by an entity (individual or firm) meeting the competency and independence requirements described in § 68.59(c) or § 68.80(c). * * * * * ■ 3. Amend § 68.10 by: ■ a. Revising paragraph (a); ■ b. Redesignating paragraphs (g) through (k) as paragraphs (j) through (n); and ■ c. Adding new paragraphs (g) through (i). The revisions and additions read as follows: § 68.10 Applicability. (a) Except as provided in paragraphs (b) through (i) 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 § 68.115, shall comply with the requirements of this part no later than the latest of the following dates: (1) June 21, 1999; E:\FR\FM\31AUP2.SGM 31AUP2 53610 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules (2) Three years after the date on which a regulated substance is first listed under § 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. * * * * * (g) By [DATE 3 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner or operator shall comply with the following provisions promulgated on [EFFECTIVE DATE OF FINAL RULE]: (1) Third-party audit provisions in §§ 68.58(f) through (h), 68.59, 68.79(f) through (h), and 68.80; (2) Incident investigation root cause analysis provisions in §§ 68.60(d)(7) and 68.81(d)(7); (3) Safer technology and alternatives analysis provisions in § 68.67(c)(8); (4) Employee participation provisions in §§ 68.62(d)(7) and 68.82(d)(7); (5) Emergency response provisions in §§ 68.90(b) and 68.95(a). (6) Availability of information provisions in § 68.210(d) through (f). (h) By March 15, 2027, or within 10 years of the date of an emergency response field exercise conducted between March 15, 2017, and August 31, 2022 in accordance with § 68.96(b)(1)(ii). (i) By [DATE 4 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner or operator shall comply with the risk management plan provisions of subpart G of this part promulgated on [EFFECTIVE DATE OF FINAL RULUE]. Subpart C—Program 2 Prevention Program 4. Amend § 68.48 by revising paragraph (b) to read as follows: ■ § 68.48 Safety information. * * * * * (b) The owner or operator shall ensure and document that the process is designed in compliance with recognized and generally accepted good engineering practices. * * * * * ■ 5. Amend § 68.50 by revising paragraph (a)(3) and adding paragraphs (a)(5) and (6) to read as follows: lotter on DSK11XQN23PROD with PROPOSALS2 § 68.50 Hazard review. (a) * * * (3) The safeguards used or needed to control the hazards or prevent equipment malfunction or human error including standby or emergency power systems; * * * * * (5) External events such as natural hazards, including those caused by VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 climate change or other triggering events that could lead to an accidental release; and (6) Stationary source siting, including the placement of processes, equipment, buildings within the facility, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to the public and public receptors. * * * * * ■ 6. Amend § 68.58 by revising paragraph (a) and adding paragraphs (f) through (h) to read as follows: § 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 this subpart 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 applies: (1) Two accidental releases within five years meeting the criteria in § 68.42(a) from a covered process at a stationary source have occurred; or (2) One accidental release within five years meeting the criteria in § 68.42(a) from a covered process at a stationary source in NAICS code 324 or 325, located within 1 mile of another stationary source having a process in NAICS code 324 or 325, has occurred; or (3) 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 thirdparty audit failed to meet the competency or independence criteria of § 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)(3) 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 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 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 § 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)(3) 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 thirdparty 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 second of two releases within five years; or (2) For third-party audits required pursuant to paragraph (f)(2) of this section, within 12 months of the release; or (3) For third-party audits required pursuant to paragraph (f)(3) 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. ■ 7. Section 68.59 is added to read as follows: § 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 any criterion of § 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 E:\FR\FM\31AUP2.SGM 31AUP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules (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 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) 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 (c)(2); and (iv) 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 thirdparty audits pursuant to § 68.59 or § 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. VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 (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 thirdparty 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 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 53611 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 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 thirdparty 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. ■ 8. Amend § 68.60 by adding paragraph (h) to read as follows: § 68.60 * E:\FR\FM\31AUP2.SGM Incident investigation. * * 31AUP2 * * 53612 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules (h) The owner or operator shall ensure the following are addressed when the incident in § 68.60(a) meets the accident history reporting requirements under § 68.42: (1) The report shall be completed within 12 months of the incident, unless the implementing agency approves, in writing, to an extension of time. (2) The report in paragraph (d) of this section shall include 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. ■ 9. Section 68.62 is added to subpart C to read as follows: § 68.62 Employee participation. (a) The owner or operator shall develop a written plan of action regarding the implementation of the employee participation required by this section. (b) The owner or operator shall develop and implement a process to allow employees and their representatives to anonymously report unaddressed hazards that could lead to a catastrophic release, unreported RMPreportable accidents, or any other noncompliance with this part. (c) The owner or operator shall provide to employees and their representatives access to hazard reviews and to all other information required to be developed under this rule. Subpart D—Program 3 Prevention Program 10. Amend § 68.65 by revising paragraphs (a) and (d)(2) to read as follows: ■ lotter on DSK11XQN23PROD with PROPOSALS2 § 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. The compilation of written process safety information is to enable the owner or operator and the employees involved in operating the process to identify and understand the hazards posed by those processes involving regulated substances. This process safety information shall include information pertaining to the hazards of the regulated substances used or produced by the process, information pertaining to the technology of the process, and information pertaining to the equipment in the process. * * * * * VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 (d) * * * (2) The owner or operator shall ensure and document that the process is designed and maintained in compliance with recognized and generally accepted good engineering practices. * * * * * ■ 11. Amend § 68.67 by revising paragraphs (c)(3) and (5) and adding paragraph (c)(8) through (10) to read as follows: § 68.67 Process hazard analysis. * * * * * (c) * * * (3) Engineering and administrative controls applicable to the hazards and their interrelationships such as appropriate application of detection methodologies to provide early warning of releases and standby or emergency power systems. * * * * * (5) Stationary source siting, including the placement of processes, equipment, and buildings within the facility, hazards posed by proximate facilities, and potential accidental release consequences to nearby public and environmental receptors; * * * * * (8) External events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release; (9) For processes in NAICS codes 324 and 325, located within 1 mile of another stationary source having a process in NAICS codes 324 or 325 and for processes in NAICS 324 with hydrofluoric acid alkylation processes, safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards. (i) The owner or operator shall consider and document, 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 and document the practicability of the inherently safer technologies and designs considered. The owner or operator shall include in documentation any methods used to determine practicability. For any inherently safer technologies and designs implemented, the owner or operator shall document and submit to EPA a description of the technology implemented. (iii) The analysis shall be performed by a team that includes members with expertise in the process being evaluated, PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 including at least one member who works in the process. The team members shall be documented. (10) Any gaps in safety between the codes, standards, or practices to which the process was designed and constructed and the most current version of applicable codes, standards, or practices. * * * * * ■ 12. Amend § 68.79 by revising paragraph (a) and adding paragraphs (f) through (h) to read as follows: § 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 subpart 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 or more of the following conditions applies: (1) Two accidental releases within five years meeting the criteria in § 68.42(a) from a covered process at a stationary source has occurred; or (2) One accidental release within five years meeting the criteria in § 68.42(a) from a covered process at a stationary source in NAICS code 324 or 325, located within 1 mile of another stationary source having a process in NAICS code 324 or 325; or (3) 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 thirdparty audit failed to meet the competency or independence criteria of § 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)(3) 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. E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules (3) If the final determination requires a third-party audit, the owner or operator shall comply with the requirements of § 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)(3) 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 thirdparty 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 second of two releases within five years; or (2) For third-party audits required pursuant to paragraph (f)(2) of this section, within 12 months of the release; or (3) For third-party audits required pursuant to paragraph (f)(3) 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. ■ 13. Section 68.80 is added to read as follows: lotter on DSK11XQN23PROD with PROPOSALS2 § 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 any criterion of § 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 VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 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 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) 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 (c)(2); and (iv) 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 thirdparty audits pursuant to § 68.59 or this section. (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: PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 53613 (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 thirdparty 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, 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 E:\FR\FM\31AUP2.SGM 31AUP2 53614 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules 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: lotter on DSK11XQN23PROD with PROPOSALS2 ‘‘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 thirdparty audit reports, related findings response reports, documentation of actions taken to address deficiencies, and related records. ■ 14. Amend § 68.81 by adding paragraph (h) to read as follows: § 68.81 Incident investigation. * * * * * (h) The owner or operator shall ensure the following are addressed when the incident in § 68.81(a) meets the accident history reporting requirements under § 68.42: VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 (1) The report shall be completed within 12 months of the incident, unless the implementing agency approves, in writing, an extension of time. (2) The report in paragraph (d) of this section shall include 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. ■ 15. Revise § 68.83 to read as follows: § 68.83 Employee participation. (a) The owner or operator shall develop a written plan of action regarding the implementation of the employee participation required by this section. (b) The owner or operator shall consult with employees and their representatives on the conduct and development of process hazards analyses, and on the development of the other elements of process safety management in this rule. (c) The owner or operator shall consult with employees and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations and findings of process hazard analyses under § 68.67(e), compliance audits under § 68.79(d), and incident investigations under § 68.81(e). (d) The owner or operator shall provide the following authorities to employees and their representatives, and document and respond, in writing within 30 days of the authority being exercised: (1) Refuse to perform a task when doing so could reasonably result in a catastrophic release. (2) Recommend to the operator in charge of a unit that an operation or process be partially or completely shut down, in accordance with procedures established in § 68.69(a), based on the potential for a catastrophic release. (3) Allow a qualified operator in charge of a unit to partially or completely shut down an operation or process, in accordance with procedures established in § 68.69(a), based on the potential for a catastrophic release. (e) The owner or operator shall develop and implement a process to allow employees and their representatives to anonymously report unaddressed hazards that could lead to a catastrophic release, unreported RMPreportable accidents, or any other noncompliance with this part. (f) The owner or operator shall provide to employees and their representatives access to process hazard analyses and to all other information PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 required to be developed under this rule. ■ 16. Revise § 68.85 by revising paragraph (b) and adding paragraph (c) to read as follows: § 68.85 Hot work permit. * * * * * (b) The permit shall document that the fire prevention and protection requirements in 29 CFR 1910.252(a) have been implemented prior to beginning the hot work operations; it shall indicate the date(s) authorized for hot work; and identify the object on which hot work is to be performed. (c) The permit shall be retained for five years after the completion of the hot work operations. Subpart E—Emergency Response 17. Amend § 68.90 by revising paragraphs (b)(1) and (3) and adding paragraph (b)(6) to read as follows: ■ § 68.90 Applicability. * * * * * (b) * * * (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. The community emergency response plan should include the following components: identification of facilities within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances, and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities, such as hospitals or natural gas facilities; methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances; designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan; procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred; methods for determining the occurrence of a release, and the area or population likely to be affected by such release; description of emergency equipment and facilities in the community and at each facility in the community, and an identification of the persons responsible for such equipment E:\FR\FM\31AUP2.SGM 31AUP2 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules and facilities; evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes; training programs, including schedules for training of local emergency response and medical personnel; and methods and schedules for exercising the emergency plan. * * * * * (3) Appropriate mechanisms are in place to notify emergency responders when there is a need for a response, including providing timely data and information detailing the current understanding and best estimates of the nature of the release. * * * * * (6) The owner or operator maintains and implements, as necessary, procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases of RMP-regulated substances and ensure that a community notification system is in place to warn the public within the area potentially threatened by the release. ■ 18. Amend § 68.95 by revising paragraphs (a)(1)(i) and (c) to read as follows: lotter on DSK11XQN23PROD with PROPOSALS2 § 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, including assurance that a community notification system is in place to warn the public within the area threatened by the release; * * * * * (c) The emergency response plan developed under paragraph (a)(1) of this section shall include providing timely data and information detailing the current understanding and best estimates of the nature of the release when a release occurs and be coordinated with the community emergency response plan developed under 42 U.S.C. 11003. The community emergency response plan should include identification of facilities within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances, and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities, such as hospitals or natural gas facilities; methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 substances; designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan; procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred; methods for determining the occurrence of a release, and the area or population likely to be affected by such release; description of emergency equipment and facilities in the community and at each facility in the community, as well as an identification of the persons responsible for such equipment and facilities; evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes; training programs, including schedules for training of local emergency response and medical personnel; and methods and schedules for exercising the emergency plan. 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. ■ 19. Amend § 68.96 by revising paragraphs (b)(1)(i) and (b)(3) to read as follows: § 68.96 Emergency response exercises. * * * * * (b) * * * (1) * * * (i) As part of coordination with local emergency response officials required by § 68.93, the owner or operator shall conduct a field exercise at least once every 10 years unless the appropriate Federal, State, and local emergency response agencies agree in writing that such frequency is impractical. If emergency response agencies so agree, the owner or operator shall consult with emergency response officials to establish an alternate appropriate frequency for field exercises. * * * * * (3) Documentation. The owner or operator shall prepare an evaluation report within 90 days of each field and tabletop 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 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 53615 schedule to promptly address and resolve recommendations. * * * * * Subpart G—Risk Management Plan 20. Amend § 68.160 by adding paragraph (b)(22) to read as follows: ■ § 68.160 Registration. * * * * * (b) * * * (22) Method of communication and location of the notification that chemical hazard information is available to the public residing within 6 miles of the stationary source, pursuant to § 68.210(d). ■ 21. Amend § 68.170 by adding paragraph (e)(7) revising paragraph (i) to read as follows: § 68.170 Prevention program/Program 2. * * * * * (e) * * * (7) Recommendations declined from natural hazard, power loss, and siting hazard evaluations and justifications. * * * * * (i) The date of the most recent compliance audit; the expected date of completion of any changes resulting from the compliance audit and identification of whether the most recent compliance audit was a thirdparty audit, pursuant to §§ 68.58 and 68.59; and findings declined from thirdparty compliance audits and justifications. * * * * * ■ 22. Amend § 68.175 by adding paragraphs (e)(7) through (9) and revising paragraph (k) to read as follows: § 68.175 Prevention program/Program 3. * * * * * (e) * * * (7) Inherently safer technology or design measures implemented since the last PHA, if any, and the technology category (substitution, minimization, simplification and/or moderation). (8) Recommendations declined from natural hazard, power loss, and siting hazard evaluations and justifications. (9) Recommendations declined from safety gaps between codes, standards, or practices to which the process was designed and constructed and the most current version of applicable codes, standards, or practices. * * * * * (k) The date of the most recent compliance audit; the expected date of completion of any changes resulting from the compliance audit; and identification of whether the most recent compliance audit was a third- E:\FR\FM\31AUP2.SGM 31AUP2 53616 Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / Proposed Rules party audit, pursuant to §§ 68.79 and 68.80. * * * * * Subpart H—Other Requirements 23. Amend § 68.210 by adding paragraphs (d) through (f) to read as follows: ■ § 68.210 public. Availability of information to the * * * * (d) Chemical hazard information. The owner or operator of a stationary source shall provide, upon request by any member of the public residing within 6 miles of the stationary source, the following chemical hazard information for all regulated processes in the language requested, as applicable: (1) Regulated substances information. Names of regulated substances held in a process; (2) Safety Data Sheets (SDSs). SDSs for all regulated substances located at the facility; (3) Accident history information. Provide the five-year accident history lotter on DSK11XQN23PROD with PROPOSALS2 * VerDate Sep<11>2014 18:07 Aug 30, 2022 Jkt 256001 information required to be reported under § 68.42; (4) Emergency response program. The following summary information concerning the stationary source’s compliance with § 68.10(f)(3) and the emergency response provisions of subpart E as applicable: (i) Whether the stationary source is a responding stationary source or a nonresponding 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 § 68.180; and (iii) For stationary sources subject to § 68.95, procedures for informing the public and local emergency response agencies about accidental releases; (5) Exercises. A list of scheduled exercises required under § 68.96; and (6) LEPC contact information. Include LEPC name, phone number, and web address as available. (e) Notification of availability of information. The owner or operator shall provide ongoing notification on a PO 00000 Frm 00062 Fmt 4701 Sfmt 9990 company website, social media platforms, or through other publicly accessible means that: (1) Information specified in paragraph (d) of this section is available to the public residing within 6 miles of the stationary source 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, mailing address, and/or telephone or website request); (2) Identify where to access information on community preparedness, if available, including shelter-in-place and evacuation procedures. (f) Timeframe to provide requested information. The owner or operator shall provide the requested information under paragraph (d) of this section within 45 days of receiving a request. [FR Doc. 2022–18249 Filed 8–30–22; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\31AUP2.SGM 31AUP2

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Proposed Rules]
[Pages 53556-53616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18249]



[[Page 53555]]

Vol. 87

Wednesday,

No. 168

August 31, 2022

Part II





Environmental Protection Agency





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40 CFR Part 68





Accidental Release Prevention Requirements: Risk Management Programs 
Under the Clean Air Act; Safer Communities by Chemical Accident 
Prevention; Proposed Rule

Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 / 
Proposed Rules

[[Page 53556]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OLEM-2022-0174; FRL-5766.6-01-OLEM]
RIN 2050-AH22


Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act; Safer Communities by Chemical 
Accident Prevention

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
amend its Risk Management Program (RMP) regulations as a result of 
Agency review. The proposed revisions include several changes and 
amplifications to the accident prevention program requirements, 
enhancements to the emergency preparedness requirements, increased 
public availability of chemical hazard information, and several other 
changes to certain regulatory definitions or points of clarification. 
These proposed amendments seek to improve chemical process safety; 
assist in planning, preparedness, and responding to RMP-reportable 
accidents; and improve public awareness of chemical hazards at 
regulated sources.

DATES: Comments must be received on or before October 31, 2022.
    Public Hearings: EPA will hold virtual public hearings on September 
26, 2022; September 27, 2022; and September 28, 2022, at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. Please refer to the SUPPLEMENTARY 
INFORMATION section of this preamble for additional information on the 
public hearings.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2022-0174, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, EPA-HQ-OLEM-2022-0174 Docket, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand delivery or courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except 
Federal holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and more 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this preamble. For 
further information on EPA Docket Center services and the current 
status, please visit us online at https://www.epa.gov/dockets.
    The virtual hearings will be held at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. The hearing on September 26, 2022, will convene at 
9:00 a.m. (local time) and will conclude at 12:00 p.m. (local time). 
The hearing on September 27, 2022, will convene at 1:00 p.m. (local 
time) and will conclude at 4:00 p.m. (local time). The hearing on 
September 28, 2022, will convene at 5:00 p.m. (local time) and will 
conclude at 8:00 p.m. (local time). Refer to the SUPPLEMENTARY 
INFORMATION section below for additional information.

FOR FURTHER INFORMATION CONTACT: Deanne Grant, Office of Emergency 
Management, Mail Code 5104A, Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-1096; email: [email protected] or Veronica Southerland, Office 
of Emergency Management, Mail Code 5104A, Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone 
number: 202-564-2333; email: [email protected].

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

List of Abbreviations and Acronyms

ACC American Chemistry Council
AN ammonium nitrate
ANPI Apache Nitrogen Products Inc.
ANSI American National Standards Institute
API American Petroleum Institute
AQMD Air Quality Management Districts
ASSP American Society of Safety Professionals
ASTM American Society for Testing and Materials
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act
CAAA Clean Air Act Amendments
CDC Centers for Disease Control and Prevention
CDR Chemical Data Reporting
CCPS Center for Chemical Process Safety
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CGA Compressed Gas Association
CSB Chemical Safety and Hazard Investigation Board
DHS Department of Homeland Security
DIR California Department of Industrial Relations
DOJ Department of Justice
DOT Department of Transportation
EHS Extremely Hazardous Substances
EJ Environmental Justice
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-To-Know Act
FEMA Federal Emergency Management Agency
FOIA Freedom of Information Act
FR Federal Register
FRS Facility Registry Service
GDC General Duty Clause
GMARD Guide for Making Acute Risk Decisions
HF hydrofluoric acid
HHC highly hazardous chemical
IEEE Institute of Electrical and Electronics Engineers
IIAR International Institute of Ammonia Refrigeration
IPAWS Integrated Public Alert & Warning System
ISD inherently safer design
IST inherently safer technology
LEPC local emergency planning committee
LPG liquefied petroleum gas
MACT Maximum Achievable Control Technology
NAICS North American Industry Classification System
NASTTPO National Association of SARA Title III Program Officials
NESHAP National Emission Standards for Hazardous Air Pollutants
NFPA National Fire Protection Association
NJAC New Jersey Administrative Code
NJDEP New Jersey Department of Environmental Protection
NREL National Renewable Energy Laboratory
NSPS New Source Performance Standards
NTTAA National Technology Transfer Advancement Act
OCA offsite consequences analysis
OSHA Occupational Safety and Health Administration
PHA process hazard analysis
PRA Paperwork Reduction Act
PSM process safety management
RAGAGEP recognized and generally accepted good engineering practices
RFA Regulatory Flexibility Act
RFI request for information
RIA Regulatory Impact Analysis
RMP Risk Management Program or risk management plan
SARA Superfund Amendments and Reauthorization Act
SCCAP Safer Communities by Chemical Accident Prevention

[[Page 53557]]

SDS Safety Data Sheet
SEMS Safety and Environmental Management Systems
SOCMA Society of Chemical Manufacturers and Affiliates
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TEPC Tribal emergency planning committee
TNT trinitrotoluene
TQ threshold quantity
UMRA Unfunded Mandates Reform Act

    Organization of this document. The information in this preamble is 
organized as follows:

I. Public Participation
    A. Written Comments
    B. Comment Headings
    C. Participation in Virtual Public Hearings
II. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the costs and benefits of this action?
    1. Summary of Estimated Costs
    2. Baseline Damages
    3. Summary of Estimated Benefits
III. Background
    A. Overview of EPA's Risk Management Program
    B. Events Leading to This Action
    C. EPA's Authority To Revise the RMP Rule
IV. Proposed Action
    A. Prevention Program
    1. Hazard Evaluation Amplifications
    a. Introduction
    b. Natural Hazards
    c. Power Loss
    d. Stationary Source Siting
    e. Hazard Evaluation Recommendation Information Availability
    f. Summary of Proposed Regulatory Text
    2. Prevention Program Provisions
    a. Safer Technologies and Alternatives Analysis (STAA)
    i. Background on IST/ISD
    ii. Hydrogen Fluoride (HF)
    iii. Recent Public Input on STAA
    iv. Recent Public Input on HF
    v. STAA Applicability
    vi. Accident Frequency
    vii. Accident Severity
    viii. Discussion of Prior STAA Analysis
    ix. STAA Technology Transfer
    x. Alternative Options
    xi. Proposed Revisions to Regulatory Text
    xii. Process Hazard Analysis (40 CFR 68.67)
    b. Root Cause Analysis
    i. Root Cause Analysis Background
    ii. Recent Public Comments on Root Cause Analysis
    iii. Investigation Timeframe
    iv. Proposed Revisions to Regulatory Text
    v. ``Near Miss'' Definition
    c. Third-Party Compliance Audits
    i. Third-Party Compliance Audits in Previous RMP Rulemakings
    ii. Recent Public Input on Third-Party Compliance Audits
    iii. Proposed Third-Party Compliance Audit Requirements
    d. Employee Participation
    i. Introduction
    ii. Recommendation Decisions
    iii. Stop Work Authority
    iv. Accident and Non-Compliance Reporting
    B. Emergency Response
    1. Review of Emergency Response Notification, Detection, and 
Response
    a. Concerns About Notification of Accidents
    b. Release Detection
    c. Emergency Response Guidance
    2. Proposed Modifications and Amplifications of Emergency 
Response Requirements
    a. Proposed Regulations to Address Community Notification of RMP 
Accidents
    b. Community Emergency Response Plan Amplifications
    3. Emergency Response Exercises
    a. Proposed Amendments to the Emergency Response Requirements
    b. Field Exercise Frequency
    c. Exercise Evaluation Reports
    C. Information Availability
    1. Recent Public Input on Information Availability
    2. Information Availability in the 2017 Amendments and the 2019 
Reconsideration Rule
    3. Proposed Regulatory Revisions
    a. Request for Comment on Potential Non-Rule RMP Access Policy 
Changes
    b. Current Data Availability of Risk Management Plan Information
    c. Other EPA Facility Hazardous Substance Registries
    d. Balancing Security Risks and Community Right-to-Know
    D. Other Areas of Technical Clarification
    1. Process Safety Information
    2. Program 2 and 3 Requirements for Compliance With RAGAGEP
    3. Retention of Hot Work Permits
    4. Storage Incident to Transportation
    5. Retail Facility Exemption
    6. RAGAGEP
    E. Compliance Dates
V. Additional Considerations
VI. Statutory and Executive Orders 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 Concerning Regulations 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

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2022-
0174, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section, above. Once 
submitted, comments cannot be edited or removed from the docket. EPA 
may publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov any information you 
consider to be confidential business information or other information 
whose disclosure is restricted by statute. Multimedia submissions 
(audio, video, etc.) must be accompanied by a written comment. The 
written comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about confidential business information or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Due to public health concerns related to COVID-19, the EPA Docket 
Center and Reading Room are open to the public by appointment only. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. Hand deliveries or couriers will be 
received by scheduled appointment only. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and its Federal partners so that it can respond 
rapidly as conditions change regarding COVID-19.

B. Comment Headings

    Commentors should review the discussions in the preamble and may 
comment on any matter that is addressed by the proposed rule. For 
comments submitted through postal mail or https://www.regulations.gov, 
EPA is requesting commenters to identify their comments on specific 
issues by using the appropriate number and comment headings listed 
below to make it simpler for the Agency to

[[Page 53558]]

process your comment. If your comment covers multiple issues, please 
use all the heading numbers and names that relate to that comment. As 
an example of this optional method, where one individual comment 
relates to issue #1 and a second individual comment pertains to issues 
#2 and #3, a set of comments would be submitted as follows:
    1. Natural Hazards--EPA requests comment on the following (See 
Section IV.A.1.b):
     The Agency's proposed approach.
     Whether EPA should develop additional guidance for 
assessing natural hazards.
     Natural hazard resources such as databases, checklists, or 
narrative discussions, as well as commenters' recommendations for 
regional versus national, or sector-specific guidance.
     Whether to specify geographic areas most at risk from 
climate or other natural events by adopting the list of areas exposed 
to heightened risk of wildfire, flooding, storm surge, or coastal 
flooding and if this approach would simplify implementation.
     If the Agency should require sources in areas exposed to 
heightened risk of wildfire, flooding, storm surge, coastal flooding, 
or earthquake, to conduct hazard evaluations associated with climate or 
earthquake as a minimum, while also requiring all sources to consider 
the potential for natural hazards unrelated to climate or earthquake in 
their specific locations.
    2. Power Loss--EPA requests comment on the following (See Section 
IV.A.1.c):
     The Agency's proposed approach.
     The proposed provision to require air pollution control or 
monitoring equipment associated with prevention and detection of 
accidental releases from RMP-regulated processes to have standby or 
backup power and any potential safety issues associated with it.
    3. Stationary Source Siting--EPA requests comment on the following 
(See Section IV.A.1.d):
     The Agency's proposed approach.
    4. Hazard Evaluation Recommendation Information Availability--EPA 
requests comment on the following (See Section IV.A.1.e):
     The Agency's proposed approach.
     Whether EPA should require declined hazard evaluation 
recommendations to be included in narrative form, whether the Agency 
should provide specific categories of recommendations for facilities to 
choose from when reporting or allowing the owner or operator to post 
this information online and provide a link to their information within 
their RMP.
     Methods to provide justification for declining relevant 
hazard evaluation recommendations, the proposed approach or alternative 
categories.
    5. Safer Technology and Alternatives Analysis (STAA)--EPA requests 
comment on the following (See Section IV.A.2.a):
     The Agency's proposed approach.
     Industry understanding of the practicability assessment, 
and how this might differ from the findings identified in the PHA.
     Additional benefits provided by the practicability 
assessment.
     EPA's definition of the practicability assessment.
     How to determine if a facility is within a 1-mile radius 
and if EPA should use locational data provided by facilities, or 
develop a standard definition (e.g., 1 mile to the facility fenceline 
or 1 mile to the regulated process location).
     Information that should be collected in a STAA 
clearinghouse.
     The proposed STAA applicability criteria and alternatives.
     Whether EPA should reinstate the 2017 rule provisions 
requiring STAA for all NAICS 324 and 325 processes.
     Whether the proposal to limit the STAA provisions to NAICS 
324 and 325 regulated processes within 1 mile of another NAICS 324 and 
325 regulated facility is appropriate or if another distance (e.g., 3 
miles) would be appropriate, and the rationale for proposed distance 
alternatives.
     Other industries for which STAA should be required and how 
EPA might justify extending these provisions to other industries.
     What other information or consideration EPA can use to 
assess probability of an accident in other industries without accident 
history data as well as what specific chemicals or processes may merit 
the most focus, and how EPA may require STAA requirements for 
industries without a history of accidents.
     If the Agency should only require the STAA as part of the 
PHA, without the additional practicability assessment.
     For any cited costs of implementing the STAA as part of 
the PHA, documentation to support cost estimates.
     For any cited costs of implementing the practicability 
assessment of the STAA provisions, documentation to support cost 
estimates.
    6. Root Cause Analysis--EPA requests comment on the following (See 
Section IV.A.2.b):
     The Agency's proposed approach.
     A potential definition of ``near miss'' that would address 
difficulties in identifying the variety of incidents that may occur at 
RMP facilities that could be near misses that should be investigated.
     A universal ``near miss'' definition, as well as comments 
on strengths and limitations of the definition provided by NJDEP and 
how the definition may clarify requirements for incident 
investigations.
    7. Third Party Compliance Audits--EPA requests comment on the 
following (See Section IV.A.2.c):
     The Agency's proposed approach.
     Proposed independence criteria modified from the 2017 
rule.
     Whether the selected auditor should be mutually approved 
by the owner or operator and employees and their representatives, and 
if direct participation from employees and their representative should 
be required when a third party conducts an audit.
     Whether EPA should require declined findings be included 
in narrative form, or whether the Agency should provide specific 
categories of findings for facilities to choose from when reporting.
    8. Employee Participation--EPA requests comment on the following 
(See Section IV.A.2.d):
     The Agency's proposed approach.
     Whether there should be a representative number or 
percentage of employees and their representatives involved in these 
recommendations decision teams as well as the development of other 
process safety elements as outlined in 40 CFR 68.83(b).
     Relevant sources that have provided useful guidance in 
making risk decisions.
     Whether owners and operators should distribute an annual 
written or electronic notice to employees that employee participation 
plans and other RMP information is readily accessible upon request and 
provide training for those plans and how to access the information.
    9. Proposed Modifications and Amplifications to Emergency Response 
Requirements--EPA requests comment on the following (See Section 
IV.B.2):
     The Agency's proposed approach.
     Additional information that is useful to share when 
notifying the public of RMP-accidental releases.
     Impediments to accessing community emergency response 
plans and potential solutions to having the plans more accessible 
within the scope of the RMP rule.
    10. Emergency Response Exercises--EPA requests comment on the 
following (See Section IV.B.3):
     The Agency's proposed approach.

[[Page 53559]]

    11. Information Availability--EPA requests comment on the following 
(See Section IV.C.3):
     The Agency's proposed approach.
     If the 6-mile radius for requesting information is 
appropriate. For alternative distances, information on the 
justification for these alternative distances.
     Specific information on the increased likelihood of 
security threats arising from dissemination of this information.
     Which data elements, or combinations of elements, may pose 
a security risk if released to the public (provided in Section 10 of 
the Technical Background Document).
     For each element or combination of elements identified as 
a potential security risk: (1) Specific comments on why the element or 
combination of elements presents a security risk and (2) documentation 
or basis for these security claims, such as expert studies, 
intelligence assessments, a prior incident, documented security threat, 
or near miss incident.
    12. Other Areas of Technical Clarification--EPA requests comment on 
the following (See Section IV.D):
     The Agency's proposed approaches.
     For revisions to ``storage incident to transportation'' 
definition, the proposed 48-hour time frame, suggestions for other 
appropriate time frames, and any safety concerns that may arise from 
transportation containers being exempt from the RMP rule when 
disconnected for less than 48 hours.
    13. Regulatory Impact Analysis--EPA requests comment on the 
following (See Section II.D):
     The assumptions and information used in the analysis, 
including burden estimates and the likelihood of adopting safer 
alternatives.
     The estimated costs of the proposed provisions and whether 
these costs should accrue to this proposal.
     Cost data or studies related to the cost of practicability 
studies for conversion of hydrofluoric acid alkylation units to safer 
technologies.
     The estimated benefits of the proposed provisions.
    14. Regulatory Flexibility Act Analysis
     The number of small entities potentially affected by the 
proposed provisions of this rule.
     The estimated cost impacts on small entities by the 
proposed provisions of this rule.
    15. OTHER--Any comments not falling under one of the preceding 
categories should be identified using `OTHER' as the comment header.

C. Participation in Virtual Public Hearings

    Please note that because of current CDC recommendations, as well as 
State and local orders for social distancing to limit the spread of 
COVID-19, EPA cannot hold in-person public meetings at this time.
    EPA will begin pre-registering speakers for the hearing upon 
publication of this preamble in the Federal Register (FR). To register 
to speak at the virtual hearings, please see the online registration 
form available at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident or 
contact Deanne Grant at 202-564-1096 or [email protected] to 
register to speak at the virtual hearings. The last day to pre-register 
to speak at the hearings will be September 22, 2022, EPA will post a 
general agenda for the hearings that will list pre-registered speakers 
in approximate order at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident.
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearings; however, please plan for the 
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 3 minutes to provide oral testimony. EPA 
encourages commenters to provide EPA with a copy of their oral 
testimony electronically (via email) by emailing it to Deanne Grant at 
[email protected]. EPA also recommends submitting the text of your 
oral comments as written comments to the rulemaking docket.
    EPA may ask clarifying questions during the oral presentations but 
will not respond to the presentations at that time. Written statements 
and supporting information submitted during the comment period will be 
considered with the same weight as oral comments and supporting 
information presented at the public hearings.
    Please note that any updates made to any aspect of the hearings are 
posted online at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. While EPA 
expects the hearings to go forward as set forth above, please monitor 
the Agency's website or contact Deanne Grant, 202-564-1096, 
[email protected], to determine if there are any updates. EPA does 
not intend to publish a document in the Federal Register announcing 
updates.
    If you require the services of a translator or special 
accommodations such as audio description, please pre-register for the 
hearings with Deanne Grant and describe your needs by September 19, 
2022. EPA may not be able to arrange accommodations without advanced 
notice.

II. General Information

A. Does this action apply to me?

    This rule applies to those facilities (referred to as ``stationary 
sources'' under the Clean Air Act, or 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. Nothing in this rule would 
impact the scope and applicability of the General Duty Clause in CAA 
112(r)(1), 42 U.S.C. 7412(r)(1). See 40 CFR 68.1. Table 1 provides 
industrial sectors and the associated North American Industry 
Classification System (NAICS) codes for entities potentially affected 
by this action. The Agency's goal is to provide a guide on entities 
that might be affected by this action. However, this action may affect 
other entities not listed in this table. If you have questions about 
the applicability of this action to a particular entity, consult the 
person(s) listed in the FOR FURTHER INFORMATION CONTACT section of this 
preamble.

                           Table 1--Entities Potentially Affected by the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                                              Number of
               Sector                             NAICS codes                facilities        Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental      92, 2213 (government-owned).........           1,449  Use chlorine and
 quality programs (i.e.,                                                                    other chemicals for
 governments, government-owned                                                              water treatment.
 water).
Agricultural chemical distributors/  11, 424 (except 4246, 4247).........           3,315  Store ammonia for
 wholesalers.                                                                               sale; some in NAICS
                                                                                            111 and 115 use
                                                                                            ammonia as a
                                                                                            refrigerant.
Chemical manufacturing.............  325.................................           1,502  Manufacture, process,
                                                                                            store.

[[Page 53560]]

 
Chemical wholesalers...............  4246................................             317  Store for sale.
Food and beverage manufacturing....  311, 312............................           1,571  Use (mostly ammonia)
                                                                                            as a refrigerant.
Oil and gas extraction.............  211.................................             719  Intermediate
                                                                                            processing (mostly
                                                                                            regulated flammable
                                                                                            substances and
                                                                                            flammable mixtures).
Other..............................  21 (except 211), 23, 44, 45, 48,                 246  Use chemicals for
                                      491, 54, 55, 56, 61, 62, 71, 72,                      wastewater
                                      81, 99.                                               treatment,
                                                                                            refrigeration, store
                                                                                            chemicals for sale.
Other manufacturing................  313, 314, 315, 326, 327, 33.........             375  Use various chemicals
                                                                                            in manufacturing
                                                                                            process, waste
                                                                                            treatment.
Other wholesale....................  421, 422, 423.......................              39  Use (mostly ammonia)
                                                                                            as a refrigerant.
Paper manufacturing................  321, 322............................              55  Use various chemicals
                                                                                            in pulp and paper
                                                                                            manufacturing.
Petroleum and coal products          324.................................             156  Manufacture, process,
 manufacturing.                                                                             store (mostly
                                                                                            regulated flammable
                                                                                            substances and
                                                                                            flammable mixtures).
Petroleum wholesalers..............  4247................................             367  Store for sale
                                                                                            (mostly regulated
                                                                                            flammable substances
                                                                                            and flammable
                                                                                            mixtures).
Utilities/water/wastewater.........  221 (non-government-owned water)....             519  Use chlorine (mostly
                                                                                            for water treatment)
                                                                                            and other chemicals.
Warehousing and storage............  493.................................           1,110  Use (mostly ammonia)
                                                                                            as a refrigerant.
                                                                          ----------------
    Total..........................  ....................................          11,740  .....................
----------------------------------------------------------------------------------------------------------------

B. What action is the Agency taking?

    The purpose of this action is to propose changes to the RMP rule in 
order to improve safety at facilities that use and distribute hazardous 
chemicals. 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 process safety 
based on lessons learned. These proposed revisions are a result of 
review of the existing RMP regulations and information gathered from 
the 2021 virtual public listening sessions (hereinafter referred to as 
the ``2021 listening sessions'').\1\
---------------------------------------------------------------------------

    \1\ Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act, Section 112(r)(7); Rule 
Retrospection Under Executive Order 13990; Virtual Public Listening 
Sessions; Request for Public Comment; EPA-HQ-OLEM-2021-0312-0001.
---------------------------------------------------------------------------

C. What is the Agency's authority for taking this action?

    The statutory authority for this action is provided by section 
112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each modification of 
the RMP rule that EPA proposes in this document is based on EPA's 
rulemaking authority under CAA section 112(r)(7) (42 U.S.C. 
7412(r)(7)). When promulgating rules under CAA section 112(r)(7)(A) and 
(B), EPA must follow the procedures for rulemaking set out in CAA 
section 307(d) (see CAA sections 112(r)(7)(E) and 307(d)(1)(C)). Among 
other things, CAA section 307(d) sets out requirements for the content 
of proposed and final rules, the docket for each rulemaking, 
opportunities for oral testimony on proposed rulemakings, the length of 
time for comments, and judicial review.

D. What are the costs and benefits of this action?

1. Summary of Estimated Costs
    Approximately 11,740 facilities have filed current risk management 
plans with EPA and are potentially affected by the proposed rule. Table 
1 presents the number of facilities according to the latest RMP 
reporting as of December 31, 2020, by industrial sector and chemical 
use. 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. Among the stationary 
sources potentially affected, the Agency has determined that 2,911 are 
regulated private sector small entities and 630 are small government 
entities.
    Table 2 presents a summary of the annualized costs estimated in the 
regulatory impact analysis (RIA).\2\ In total, EPA estimates annualized 
costs of $75.8 million at a 3% discount rate and $76.7 million at a 7% 
discount rate.
---------------------------------------------------------------------------

    \2\ Regulatory Impact Analysis: Safer Communities by Chemical 
Accident Prevention: Proposed Rule (April 19, 2022).

                      Table 2--Summary of Estimated Annualized Costs Over a 10-Year Period
                                            [Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                       Total           Total
          Cost elements                Total        discounted      discounted      Annualized      Annualized
                                   undiscounted        (3%)            (7%)            (3%)            (7%)
----------------------------------------------------------------------------------------------------------------
Third-party Audits..............          $102.7           $87.6           $72.1           $10.3           $10.3
Root Cause Analysis.............             7.3             6.2             5.1             0.7             0.7
Safer Technology and                       518.2           442.0           364.0            51.8            51.8
 Alternatives Analysis..........
Backup Power for Perimeter                   0.4             0.4             0.4          ** 0.0          ** 0.0
 Monitors.......................
Employee Participation Plan.....             8.6             7.3             6.0             0.9             0.9

[[Page 53561]]

 
Community Notification System...            38.0            32.4            26.7             3.8             3.8
Information Availability........            30.3            25.8            21.3             3.0             3.0
Rule Familiarization............            46.5            45.2            43.5             5.3             6.2
                                 -------------------------------------------------------------------------------
    Total Cost *................           751.8           646.8           538.8            75.8            76.7
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Totals are zero due to rounding, Unrounded totals are $44,600 at 3% and $52,200 at 7% discount rates.

    The largest annualized cost of the proposed rule is the safer 
technologies and alternatives analysis (STAA) provision ($51.8 million 
at both 3% and 7% discount rates), followed by third-party audits 
($10.3 million at both 3% and 7% discount rates), rule familiarization 
($5.3 million at a 3% discount rate and $6.2 million at a 7% discount 
rate), and information availability ($3.0 million at both 3% and 7% 
discount rates). The remaining provisions impose annualized costs under 
$1 million, including employee participation ($0.9 million at both 3% 
and 7% discount rates), root cause analysis ($0.7 million at both 3% 
and 7% discount rates), and emergency backup power for perimeter 
monitors (less than $0.1 million at both 3% and 7% discount rates).
    The Agency has determined that among the 2,911 potentially 
regulated private sector small entities so impacted, 2,822, or 96.9 
percent, may experience an impact of less than one percent with an 
average small entity cost of $10,618; and 84, or 2.9 percent, may 
experience an impact of between one and three percent of revenues with 
an average small cost entity of $108,921. Among the 630 small 
government entities potentially affected, 488, or 77 percent would 
incur costs of less than $1,000; 109, or 17 percent costs ranging from 
$1,000 to $2,000; 18, or 3 percent costs ranging from $2,000 to $3,000; 
and only one would incur costs greater than $10,000, and EPA estimated 
that for the rule to have a larger than one percent impact on this 
entity, it would need to have revenue of less than $103 per resident. 
For detailed costs by provision and NAICS code see Chapter 8 of the 
RIA.
    EPA seeks further information on the estimated costs of these 
provisions and whether these costs should accrue to this proposal. EPA 
particularly requests cost data or studies related to the cost of 
practicability studies for conversion of hydrofluoric acid alkylation 
units to safer technologies. For more information see Chapter 4 of the 
RIA.
2. Baseline Damages
    Accidents and chemical releases from RMP facilities occur every 
year. They cause fires and explosions, damage to property, acute and 
chronic exposures of workers and nearby residents to hazardous 
materials and result in serious injuries and fatalities. EPA is able to 
present data on the total damages that currently occur at RMP 
facilities each year. EPA presents the data based on a 5-year baseline 
period, summarizes RMP accident impacts and, when possible, monetizes 
them. EPA expects that some portion of future damages would be 
prevented through implementation of a final rule. Table 3 presents a 
summary of the quantified damages identified in the analysis.

                                     Table 3--Summary of Quantified Damages
                                            [Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Average/
                                                    Unit value     5-year total    Average/ year     accident
----------------------------------------------------------------------------------------------------------------
                                                     On site
----------------------------------------------------------------------------------------------------------------
Fatalities......................................            $9.3          $111.6          $22.32           $0.23
Injuries........................................            0.05           27.50            5.50            0.06
Property Damage.................................  ..............           2,031          406.20            4.16
                                                 ---------------------------------------------------------------
    Onsite Total................................  ..............        2,170.10          434.02            4.45
----------------------------------------------------------------------------------------------------------------
                                                    Off site
----------------------------------------------------------------------------------------------------------------
Fatalities......................................            9.30            0.00            0.00            0.00
Hospitalizations................................           0.045            1.40            0.28           0.003
Medical Treatment...............................           0.001            0.13            0.03          0.0003
Evacuations *...................................            0.00           14.16            2.83           0.029
Sheltering in Place *...........................            0.00            9.39            1.88           0.019
Property Damage.................................  ..............          191.53           38.31            0.39
                                                 ---------------------------------------------------------------
    Offsite Total...............................  ..............          216.61           43.32            0.44
                                                 ---------------------------------------------------------------
        Total...................................  ..............        2,386.71          477.34            4.89
----------------------------------------------------------------------------------------------------------------
* The unit value for evacuations and for sheltering in place are less than $300 so when expressed in rounded
  millions the value represented in the table is zero.


[[Page 53562]]

    In total, EPA estimated monetized damages from RMP facility 
accidents of $477.3 million per year. These damages are divided into 
onsite and offsite categories where possible. EPA estimated total, 
average annual onsite damages from chemical releases at RMP facilities 
of $434.0 million. The largest monetized category was property damage, 
valued at $406.2 million. The next largest impacts were onsite 
fatalities ($22.3 million) and injuries ($5.5 million).
    EPA estimated total, average annual offsite damages of $43.3 
million. Property damage again was the highest value category, 
estimated at approximately $38.3 million. In decreasing order, the next 
largest average annual offsite impact was from evacuations ($2.8 
million), then sheltering in place ($1.9 million), hospitalizations 
($0.3 million), and medical treatment ($0.03 million).
3. Summary of Benefits
    EPA anticipates that promulgation and implementation of this 
proposed rule would result in a reduced frequency and magnitude of 
damages from releases, including damages that are quantified in Table 3 
such as fatalities, injuries, property damage, hospitalizations, 
medical treatment, sheltering-in-place and so on. EPA also expects that 
the proposed rule provisions would reduce baseline damages that are not 
quantified in Table 3 such as lost productivity, responder costs, 
property value reductions, damages from catastrophes, and so on. 
Although EPA was unable to quantify the reductions in damages that may 
occur as a result of the proposed rule provisions, EPA expects that a 
portion of future damages would be prevented by the proposed rule. 
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--Summary of Social Benefits of Proposed Rule Provisions
------------------------------------------------------------------------
                                                       Specific benefit
     Broad benefit category           Explanation         categories
------------------------------------------------------------------------
Accident Prevention.............  Prevention of        Reduced
                                   future RMP          Fatalities.
                                   facility
                                   accidents.
                                                       Reduced
                                                       Injuries.
                                                       Reduced
                                                       Property Damage.
Accident Mitigation.............  Mitigation of        Fewer
                                   future RMP          People Sheltered-
                                   facility            in-Place.
                                   accidents.
                                                       Fewer
                                                       Evacuations.
                                                       Avoided
                                                       Lost
                                                       Productivity.
Non-RMP Accident Prevention and   Prevention and       Avoided
 Mitigation.                       mitigation of       Emergency
                                   future non-RMP      Response Costs.
                                   accidents at RMP
                                   facilities.
                                                       Avoided
                                                       Transaction
                                                       Costs.
Avoided Catastrophes............  Prevention of rare   Avoided
                                   but extremely       Property Value
                                   high consequence    Impacts.*
                                   events.
                                                       Avoided
                                                       Environmental
                                                       Impacts.
Information Availability........  Provision of         Improved
                                   information to      Efficiency of
                                   the public and      Property Markets.
                                   emergency
                                   responders.
                                                       Improved
                                                       Resource
                                                       Allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories.

    EPA seeks further information on the estimated benefits of these 
provisions. For more information see Chapter 6 of the RIA.

III. Background

A. Overview of EPA's Risk Management Program

    EPA originally issued the RMP regulation in two stages. The Agency 
published the list of regulated substances and TQs in 1994: ``List of 
Regulated Substances and Thresholds for Accidental Release Prevention; 
Requirements for Petitions Under Section 112(r) of the Clean Air Act as 
Amended'' (59 FR 4478, January 31, 1994), hereinafter referred to as 
the ``list rule.'' \3\ The Agency published the RMP final regulation, 
containing risk management requirements for covered sources, in 1996: 
``Accidental Release Prevention Requirements: Risk Management Programs 
Under Clean Air Act Section 112(r)(7)'' (61 FR 31668, June 20, 1996), 
hereinafter referred to as the ``1996 RMP rule.'' ^{4 5} 
Subsequent modifications to the list rule and the 1996 RMP rule were 
made as discussed in the 2017 amendments rule published in 2017 
(``Accidental Release Prevention Requirements: Risk Management Programs 
Under the Clean Air Act''; 82 FR 4594, January 13, 2017, at 4600, 
hereinafter referred to as the ``2017 amendments rule''). Prior to 
development of EPA's 1996 RMP rule, the Occupational Safety and Health 
Administration (OSHA) published its Process Safety Management (PSM) 
standard in 1992 (57 FR 6356, February 24, 1992), as required by 
section 304 of the 1990 Clean Air Act Amendments (CAAA), using its 
authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29 
Code of Federal Regulations (CFR) 1910.119. Both the OSHA PSM standard 
and EPA's 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 any covered source 
to submit (to EPA) a document summarizing the source's risk management 
program--called a risk management plan (or RMP).
---------------------------------------------------------------------------

    \3\ 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.
    \4\ Documents and information related to development of the 1996 
RMP rule can be found in EPA docket number A-91-73.
    \5\ 40 CFR part 68 applies to owners and operators of stationary 
sources that have more than a TQ of a regulated substance within a 
process. The regulations do not apply to chemical hazards other than 
listed substances held above a TQ within a regulated process.
---------------------------------------------------------------------------

    EPA's risk management program requirements include conducting a 
worst-case scenario analysis and a review of accident history, 
coordinating emergency response procedures with local response 
organizations, conducting a hazard assessment,

[[Page 53563]]

documenting a management system, implementing a prevention program and 
an emergency response program, and submitting a risk management plan 
that addresses all aspects of the risk management program for all 
covered processes and chemicals. A process at a source is covered under 
one of three different prevention programs (Program 1, Program 2, or 
Program 3) based directly or indirectly on the threat posed to the 
community and the environment. Program 1 has minimal requirements and 
is for processes that have not had an accidental release with offsite 
consequences in the last 5 years before submission of the source's risk 
management plan, and that have no public receptors within the worst-
case release scenario vulnerable zone for the process. Program 3 
applies to processes not eligible for Program 1, has the most 
requirements, and applies to processes covered by the OSHA PSM standard 
or classified in specified industrial sectors. Program 2 has fewer 
requirements than Program 3 and applies to any process not covered 
under Programs 1 or 3. Programs 2 and 3 both require a hazard 
assessment, a prevention program, and an emergency response program, 
although Program 2 requirements are less extensive and more 
streamlined. For example, the Program 2 prevention program was intended 
to cover in many cases simpler processes at smaller businesses and does 
not require the following process safety elements: management of 
change, pre-startup review, contractors, employee participation, and 
hot work permits. The Program 3 prevention program is fundamentally 
identical to the OSHA PSM standard and designed to cover those 
processes in the chemical industry.

B. Events Leading to This Action

    On January 13, 2017, EPA published amendments to the RMP rule (82 
FR 4594). The 2017 amendments rule was prompted by E.O. 13650, 
``Improving Chemical Facility Safety and Security,'' \6\ which directed 
EPA (and several other Federal agencies) to, among other things, 
modernize policies, regulations, and standards to enhance safety and 
security in chemical facilities. The 2017 amendments rule contained 
various new provisions applicable to RMP-regulated facilities 
addressing prevention program elements (safer technology and 
alternatives analysis (``STAA''); incident investigation root cause 
analysis; and third-party compliance audits), emergency response 
coordination with local responders (including emergency response 
exercises), and availability of information to the public. EPA received 
three petitions for reconsideration of the 2017 amendments rule under 
CAA section 307(d)(7)(B).\7\ In December 2019, EPA finalized revisions 
to the RMP regulations to reconsider the rule changes made in January 
2017 (``Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act,'' 84 FR 69834, December 19, 2019, 
hereinafter referred to as the ``2019 reconsideration rule''). The 2019 
reconsideration rule rescinded certain information disclosure 
provisions of the 2017 amendments rule, removed most new accident 
prevention requirements added by the 2017 rule, and modified some other 
provisions of the 2017 amendments rule. The rule changes made by the 
2019 reconsideration rule reflect the current RMP regulations to date. 
There are petitions for judicial review of both the 2017 amendments and 
the 2019 reconsideration rules. The 2019 reconsideration rule 
challenges are being held in abeyance until October 3, 2022, by which 
time the parties must submit motions to govern. The case against the 
2017 amendments rule is in abeyance pending resolution of the 2019 
reconsideration rule case.
---------------------------------------------------------------------------

    \6\ Available at https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
    \7\ Available at https://www.epa.gov/petitions/petitions-office-land-and-emergency-management.
---------------------------------------------------------------------------

    On January 20, 2021, President Biden issued E.O. 13990, 
``Protecting Public Health and the Environment and Restoring Science to 
Tackle the Climate Crisis.'' \8\ E.O. 13990 directed Federal agencies 
to review existing regulations and take action to address priorities 
established by the current Administration, which include bolstering 
resilience to the impacts of climate change and prioritizing 
environmental justice (EJ). As a result, EPA was tasked to review the 
current RMP regulations.
---------------------------------------------------------------------------

    \8\ Available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/.
---------------------------------------------------------------------------

    While the Agency reviewed the RMP rule under E.O. 13990, the E.O. 
did not specifically direct EPA to publish a solicitation for comment 
or information from the public. Nevertheless, EPA held virtual public 
listening sessions on June 16 and July 8, 2021, and had an open docket 
for public comment (86 FR 28828; May 28, 2021). In the request for 
public comment, the Agency asked for information on the adequacy of 
revisions to the RMP regulations completed since 2017, incorporating 
consideration of climate change risks and impacts into the regulations 
and expanding the application of EJ. EPA received a total of 27,828 
public comments in response to the request for comments. This includes 
27,720 received at regulations.gov,\9\ 35 provided during the listening 
session on June 16, 2021,\10\ and 73 provided during the listening 
session on July 8, 2021.\11\ Most of the comments received in the 
docket were copies of form letters related to four different form 
letter campaigns. The remaining comments included 302 submissions 
containing unique content. Of the 302 unique submissions, a total of 
163 were deemed to be substantive (i.e., the commenters presented both 
a position and a reasoned argument in support of the position). 
Information collected through these comments has informed the review.
---------------------------------------------------------------------------

    \9\ EPA-HQ-OLEM-2021-0312.
    \10\ EPA-HQ-OLEM-2021-0312-0011.
    \11\ EPA-HQ-OLEM-2021-0312-0020.
---------------------------------------------------------------------------

    EPA seeks comment on the proposed amendments. Any suggestions for 
alternative options should include an appropriate rationale and 
supporting data for the Agency to be able to consider it for a final 
action. To the extent submitted comments will repeat or rely on 
material submitted in the docket used for the 2017 amendments rule or 
the 2019 reconsideration rule, include the relevant material in the 
submitted comment with a specific reference to the portion of the 
material cited as support.

C. EPA's Authority To Revise the RMP Rule

    Congress granted EPA authority to establish accident prevention 
rules under two provisions in CAA section 112(r)(7). Under CAA section 
112(r)(7)(A), EPA may set rules addressing the prevention, detection, 
and correction of accidental releases of substances listed by EPA by 
rule (``regulated substances'' listed in the Tables 1 through 4 to 40 
CFR 68.130). Such rules may include requirements related to monitoring, 
data collection, training, design, equipment, work practice, and 
operations. In promulgating its regulations, EPA may draw distinctions 
between types, classes, and kinds of facilities by taking into 
consideration various factors including size and location. This section 
also indicates that EPA has discretion regarding the date rules will 
take effect. Regulations become effective ``as determined by the 
Administrator,

[[Page 53564]]

assuring compliance as expeditiously as practicable.''
    Under CAA section 112(r)(7)(B), Congress directed EPA to develop 
``reasonable regulations and appropriate guidance'' that provide for 
the prevention and detection of accidental releases and the response to 
such releases ``to the greatest extent practicable.'' Congress required 
an initial rulemaking under this subparagraph by November 15, 1993. 
Section 112(r)(7)(B) sets out a series of mandatory subjects to 
address, interagency consultation requirements, and discretionary 
provisions that allowed EPA to tailor requirements to make them 
reasonable and practicable. The regulations needed to address 
``storage, as well as operations'' and emergency response after 
accidental releases, and EPA was to use the expertise of the 
Secretaries of Labor and Transportation in promulgating the 
regulations. This provision gave EPA the discretion to recognize 
differences in factors such as ``size, operations, processes, class, 
and categories of sources'' and the voluntary actions taken by owners 
and operators of regulated sources to prevent and respond to accidental 
releases (CAA section 112(r)(7)(B)(i)). At a minimum, the regulations 
had to require any stationary source with more than a threshold 
quantity of regulated substances to prepare and implement a risk 
management plan (RMP). Such an RMP needed to provide for compliance 
with rule requirements under CAA section 112(r) and include a hazard 
assessment with release scenarios, an accident history, a release 
prevention program, and a response program (CAA section 
112(r)(7)(B)(ii)). Plans were to be registered with EPA and submitted 
to various planning entities (CAA section 112(r)(7)(B)(iii)). These 
initial rules had to apply to sources 3 years after promulgation or 3 
years after a substance was first listed for regulation under CAA 
section 112(r) (CAA section 112(r)(7)(B)(i)). EPA fulfilled its initial 
obligations under section 112(r)(7)(B) with the 1996 RMP rule, but the 
agency views section 112(r)(7)(B) to give EPA continuing authority to 
improve the RMP regulations to achieve the statutory directives.
    In addition to the direction to use the expertise of the 
Secretaries of Labor and Transportation in CAA section 112(r)(7)(B), 
the statute more broadly requires EPA to consult with these secretaries 
when carrying out the authority of CAA section 112(r)(7) and to 
``coordinate any requirements under [CAA section 112(r)(7)] with any 
requirements established for comparable purposes by'' OSHA (CAA section 
112(r)(7)(D)). This consultation and coordination language derives from 
and expands upon provisions on hazard assessments in the bill that 
passed in the Senate as its version of what eventually became the 1990 
CAAA, section 129(e)(4) of S.1630. The Senate committee report on this 
language notes that the purpose of the coordination requirement is to 
ensure that ``requirements imposed by both agencies to accomplish the 
same purpose are not unduly burdensome or duplicative.'' \12\ The 
mandate for coordination in the area of safer chemical processes was 
incorporated into CAA section 112(r)(7)(D). In the same legislation, 
Congress directed OSHA to promulgate a process safety standard that 
became the PSM standard (see CAAA of 1990 section 304).
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    \12\ Committee on Environment and Public Works, 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 (December 20, 1989), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-0645. EPA-HQ-OEM-
2015-0725-0645.
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    EPA used its authority under CAA section 112(r)(7) to issue the 
1996 RMP rule (61 FR 31668; June 20, 1996), the 2017 amendments rule 
(82 FR 4594; January 13, 2017), and the 2019 reconsideration rule (84 
FR 69834; December 19, 2019). The Agency is also implementing this 
authority in this proposed rulemaking. These proposed amendments 
address three requirements of the Risk Management Program: accident 
prevention program requirements, emergency preparedness requirements, 
and information availability requirements. The prevention program 
provisions in this rule address the prevention and detection of 
accidental releases and include the following topics: stationary source 
siting, safer technologies and alternatives analysis (STAA), root cause 
analysis incident investigation, third-party compliance auditing, and 
employee participation. The emergency response provisions in this rule 
modify existing provisions that provide for owner or operator responses 
to accidental releases. The information availability provisions 
discussed in this document generally assist in the development of 
emergency response procedures and measures to protect human health and 
the environment after an accidental release (CAA section 
112(r)(7)(B)(i)).\13\ When determining which amendments would result in 
the prevention and detection of accidental releases of regulated 
substances to the greatest extent practicable, EPA took into 
consideration multiple factors including--but not limited to--the size 
of the facility, the quantity of the substances handled, and the 
location of the facility in relation to other RMP facilities in 
accordance with both CAA sections 112(r)(7)(A) and (B)(i). The rule 
distinguishes among classes and categories of sources by industry and 
process type, as well as likelihood of an accidental release that may 
impact a community. This rulemaking action therefore proposes 
substantive amendments to 40 CFR part 68 and is authorized by CAA 
section 112(r)(7)(A) and (B), as explained herein.
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    \13\ Incident investigation, compliance auditing, and STAA are 
also authorized as release prevention requirements pertaining to 
stationary source design, equipment, work practice, recordkeeping, 
and reporting. Information disclosure is also authorized as 
reporting (CAA section 112(r)(7)(A)).
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    In considering whether it is legally permissible for EPA to modify 
provisions of the RMP rule while continuing to meet its obligations 
under CAA section 112(r), the Agency notes that it has made 
discretionary amendments to the 1996 RMP rule several times without 
dispute over its authority to issue discretionary amendments. (See 64 
FR 964, January 6, 1999; 64 FR 28696, May 26, 1999; 69 FR 18819, April 
9, 2004.) According to the decision in Air Alliance Houston v. EPA, 906 
F.3d 1049 (D.C. Cir. 2018), ``EPA retains the authority under Section 
7412(r)(7) [CAA section 112(r)(7)] to substantively amend the 
programmatic requirements of the [2017 RMP amendments] . . . subject to 
arbitrary and capricious review'' (906 F.3d at 1066). Therefore, EPA is 
authorized to modify the provisions of the current RMP regulations if 
it finds that it is reasonable to do so.\14\
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    \14\ See Motor Vehicle Manufacturers. Association of the United 
States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 
(1983). In addressing the standard of review to reconsider a 
regulation, the Supreme Court stated that the rescission or 
modification of safety standards ``is subject to the same test'' as 
the ``agency's action in promulgating such standards [and] may be 
set aside if found to be `arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with law' '' (463 U.S. at 
41, quoting 5 U.S.C. 706). The same standard that applies to the 
promulgation of a rule applies to the modification or rescission of 
that rule.
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    The Supreme Court has also recognized that agencies have broad 
discretion to reconsider a regulation at any time so long as the 
changes in policy are ``permissible under the statute, . . . there are 
good reasons for [them], and that the agency believes [them] to be 
better'' than prior policies. (See Federal Communications Commission v. 
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); emphasis

[[Page 53565]]

in quote original).\15\ As explained in detail above, the policy 
changes proposed in this action are permissible under the statute. 
Additionally, there are good reasons for the policies adopted in this 
rule. Accidental releases remain a significant concern to communities 
and cost society more than $477 million yearly.\16\ The risk of being 
impacted by an accidental release is even more apparent in communities 
where multiple RMP facilities are in close proximity to residential 
areas. Lowering the probability and magnitude of accidents by putting 
more of a focus on prevention reduces the risks posed by these RMP 
facilities, which is one of the objectives of the present RMP proposed 
amendments.
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    \15\ The full quote from Fox states: ``But [the Agency] need not 
demonstrate to a court's satisfaction that the reasons for the new 
policy are better than the reasons for the old one; it suffices that 
the new policy is permissible under the statute, that there are good 
reasons for it, and that the agency believes it to be better, which 
the conscious change of course adequately indicates'' (Federal 
Communications Commission v. Fox Television Stations, Inc., 556 U.S. 
at 515; emphasis original).
    \16\ A full description of costs and benefits for this proposed 
rule can be found in the Regulatory Impact Analysis: Safer 
Communities by Chemical Accident Prevention: Proposed Rule (April 
19, 2022). This document is available in the docket for this 
rulemaking (EPA-HQ-OLEM-2022-0174).
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    In the 2019 reconsideration rule, the Agency justified rescinding 
the prevention program provisions of the 2017 amendments rule, STAA, 
incident investigation, root cause analysis, and third party compliance 
audits based on two main rationales: (1) That a case-by-case 
compliance-driven approach to oversight focusing on problematic sources 
(generally, sources that have had releases) could obtain many of the 
accident-reduction benefits of a rule without broadly burdening sources 
that were less likely to have a release under regulatory mandates, and 
(2) that the Agency was being consistent with the OSHA PSM prevention 
provisions. The Agency discusses each rationale in turn below.
    The conclusion in the 2019 reconsideration rule that a case-by-
case, compliance-driven approach relying on traditional tools such as 
compliance outreach and administrative and judicial enforcement could 
provide many of the same benefits as a rule without imposing broad 
burdens rested upon an observation that accidents are declining and 
concentrated among few sources, allowing for concentrated compliance 
oversight. See 84 FR 69843-44 (Dec. 19, 2019). While focusing on 
accident and impact rates, the rate analysis did not account for the 
likelihood that low-probability, high consequence events could impact 
trends. Thus, in the 2019 reconsideration rule, EPA acknowledged the 
decline in yearly total count of accidents and accident rates. For the 
2017 amendments rule and 2019 reconsideration rule, EPA analyzed 
accidents for the periods 2004 to 2013, and 2014 to 2016, 
respectively.\17\ Using a yearly average for the 2017 amendments rule 
(2004-2013) and the 2019 reconsideration rule (2014-2016), in 2019 EPA 
found declining yearly averages for every metric of onsite and offsite 
damage.\18\ As part of this proposed rule, EPA analyzed accidents from 
2016 to 2020.\19\ The impacts of high consequence RMP-reportable 
accident events between 2017 and 2020 demonstrate the impact of low-
probability, high consequence events on annual averages. For example, 
using the same methods used in the 2019 rule, current data show the 
average annual rate of those seeking medical treatment increased by 
230% (10 per year in the 2019 reconsideration rule and 33 per year for 
this proposed rule); evacuations increased by 75% (1,868 per year 
versus 3,268 per year) and accidents resulting in sheltering in place 
increased by 18% (12,534 per year versus 14,845 per year). The more 
current data since the 2019 analyses shows that reliance on a declining 
trend in accidents and impacts to conduct selective, often post-
incident oversight may prove insufficiently effective over time and 
make it difficult to stay ahead of reversals in trends.
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    \17\ Exhibit 6-2, Page 77, EPA-HQ-OEM-2015-0725-2089.
    \18\ The exception being a higher annual average offsite 
property damage for the period of 2014-2016 as compared to 2004-
2013.
    \19\ In the RIA for this proposed rule, EPA includes 2016 again 
to account for accidents not reported prior to the 2019 
reconsideration rule analysis.
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    Recent accidents also highlight EPA's improper reliance on only 
annual count of total accidents to address the low-probability, high-
consequence nature of accidental releases. For example, while the 
annual count of accidents decreased overall between 2016 and 2020, in 
2019, the TPC Group explosion and fire in Port Neches, Texas, reported 
the largest number of persons ever evacuated (n=50,000) as a result of 
an RMP-reportable incident, as well as $153 million in offsite property 
damage. Large events are rare, but to the extent that CAA 112(r) was 
intended as a prevention program for large catastrophic releases, 
selective oversight through a ``compliance-driven'' approach that 
relies heavily on determining if the facility was compliant with 
accident prevention regulations after an accident occurred would not 
meet the goal of preventing the initial accident. The RMP rule must be 
broader based, and rule-driven in order to have stationary sources 
handling dangerous chemicals work to prevent potentially catastrophic 
incidents.
    Additionally, the 2019 reconsideration rule failed to acknowledge 
that mostly relying on relief like post-accident settlement, 
particularly at those industries that already have a history of 
frequent accidents, entails significant transaction costs, delays, and 
uncertainty of obtaining necessary prevention improvements. While such 
delays and transaction costs are inherent in compliance oversight and 
the enforcement process, the failure of the 2019 reconsideration rule 
to address this important limitation on the feasibility and utility of 
a ``compliance-driven'' approach is a flaw in the determination made in 
2019 that such an approach is a reasonable substitute for a rule-driven 
approach to prevention. While enforcement of the RMP regulation has and 
will continue to occur, EPA expects under a rule-drive approach most 
facilities will proactively make the necessary prevention improvements 
to be in compliance with the rule to avoid enforcement. The 2019 
reconsideration rule does not acknowledge that settlements often 
involve compromises, and that, in the course of settlement, EPA cannot 
always obtain all appropriate relief. The history of one of EPA's 
largest enforcement actions under the RMP rule involving Chevron's 
operations illustrates many of these points. EPA's enforcement 
engagement with Chevron began shortly after a fire at the Richmond, CA, 
refinery in August 2012. Subsequent accidents at Chevron refineries in 
El Segundo, CA, and Pascagoula, MS, led EPA to investigate all five 
Chevron refineries in the United States, including refineries in Salt 
Lake City, UT and Kapolei, HI (no longer owned by Chevron). EPA 
concluded a final civil judicial settlement with Chevron in October 
2018, more than 6 years after the investigation began.\20\
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    \20\ U.S. Environmental Protection Agency, Chevron Settlement 
Information Sheet, https://www.epa.gov/enforcement/chevron-settlement-information-sheet.
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    Moreover, as discussed in more detail below, even when individual 
facilities have not yet experienced an accident, certain classes of 
facilities are more likely to have accidents near communities. 
Communities surrounding these classes of facilities would benefit from 
rule-based prevention prior to

[[Page 53566]]

incidents, rather than the case-by-case oversight approach of the 2019 
reconsideration rule.
    Regarding alignment with OSHA PSM prevention provisions, the 2019 
reconsideration rule indicated that the 2017 amendments rule only 
represented a departure from PSM requirements. The 2019 reconsideration 
rule acknowledged there were no legal requirements to defer to OSHA in 
rulemaking, or for EPA and OSHA to proceed on identical timelines in 
making changes to the RMP rule and PSM standard, and that some 
divergence between the RMP rule and PSM standard may at times be 
necessary given the agencies' separate missions. See 83 FR 24863-64. 
While EPA, in the 2019 reconsideration rule, decided to take a 
traditional approach of maintaining consistency with OSHA PSM because 
benefits were recognized at that time, EPA now believes the benefits of 
a rule-based prevention for certain high-risk classes of facilities 
could help prevent high consequence accidents that affect communities, 
such as the TPC Group explosion. Furthermore, the statute's consult-
and-coordinate requirements are to ensure the agencies are working 
together to ensure rules are compatible and not conflicting. The 
proposed prevention program provisions presented today are compatible 
and do not conflict with the prevention provisions of OSHA PSM, as 
detailed further in the discussions of each provision.
    In contrast to the 2019 approach, the approach taken in this 
proposal for the prevention program provision, STAA, incident 
investigation root cause analysis, and third-party compliance audits, 
refines the focused regulatory approach found in the 2017 amendments 
rule, and proposes provisions modified from those in the 2017 
amendments rule, to better identify risky facilities to prevent 
accidental releases before they can occur. As explained in further 
detail in following sections of this preamble, EPA therefore maintains 
that by taking a rule-based, prevention-focused approach in this action 
rather than the 2019 reconsideration rule's compliance-driven, mostly 
post-incident, approach, the proposed rule revisions could further 
protect human health and the environment from chemical hazards through 
PSM advancement without undue burden. Similarly, other proposed 
modifications to approaches adopted in 2019 to information disclosure 
and emergency response will also better balance security concerns with 
improved community awareness and lead to better community preparedness 
for accidents.\21\ To the extent that both approaches are reasonable, 
the approach of this proposed rule would be more protective, and thus 
provide for release prevention, detection, and response ``to the 
greatest extent practicable'' among the reasonable approaches.
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    \21\ The term ``information disclosure'' refers to specific 
provisions adopted in 2017 that the 2019 reconsideration rule 
rescinded. EPA uses the term ``information availability'' in the 
current rulemaking to mean the broader set of measures the Agency is 
adopting today.
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IV. Proposed Action

    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, but major accidents continue to 
occur. More importantly, even though there has been a long-term trend 
of reducing accidents and the gravity of accidents, this trend can be 
improved to further protect human health and the environment.
    Below EPA presents several proposed amendments for consideration 
and public comment. Many of these amendments would better focus new 
prevention program elements on particular classes of facilities than 
the 2017 amendments rule, and promote more information availability, 
employee participation and emergency response measures than the 2019 
reconsideration rule. As a result of the changes in this proposal, the 
Agency, as described in further detail below, considered the 
possibility of potential reliance interests associated with portions of 
the 2019 reconsideration rule. The Agency views these proposed measures 
and other aspects of this proposed rule as integrated and reinforcing. 
As discussed below, some of the proposed rule changes focus enhanced 
prevention measures like STAA and third-party auditing on individual 
sources and classes of sources with a history of accidental releases. 
Were the proposed rule adopted, EPA believes that many if not most 
sources are likely to respond to this approach of triggering 
requirements based on accident history by undertaking enhanced 
prevention measures to comply with the rule and avoid accidents. 
However, some sources may try to evade these enhanced accident 
prevention requirements by avoiding reporting incidents that trigger 
additional requirements. The employee participation, public information 
availability, and emergency response measures would make it more 
difficult to evade the accident history-triggered requirements by 
leveraging workers and the public in facility oversight. Thus, in 
addition to the merits of each proposed provisions as considered in 
isolation, the proposed rule changes can be seen as complementary to 
each other. Adopting these provisions together will help ensure owners 
and operators have these complementing measures in place to prevent or 
minimize accidental release of their regulated substances to protect 
human health and the environment. Nevertheless, while many of the 
provisions reinforce each other, EPA also views each one as merited on 
its own if it ultimately adopted, and thus severable should there be 
judicial review.

A. Prevention Program

1. Hazard Evaluation Amplifications
a. Introduction
    A hazard evaluation is defined as the identification of individual 
hazards of a system, determination of the mechanisms by which they 
could give rise to undesired events, and evaluation of the consequences 
of these events on health (including public health), environment, and 
property. These evaluations often use qualitative techniques to 
pinpoint weaknesses in the design and operation of facilities that 
could lead to incidents.\22\ Current requirements exist within the RMP 
rule to conduct these evaluations. RMP hazard evaluation regulations 
require, among other things, owners or operators with Program 2 
processes to conduct hazard reviews under 40 CFR 68.50(a) that 
identify: (1) The hazards associated with the process and regulated 
substances; (2) opportunities for equipment malfunctions or human 
errors that could cause an accidental release; (3) the safeguards used 
or needed to control the hazards or prevent equipment malfunction or 
human error; and (4) any steps used or needed to detect or monitor 
releases. Owners or operators with Program 3 processes are required to 
conduct process hazard analyses (PHAs) under 40 CFR 68.67(c) that 
address: (1) The hazards of the process; (2) the identification of any 
previous incident which had a likely potential for catastrophic 
consequences; (3) engineering and administrative controls applicable to 
the hazards and their interrelationships, such as appropriate 
application of detection methodologies to provide early warning of 
releases (acceptable detection methods might include process monitoring 
and control instrumentation

[[Page 53567]]

with alarms, and detection hardware such as hydrocarbon sensors); (4) 
consequences of failure of engineering and administrative controls; (5) 
stationary source siting; (6) human factors; and (7) a qualitative 
evaluation of a range of the possible safety and health effects of 
failure of controls. The hazard evaluation requirements are key to 
understanding how to operate safely and prevent accidents and the 
release of hazardous substances.
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    \22\ Center for Chemical Process Safety (CCPS), ``CCPS Process 
Safety Glossary,'' accessed January 28, 2022, https://www.aiche.org/ccps/resources/glossary?title=hazard+evaluation#views-exposed-form-glossary-page.
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    In developing the initial 1996 RMP rule, the Agency recognized that 
many workplace hazards also threaten public receptors and that most 
accident prevention steps taken to protect workers also protect the 
public and the environment. Consequently, EPA adopted and built on much 
of the existing accident prevention language from OSHA's PSM standard, 
including the process hazard analysis (PHA) language from 29 CFR 
1910.119(e). EPA's understanding of the PHA was based on OSHA's: \23\ a 
PHA analyzes potential causes and consequences of fires, explosions, 
releases of toxic or flammable chemicals, and major spills of hazardous 
chemicals. The PHA focuses on equipment, instrumentation, utilities, 
human actions (routine and nonroutine), and external factors that might 
impact the process. These considerations assist in determining the 
hazards and potential failure points or failure modes in a process. 
OSHA pointed to detailed industry guidance that serves as the basis for 
understanding what hazards are widely recognized as threats to safe 
chemical process operations. For example, the American Institute of 
Chemical Engineers' Center for Chemical Process Safety (CCPS) developed 
the publication ``Guidelines for Hazard Evaluation Procedures,'' \24\ 
which EPA and OSHA agree generally addresses the most common categories 
of hazards relevant to facilities that handle hazardous chemicals.
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    \23\ See 58 FR 54190, October 20, 1993, p. 54204.
    \24\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd 
Edition (New York: American Institute of Chemical Engineers, 2008).
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    While EPA and OSHA have not explicitly added language in their 
regulations on certain hazard evaluation elements that were assumed 
implicit and recognized as hazards among industry, EPA seeks to 
emphasize that some hazards should be explicitly addressed by 
facilities to further protect human health and the environment. EPA is 
not proposing additional regulatory requirements from what already 
exists in the RMP regulations, rather EPA is proposing adding 
regulatory text to emphasize that natural hazards and loss of power are 
among the hazards that must be addressed in hazard reviews and PHAs. 
EPA is also proposing to emphasize that facility siting should be 
addressed in hazard reviews, and to explicitly define the facility 
siting requirement for Program 2 and Program 3 hazard evaluations. EPA 
seeks to better reflect its longstanding regulatory requirement rather 
than impose additional regulatory requirements (and potential 
additional costs) that diverge from the OSHA PSM regulatory 
requirements. EPA has coordinated with OSHA throughout the development 
of this proposed rule to ensure the intent of adding specificity to 
these hazard evaluation requirements is consistent with the intent and 
meaning of the OSHA PSM standard to avoid inconsistencies between the 
two regulatory programs.
b. Natural Hazards
    Natural hazards (e.g., extreme temperatures, high winds, floods, 
earthquakes, wildfires) are hazards for chemical facilities because 
they have the potential to initiate accidents and challenge hazardous 
chemical process equipment and operations. If not properly managed, 
these hazards can trigger chemical accidents that threaten human health 
and the environment. EPA believes many facilities with RMP processes 
are generally managing natural hazards well; however, some RMP 
accidents are still being reported as linked to natural hazards. 
Climate change increases the threat of extreme weather as a natural 
hazard. Therefore, EPA is proposing to emphasize that natural hazards 
should explicitly be included in the hazards evaluated in hazard 
reviews and PHAs for Program 2 and Program 3 RMP-regulated processes. 
EPA believes making more explicit this already-existing accident 
prevention program requirement \25\ will ensure the threats of natural 
hazards are properly evaluated and managed to prevent or mitigate 
releases of RMP-regulated substances at covered facilities.
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    \25\ Existing requirements of the hazards to be evaluated in 
hazard evaluations are found at 40 CFR 68.50(a) for Program 2 
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
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    CCPS' ``Guidelines for Hazard Evaluation Procedures'' \26\ includes 
external events as a hazard evaluation category that should be 
addressed. It defines these as events external to the system/plant 
caused by: (1) A natural hazard (e.g., earthquake, flood, tornado, 
extreme temperature, lightning) or (2) a human induced event (aircraft 
crash, missile, nearby industrial activity, fire, sabotage, etc.). At 
the time of initial RMP rule development, EPA had not explicitly added 
language about considering external events to the rule. However, EPA 
did acknowledge that sources must consider the hazards created by 
external events. In the 1996 RMP final rule Response to Comments,\27\ 
EPA indicated the following: ``As part of a properly conducted PHA, 
sources would normally consider whether a process is vulnerable to 
damage caused by external events, such as earthquakes, floods, high 
winds, and evaluate the potential consequences if such events damaged 
the integrity of the process.'' To further express this expectation, 
EPA's RMP guidance states: ``Natural Events and Other Outside 
Influences: Whichever [hazard review/process hazard analysis] approach 
you use, you should consider reasonably anticipated external events as 
well as internal failures. If you are in an area subject to 
earthquakes, hurricanes, or floods, you should examine whether your 
process would survive these natural events without releasing the 
substance. In your hazard review, you should consider the potential 
impacts of lightning strikes and power failures.'' \28\ In comments 
submitted during the 2021 listening sessions,\29\ some industry trade 
associations stated that the current provisions of the RMP rule are 
sufficient to protect against climate-related impacts.\30\ 
Specifically, one industry trade association remarked that ``under 
requirements in the current program, the impact of severe weather 
events such as storms and flooding on operations and consequently the 
risk they pose for an accidental release, must already be considered 
and addressed in the plans submitted to EPA.'' \31\
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    \26\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd 
Edition (New York: American Institute of Chemical Engineers, 2008).
    \27\ A-91-73-IX-C-1-Volume-1[H], pp. 9-23.
    \28\ EPA, General Guidance on Risk Management Programs for 
Chemical Distributors, Ch. 6: Prevention Programs (2004), pp. 6-10 
to 6-11, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
    \29\ EPA-HQ-OLEM-2021-0312.
    \30\ EPA-HQ-OLEM-2021-0312-0005; 0045.
    \31\ EPA-HQ-OLEM-2021-0312-0005.
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    Despite this general knowledge that natural hazards are process 
hazards that should be evaluated and addressed during hazard reviews 
and PHAs, EPA's recent review of the RMP National Database indicates 
that when reporting accidents, some RMP facilities report ``natural'' 
and ``unusual weather conditions'' as the respective initiating event 
or as a contributing factor to their

[[Page 53568]]

accidents.\32\ According to the Agency's data from 2004-2020, 
facilities reported 38 RMP-reportable accidents as having a natural 
cause as the initiating event of their accident and another 46 RMP-
reportable accidents as having unusual weather conditions as a 
contributing factor of their accident.\33\
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    \32\ These fields are options when reporting accidents on RMP 
reports. Description of these options: EPA, Risk Management Plan: 
RMP*eSubmit User's Manual (2019), pp. 76-77. https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf.
    \33\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    In addition to these natural hazard-linked accidents, RMP data 
indicate that the locations of many RMP facilities leave them exposed 
to natural hazards. In a review of the National Oceanic and Atmospheric 
Administration's Storm Events Database from the last two decades, EPA 
generally found that extreme weather events are common in counties with 
RMP facilities. For example, during 2000-2020, over 90 percent of 
counties with RMP facilities experienced flooding, 1 in 4 counties with 
RMP facilities suffered damage from hurricanes, and counties with RMP 
facilities have on average experienced 30 floods (over one per year) 
and 40 extreme winter weather events (approximately two per year), such 
as blizzards. Some counties with RMP facilities also experience extreme 
weather events much more often than average. For instance, many regions 
in Florida, Louisiana, and South Carolina were impacted by more than 30 
hurricanes over the prior 20 years. Similarly, regions of northern 
California and Oregon suffered from over 500 days of wildfires during 
the same period.\34\
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    \34\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    With new studies showing that the threat of natural hazards is 
increasing, actions to ensure natural hazards are evaluated and 
properly managed are critical. A recent report by the Center for 
Progressive Reform, Earthjustice, and the Union of Concerned 
Scientists--entitled ``Preventing `Double Disasters'' \35\--indicates 
that one-third of RMP facilities are at risk of climate-related events, 
such as wildfire, flooding, hurricane storm surge, and/or coastal 
flooding. This finding is nearly identical to the estimate of the 
Government Accountability Office in its recent report, ``Chemical 
Accident Prevention: EPA Should Ensure Regulated Facilities Consider 
Risks from Climate Change.'' \36\ The 2018 National Climate Assessment 
\37\ and several publications from the Intergovernmental Panel on 
Climate Change, which are authoritative sources for the impacts of 
climate change on the severity and frequency of weather events, found 
that there is a scientific consensus that the future holds increased 
risks of more severe and frequent extreme weather events, including 
tropical cyclones, coastal flooding, wildfire, tornados, severe 
thunderstorms, and extreme precipitation. EPA must consider the 
increased risk to RMP facilities.
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    \35\ David Flores, et al., Preventing ``Double Disasters'' 
(2021), https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf.
    \36\ U.S. Government Accountability Office, Chemical Accident 
Prevention: EPA Should Ensure Regulated Facilities Consider Risks 
from Climate Change (2022), https://www.gao.gov/assets/gao-22-104494.pdf.
    \37\ U.S. Global Change Research Program, Fourth National 
Climate Assessment (2018), https://nca2018.globalchange.gov/.
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    The Chemical Safety and Hazard Investigation Board (CSB) and many 
public listening session commenters identified the August 2017 Arkema 
Inc. chemical plant fire in Crosby, Texas, as a significant accident 
caused by natural hazards.\38\ \39\ \40\ Flooding from Hurricane Harvey 
disabled the refrigeration system at the Arkema plant, which allowed 
the temperature of organic peroxides to increase and spontaneously 
combust. Twenty-one people sought medical attention from reported 
exposures to the fumes. More than 200 residents living near the 
facility were evacuated and could not return home for a week. While 
this part of the Arkema facility was not an RMP-regulated process, the 
increased occurrence of extreme-weather-caused events like this 
highlight the importance of ensuring proper evaluation of natural 
hazards on process operations.
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    \38\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May 
24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
    \39\ Center for Progressive Reform, Preventing Double Disasters 
(2021), https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0312-0035. EPA-HQ-OLEM-2021-0312-0035-10.
    \40\ EPA-HQ-OLEM-2021-0312-0004; 0080, 0081.
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    As a result of the Arkema incident, CSB developed a safety alert 
that includes guidance for chemical plants during extreme weather 
events.\41\ In the final report on the Arkema incident,\42\ CSB 
recommended CCPS develop broad and comprehensive guidance to help 
companies assess their U.S. facility risk from potential extreme 
weather events. As a result, CCPS produced the monograph, ``Assessment 
of and Planning for Natural Hazards.'' \43\ In addition to outlining 
the importance of rising threats, it outlines resources that many of 
its member companies--many of which have RMP-regulated processes--have 
successfully used to identify natural hazards, gather data and identify 
equipment to be addressed in natural hazard assessments, and evaluate 
and meet design criteria of equipment according to recognized and 
generally accepted good engineering practices (RAGAGEP).
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    \41\ CSB, 2020 Hurricane Season: Guidance for Chemical Plants 
during Extreme Weather Events (n.d.), https://www.csb.gov/assets/1/6/extreme_weather_-_final_w_links.pdf.
    \42\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May 
24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
    \43\ CCPS, CCPS Monograph: Assessment of and Planning For 
Natural Hazards (American Institute of Chemical Engineers, 2019), 
https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html.
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    With climate change-related natural hazards as a global concern, 
other countries are also expanding efforts to address natural hazards 
at chemical facilities. For example, the Organisation for Economic Co-
operation and Development Programme on Chemical Accidents started work 
on natural hazards triggering technological accidents (``NaTech'') risk 
management in 2008 in partnership with the European Commission Joint 
Research Center, the United Nations Environment Programme, and the 
United Nations Economic Commission for Europe. The project aimed to 
investigate NaTech prevention, preparedness, and response to chemical 
accidents; exchange experience across countries; and provide guidance 
on NaTech risk management. Studies, databases, and information continue 
to be collected and published to help countries manage this increasing 
threat.\44\
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    \44\ Organisation for Economic Co-operation and Development, 
``Risks from Natural Hazards at Hazardous Installations (Natech),'' 
accessed January 28, 2022, https://www.oecd.org/chemicalsafety/chemical-accidents/risks-from-natural-hazards-at-hazardous-installations.htm.
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    While well-prepared hazard evaluations under the RMP rule already 
address NaTech, EPA is proposing to emphasize that natural hazards, 
including those associated with climate change, be explicitly addressed 
in RMP Program 2 hazard reviews and Program 3 PHAs. EPA is proposing to 
make language changes that include requiring hazard evaluations under 
40 CFR 68.50(a)(5) and 68.67(c)(8) to address external events such as 
natural hazards, including those caused by climate change or other 
triggering events that could lead to an accidental release.
    EPA is also proposing to define natural hazards in a way that is 
similar

[[Page 53569]]

to the description used by CCPS. Under the proposed rule, natural 
hazards would be defined as naturally occurring events with the 
potential for negative impacts, including meteorological hazards due to 
weather and climactic cycles, as well as geological hazards. EPA seeks 
comment on this approach.
    EPA continues to expect facilities to utilize all available 
resources to properly evaluate what natural hazards could potentially 
trigger accidental releases from their regulated processes. EPA 
understands that natural hazards and process operations vary throughout 
the United States. However, because the RMP rule is performance-based, 
EPA believes that all regulated RMP facilities can be successful in 
addressing natural hazards within their risk management programs. 
Because natural hazards continue to be a factor in RMP accidents and 
present a growing threat to process safety at RMP facilities, a 
requirement to evaluate and control natural hazards should be 
explicitly stated in the RMP regulation. While EPA will continue to 
rely on available industry guidance to evaluate compliance with this 
provision, the Agency requests public comment on whether EPA should 
develop additional guidance (beyond the Agency's existing RMP general 
guidance for risk management programs) \45\ to help regulated 
facilities comply with this provision. EPA is particularly interested 
in comments related to suggested information resources such as 
databases, checklists, or narrative discussions, as well as commenters' 
recommendations for regional versus national, or sector-specific 
guidance.
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    \45\ EPA, ``Guidance for Facilities on Risk Management Programs 
(RMP),'' last modified December 20, 2021, https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general.
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    As an alternative to the preferred approach, EPA seeks comment on 
whether to specify areas most at risk from climate or other natural 
events by adopting the list of areas exposed to heightened risk of 
wildfire, flooding, storm surge, or coastal flooding identified in, 
``Preventing Double Disasters,'' discussed above. EPA could also add 
areas prone to earthquake to this list of areas, which presents a 
significant risk of NaTech that is unrelated to climate. Would this 
more definite, but limited, approach be easier to implement for 
stationary sources? Would this be simpler for public oversight by 
providing a specific reference such that all parties would know whether 
there is a heightened risk for a potential climate or earthquake impact 
at a facility? Should the Agency require sources in these areas to 
conduct hazard evaluations associated with climate or earthquakes as a 
minimum, while also requiring that all sources consider the potential 
for natural hazards unrelated to climate or earthquakes in their 
specific locations?
c. Power Loss
    Whether caused by a natural hazard or some other event, power loss 
at hazardous chemical facilities can lead to a variety of negative 
impacts. Pumps and compressors may stop running, stirrers may quit 
mixing, lights may go out, and instruments and controls may 
malfunction. These equipment outages can lead to tank overflows, 
runaway chemical reactions, temperature or pressure excursions, or 
other process upsets which could lead to a spill, explosion, or fire. 
Even if there is no immediate release, thermal shock or other factors 
could result in a delayed effect that compromises the mechanical 
integrity of equipment during subsequent operations. When power is 
restored even after a brief interruption, some equipment may 
automatically restart before process operations are ready, while other 
equipment may need to be reset and manually restarted. When a facility 
relies on electrical power for any aspect of its process operations, it 
is imperative to anticipate how power loss affects the safeguards that 
prevent releases of hazardous chemicals.
    Power loss has resulted in serious accidents at RMP-regulated 
facilities. The aforementioned 2017 Arkema incident highlighted the 
hazard of power loss on process safety; other previous incidents have 
also highlighted this hazard and offered lessons on potential 
safeguards that could be applied to prevent accidental chemical 
releases. The accidents described below--all associated with power 
failure--are examples of these situations and their potential severity. 
They also highlight the in-depth evaluation needed to prevent loss of 
power from resulting in an accidental release.
    On May 1, 2001, at General Chemical Corp., in Richmond, California, 
a truck struck a utility pole, causing a power interruption and total 
plant shutdown. Shortly after, sulfur dioxide and sulfur trioxide began 
to escape from a boiler exit flue. When power was restored a short time 
later, a steam turbine that was required to keep the boiler exit flue 
under negative pressure could not be immediately restarted. While the 
turbine could not be restarted, residents near the plant were 
instructed to remain indoors. Somewhere between 50 to 100 individuals 
sought medical attention following the release. Troubleshooting 
revealed that an automatically controlled governor valve had 
malfunctioned.\46\
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    \46\ EPA, Chemical Accidents from Electric Power Outages (Office 
of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf.
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    On August 23, 2010, at the Millard Refrigerated Services in 
Theodore, Alabama, hydraulic shock caused a roof-mounted suction pipe 
to catastrophically fail, leading to the release of more than 32,000 
pounds of anhydrous ammonia. The hydraulic shock occurred during the 
restart of the plant's ammonia refrigeration system following a 7-hour 
power outage. Downwind of the ammonia release were crew members on the 
ships docked at Millard and over 800 contractors working outdoors at a 
clean-up site for the Deepwater Horizon oil spill. Nine ship crew 
members and 143 of the offsite contractors downwind reported exposure. 
Of the victims, 32 required hospitalization and four were placed in 
intensive care.\47\
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    \47\ CSB, ``Millard Refrigerated Services Ammonia Release,'' 
last modified January 15, 2015, https://www.csb.gov/millard-refrigerated-services-ammonia-release/.
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    National Response Center data also include information on 3,077 
reported accidents from 2004-2020 that were associated with power 
loss.\48\ While most of these incidents did not involve RMP chemicals, 
processes, or accidental releases as defined in CAA 112(r)(2), these 
events demonstrate a connection between the loss of power, loss of 
containment, and release into the environment.
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    \48\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    The European Union published a 2021 bulletin that presents lessons 
learned from incidents worldwide involving power supply failures. The 
findings point to the importance of understanding the scenarios 
triggered by a primary failure in external power supply systems, power 
loss attributed to failures of onsite electrical equipment or 
electrical components, and even failures of redundant power supplies. 
In addition to providing statistics on the effects of power outages at 
chemical facilities, data provided by the European Union indicate that 
power failures at hazardous sites have resulted in 21 fatalities and 
over 9,500 injuries worldwide since 1981, as well as significant 
property damage and production loss from resulting fires and 
explosions. The most catastrophic event in the study occurred in Sakai 
(Osaka),

[[Page 53570]]

Japan, in 1982. It killed six people, injured 9,080 others (of which 
8,876 were offsite), and destroyed 1,788 buildings.\49\
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    \49\ Chemical Accident Prevention & Preparedness (European 
Commission, 2021), https://minerva.jrc.ec.europa.eu/en/shorturl/minerva/mahb_bulletin_15_on_power_failuresfinalpubsypdf.
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    EPA has long recognized that loss of power can threaten hazardous 
chemical processes and cause accidental releases if not properly 
managed. While EPA did not specifically require power loss to be 
evaluated for Program 2 and Program 3 hazard reviews and PHAs, EPA and 
OSHA guidance has referred to it. In addition to acknowledging power 
failure in the Agency's ``General Guidance on Risk Management Programs 
for Chemical Distributors,'' \50\ in 2001 EPA issued the safety alert, 
``Chemical Accidents from Electric Power Outages.'' \51\ These 
guidelines warned RMP facilities that power outages and restarts could 
potentially trigger serious chemical accidents. The alert outlined some 
of the accidents previously discussed and warned that process 
operations must be evaluated for the consequences of power outages to 
ensure that the process remains safe. It also indicates that if there 
is critical equipment that needs to operate to ensure the safety of the 
process or work area, facilities should install backup power supplies 
and services.
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    \50\ EPA, General Guidance on Risk Management Programs for 
Chemical Distributors, Ch. 6: Prevention Programs (2012), pp. 6-10 
to 6-11, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
    \51\ EPA, Chemical Accidents from Electric Power Outages (Office 
of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf.
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    In 2008, OSHA published an interpretation letter \52\ that 
addressed the concern about utility systems and their evaluation within 
the scope of PSM. OSHA indicated that the proper, safe functioning of 
all aspects of a process, whether they contain a highly hazardous 
chemical \53\ or not, are important for the prevention and mitigation 
of catastrophic releases of highly hazardous chemicals. OSHA's position 
is that any engineering control (including utility systems) which does 
not contain a highly hazardous chemical (HHC) but can affect or cause a 
release of an HHC or interfere in the mitigation of the consequences of 
a release must be, at a minimum, evaluated, designed, installed, 
operated (with appropriate training and procedures), changed, and 
inspected/tested/maintained per OSHA PSM requirements. OSHA provided 
the example of an employer that identifies, through its PHA, that safe 
operation of its covered process relies on the electrical utility 
system. In response, the employer could determine that an 
uninterruptible power supply would be an appropriate safeguard against 
the loss of electrical utility to the process equipment.
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    \52\ OSHA, ``Standard Interpretation 1910.119,'' accessed 
January 28, 2022, https://www.osha.gov/laws-regs/standardinterpretations/2008-01-31.
    \53\ Term similar to ``RMP-regulated substance.''
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    EPA believes making more explicit this already-existing accident 
prevention program requirement, to evaluate hazards of the process \54\ 
will ensure the threats of power loss are properly evaluated and 
managed to prevent or mitigate releases of RMP-regulated substances at 
covered facilities. EPA believes many facilities with RMP processes are 
managing the hazard of power loss. However, some recent RMP accidents 
are linked to power loss. EPA's review of RMP accident history data 
from 2004-2020 shows that at least 20 accident history reports have 
specifically indicated that power failure was a contributing factor to 
an accident. However, only 63 percent (310) and 44 percent (1,971) of 
facilities with Program 2 and Program 3 processes, respectively, have 
implemented backup power at their facilities, despite identifying that 
the loss of cooling, heating, electricity, and instrument air is a 
major potential hazard to their process operations.\55\ \56\
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    \54\ Existing requirements of the hazards to be evaluated in 
hazard evaluations are found at 40 CFR 68.50(a) for Program 2 
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
    \55\ EPA recognizes that not all RMP-regulated processes will 
need emergency backup power (for example, certain RMP-regulated 
storage processes).
    \56\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    The frequency and severity of extreme weather events may exacerbate 
power failure events if the impacts of potential power failures are not 
identified, and control strategies are not implemented. Climate change 
poses long-term challenges because it affects the frequency, intensity, 
and duration of weather events that represent the largest source of 
disruptions to the U.S. electricity grid. New studies have shown that 
the threat of power loss is increasing for utility customers. The 
Department of Energy reported that an increase in extreme weather 
events has led to an increase in power outages in recent years. 
Specifically, the Department of Energy's U.S. Energy Information 
Agency's data showed that electric power for U.S. customers was 
interrupted for an average of 7.8 hours (470 minutes) in 2017, nearly 
double the average total duration of interruptions experienced in 2016. 
Data indicate that more major weather events, such as hurricanes and 
winter storms, occurred in 2017 than in previous years, and the total 
duration of power interruptions caused by major events was longer.\57\ 
\58\ Recent major power outages also provide examples of this threat. 
In February 2021 in Texas, Winter Storm Uri left 4.5 million customers 
without power, some for several days.\59\ In January 2022, one of the 
five worst winter storms in Virginia's history resulted in 
approximately 400,000 Dominion Energy customers experiencing a power 
outage when heavy snow and high winds impacted utility services.\60\ 
Events like these also have the potential to impact hazardous chemical 
process operations.
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    \57\ U.S. Energy Information Administration, ``Today in 
Energy,'' last modified November 30, 2018, https://www.eia.gov/todayinenergy/detail.php?id=37652#.
    \58\ Department of Energy, ``Electric Disturbance Events (OE-
417) Annual Summaries,'' accessed January 28, 2022, https://www.oe.netl.doe.gov/OE417_annual_summary.aspx.
    \59\ Chris Stipes, ``New Report Details Impact of Winter Storm 
Uri on Texans,'' University of Houston, last modified March 29, 
2021, https://uh.edu/news-events/stories/2021/march-2021/03292021-hobby-winter-storm.php.
    \60\ Dominion Energy, ``Dominion Energy Making Significant 
Progress Restoring Power, Preparing for Second Winter Storm,'' last 
modified January 5, 2022, https://news.dominionenergy.com/2022-01-05-Dominion-Energy-Making-Significant-Progress-Restoring-Power,-Preparing-for-Second-Winter-Storm.
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    Therefore, EPA is proposing to further emphasize loss of power in 
the hazards evaluated in hazard reviews and PHAs for Program 2 and 
Program 3 RMP-regulated processes. EPA believes further emphasis on 
these accident prevention program provisions will ensure that the risk 
of power failure is properly evaluated and managed to prevent or 
mitigate releases of RMP-regulated substances at covered facilities. 
EPA is proposing to include emphasizing that hazard evaluations under 
40 CFR 68.50(a)(3) and 68.67(c)(3) address standby or emergency power 
systems.
    EPA expects facilities to continue to use available resources to 
properly evaluate whether power loss is a hazard to their process and, 
if so, implement appropriate controls to prevent or reduce that hazard. 
In addition to the hazard evaluation guidance offered by CCPS and other 
industry-specific resources, below are resources that broadly discuss 
options for evaluation of power loss and standby power:
     National Fire Protection Association (NFPA) 70: National 
Electrical Code.\61\
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    \61\ NFPA, NFPA 70, National Electric Code (2020), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=70.

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[[Page 53571]]

     NFPA 110: Standard for Emergency and Standby Power 
Systems.\62\
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    \62\ NFPA, NFPA 110, Standard for Emergency and Standby Power 
Systems (2022), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=110.
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     NFPA 1600: Standard on Continuity, Emergency, and Crisis 
Management.\63\
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    \63\ NFPA, NFPA 1600, Standard on Continuity, Emergency, and 
Crisis Management (2019), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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     3005.4-2020: Institute of Electrical and Electronics 
Engineers (IEEE) Recommended Practice for Improving the Reliability of 
Emergency and Stand By Power Systems.\64\
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    \64\ IEEE, IEEE Recommended Practice for Improving the 
Reliability of Emergency and Stand By Power Systems (2020), https://standards.ieee.org/ieee/3005.4/6218/.
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     3006.7-2013: IEEE Recommended Practice for Determining the 
Reliability of 7x24 Continuous Power Systems in Industrial and 
Commercial Facilities.\65\
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    \65\ IEEE, IEEE Recommended Practice for Determining the 
Reliability of 7x24 Continuous Power Systems in Industrial and 
Commercial Facilities (2013), https://ieeexplore.ieee.org/document/6493367.
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     National Renewable Energy Laboratory (NREL), ``Backup 
power cost of ownership analysis and incumbent technology,'' NREL, 
NREL/TP-5400-60732, Golden, CO (2014).\66\
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    \66\ Kurtz, J., et al., Backup Power Cost of Ownership Analysis 
and Incumbent Technology Comparison (2014), https://www.nrel.gov/docs/fy14osti/60732.pdf.
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     NREL, ``A comparison of fuel choice for backup 
generators,'' NREL, NREL/TP-6A50-72509, Golden, CO (2019).\67\
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    \67\ Ericson, S., and Olis, D., A Comparison of Fuel Choice for 
Backup Generators (2019), https://www.nrel.gov/docs/fy19osti/72509.pdf.
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    The Agency is concerned that the threat of extreme weather events 
has and will be used by some owners or operators to justify disabling 
equipment designed to monitor and detect chemical releases of RMP-
regulated substances at their facility. EPA is concerned that air 
monitoring and control equipment is often removed from service before 
natural disasters to potentially prevent damage to equipment or, 
conceivably in some cases, evade monitoring requirements and therefore 
may not become operational again until much later, after the event or 
threat has passed. To prevent accidents, RMP owners or operators are 
required to develop a program that includes monitoring for accidental 
releases. EPA does not believe natural disasters should be treated as 
an exception to this requirement. A large-scale natural disaster may 
threaten multiple RMP facilities in a community simultaneously, leaving 
communities to endure the direct effects of a natural disaster without 
receiving warning of associated chemical releases. EPA wants to ensure 
RMP-regulated substances at covered processes are continually being 
monitored so that potential exposure to chemical substances can be 
measured during and following a natural disaster. Some industry 
standards already require continuous monitoring of process chemicals. 
For example, the International Institute of Ammonia Refrigeration's 
(IIAR's) ``Minimum Safety Requirements for Existing Closed Circuit 
Ammonia Refrigeration Systems'' requires facilities with ammonia 
refrigeration systems to provide a means for monitoring the 
concentration of an ammonia release in the event of a power 
failure.\68\ While EPA is not requiring implementation of standby or 
emergency power for the entirety of an RMP process, EPA is proposing to 
require air pollution control or monitoring equipment associated with 
prevention and detection of accidental releases from RMP-regulated 
processes to have standby or backup power to ensure compliance with the 
intent of the rule. EPA seeks comment and data on this proposed 
provision, particularly on any potential safety issues associated with 
it.
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    \68\ IIAR, IIAR-9-2020 Minimum Safety Requirements for Existing 
Closed Circuit Ammonia Refrigeration Systems 7.4.7.2.
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d. Stationary Source Siting
    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, it may allow such effects to dissipate prior to reaching 
receptors. Siting of processes and equipment within a stationary source 
can impact the surrounding community not only through the proximity of 
the accidental release to offsite receptors adjacent to the facility 
boundary (e.g., people, infrastructure, environmental resources), but 
also through increasing the likelihood of a secondary ``knock-on'' 
release by compromising nearby processes. EPA is proposing to emphasize 
the requirement to consider stationary source siting in regulatory text 
to make sure that the intent of the requirement is properly 
incorporated in siting hazard evaluations.
    The lack of sufficient distance between the source boundary and 
neighboring residential areas was a significant factor in the severity 
of several chemical accidents in the United States and internationally. 
The following are examples which illustrate the potential of such 
effects:
     1984, Bhopal, India: Union Carbide release of 
approximately 40 tons of methyl isocyanate into the air killed over 
3,700 people. Most of the deaths and injuries occurred in a residential 
area near the plant.\69\
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    \69\ Lees, Frank P. Loss Prevention in the Process Industries, 
Volume 3, 2nd ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann, 
1996).
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     1984, Juan Ixhuatepec, Mexico: Pemex liquefied petroleum 
gas (LPG) tank farm LPG pipeline rupture resulted in a large ground 
fire that spread to nearby LPG storage vessels, initiating a series of 
massive explosions. The cascading explosions and fires ultimately 
destroyed the entire facility and many nearby residences, resulting in 
over 500 fatalities and thousands of severe injuries.\70\
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    \70\ Lees, Frank P. Loss Prevention in the Process Industries, 
Volume 3, 2nd ed. Appendix 4, Mexico City (Oxford: Butterworth-
Heinemann, 1996).
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     1994, Port Neal, Iowa, United States: Terra Industries 
explosion involving ammonium nitrate (AN) killed four workers and 
damaged onsite ammonia tanks, creating an ammonia cloud that resulted 
in the evacuation of 2,500 people in nearby neighborhoods.\71\
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    \71\ EPA. Chemical Accident Investigation Report: Terra 
Industries, Inc., Nitrogen Fertilizer Facility (2014), https://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf.
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     2009, Belvidere, Illinois, United States: NDK Crystal 
facility catastrophic rupture of a pressure vessel resulted in one 
public fatality and one public injury. A building fragment propelled by 
the force of the blast traveled nearly 650 feet and killed a member of 
the public at a highway rest stop parking lot. An 8,600-pound vessel 
fragment traveled 435 feet and impacted a neighboring business, 
injuring one offsite worker and causing significant property 
damage.\72\
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    \72\ CSB, ``NDK Crystal Inc. Explosion with Offsite Fatality,'' 
last modified November 14, 2013, https://www.csb.gov/ndk-crystal-inc-explosion-with-offsite-fatality-/.
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     2013, West, Texas, United States: West Fertilizer Company 
explosion involving AN damaged an apartment complex and a nursing home 
located approximately 450 feet and 600 feet, respectively, from the 
source of the explosion, resulting in 3 public fatalities

[[Page 53572]]

(out of a total of 15 people killed in the explosion). The explosion 
also caused over 260 injuries, as well as damage to over 350 homes and 
3 schools located near the plant.\73\
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    \73\ CSB, ``West Fertilizer Explosion and Fire,'' last modified 
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
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     2018, Superior, Wisconsin, United States: Superior 
Refining Company, LLC, explosion and subsequent fire in the refinery's 
fluid catalytic cracking unit resulted in 36 people (workers and 
community members) seeking medical attention. In addition, a portion of 
Superior, Wisconsin, had to be evacuated.\74\
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    \74\ CSB, ``Husky Energy Refinery Explosion and Fire,'' accessed 
January 28, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
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     2020, Visakhapatnam, Andhra Pradesh, India: LG Polymers 
styrene release incident produced a toxic cloud that caused at least 11 
fatalities and hundreds of injuries in the nearby community.\75\
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    \75\ Doyle, Amanda, ``Hundreds Hospitalized After Styrene Gas 
Leak in India,'' The Chemical Engineer, last modified May 7, 2020, 
https://www.thechemicalengineer.com/news/hundreds-hospitalised-after-styrene-gas-leak-in-india.
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    This list of accidents provides examples of the numerous accidents 
with offsite consequences resulting from the close proximity of 
industrial facilities to public receptors, demonstrating that selection 
of locations of processes and process equipment within a stationary 
source can impact the surrounding community. Communities are affected 
not only by the proximity of accidental releases to offsite receptors 
(e.g., people, infrastructure, environmental resources) near the 
facility boundary, but also by the increased likelihood of subsequent 
releases from other nearby processes compromised by the initial 
release. As accidents continue to happen, EPA is proposing to emphasize 
the intent of the required siting evaluation to ensure protection of 
human health and the environment.
    The OSHA PSM standard and RMP rule both require that facility 
siting be addressed as one element of a PHA (29 CFR 1910.119(e)(3)(v), 
and 40 CFR 68.67(c)(5)). In response to comments on the proposed PSM 
rule, OSHA indicated that facility siting should always be considered 
during PHAs and therefore decided to emphasize this element by 
specifically listing siting evaluation in regulatory text.\76\ With the 
adoption of PHA regulatory text, EPA also recognized the offsite 
benefits of siting evaluations. EPA's approach to the siting 
requirement is consistent with its general approach to PSM in the 1996 
RMP rule: sound, comprehensive PSM systems can protect workers, the 
public, and the environment.\77\ The Agency chose to include additional 
guidance in a frequently asked questions section of its website to not 
only indicate the Agency's expectations, but also to provide guidance 
on the RMP rule's coverage of facility siting evaluation to include 
consideration of offsite receptors. The guidance states: ``The 
requirement to consider stationary source siting during the process 
hazard analysis means that you should consider the location of the 
covered vessels and evaluate whether their location creates risks for 
offsite public or environmental receptors, as well as onsite receptors. 
This analysis should consider the proximity of the vessels that could 
lead to a release of a regulated substance. The proximity of the 
vessels to onsite equipment or activities nearby will have been 
considered for OSHA; the proximity of the vessels in relation to 
offsite receptors will be considered if not already considered for 
OSHA. The analysis may be done qualitatively. The analysis addresses 
whether the location of the vessels creates risks that could be reduced 
by changing the location or taking other actions, such as installing 
mitigation systems.'' \78\
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    \76\ OSHA, Final Rule on Process Safety Management of Highly 
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part 
1910 (1992), https://www.osha.gov/laws-regs/federalregister/1992-02-24.
    \77\ 61 FR 31687; June 20, 1996.
    \78\ EPA, ``Is EPA's PHA Stationary Source Siting Requirement 
Analogous to OSHA's PSM?'' accessed January 31, 2022, https://www.epa.gov/rmp/epas-pha-stationary-source-siting-requirement-analogous-oshas-psm.
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    As with other aspects of the RMP rule, EPA expects regulated 
facilities to rely on industry guidance to help adequately address 
stationary source siting in PHAs. The following examples of relevant 
industry guidance on siting considerations are available to facility 
owners and operators:
     American Petroleum Institute (API) Recommended Practice 
752, Management of Hazards Associated with Location of Process Plant 
Buildings.\79\
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    \79\ API, Recommended Practice 752, Management of Hazards 
Associated with Location of Process Plant Buildings, 3rd Edition 
(December 2020), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-752.
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     API Recommended Practice 753, Management of Hazards 
Associated with Location of Process Plant Portable Buildings.\80\
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    \80\ API, Recommended Practice 753, Management of Hazards 
Associated with Location of Process Plant Portable Buildings, 1st 
Edition (June 2007), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-753.
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     CCPS Guidelines for Evaluating Process Plant Buildings for 
External Explosions, Fires, and Toxic Releases.\81\
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    \81\ CCPS, Guidelines for Evaluating Process Plant Buildings for 
External Explosions, Fires, and Toxic Releases, 2nd Edition (2012), 
https://www.aiche.org/resources/publications/books/guidelines-evaluating-process-plant-buildings-external-explosions-fires-and-toxic-releases-2nd.
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     CCPS Guidelines for Siting and Layout of Facilities.\82\
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    \82\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd 
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.
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     NFPA Separation Distances in NFPA Codes and Standards.\83\
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    \83\ Argo, Ted, and Evan Sandstrom, Separation Distances in NFPA 
Codes and Standards (The Fire Protection Research Foundation, 2014), 
https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Hazardous-materials/RFSeparationDistancesNFPACodesAndStandards.ashx.
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    The CCPS ``Guidelines for Siting and Layout of Facilities'' 
addresses external factors influencing site selection, as well as 
factors internal to the source that could influence site layout and 
equipment spacing. The most recent edition of this CCPS publication was 
updated to address many developments in the last decade that have 
improved how companies survey and select new sites, evaluate 
acquisitions, and expand their existing facilities.\84\ The title was 
also updated to emphasize not only siting of buildings and unit 
operations within a facility, but also siting of facilities within a 
community. The guidance addresses identifying the process hazards and 
risks, selecting a facility location, selecting process unit layout 
within a facility, selecting equipment within a process unit, and 
managing changes.
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    \84\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd 
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.).
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    As an industry-specific example for siting, the Compressed Gas 
Association's (CGA's) ``G-2.1--Requirements for the Storage and 
Handling of Anhydrous Ammonia,'' \85\ among other things, requires 
facilities with anhydrous ammonia systems to apply specific location 
requirements for processes, such as tank loading and unloading 
operations, and equipment, such as ammonia storage containers, piping, 
and nurse wagons. It also includes specific minimum separation 
distances from storage containers to railroad mainlines, highways, 
lines of

[[Page 53573]]

adjoining properties, and places of public assembly and residential and 
institutional occupancy. Asmark Institute,\86\ a well-known 
agricultural industry organization, developed an RMP Program 2 Hazard 
Review checklist as a resource for its industry to apply CGA G-2.1 and 
other applicable industry standards.\87\
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    \85\ ANSI/CGA, Requirements for the Storage and Handling of 
Anhydrous Ammonia (an American National Standard) (2014), https://webstore.ansi.org/standards/cga/ansicga2014.
    \86\ Asmark Institute, https://www.asmark.org/.
    \87\ Asmark Institute, MyRMP Hazard Review Worksheet for Program 
2 Facilities with Anhydrous Ammonia (2015), https://www.asmark.org/myRMP/Forms/P2AnhydrousWorksheet.pdf.
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    Despite enforcement and the consequences of catastrophic accidents, 
issues of siting continue to threaten process safety. For example, in 
2018, EPA took an enforcement action against an agricultural anhydrous 
ammonia sales operation in Missouri that failed to identify the hazards 
associated with the proximity of the facility to a home and a nearby 
firehouse.\88\ In 2021, EPA took an enforcement action against a 
chemical manufacturing facility in Maine that did not address the 
facility's proximity to a nearby bay; lack of proximity to external 
trained emergency responders; and process layout--specifically, the 
proximity of shutdown valves to operations.\89\
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    \88\ Available at https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/
Filings/E54E9167BD7A4EF6852582C0001BCFD5/$File/CAA-07-2018-
0214%20United%20Cooperatives%20CAFO.pdf.
    \89\ Available at https://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/
Filings/D26E190D9B6DA9E18525875F006CA916/$File/CAA-01-2021-
0070%20CAF)%20ViewPDF%20(8).pdf.
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    EPA reviewed data from OSHA PSM PHA enforcement actions. In 2018, 
16 cases were filed where facility siting was cited as a serious 
violation \90\ that could cause an accident or illness that would most 
likely result in death or serious physical harm.\91\ One of those cases 
was also reported as an RMP accident that occurred on September 1, 
2016, at the Brookshire Grocery Company's distribution center in Tyler, 
Texas. A failure in the piping on the roof of the cold storage building 
caused an ammonia leak. The leak caused 16 injuries and resulted in the 
evacuation of the building, the closure of a nearby intersection, and 
the need for nearby residents to shelter in place.\92\ Given the 
potential risk demonstrated by recurring accidents, EPA seeks to ensure 
that emphasis is placed on the importance of all aspects of a proper 
facility siting evaluation.
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    \90\ Identified as a ``serious'' violation under OSHA in: OSHA, 
``Federal Employer Rights and Responsibilities Following an OSHA 
Inspection-1996,'' accessed January 31, 2022, https://www.osha.gov/
publications/
fedrites#:~:text=SERIOUS%3A%20A%20serious%20violation%20exists,have%2
0known%20of%20the%20violation.
    \91\ U.S. Department of Labor, ``Data Catalog; OSHA Enforcement 
Data; osha_violation'' accessed March 17, 2022, https://enforcedata.dol.gov/views/data_summary.php.
    \92\ Louanna Campbell, ``Tyler Fire Marshal's Office Releases 
Cause of Ammonia Leak at Brookshire's Warehouse,'' last modified 
September 5, 2017, https://tylerpaper.com/news/local/tyler-fire-marshals-office-releases-cause-of-ammonia-leak-at-brookshires-warehouse/article_3a7581b2-63b9-57b9-96c2-0b163f546668.html.
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    In a 2014 RMP request for information (RFI),\93\ EPA requested 
comments on whether to consider stationary source location requirements 
for future rulemaking. EPA specifically asked whether it should amend 
the RMP rule to include more specific siting requirements as part of 
the PHA. Though EPA received comments on the issue, EPA chose not to 
move forward with additional action on siting in the amendment's final 
rule but indicated that the Agency would consider comments for a future 
rulemaking.
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    \93\ EPA, Accidental Release Prevention Requirements: Risk 
Management Programs Under the Clean Air Act, Section 112(r)(7), 
Proposed rule, 79 FR 44603 (July 13, 2014), pp. 44603-44633, https://www.federalregister.gov/documents/2014/07/31/2014-18037/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-section.
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    In response to the RFI, commenters opposed adding additional 
provisions to address stationary source siting, citing as rationale 
that:
     Existing facilities have limited flexibility to alter 
locations onsite.\94\
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    \94\ EPA-HQ-OEM-2014-0328-0121; 0543, 0548, 0605, 0616, 0624.
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     Specifying or requiring buffer or setback zones is a 
complicated issue and must be looked at differently for new and 
existing facilities.\95\
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    \95\ EPA-HQ-OEM-2014-0328-0543; 0546, 0584, 0616, 0632.
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     EPA would be intruding on local zoning codes when 
establishing siting criteria.\96\
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    \96\ EPA-HQ-OEM-2014-0328-0543; 0584, 0614, 0616, 0624, 0626, 
0646, 0667.
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     Existing industry guidance is sufficient.\97\
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    \97\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546, 0605, 0620, 0624, 
0640, 0665.
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     Requiring additional siting requirements for both new and 
existing facilities could result in significant cost to the regulated 
entity.\98\
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    \98\ EPA-HQ-OEM-2014-0328-0624; 0626.
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    One opposing commenter specifically indicated that, to date, EPA 
has allowed for siting considerations to be included under performance-
based elements of the RMP program. The commenter stated that any 
modification of the existing requirements would be inconsistent with a 
risk-based management system approach.\99\ Another commenter, although 
generally in opposition to new siting requirements, stated that for 
existing facilities, the owner/operator should demonstrate that other 
technologies, such as early detection, early communication, prevention 
measures, and mitigation measures, are applied to manage risk within 
acceptable levels. This commenter also stated that in some cases, it 
may be necessary to make process changes, and in unique cases where the 
risk cannot be abated, owners/operators should consider relocation of 
part or all facility operations.\100\
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    \99\ EPA-HQ-OEM-2014-0328-0691.
    \100\ EPA-HQ-OEM-2014-0328-0543.
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    There were also commenters who argued stationary source siting 
should be expanded in the RMP rule. For example, one commenter stated 
the PHA must address issues of co-location both in terms of adjacent 
facilities and in terms of vulnerable populations and infrastructure. 
This commenter stated that at a minimum, facilities must address 
hazards to and from adjacent facilities--including impacts that a 
release from their facility would have on other facilities and the 
impact that a release from other facilities would have on their 
facility--and further expansion should address buffer zones for nearby 
residents, hospitals, and infrastructure. The commenter argued that new 
facilities or expansion of facilities must consider the cumulative 
impacts from adjacent facilities and look at the threat that a release 
from the new facility or expansion would pose to other facilities, 
infrastructure, populations, and environmental resources.\101\ 
Additionally, CSB encouraged EPA to incorporate more explicit 
requirements for identifying, evaluating, and addressing facility 
siting during a PHA to assess both offsite consequences and onsite 
receptors within that stationary source that may be impacted by 
chemical fire, explosion, or release.\102\
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    \101\ EPA-HQ-OEM-2014-0328-0637.
    \102\ EPA-HQ-OEM-2014-0328-0689.
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    EPA believes that many matters outlined in comments about the 
current stationary source siting provision, while not explicitly 
addressed within the current regulatory text, are implicit and 
mandatory. Therefore, at this time, EPA is only choosing to make more 
explicit what is required to be addressed in a stationary source siting 
evaluation. Rather than propose additional requirements, EPA is 
expounding on the current regulatory text to ensure that siting 
evaluations properly account for hazards resulting from the location of 
processes, equipment, building, and proximate facilities, and their 
effects on the surrounding community. In addition

[[Page 53574]]

to providing some detail on what is intended by the Program 3 
regulatory text on stationary source siting, EPA is also proposing to 
revise language to Program 2 hazard evaluations to ensure that all RMP 
facilities with the potential to cause offsite consequences to public 
receptors account for these hazards. Therefore, EPA is proposing to 
amend regulatory text for Program 2 and Program 3 under 40 CFR 
68.50(a)(6) and 68.67(c)(5), respectively, to define stationary source 
siting evaluation as inclusive of the placement of processes, 
equipment, buildings, and hazards posed by proximate facilities, and 
accidental release consequences posed by proximity to the public and 
public receptors. The proposed amendments would make more explicit the 
requirement that hazard evaluations for processes under both Program 2 
(hazard review) and Program 3 (PHA) need to address the matters in the 
siting evaluation.
    Because there is a breadth of guidance on siting, EPA believes 
there is adequate information available for facilities to comply with 
the proposed text. EPA expects facilities to continue to use available 
resources, including those previously mentioned, and any additional 
industry-specific guidance to properly evaluate siting hazards.
e. Hazard Evaluation Recommendation Information Availability
    Ensuring that communities, local planners, local first responders, 
and the public have appropriate chemical facility hazard-related 
information is critical to the health and safety of responders and the 
local community. In this action, EPA is proposing ways to enhance 
information sharing and collaboration between chemical facility owners/
operators, Tribal and local emergency planning committees (TEPCs/
LEPCs), first responders, and the public in a manner that EPA believes 
balances security and proprietary considerations. In addition to the 
information accessibility provisions in section IV.C of this preamble, 
EPA is also proposing that recommendations resulting from hazard 
evaluations discussed in this section be included in a facility's risk 
management plan submitted under 40 CFR part 68, subpart G. 
Specifically, facilities would be required to implement recommendations 
or list in their risk management plans the recommendations from their 
natural hazard, loss of power, and siting evaluations that were not 
adopted and the justification for those decisions. EPA believes this 
will enable the public to ensure facilities have conducted appropriate 
evaluations to address potential hazards that can affect communities 
near the fenceline of facilities. In response to comments in the RFI on 
increased public disclosure of information, one commenter stated that 
it is important to help the public understand how the facilities 
address the hazard present in their community and keep the risk at or 
below the ``acceptable level.'' EPA believes that when local citizens 
have adequate information and knowledge about facility hazards, 
facility owners and operators may be motivated to further improve their 
safety in response to community pressure and oversight.\103\
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    \103\ EPA-HQ-OEM-2014-0328-0543-27.
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    EPA is proposing to require facilities to list in section 7 
(Program 3) and section 8 (Program 2) of their risk management plans, 
for each process, recommendations resulting from hazard evaluations of 
natural hazards, loss of power, and facility siting that the owner/
operator chooses to decline. EPA realizes that the number of hazard 
evaluation recommendations may vary widely, depending on the complexity 
of the process or facility. Therefore, EPA seeks comments on the format 
of listing the recommendations, whether EPA should require 
recommendations to be included in narrative form, or whether the Agency 
should provide specific categories of recommendations for facilities to 
choose from when reporting. Another option would be to allow the owner 
or operator to post this information online and provide a link to the 
information within their risk management plan.
    Regarding the requirement to provide justification for not 
implementing recommendations, EPA is proposing to allow facilities to 
choose from pre-selected categories. Under OSHA guidance, an employer 
may decline to adopt a PHA recommendation if, based upon adequate 
evidence, the employer can document that one or more of the following 
conditions is true:\104\
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    \104\ OSHA, Process Safety Management of Highly Hazardous 
Chemicals--Compliance Guidelines and Enforcement Procedures, 29 CFR 
1910.119 (September 13, 1994), https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf.
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     The analysis upon which the recommendation is based 
contains material factual errors.
     The recommendation is not necessary to protect the health 
and safety of the employer's own employees, or the employees of 
contractors.
     An alternative measure would provide a sufficient level of 
protection.
     The recommendation is infeasible.
    EPA is proposing to adopt these same categories in the risk 
management plan as justification for declined recommendations, with a 
modification to account for public receptors (i.e., the recommendation 
is not necessary to protect public receptors). EPA seeks public comment 
on this approach and on alternative categories or methods to provide 
justification for declining relevant recommendations. EPA wants to 
ensure a balanced approach to providing beneficial data to the public 
as well as a straightforward method of reporting for facility owners/
operators.
    Proposed revisions to regulatory text include, requiring risk 
management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8), reporting 
declined natural hazard, power loss, and siting hazard evaluation 
recommendations and their associated justifications in the risk 
management plan submitted to EPA.
f. Summary of Proposed Regulatory Text
    EPA is proposing to emphasize that Program 2 hazard reviews and 
Program 3 PHAs identify and address natural hazards, loss of power, and 
facility siting (as described in this document) in order to effectively 
prevent or minimize accidental releases of regulated substances to 
protect human health and the environment. EPA is also proposing to 
require the owner or operator to report any recommendations arising 
from these evaluations that are declined, along with the owner or 
operator's justification for declining them, within the risk management 
plan submitted to EPA. A summary of the proposed regulatory text 
changes are described below:
     Hazard evaluations under 40 CFR 68.50(a)(5) and 
68.67(c)(8) to explicitly address external events such as natural 
hazards, including those caused by climate change or other triggering 
events that could lead to an accidental release.
     Hazard evaluations under 40 CFR 68.50(a)(3) and 
68.67(c)(3) to explicitly address standby or emergency power systems.
     Hazard evaluations under 40 CFR 68.50(a)(6) and 
68.67(c)(5) to explicitly define stationary source siting as inclusive 
of the placement of processes, equipment, buildings within the 
facility, and hazards posed by proximate facilities, and accidental 
release consequences posed by proximity to the public and public 
receptors.
     Risk management plans under 40 CFR 68.170(e)(7) and 
68.175(e)(8) to include declined natural hazard, power loss, and siting 
hazard evaluation recommendations and their associated justifications.

[[Page 53575]]

    EPA realizes, and commenters have indicated in the past,\105\ that 
only a small number of facilities are responsible for a significant 
percentage of RMP accidents. EPA expects the proposed language will 
ensure that those owner/operators who are not properly evaluating these 
hazards will be explicitly required to do so, which will better ensure 
owner/operators do their due diligence in preventing or minimizing 
accidental releases of regulated substances to protect human health and 
the environment. EPA seeks comment on the proposed language or 
alternative language that will not unnecessarily expand the scope of 
hazard evaluations.
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    \105\ EPA-HQ-OEM-2015-0725-1628.
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2. Prevention Program Provisions
    The following section describes proposed modifications to the 
prevention program provisions of the RMP rule. Several of these changes 
address issues that have been the subject of both the 2017 amendments 
rule and the 2019 reconsideration rule, including safer technologies 
and alternatives analysis, root cause analysis incident investigations, 
and third-party audits. As detailed below, the Agency's preferred 
options for these topics adjust the scope of the provisions adopted and 
rescinded by the prior rulemakings. EPA also proposes new requirements 
for improved employee participation in prevention programs. The options 
proposed below should enhance community safety, especially in 
communities facing elevated probability of accidents, without unduly 
burdening overly broad classes of stationary sources.
a. Safer Technologies and Alternatives Analysis (STAA)
    EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some 
Program 3 regulated processes to consider and document the feasibility 
of applying safer technologies and alternatives as part of their PHA. 
This requirement applies to petroleum and coal products manufacturing 
processes (classified in NAICS code 324) and chemical manufacturing 
processes (NAICS code 325) that are located within 1 mile of another 
RMP-regulated facility with these same processes (classified in NAICS 
324 and 325). EPA is also proposing that all facilities with petroleum 
and coal products processes (in NAICS 324) using hydrofluoric acid (HF) 
in an alkylation unit (approximately 45 facilities) consider safer 
alternatives to HF alkylation, regardless of proximity to another NAICS 
324- or 325-regulated facility.
    Current PHA requirements (40 CFR 68.67) under the RMP rule include 
some aspects of the hierarchy of controls analysis.\106\ As discussed 
in the proposed regulation that became the 2017 amendments rule, 
Program 3 processes are required to address process hazards using 
engineering and administrative controls since 1996. However, as EPA 
pointed out, there is no explicit requirement for owners and operators 
to address inherent safety--the first tier of the hierarchy of 
controls. EPA is proposing to expand upon these requirements by 
requiring the owners or operators to consider safer technology and 
alternative risk management measures that could eliminate or reduce 
risk from process hazards. In addition to engineering and 
administrative controls, owners and operators of facilities with 
Program 3 processes covered under this provision would have to consider 
the application of the following safer technology measures, in the 
following order: inherently safer technology (IST) or inherently safer 
design (ISD), passive safeguards, active safeguards, and procedural 
safeguards.
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    \106\ Safety experts have developed a way to group types of 
controls in an order or ``hierarchy of controls'' that prefers those 
that are least likely to fail. As discussed in more detail in in 
section IV.A.2.a.i, below, controls that eliminate the hazard are 
preferred over those that do not require power or activation, which 
are preferred over those that do require power or activation, which 
are preferred over those that depend simply on rules of operation.
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    In this proposed regulation, EPA is not requiring facilities to 
implement identified inherent safety measures; rather, EPA is requiring 
owners and operators to include an evaluation, including the results of 
the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e), 
and, to document the feasibility of inherent safety measures based on 
more than cost alone. Submission of STAA analysis summaries to EPA is 
discussed in further detail under ``STAA technology transfer.'' 
Finally, EPA is proposing that a facility's STAA team include, and 
document the inclusion of, one member who works in the process and has 
expertise in the process being evaluated. EPA is also proposing to 
include a more comprehensive practicability assessment, in addition to 
the STAA evaluation requirements as part of the PHA. As part of this 
analysis, owners and operators would be required to identify, evaluate, 
and document the practicability of implementing inherent safety 
measures, including documenting the practicability of publicly 
available safer alternatives.
i. Background on IST/ISD
    EPA discussed safer technology and alternatives at length in its 
proposed RMP rule amendments published in 2016. ``Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean Air 
Act'' (81 FR 13638, March 14, 2016). ``Safer technology and 
alternatives'' refers to risk reduction or risk management strategies 
developed through analysis using a hierarchy of process risk management 
strategies (or hierarchy of controls). In this context, the hierarchy 
of controls consists of controls that are inherent, passive, active, 
and procedural. STAA involves considering IST or ISD, which refer to 
strategies that permanently reduce or eliminate hazards associated with 
the materials and operations of a process. As discussed in EPA/OSHA's 
2015 chemical safety fact sheet,\107\ the four major inherently safer 
strategies are: (1) substitution: replacing hazardous materials with 
less hazardous substances; (2) minimization: using smaller quantities 
of hazardous substances; (3) moderation: creating less hazardous 
conditions or using less hazardous forms or facility designs to 
minimize the impact of potential releases of hazardous materials or 
energy; and (4) simplification: designing facilities to eliminate 
unnecessary complexity and make operating errors less likely. Inclusion 
of IST/ISD in the RMP regulations is consistent with several CSB 
investigations that demonstrated that incidents could have been 
prevented or consequences mitigated by using IST/
ISD.^{108 109 110 111}
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    \107\ EPA and OSHA, Chemical Safety Alert: Safer Technology and 
Alternatives (June 2015), https://www.epa.gov/sites/default/files/2015-06/documents/alert_safer_tech_alts.pdf.
    \108\ CSB, ``Chevron Refinery Fire,'' last modified January 28, 
2015, https://www.csb.gov/chevron-refinery-fire/.
    \109\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last 
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
    \110\ CSB, ``Kleen Energy Natural Gas Explosion,'' last modified 
June 28, 2010, https://www.csb.gov/kleen-energy-natural-gas-explosion/.
    \111\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,'' 
last modified January 1, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
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    In the supplemental proposed RMP rule for the initial requirements 
under CAA 112(r)(7), EPA solicited comments on requiring IST. 
``Accidental Release Prevention Requirements: Risk Management Programs 
Under Clean Air Act Section 112(r)(7)'' (60 FR 13526, March 13, 1995) 
(1995 supplemental proposal). Prior to the 2017 final RMP amendments, 
however, EPA had never

[[Page 53576]]

required RMP facilities to conduct an STAA or implement identified IST/
ISD. The 2017 amendments rule added a requirement to the PHA for 
regulated sources in specified industrial sectors to identify and 
address hazards at least every 5 years. Specifically, owners or 
operators of facilities with Program 3 regulated processes in NAICS 
codes 322 (paper manufacturing), 324 (petroleum and coal products 
manufacturing), and 325 (chemical manufacturing) were required to 
conduct an STAA as part of their PHA and evaluate and document the 
practicability of any IST identified. The provision was 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. EPA adopted STAA based on 
recommendations from CSB and other engineering experts, as well as 
lessons learned from case studies and investigations of accidents. EPA 
identified the sectors covered by this requirement by using sector-wide 
accident rates. EPA believes that some of the practicability of 
implementation will be identified in the course of the PHA and that for 
many processes, owner/operators will already know if implementing a 
particular technology is practicable. EPA solicits comments on the 
industry understanding of the practicability assessment, and how this 
might differ from the findings identified in the PHA, as well as the 
additional benefit of such a provision.
    In the 2019 rule completing the process of reconsidering the 2017 
rule, EPA removed the new regulatory STAA requirement on all facilities 
in NAICS 322, 324, and 325 that are in the RMP program. ``Accidental 
Release Prevention Requirements: Risk Management Programs Under the 
CAA'' (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA 
analyzed accident history data in the RMP database, both nationally and 
in States and localities with programs that contained some or all the 
elements of the prevention program provisions. EPA discusses accident 
trends overall in Section III.C of this preamble. The analysis 
suggested that accident rates in jurisdictions that adopted STAA-like 
programs were not lower than national accident rates. Based on this 
assessment, EPA stated that STAA regulations would likely not be 
effective at reducing accidents if applied on a national scale, 
relative to the pre-2017 program. Instead, EPA decided to take a 
source-specific, compliance-driven approach, using oversight and 
enforcement tools to identify sources that would appear to benefit from 
STAA and to then seek STAA adoption at such sources.
ii. Hydrogen Fluoride
    Hydrogen fluoride (HF) is an extremely toxic chemical that is 
lethal at 30 ppm. It is covered by RMP when more than 1,000 pounds are 
used in a process. HF is an extremely toxic chemical used for 
alkylation at 27 percent of facilities in NAICS 324 (45 of 163). HF has 
been the subject of recent catastrophic near-miss investigations by 
CSB. One of these investigations involved an explosion at the Husky 
Refinery in Superior, Wisconsin, wherein debris impacted processes at a 
further distance from the explosion than the refinery's HF storage 
tank.\112\ CSB also investigated a near-miss in Torrance, California, 
wherein the explosion of ExxonMobil's electrostatic precipitator 
resulted in debris landing near the refinery's modified HF tanks.\113\
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    \112\ CSB, ``Husky Energy Refinery Explosion and Fire,'' 
accessed February 10, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
    \113\ CSB, ``ExxonMobil Refinery Explosion,'' last updated May 
3, 2017, https://www.csb.gov/exxonmobil-refinery-explosion-/.
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    There are recognized potentially safer alternatives available for 
HF alkylation that have been successfully implemented by refineries, 
such as sulfuric acid alkylation, ionic liquid alkylation, or solid 
acid catalyst alkylation.^{114 115} EPA contends that the 
practicability of these potentially safer alternatives is situation-
specific and that owners and operators are usually in the best position 
to make these determinations. Phasing out HF or switching to an 
inherently safer alternative may require construction of a new 
alkylation unit. Depending on the production levels of the refinery, 
implementation of alternatives to HF alkylation could cost between $35 
million and $900 million (see RIA, Appendix A).
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    \114\ Chevron, ``Chevron and Honeywell Announce Start-up of 
World's First Commercial ISOALKY^TM Ionic Liquids 
Alkylation Unit,'' last modified April 13, 2021, https://www.chevron.com/stories/chevron-and-honeywell-announce-start-up-of-isoalky-ionic-liquids-alkylation-unit.
    \115\ United Steelworkers, A Risk Too Great: Hydrofluoric Acid 
in U.S. Refineries (April 2013), https://www.usw.org/workplaces/oil/oil-reports/A-Risk-Too-Great.pdf.
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iii. Recent Public Input on STAA
    During EPA's 2021 listening sessions, approximately 245 commenters 
provided feedback on STAA. Many commenters, including individual 
commenters, professional associations, advocacy groups, labor 
organizations, an association of government agencies, and a Federal 
agency, supported EPA restoring the 2017 amendments rule requirement 
for facilities to assess safer technologies and substitute safer 
alternatives in their processes where feasible.\116\ A group of retired 
Federal agency officials said that facilities should share this 
analysis with communities and emergency responders, and EPA should 
establish a ``publicly accessible clearinghouse of safer 
alternatives.'' \117\ Individual commenters stated that STAAs should 
include an assessment of environmental justice, including the burden on 
surrounding communities,\118\ while another commenter stressed that 
STAAs would be very beneficial for communities with environmental 
justice concerns.\119\ An environmental advocacy group suggested that 
RMP facilities should be required to develop and submit a hazard 
reduction plan made by facility experts and workers that would start at 
the top of the hierarchy of controls and include considerations of an 
EPA-generated list of inherently safer chemicals.\120\
---------------------------------------------------------------------------

    \116\ EPA-HQ-OLEM-2021-0312-0028; 0035, 0039, 0044, 0051, 0057, 
0058, 0081, 0095, 0387, 0388.
    \117\ EPA-HQ-OLEM-2021-0312-0004.
    \118\ EPA-HQ-OLEM-2021-0312-0013; 0380.
    \119\ EPA-HQ-OLEM-2021-0312-0028.
    \120\ EPA-HQ-OLEM-2021-0312-0149.
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    Another advocacy group stated that it is interested in having 
facilities incorporate solutions data into STAAs and--along with a 
State regulatory agency, labor organizations, advocacy groups, and an 
individual commenter--supported requiring STAAs from every RMP facility 
in sectors such as water treatment, not just in oil manufacturing, 
chemical manufacturing, and paper manufacturing.\121\ A State 
regulatory agency mentioned that many safer technology alternative 
opportunities exist in other sectors and expressed that there should 
not be any limit on how many NAICS sectors are included.\122\
---------------------------------------------------------------------------

    \121\ EPA-HQ-OLEM-2021-0312-0014; 0039, 0057, 0152.
    \122\ EPA-HQ-OLEM-2021-0312-0039.
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    An advocacy group suggested that EPA implement an even more robust 
alternatives analysis and implementation process than that of the STAA 
proposed during the 2017 amendments rule. The commenter said that, 
rather than basing the universe of facilities subject to the STAA 
requirement on the results of data analysis performed in 2017, EPA 
should require this type of assessment at all facilities. The commenter 
proposed that,

[[Page 53577]]

should EPA determine that ``tiered protection should be implemented,'' 
it should require IST assessment and implementation at facilities in 
sectors with known hazard elimination or reduction methods, in areas 
with climate risks and other natural hazard risks, in communities with 
more than one RMP facility, and at facilities that are using or storing 
the highest quantity and toxicity of regulated chemicals and are most 
accident-prone.\123\
---------------------------------------------------------------------------

    \123\ EPA-HQ-OLEM-2021-0312-0170.
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    A few industry trade associations stated that STAAs and IST 
evaluations would not generate tangible safety outcomes beyond the 
current PHA requirements.\124\ One of the industry trade associations 
also discussed EPA's decision to limit the number of facilities covered 
by STAA provisions in the 2017 amendments rule, which the commenter 
described as lacking evidentiary support.\125\ An industry trade 
association that strongly opposed the STAA provision in the 2017 
amendments rule supported its removal in the 2019 reconsideration rule, 
stating that such a STAA requirement would not improve the 
effectiveness of the rule in relation to protecting communities with 
environmental justice concerns; instead, it would divert 
resources.\126\ An industry trade association stated that some 
industries already adopt inherently safer processes and technologies 
without direction from EPA.\127\
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    \124\ EPA-HQ-OLEM-2021-0312-0037; 0053, 0071.
    \125\ EPA-HQ-OLEM-2021-0312-0071.
    \126\ EPA-HQ-OLEM-2021-0312-0077.
    \127\ EPA-HQ-OLEM-2021-0312-0077.
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iv. Recent Public Input on HF
    During EPA's 2021 listening sessions, many commenters, including 
individual commenters and advocacy groups, discussed the dangers of HF 
and modified HF and argued that facilities should be required to 
transition to safer alternatives.\128\ An individual commenter said 
that HF is often located in facilities in communities with 
environmental justice concerns that are already exposed to many other 
hazards. A State elected official said that EPA should require 
refineries to evaluate the replacement of these chemicals and report 
their findings to EPA within a year.\129\ A form letter campaign 
recommended an amendment to 40 CFR 68.169 which, if implemented, would 
convert all HF refineries to safer alternatives within 4 years.\130\ A 
few individual commenters and an advocacy group expressed general 
support for this amendment.\131\ Another individual commenter in 
support of this amendment stated that over 40 refineries containing 
large quantities of HF endanger 19 million people, including children, 
young adults, unhoused people, and more.\132\
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    \128\ EPA-HQ-OLEM-2021-0312-0013; 0035, 0043, 0054, 0036, 0319, 
0146, 0067, 0068, 0096.
    \129\ EPA-HQ-OLEM-2021-0312-0043.
    \130\ EPA-HQ-OLEM-2021-0312-0067.
    \131\ EPA-HQ-OLEM-2021-0312-0354; 0379, 0382, 0384.
    \132\ EPA-HQ-OLEM-2021-0312-0380.
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v. STAA Applicability
    EPA is proposing to limit the applicability of the STAA provisions 
to sources in the petroleum and coal products manufacturing (NAICS 324) 
and chemical manufacturing (NAICS 325) sectors, located within 1 mile 
of another RMP-regulated 324 or 325 facility. EPA is also proposing 
that all facilities in NAICS 324 using HF in an alkylation unit 
(approximately 45 facilities) conduct an STAA for the use of safer 
alternatives compared to HF alkylation. EPA believes that while most 
sectors regulated under 40 CFR part 68 could identify safer technology 
and alternatives, sources involved in complex manufacturing operations 
have the greatest range of opportunities to identify and implement 
safer technologies and alternatives, particularly related to 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.
    Multiple factors led EPA to propose focusing the STAA requirement 
on densely co-located petroleum refining and chemical manufacturing 
facilities (i.e., facilities with processes in NAICS codes 324 and 325 
that are within 1 mile of another facility in those NAICS codes). The 
distance of 1 mile represents the median distance of facilities with 
324 and 325 NAICS processes that have had accidents in the period from 
2016 to 2020 to the nearest facility with a process in these NAICS in 
324 or 325. Facilities in these NAICS codes experience more frequent 
accidental releases (see IV.A.2.vi, below). In the period from 2016 to 
2020, communities near densely co-located facilities in these NAICS 
codes have experienced more frequent accidents than communities near 
other facilities in these NAICS codes and have had more offsite impacts 
from releases than other communities have experienced (see IV.A.2.vii, 
below). Additionally, 80% of 324 and 325 facilities located within 1 
mile of another 324/325 facility have toxic worst case release scenario 
distance to endpoints reaching or exceeding 1 mile. The proximity of 
densely co-located refining and chemical manufacturing facilities 
creates a greater risk of an accident at one facility impacting safety 
at the nearby facility, thereby increasing the potential for a release 
at the second facility (a ``knock-on'' release). Communities in areas 
with such densely co-located petroleum refining and chemical 
manufacturing facilities face overlapping vulnerability zones and a 
heightened risk of being impacted by an accidental release relative to 
other communities. The heightened risk of community impacts presented 
by densely co-located refineries and chemical manufacturers make it 
reasonable for EPA to propose the 1 mile criterion for additional 
prevention measures such as STAA. The 1 mile criterion also serves to 
limit the burden on portions of both the petroleum refining and 
chemical manufacturing industries relative to the 2017 amendments rule 
while promoting accident prevention to a greater extent than the 
approach taken in the 2019 reconsideration rule (see IV.A.2.viii, 
below).
    EPA is proposing that all HF alkylation processes at petroleum 
refineries (NAICS 324) conduct a STAA review primarily due the recent 
incidents discussed above where HF was nearly released when there were 
explosions, fires, and other releases that could have triggered 
releases of HF. The recent incident involving Philadelphia Energy 
Solutions,\133\ where some of the HF stored apparently was released in 
a fire but a worse release was prevented by trained staff activating 
release mitigation systems close to the time the event started, raises 
the question of whether a more inherently safe process could have 
completely avoided a potential catastrophe, or whether reliance on 
operational procedures and trained staff is adequate. As mentioned 
above, there are recognized potentially safer alternatives available 
for HF alkylation that have been successfully implemented by 
refineries, such as sulfuric acid alkylation, ionic liquid alkylation, 
or solid acid catalyst alkylation. While EPA is not proposing that all 
existing refinery processes undergo STAA review, the process of HF 
alkylation, with several known alternatives and with recent incident

[[Page 53578]]

history, EPA believes may merit a rule-based prevention approach rather 
than selective oversight.
---------------------------------------------------------------------------

    \133\ CSB, ``Philadelphia Energy Solutions (PES) Refinery Fire 
and Explosions,'' last modified October 16, 2019, https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/.
---------------------------------------------------------------------------

vi. Accident Frequency
    EPA notes that RMP facilities in the two selected sectors have been 
responsible for a relatively large number of accidents, deaths, 
injuries, and property damage.\134\ Although the per-facility accident 
rate between 2016 and 2020 for all regulated facilities was 3 percent 
(n = 382 facilities reporting at least one accident out of 12,855 
unique facilities reporting between 2016 and 2020), the sector accident 
rates (number of unique facilities with accidents per sector divided by 
the number of unique facilities in each sector) for petroleum and coal 
manufacturing were seven times higher (23 percent, n = 41 out of 177) 
and two times higher for chemical manufacturing (6 percent, n = 96 out 
of 1631). Moreover, of the 70 facilities experiencing two or more 
incidents between 2016 and 2020, 43 (60 percent) of these facilities 
were NAICS 324 and 325. Implementation of safer technology and 
alternatives by these facilities in the chemical manufacturing and 
petroleum refining sectors may prevent serious accidental releases in 
the future.
---------------------------------------------------------------------------

    \134\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

vii. Accident Severity
    EPA is proposing to apply STAA requirements to processes at 
facilities in NAICS 324 and 325 located within 1 mile of another NAICS 
324 or 325 facility, as the increased accident frequency found in these 
industries is exacerbated when examining those facilities in more 
facility-dense areas (here defined as facilities within 1 mile of 
another facility).
    Based on accidents occurring between 2016 and 2020, communities 
located near facilities in NAICS 324/325 that are located within 1 mile 
of another 324/325 facility are 1.5 times more likely to have been 
exposed to accidents at these facilities as compared to communities 
near facilities in NAICS 324/325 that are not located within 1 mile of 
another 324/325 facility. This increased accident frequency in 
facility-dense areas has resulted in considerably larger offsite 
impacts, including over 47,000 people sheltering in place, 56,800 
people evacuating, and over 153 million dollars in offsite property 
damage.\135\
---------------------------------------------------------------------------

    \135\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    Using RMP data from 2016 to 2020, EPA estimates the proposed 
approach impacts approximately 563 unique, active facilities. EPA is 
making available in the Technical Background Document, a list of 
sources it believes would be required to conduct STAA based on the 
location information currently provided in facility risk management 
plans. In estimating these facilities, EPA used the latitude and 
longitude reported to EPA by facilities, which can vary in the 
measurement of facility location. For example, facilities can report 
location based on the regulated process, facility fenceline or facility 
centroid. EPA is proposing to define facility location based on 
distance to the facility fenceline but seeks comment on other 
definitions of facility proximity.
    Although accident rates for the paper manufacturing sector (NAICS 
322, 17 percent, 20 accidents at 11 out of 65 facilities between 2016 
and 2020) were similar to NAICS 324, EPA has not proposed STAA 
requirements at facilities in NAICS 322 due to the low actual number of 
incidents and comparatively fewer accident consequences. While 30 
workers were injured (non-fatally) as a result of these accidents, the 
accidents resulted in no other reported offsite consequences (i.e., 
sheltering in place, evacuation, or offsite property damage).\136\
---------------------------------------------------------------------------

    \136\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

viii. Discussion of Prior STAA Analysis
    In its 2019 decision to rescind STAA requirements, EPA relied on 
data analysis of RMP accidents from States with STAA- and IST-like 
regulations, primarily New Jersey's Toxic Catastrophe Prevention Act 
(TCPA) regulation and the Massachusetts Toxic Use Reduction Act. Using 
the accident data EPA provided in the rulemaking docket, EPA compared 
accident data for New Jersey and Massachusetts RMP facilities from 2008 
through 2016 to the same measures for the national set of RMP 
facilities.\137\ EPA interpreted the results as showing that New Jersey 
and Massachusetts RMP facilities reported more RMP-reportable accidents 
than RMP facilities nationally over the same period. Although the rate 
of RMP facility accidents in New Jersey and Massachusetts have 
declined, EPA found that this decline is less than the decline in 
accidents for RMP facilities nationally over the same period. New 
Jersey and Massachusetts exhibited a 1.7 percent and 3.5 percent annual 
decline in accident frequency, respectively, whereas nationally, RMP 
facilities experienced a 4.1 percent decline in accident frequency over 
the same period. The normalized accident rate in New Jersey and 
Massachusetts declined by approximately 2 percent and 3 percent per 
year, respectively, whereas the normalized accident rate at RMP 
facilities nationwide declined by 3.3 percent per year. Regarding 
accident severity, EPA examined the impacts of RMP-reportable accidents 
in New Jersey over the same period and could discern no declining trend 
in accident severity in New Jersey. Based on this data analysis, EPA 
concluded the New Jersey and Massachusetts programs had not resulted in 
a reduction in either accident frequency or severity at RMP-regulated 
facilities subject to the provision, and therefore the costs were 
disproportionate to the benefits.
---------------------------------------------------------------------------

    \137\ EPA-HQ-OEM-2015-0725-2063.
---------------------------------------------------------------------------

    Comments provided by the New Jersey Department of Environmental 
Protection (NJDEP) point out information that questions the validity of 
these assumptions.\138\ First, EPA based its decision to rescind STAA 
requirements for NAICS codes 324 and 325 on accident information for 
all regulated NAICS codes, thereby applying assumptions based on 
analysis of all accidents, rather than analysis of NAICS 324 and 325 
specifically, to the subset of facilities it intended to regulate. 
Second, NJDEP points out that IST is only one measure to prevent 
accidental releases; therefore, the absence of a decrease in accidents 
should not be solely attributed to ineffectiveness of IST. NJDEP also 
points out that facilities with better accident investigation 
requirements and release reporting systems may be reporting more 
accidents than those without additional reporting programs. EPA 
believes these arguments apply to the 2019 Massachusetts analysis as 
well. EPA now acknowledges that applying a rate developed through 
analysis of all regulated facilities cannot be applied to the specific 
sectors that were selected for regulation (NAICS codes 324 and 325) as 
a conclusion based on comparing New Jersey's overall accident rate to 
the national overall accident rate is inconclusive about sectors that 
would have been subject to the RMP STAA requirement.
---------------------------------------------------------------------------

    \138\ EPA-HQ-OLEM-2021-0312-0039.
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    Additionally, EPA realizes it may have been important to consider 
that its conclusions were derived from analysis of a small number of 
accidents from a small sample size with a high degree of intra-year 
variability. For example, RMP

[[Page 53579]]

data from New Jersey \139\ demonstrate that the facility accident rates 
were 2 per 86 in 2008 and 2 per 80 in 2016, extrapolating a slope 
showing a 1.7 percent decrease per year. Yet accidents ranging from 0 
to 4 and demonstrating a high amount of intra-year variability are 
inconclusive. EPA examined data for NAICS 324 and 325--those proposed 
to be regulated in this action--and found similarly low accident counts 
(0 to 2 per year), prohibiting meaningful conclusions and leaving the 
Agency unable to determine if STAA provisions are ineffective. 
Therefore, EPA contends that it is more appropriate to emphasize in 
this rulemaking factors like the expert views of CSB and other 
researchers, case studies, and EPA's technical judgment rather than the 
analysis comparing accident rates under the New Jersey TCPA to national 
rates for RMP facilities that helped form the basis for rescinding STAA 
in the 2019 reconsideration rule. Finally, in proposing to reestablish 
STAA requirements for facilities in NAICS 324 and 325 located within 1 
mile of another NAICS 324 or 325 facility and those refineries with HF 
alkylation processes, EPA has determined that there are likely limited 
legitimate reliance interests associated with the 2019 reconsideration 
rule's elimination of these requirements. The compliance date for this 
requirement on affected facilities is proposed to be three years after 
this rule becomes final, which, based on EPA's announced plans in the 
Unified Regulatory Agenda, would be sometime in August 2026. For those 
sources who last performed a PHA prior to August 2021, they would be 
able to integrate STAA in their next PHA. For those performed since 
August 2021 and before this proposed rule (approximately one year), 
they would need to perform the STAA outside the normal PHA timeframe. 
This should be a relatively small number of facilities in part because 
of the limited applicability of the preferred approach and the pattern 
of years ending in 4s and 9s being the heaviest years for RMP 
submittals. Sources performing PHAs after this proposed notice are on 
notice of EPA's intent, so whatever reliance interest there was on the 
2019 reconsideration rule to this proposal should be minimal.
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    \139\ EPA-HQ-OEM-2015-0725-2063, p. 36.
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ix. STAA Technology Transfer
    Since the inception of RMP, the required elements of risk 
management plans have been a narrative executive summary and primarily 
fields of check boxes, dates, and numbers that summarize RMP rule 
compliance activities. The format facilitates electronic submission and 
data analysis. EPA established central processing and handling to 
relieve states of data handling burdens while also promoting easy 
access for stakeholders. As a result of legislation in 1999 and a 
general increase in security concerns post-September 11, 2001, portions 
of the risk management plan are restricted, either on a ``need to 
know'' basis (much of the release scenario information) or only 
released on compact discs/drives when requested through the Freedom of 
Information Act (FOIA). In practice, the minimal narrative in risk 
management plans and the restrictions on access to these plans have 
minimized the transfer of knowledge of successful accident prevention 
practices among all stakeholders (e.g., regulated industry, 
communities, labor, researchers, planners, responders).
    In the 2017 amendments rule, EPA added an STAA requirement to the 
PHA portion of the prevention program requirements for three industry 
sectors: petroleum refining (324), chemical manufacturing (325), and 
paper production (322). In addition to the previously existing 
requirement to report on any changes since the last PHA (40 CFR 
68.175(e)(6)), EPA added a requirement for sources to report on whether 
IST/ISD--one STAA technique--had been adopted since the last PHA, and 
if yes, to report on the broad technology category (i.e., chemical 
substitution or minimization, process simplification, and/or moderation 
of the process conditions). The 2019 final reconsideration rule 
eliminated the additional reporting requirement when EPA eliminated the 
STAA prevention provision. EPA is now proposing to reinstate the 
provisions to 40 CFR 68.175(e)(7) to report whether the current PHA 
addresses the STAA requirement proposed in 40 CFR 68.67(c)(9), whether 
any IST/ISD was implemented as a result of 40 CFR 68.67(c)(9)(ii), and 
if any IST/ISD was implemented, to identify the measure and technology 
category.
    During EPA's 2021 listening sessions and public comment period, 
some stakeholders supporting IST/ISD advocated for promoting better 
reporting and public availability of ``solutions data''--the successful 
practices companies are using to reduce and remove RMP chemical 
hazards--about IST/ISD and other measures adopted by sources to reduce 
risk. For example, a few advocacy groups expressed that solutions data 
should be incorporated into RMP by reporting it in risk management 
plans from STAAs, reporting it on RMP deregistration forms, including 
it in public meetings after incidents to address the best options at 
the top of the hierarchy of prevention, and compiling it into a hazard 
reduction clearinghouse, through which EPA could collect and 
disseminate lessons learned from successful industry practices.\140\ 
This sentiment was echoed by another advocacy group, which recommended 
that EPA ensure that facilities that are no longer regulated under RMP 
coordinate with regulatory agencies and share practices or approaches 
with other RMP facilities.\141\ These comments suggest ways of 
promoting accident prevention technology transfer and improving on not 
only the existing rule, but also the reporting provisions of the 2017 
amendments rule. EPA has examples of existing information centers which 
aggregate best practices, such as the Pollution Prevention Resource 
Exchange.\142\
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    \140\ EPA-HQ-OLEM-2021-0312-0014; 0058, 0148.
    \141\ EPA-HQ-OLEM-2021-0312-0149-18.
    \142\ EPA. Pollution Prevention Resource Exchange (P2RX). 
Available at: https://www.epa.gov/p2/pollution-prevention-resource-
exchange-
p2rx#:~:text=The%20Pollution%20Prevention%20Resource%20Exchange,and%2
0measured%20P2%20program%20results.
---------------------------------------------------------------------------

    EPA has included an outline of the potential information that would 
be collected from deregistering facilities as well as in the STAA 
documentation in Section 10 of the Technical Background Document. EPA 
intends for this not to be a cumbersome exercise, but rather, one that 
is based on information facilities likely already have, with EPA making 
it available for other industries to identify safer alternatives. EPA 
solicits comment on any additional information which would be useful 
for such a repository.
x. Alternative Options
    EPA considered other options and is seeking comment on these 
alternative approaches. In contrast to the 2017 amendments rule, EPA is 
not proposing to apply STAA to NAICS 322 (pulp mills) based on the 
smaller number of accidents at these facilities in the last 5 years (n 
= 20).\143\ EPA considered applying STAA requirements to facilities in 
NAICS 324 and 325 with a reportable accident within the last 5 years, 
estimating that this would apply to approximately 140 RMP facilities 
during their 5-year PHA schedule.
---------------------------------------------------------------------------

    \143\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    EPA also considered applying these provisions to all NAICS 324 and 
325

[[Page 53580]]

facilities, which would be similar to provisions promulgated in the 
2017 amendments rule and be estimated to apply to 1,660 active RMP 
facilities at least every 5 years. Given the high accident rates in 
NAICS 324 and 325 industries without considering proximity to other 
facilities, EPA solicits comment on whether the RMP rule should simply 
reinstate the 2017 rule provisions requiring STAA for NAICS 324 and 
325.
    As discussed above regarding recent public comments, EPA is aware 
that some commenters would like for all regulated facilities to 
implement inherently safer technologies. With respect to whether the 
Agency should require implementation of IST/ISD, in this rulemaking, 
EPA does not intend to require facilities implement identified IST. 
Instead, EPA has required evaluation of STAA as part of the PHA, as 
well as employee involvement in the STAA evaluation. EPA believes 
facility owners and operators will adopt IST and other safer technology 
alternatives when it is practicable technically and economically and 
when the risk reduction is significant even in the absence of a 
mandate. Part of the basis for this belief is due to most of the 
economic savings resulting from reduced accidents will be from reduced 
on-site property damage to the owner or operator's facility. However, 
EPA seeks comment on whether the Agency should require implementation 
of technically practicable IST/ISD and STAAs. With respect to whether 
all industries should be required to conduct STAA analysis or 
investigate ISTs, as discussed above, while in theory considering IST 
may reduce the probability of accidents, the accident history for most 
industries does not establish that IST would substantially reduce 
accident likelihood or impacts, and that EPA judges lack as many 
opportunities for STAA to successfully reduce accidents. To the extent 
that commenters have additional considerations relating to probability 
and the effectiveness of STAA provisions if extended to all industries, 
EPA requests commenters provide this information to EPA.
    In this proposed rulemaking, EPA is only requiring STAA in 
industries with the most frequent and severe accidents with offsite 
consequences. As discussed in section IV.A.2.v., above, EPA has 
identified densely co-located refineries and chemical manufacturing 
facilities (i.e., facilities with processes in NAICS 324 and 324 within 
1 mile of another facility with processes in these NAICS) as a class of 
facilities that present a heightened risk to nearby communities. EPA 
seeks comment on whether the proposal to limit the STAA provisions to 
324 and 325 regulated processes within 1 mile of another 324 and 325 
regulated facility is appropriate or if another distance would be 
appropriate; commenters should provide rationales for proposed distance 
alternatives. EPA also solicits comment on other industries for which 
STAA analysis should be required and seeks comment on how EPA might 
justify extending these provisions to other industries with fewer 
accidents.
    Finally, EPA considered requiring implementation of IST identified 
in the course of an STAA, both for the proposed regulated industries 
and for alternative options examined. The known costs of certain STAA 
changes range from less than $1,000 to over $100 million. For many 
significant STAA changes, the costs would be facility-specific, and EPA 
has little information on the potential costs of large STAA projects. 
Due to the uncertainty of STAA provision implementation, it is 
challenging to identify the benefits that offset implementation costs.
    Commenters have identified industries for which EPA should require 
the assessment and specifically suggested implementation of safer 
technologies for water treatment facilities; \144\ however, EPA is not 
requiring STAA analysis for water treatment facilities for specific 
reasons. EPA relies on two reasons for not requiring STAA analysis for 
water treatment facilities: our view that the probability of an 
incident is low, and our understanding that such a requirement would 
unreasonably burden State and local governments, especially when 
applied to existing sources. First, in evaluating the potential for 
large offsite consequences based on the numbers of persons potentially 
exposed, only one of 22 incidents in NAICS 2213 between 2016 and 2020 
reported an offsite impact: an evacuation of 125 people caused by an 
ammonia leak.\145\ Risk to communities is a function of probability, 
hazard, and exposure. Commenters who asked that the Agency mandate IST 
for water treatment facilities or at least an assessment have 
identified the number of persons potentially exposed in the event of an 
accidental release, but generally do not address the accident history 
data showing the low probability of an incident when discussing the 
risk to be addressed by requiring IST or STAA analysis at water 
treatment facilities. Second, most water treatment facilities are 
operated by local and State governments. When conducting discretionary 
rulemaking, EPA considers the costs to State and local governments. The 
benefits of requiring STAA for these facilities would have to be 
justified in relation to the costs and EPA needs more information on 
such costs before applying any requirements to these facilities. 
Therefore, EPA solicits comments on the actual and updated costs to 
government-owned water treatment facilities. Additionally, EPA solicits 
comments on a provision which would require consideration of ISD in the 
design of new water treatment facilities, when the costs of designing 
in safer technologies are recognized to be less than the cost of 
retrofitting existing facilities.
---------------------------------------------------------------------------

    \144\ EPA-HQ-OLEM-2021-0312-0014; 0017, 0039, 0149.
    \145\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022), Appendix A.
---------------------------------------------------------------------------

    EPA has used accident history data to provide insight into the 
probability with which these accidents have actually occurred to 
support requiring STAA analysis for portions of particular industries. 
However, EPA recognizes that substance and process-specific accident 
history may not always be an appropriate metric for probability of an 
accident or the risk communities face. For example, the consequences of 
an HF release are so potentially catastrophic, and with known 
alternatives existing, EPA has proposed that facilities with HF 
alkylation evaluate and document STAA as part of their PHA. In this 
case, EPA focused on numerous accidental releases that had the 
potential to cause a secondary release of HF from alkylation units 
rather than actual HF releases and their consequences. EPA solicits 
comment on what other information or consideration it can use to assess 
probability of an accident in other industries without substantial 
accident history data as well as what specific chemicals or process may 
merit the most focus, and how EPA may require STAA requirements for 
industries without a history of accidents.
xi. Proposed Revisions to Regulatory Text
    Definitions (40 CFR 68.3). EPA is proposing to add several 
definitions that relate to the STAA in 40 CFR 68.3. EPA is adding these 
definitions to describe risk reduction strategies that the owner or 
operator can use when considering safer technology and alternatives.
    First, EPA is proposing a similar definition for IST/ISD as in the 
2017 amendments rule. The proposed definition includes risk management 
measures that would eliminate, replace,

[[Page 53581]]

or reduce the use of regulated substances or make operating conditions 
less hazardous or less complex.
    As in the 2017 amendments rule, EPA is also proposing definitions 
for ``passive,'' ``active,'' and ``procedural'' measures. EPA proposes 
that ``passive measures'' (in 40 CFR 68.3) be defined as those that 
rely on measures that reduce a hazard without human, mechanical, or 
other energy input. EPA also proposes to define ``active measures'' as 
those that involve engineering controls that rely on mechanical, or 
other energy input to detect and respond to process deviations. 
Examples of active measures include alarms, safety instrumented 
systems, and detection hardware (e.g., hydrocarbon sensors). Lastly, 
EPA proposes a definition for ``procedural measures'' that includes 
policies, operating procedures, training, administrative controls, and 
emergency response actions to prevent or minimize incidents. Examples 
of procedural measures include administrative limits on process vessel 
fill levels and procedural steps taken to avoid releases.
    Finally, EPA is proposing to define ``practicability'' as the 
capability of being successfully accomplished within a reasonable time, 
accounting for technological, environmental, legal, social, and 
economic factors. EPA clarifies in this definition that environmental 
factors would include consideration of potential transferred risks for 
new risk reduction measures. EPA is not requiring owners or operators 
to implement identified IST/ISD. Although an owner or operator may 
choose not to implement a safer technology or design identified on 
account of its cost, EPA is proposing that the evaluation of 
practicability be first based on technological, environmental, legal, 
and social factors, with economic considerations evaluated last. EPA 
proposes that the practicability assessment be documented with the 
technological, environmental, legal, social and economic factors 
outlined, along with any methods or processes used to determine 
practicability.
xii. Process Hazard Analysis (40 CFR 68.67)
    EPA is proposing to modify the process hazard analysis (PHA) 
provisions by adding paragraph (c)(9) to 40 CFR 68.67 to require that 
the owner or operator of a facility with Program 3 processes in NAICS 
codes 324 and 325 located within 1 mile of another 324 and 325 
regulated facility address safer technology and alternative risk 
management measures applicable to eliminating or reducing risk from 
process hazards. EPA proposes that ``1 mile'' be interpreted to mean 
``1 mile to the nearest fenceline'' for a facility in NAICS 324 or 325. 
EPA is proposing to add paragraph (c)(9)(i) to specify that the 
analysis include, in the following order, IST or ISD, passive measures, 
active measures, and procedural measures. The owner or operator may 
evaluate a combination of risk management measures to reduce risk. By 
incorporating these requirements into the PHA, EPA proposes to require 
facilities to address STAA in processes that already exist, rather than 
only during the design phase. The results of the STAA must be 
documented as part of the current PHA provisions in 40 CFR 68.67(e), 
which require the owner or operator to document actions to be taken and 
resolution of recommendations. EPA is also proposing that a summary of 
this information be submitted to EPA as part of the STAA Technology 
Transfer section. Finally, EPA is proposing to add paragraph 
(c)(9)(iii) to require that the STAA team include and document the 
involvement of one member who works in the process and has expertise in 
the process being evaluated.
    EPA is also proposing to add paragraph (c)(9)(ii) to require that 
the owner or operator determine and document the practicability of the 
IST or ISD considered. EPA intends for this process to be separate and 
additional to the PHA requirements described above. EPA solicits 
comment on if it should only require the STAA as part of the PHA, 
without the additional practicability assessment.
    The PHA must be updated and revalidated at least every 5 years in 
accordance with paragraph 40 CFR 68.67(f). This provides the owner or 
operator opportunities to evaluate the practicability of IST or ISD 
considered since the last PHA review. EPA contends that 5-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 as a result of changes in cost and technology. EPA seeks 
comment on these proposed revisions.
b. Root Cause Analysis
    EPA is proposing to require all facilities with Program 2 and 3 
processes to conduct a root cause analysis as part of an incident 
investigation for an RMP-reportable accident as defined under 40 CFR 
68.42. This includes requiring the root cause analysis to include 
specific elements, requiring the use of a recognized investigation 
method, and requiring that investigations are completed within 12 
months. Based on RMP-reportable accidents from 2016 to 2020, EPA 
estimates this provision will apply to an average of 100 facilities per 
year.
    In the 2017 amendments rule, EPA amended 40 CFR 68.81 to add that 
incident investigations shall include ``the factors that contributed to 
the incident including the initiating event, direct and indirect 
contributing factors, and root causes'' and that ``root causes shall be 
determined by conducting an analysis for each incident using a 
recognized method.'' In the 2019 reconsideration rule, EPA rescinded 
the root cause analysis requirements, stating that EPA was ``unable to 
make a direct connection between the presence or absence of these 
provisions and a number of accidents prevented'' (84 FR 69834). EPA 
also stated that it did not rely exclusively on a comparison of costs 
and benefits to justify the rescission, but also acted to maintain 
consistency with the OSHA PSM standard. As a result of the 2019 removal 
of root cause analysis requirements, EPA's current causal incident 
investigation requirements under 40 CFR 68.60 and 68.81 require 
investigation into only ``the factors that contributed to the 
incident.''
    Since the 2019 reconsideration rule, EPA has coordinated with OSHA 
to ensure that any proposed incident investigation root cause analysis 
provisions do not contradict OSHA PSM requirements. In the 2019 
reconsideration rule, EPA also indicated that it had not conducted any 
overall analysis of data from RMP accident investigations conducted by 
regulated facilities to determine how well these investigations 
identified causes and contributing factors (84 FR 69834). However, this 
is in part because EPA has not required the investigation of root 
causes and therefore cannot analyze such data. EPA therefore revisited 
commenters' points concerning facilities with more than one accident. 
Updated analysis of EPA's RMP accident reporting data identified 
repeated accidents in facilities within the same process.\146\
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    \146\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    For the 2019 reconsideration rule, EPA relied upon data 
demonstrating that only a subset of facilities experience accidents. 
This holds true for the updated analysis, with only 3 percent (n = 382) 
of facilities between

[[Page 53582]]

2016 and 2020 reporting one RMP-reportable accident and 0.5 percent (n 
= 70) of all RMP facilities reporting two or more RMP-reportable 
accidents during that period. Among facilities reporting accidents, 
facilities who reported one often have multiple accidents, indicating a 
failure to properly address circumstances leading to subsequent 
accidents. For example, between 2016 and 2020, these facilities 
accounted for 36 percent (n = 176) of all accidents reported (n = 488). 
Additionally, of these 70 facilities, 61 percent (n = 43) had 
experienced another accident prior to 2016. Between 2004 and 2020, 18 
facilities had more than 10 accidents each, with two facilities 
reporting over 20 incidents each to EPA.\147\ These accidents may have 
been preventable if root cause analyses had been required. EPA believes 
multiple accidents result, in part, from a failure to thoroughly 
investigate and learn from prior accidents.
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    \147\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    Although EPA cannot be certain that in all cases, subsequent 
accidents are due to a failure to conduct a root cause analysis of an 
earlier incident, EPA finds that of the 70 facilities with multiple 
accidents between 2016 and 2020, 60 percent (n = 42) reported repeat 
causal factors within the same process.\148\ While this could be a 
failure to implement incident investigation findings or could be 
unrelated to the earlier incident, multiple accidents within the same 
process with the same causal factors indicate a likely failure to 
rectify prior failures and root causes of these incidents. EPA believes 
the occurrence of such subsequent incidents indicates an overall 
failure to identify and implement controls that may have prevented 
future incidents.
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    \148\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    In proposing to reestablish the root-cause analysis requirements, 
EPA has determined that there are likely no legitimate reliance 
interests associated with the 2019 reconsideration rule's elimination 
of these requirements. The 2019 rule has only been in place for three 
years and any accident investigation in the past, under way, or that 
otherwise would be required that predate the proposed rule will not 
have to be revised or changed in scope should EPA finalize the proposed 
change. Further, the burden of the proposed root cause analysis is 
relatively small. Few sources will have to conduct one because 
accidents occur at a small number of sources and many sources perform 
root cause analyses already in a manner consistent with industry or 
company protocols. The potential benefit from improved incident 
investigations is apparent from the significant percentage of sources 
and processes that have another accident after the first. Rather than 
relying on negotiations in enforcement actions as a basis for promoting 
root cause analyses as necessary under the approach of the 2019 
reconsideration rule, EPA believes the delays of negotiations and the 
transaction costs of such an approach, and the benefit of a root cause 
approach to incident investigations, makes it more prudent and 
reasonable to impose a rule requirement for root cause analysis in 
incident investigations rather than the approach adopted in 2019.
i. Root Cause Analysis Background
    EPA discussed root cause analysis at length in the 2016 proposed 
amendments. As discussed, CCPS defines root cause analysis as: ``A 
formal investigation method that attempts to identify and address the 
management system failures that led to an incident. These root causes 
often are the causes, or potential causes, of other seemingly unrelated 
incidents. Root cause analysis identifies the underlying reasons the 
event was allowed to occur so that workable corrective actions can be 
implemented to help prevent recurrence of the event (or occurrence of 
similar events).'' \149\ EPA also discussed that causes of incidents 
are commonly referred to as ``causal factors'' (also known as 
contributing causes, contributory causes, contributing factors, or 
critical factors). CCPS defines a causal factor as a ``major unplanned, 
unintended contributor to an incident (a negative event or undesirable 
condition), that if eliminated would have either prevented the 
occurrence of the incident or reduced its severity or frequency.'' 
\150\ Causal or contributing factors usually have underlying reasons 
for why they occurred, which are known as ``root causes.'' CCPS defines 
a root cause as a ``fundamental, underlying, system-related reason why 
an incident occurred that identifies a correctable failure(s) in 
management systems.'' \151\ EPA proposed that root causes shall be 
determined by conducting a root cause analysis for each incident using 
a recognized method or approach. CCPS' ``Guidelines for Investigating 
Chemical Process Incidents'' discusses incident investigation 
approaches and techniques and root cause analysis methods.\152\
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    \149\ CCPS, ``Root Cause Analysis (RCA),'' accessed February 15, 
2022, https://www.aiche.org/ccps/resources/glossary/process-safety-glossary/root-cause-analysis-rca.
    \150\ CCPS, Guidelines for Investigating Process Safety 
Incidents, 3rd Edition (2019).
    \151\ CCPS, Guidelines for Investigating Process Safety 
Incidents, 3rd Edition (2019).
    \152\ CCPS, Guidelines for Investigating Process Safety 
Incidents, 3rd Edition (2019).
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    EPA previously discussed that identifying and addressing incident 
contributing factors and their root causes helps eliminate or 
substantially reduce the risk of reoccurrence of the incident and other 
similar incidents, citing notable incidents that CSB investigated. 
These CSB investigations of the 2004 Formosa Plastics Corporation 
incident,\153\ the 2005 BP Texas City Refinery incidents,\154\ and the 
2010 Millard Refrigerated Services incident \155\ found that root 
causes of prior, similar incidents were not identified, a lack that 
contributed to subsequent incidents.
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    \153\ CSB, ``Formosa Plastics Vinyl Chloride Explosion,'' last 
modified March 6, 2007, https://www.csb.gov/formosa-plastics-vinyl-chloride-explosion/.
    \154\ CSB, ``BP America Refinery Explosion,'' last modified 
March 20, 2007, https://www.csb.gov/bp-america-refinery-explosion/.
    \155\ CSB, ``Millard Refrigerated Services Ammonia Release,'' 
last modified January 15, 2015, https://www.csb.gov/millard-refrigerated-services-ammonia-release/.
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    In the 2016 proposed amendments, EPA also discussed that root cause 
analysis of accidents is an accepted safe management practice used by 
many industries, noting that the American Chemistry Council (ACC) 
conducts root cause analyses as part of its Responsible Care 
program.\156\ In addition, New Jersey's TCPA,\157\ as well as 
California's PSM for Refineries,\158\ Contra Costa County Health 
Services,\159\ and the City of Richmond, California, Industrial Safety 
Ordinances, already require root cause analyses for major chemical 
accidents.\160\
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    \156\ EPA-HQ-OEM-2014-0328-0694.
    \157\ NJDEP, Toxic Catastrophe Prevention Act Program, TCPA 
Program Consolidated Rule Document, section 68.42 (February 1, 
2016), p. 38, https://www.nj.gov/dep/rules/rules/njac7_31_consolidated.pdf.
    \158\ California General Industry Safety Orders, Process Safety 
Management for Petroleum Refineries, General Industry Safety Orders 
section 5189.1(o) (2017).
    \159\ Contra Costa County, Chapter 450-8--Risk Management, Ord. 
98-48 (1998), https://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
    \160\ City of Richmond, California, Chapter 6.43--Industrial 
Safety (2016), https://cchealth.org/hazmat/pdf/iso/RISO-Chapter-6-43-INDUSTRIAL-SAFETY.pdf.

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[[Page 53583]]

ii. Recent Public Comments on Root Cause Analysis
    EPA received comments on root cause analysis during its 2021 
listening sessions. For instance, a labor organization expressed 
support for requiring RMP facilities to conduct root cause analyses as 
part of incident investigations, as root cause analyses can prevent 
similar events from occurring; this commenter suggested that a lot can 
be learned from near misses and smaller incidents.\161\ The commenter 
suggested that the definition of ``root cause'' could be revised to 
read, ``a fundamental, underlying, system-related reason why an 
incident occurred that identifies a correctable failure(s) in 
management systems or process design.'' The commenter also suggested 
that EPA should implement a timeline for near-miss investigations, 
requiring initiation of the incident investigation within 48 hours of 
an incident, a preliminary report within 90 days, and a final report 
within 6 months. Further, the commenter suggested that EPA require 
incident investigation teams including experts involved in the process 
and the root cause analysis method, as well as employees and their 
representatives and applicable contractors. Similarly, an advocacy 
group suggested that the incident investigation should be completed 
within 12 months of the incident.\162\ The advocacy group went on to 
conclude that incident investigations should include a root cause 
analysis, and that facilities should investigate near misses as well as 
accidents where the affected process was decommissioned or destroyed. 
Another commenter stated that owners or operators should report serious 
near misses to EPA and that these incidents should be compiled in a 
publicly available online database.\163\
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    \161\ EPA-HQ-OLEM-2021-0312-0057.
    \162\ EPA-HQ-OLEM-2021-0312-0170.
    \163\ EPA-HQ-OLEM-2021-0312-0076.
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    EPA also received comments that did not support root cause analysis 
provisions. A regional industry trade association expressed concern 
about the ``near-miss'' standard of the root cause analysis.\164\ This 
commenter stated that the quality of safety reviews under the 2017 
amendments rule could be diluted by applying them to high-frequency, 
low-consequence events. The commenter also stated that the near-miss 
requirement would impose significant administrative burdens and 
economic costs on regulated facilities, especially without a clear 
threshold for a near-miss event. The commenter requested that EPA not 
adopt this proposal from the 2017 amendments rule. Similarly, another 
industry trade association stated that facilities do not benefit from a 
burdensome, one-size-fits-all requirement.\165\ This commenter went on 
to say that near-miss incidents are often examples of active process 
protections working as designed and requiring a root cause analysis of 
near-miss events would create a disincentive for reporting. An industry 
trade association stated that the root cause analysis under the 2017 
amendments rule is duplicative of the root cause analysis conducted for 
incident investigations under OSHA PSM regulations, as well as some 
State regulations.\166\ An individual commenter also expressed general 
opposition to the root cause analysis requirement, stating that most 
companies already have a tiered process for conducting incident 
investigations--including root cause analyses--and that the size of the 
investigation should match the size of the incident.\167\ Meanwhile, an 
industry trade association stated that EPA's definition of ``root 
cause'' in 2017 was too narrow and would potentially exclude non-
system-related root causes, such as human error.\168\ Another industry 
trade association stated that requiring an incident investigation 
before ``de-registering'' a process would provide no benefit.\169\
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    \164\ EPA-HQ-OLEM-2021-0312-0037.
    \165\ EPA-HQ-OLEM-2021-0312-0078.
    \166\ EPA-HQ-OLEM-2021-0312-0045.
    \167\ EPA-HQ-OLEM-2021-0312-0050.
    \168\ EPA-HQ-OLEM-2021-0312-0071.
    \169\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Investigation Timeframe
    In the 2017 amendments rule, EPA discussed that conducting incident 
investigations as soon as possible after an incident may yield better 
quality data and information, although it may take time to collect, 
validate, and integrate data from a range of sources. EPA has 
discovered situations where owners or operators of regulated facilities 
indefinitely delayed completing incident investigations.
    EPA's own experience with accident investigation has shown that a 
major accident investigation can take up to a year, or even longer. 
Taking into consideration the need to complete an investigation while 
allowing the proper time to determine the correct root causes, EPA is 
again proposing to require that facility owners or operators complete 
an incident investigation report as soon as reasonably practicable, but 
no later than 12 months after an RMP-reportable accident. For very 
complex incident investigations that cannot be completed within 12 
months, EPA is allowing an extension of time if the implementing agency 
(i.e., EPA and delegated authorities) approves the extension in 
writing. EPA believes that 12 months is long enough to complete most 
complex accident investigations but will allow facilities more time if 
they consult with their implementing agency and receive approval for an 
extension.
    In the 2017 amendments rule, EPA noted that the Agency's own 
requirements under the Petroleum Refinery Maximum Achievable Control 
Technology (MACT) and New Source Performance Standards (NSPS) 
regulations already require root cause and corrective action analyses 
for certain release events \170\ with a more stringent timeframe (i.e., 
45 days) for completing these analyses than the 12 months specified in 
this proposed rule. RMP-regulated facilities that are also required to 
meet the MACT and NSPS root cause analysis requirements must continue 
to meet the timeframes specified under those rules, as applicable. EPA 
again proposes that root cause analyses conducted to meet those 
requirements may also be used to comply with the root cause analysis 
requirements proposed herein, provided that the analysis meets the 
requirements of 40 CFR 68.60 or 68.81. EPA did not receive substantive 
comments on this provision, but again invites comments on this 
approach.
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    \170\ 40 CFR 63.648(j)(6) and (j)(7)), and 40 CFR 60.103a(d).
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iv. Proposed Revisions to Regulatory Text
    EPA is proposing to define ``root cause'' as a fundamental, 
underlying, system-related reason why an incident occurred. For 
incidents that meet the accident history reporting requirements under 
40 CFR 68.42, EPA is also proposing to amend 40 CFR 68.81 and 68.60 to 
require the owner or operator to investigate the factors that 
contributed to an incident. In the proposed amendment, these factors 
will now include root causes, and these root causes shall be determined 
by conducting an analysis for each incident using a recognized method 
(such as CCPS). EPA is also amending both 40 CFR 68.81 and 68.60 to 
require that a report be prepared at the conclusion of the 
investigation and completed within 12 months of the incident (though it 
will allow for facility owners or operators to request an extension 
from the implementing agency).

[[Page 53584]]

v. ``Near Miss'' Definition
    In the 2017 amendments rule, EPA considered, but elected not to 
finalize, a regulatory definition of ``near miss'' to identify 
incidents that require investigation. At the time, EPA stated that the 
criteria for determining incidents that require investigation would 
continue to include events that ``could reasonably have resulted in a 
catastrophic release.'' As discussed, adding the term ``near miss'' was 
not intended to expand the types of incidents required to be 
investigated, but rather, was intended as a clarification of incidents 
that may have reasonably resulted in a catastrophic release and were 
already required to be investigated. EPA notes that even without a 
``near miss'' definition, these incidents are still currently required 
to be investigated. EPA also notes that the definition of ``near 
miss,'' as described here, is unrelated to the root cause analysis 
provisions described above; 40 CFR 68.42 criteria would not be 
applicable to near misses. EPA may ultimately believe that adding a 
definition of a ``near miss'' may help clarify incident investigation 
requirements overall. During the 2017 rulemaking, however, comments 
demonstrated that adding the ``near miss'' definition as discussed at 
that time instead resulted in confusion about incident investigation 
requirements.
    EPA is not proposing a definition of ``near miss'' as part of this 
rulemaking. Nevertheless, it solicits comments on a potential 
definition of ``near miss'' that would address difficulties in 
identifying the variety of incidents that may occur at RMP facilities 
that could be near misses that should be investigated. For example, 
CCPS defines a ``near miss,'' as ``an incident in which an adverse 
consequence could potentially have resulted if circumstances (weather 
conditions, process safeguard response, adherence to procedure, etc.) 
had been slightly different.'' \171\ During the 2019 proposed RMP 
reconsideration rule comment period, NJDEP provided recommended draft 
text for 40 CFR 68.81 that would require investigation of all 
accidental releases and near misses (instead of incidents that resulted 
in or could reasonably have resulted in a catastrophic release) and 
included a definition of ``near miss'' to mean ``an unplanned, 
unforeseen, or unintended incident, situation, condition, or set of 
circumstances which does not directly or indirectly result in a 
regulated substance release. Examples of a near miss include, but are 
not limited to, 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. A near miss also 
includes an incident at a nearby process or equipment outside of a 
regulated process if the incident had the potential to cause an 
unplanned, unforeseen, or unintended incident, situation, condition, or 
set of circumstances at the regulated process.'' \172\ EPA solicits 
comments on a universal ``near miss'' definition, as well as comments 
on strengths and limitations of the definition provided by NJDEP and 
how the definition may clarify requirements for incident 
investigations. Based on these comments, in a future rulemaking, EPA 
may propose a definition of ``near miss.''
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    \171\ CCPS, Guidelines for Investigating Process Safety 
Incidents, 3rd Edition (2019).
    \172\ EPA-HQ-OEM-2015-0725-0973.
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c. Third-Party Compliance Audits
    Section IV.A.2.b of this preamble, ``root cause analysis,'' 
explains that incident investigations following an accident often 
reveal multiple causal factors related to prevention program elements. 
However, incident investigations generally evaluate only the affected 
process; they do not necessarily address all covered processes \173\ at 
a facility or even all prevention program elements for the affected 
process. EPA expects that the proposed requirement to conduct a formal 
root cause analysis after an RMP-reportable accident will be helpful to 
ensure deficient prevention program areas are thoroughly investigated 
for the specific covered processes involved in the accident.
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    \173\ See 2019 RMP reconsideration rule discussion of 
``representative sampling'' to satisfy compliance audit evaluation 
of multiple processes, 84 FR 69882-69883.
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    Compliance audits, in contrast, help to ensure a systematic 
evaluation of the full prevention program for all covered processes. 
EPA's RMP general guidance explains, ``A compliance audit is a way for 
you to evaluate and measure the effectiveness of your risk management 
program. An audit reviews each of the prevention program elements to 
ensure that they are up-to-date and are being implemented and will help 
you identify problem areas and take corrective actions.'' \174\
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    \174\ EPA, General Risk Management Program, Ch. 6: Prevention 
Programs (2012), p. 6-24, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
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    As discussed in the 2019 reconsideration rule, EPA recognizes that 
a relatively small number of RMP-regulated facilities have RMP-
reportable accidents. However, EPA continues to be concerned with RMP 
facilities that--despite current RMP regulations, enforcement, and 
lessons learned from previous accidents--continue to have accidents 
and, in some cases, multiple accidents. EPA RMP accident history data 
show that while 97 percent of all RMP facilities had no RMP-reportable 
accidents from 2016-2020, 3 percent of all RMP facilities had at least 
one RMP-reportable accident and 0.5 percent of all RMP facilities had 
two or more RMP-reportable accidents. Facilities responsible for two or 
more accidents in those 5 years generally were within industry sectors 
where regulated facilities have multiple RMP-regulated processes. RMP 
facilities within the chemical manufacturing (NAICS 325) and petroleum 
and coal products manufacturing (NAICS 324) industries represent over 
50 percent of the facilities with two or more accidents in 5 years, and 
they have on average two and eight RMP-regulated processes, 
respectively, at their facilities.\175\ When RMP facilities have 
multiple accidents within a 5-year period, EPA is concerned that those 
facilities have not been able to identify measures on their own 
(through incident investigations, hazard evaluations, and compliance 
self-audits) to properly evaluate and apply appropriate prevention 
program measures to stop accidents from occurring.
---------------------------------------------------------------------------

    \175\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    EPA also has similar concerns for facilities with NAICS code 324 
and 325 Program 3 processes that have had one RMP-reportable accident 
and are located within a 1-mile radius of another 324 and 325 regulated 
facility. EPA discusses the increased accident severity, frequency, and 
consequences for these facilities in the STAA section (IV.A.2.a) of 
this preamble. Between 2016 and 2020, 66 accidents occurred among 
facilities in NAICS codes 324 and 325 located within 1 mile of another 
324 or 325 facility.\176\
---------------------------------------------------------------------------

    \176\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    Stationary sources that have had multiple accidents within a short 
period; substantial non-compliance with RMP requirements; and/or high 
accident

[[Page 53585]]

severity, frequency, and consequences pose a greater risk to 
surrounding communities. EPA therefore believes it is appropriate to 
require such stationary sources to undergo auditing by competent and 
independent third-party auditors.
i. Third-Party Compliance Audits in Previous RMP Rulemakings
    EPA discussed third-party compliance audits at length in the 2016 
proposed amendments. EPA discussed that self-auditing may be 
insufficient to prevent accidents, determine compliance with the RMP 
rule's prevention program requirements, and ensure safe operation. In 
the preamble to the 1996 RMP rule, EPA identified the potential to use 
independent third-party auditors for RMP compliance audits as an issue 
for further consideration. In the 2016 proposed amendments, EPA 
explained that poor compliance audits have been cited by EPA and CSB as 
a contributing factor to the severity of past chemical accidents and 
that in some cases, EPA has required third-party audits in enforcement 
settlement agreements.
    The 2016 proposed amendments noted that other Federal programs 
require third-party audits in existing rules to ensure safe operations. 
The Administrative Conference of the United States' ``Third-Party 
Programs Final Report'' (October 22, 2012) describes a variety of 
third-party programs in Food and Drug Administration, Consumer Product 
Safety Commission, and Federal Communications Commission 
regulations.\177\ The Bureau of Safety and Environmental Enforcement 
(BSEE) also promulgated revisions to their Safety and Environmental 
Management Systems (SEMS II) requirements (78 FR 20423, April 5, 2013) 
to help ensure the safe operations of offshore oil and natural gas 
drilling and production facilities.
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    \177\ McCallister, Lesley. October 22, 2012. Third-Party 
Programs Final Report (2012). https://www.acus.gov/report/third-party-programs-final-report.
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    The 2016 proposed amendments also discussed how industry recognizes 
the benefits of third-party auditing programs and has established 
programs and standards for third-party audits for some types of 
operations, many of which are also subject to the RMP rule. Some of 
these programs still in use are:
     National Association of Chemical Distributors (NACD)--
Responsible Distribution.\178\
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    \178\ National Association of Chemical Distributors, ``About 
Responsible Distribution,'' accessed February 15, 2022, https://www.nacd.com/responsible-distribution/about-responsible-distribution/.
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     ACC--Responsible Care program.\179\
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    \179\ ACC, ``Responsible Care[supreg]: Driving Safety & Industry 
Performance,'' accessed February 15, 2022, https://www.americanchemistry.com/chemistry-in-america/responsible-care-driving-safety-industry-performance?gclid=EAIaIQobChMIov_h7qbw9QIVj67ICh3g5guDEAAYASAAEgLHCfD_BwE.
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     API--Process Safety Site Assessments.\180\
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    \180\ API, ``Process Safety Site Assessments (PSSAP[supreg]),'' 
accessed February 15, 2022, https://www.api.org/products-and-services/site-safety.
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     Society of Chemical Manufacturers & Affiliates (SOCMA)--
ChemStewards program.\181\
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    \181\ Society of Chemical Manufacturers & Affiliates (SOCMA), 
``SOCMA'S ChemStewards[supreg] Program,'' accessed February 15, 
2022, https://www.socma.org/operations-manufacturing/chemstewards/.
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    In the 2017 amendments rule, EPA added compliance audit provisions 
under 40 CFR 68.58 and 68.79 to require independent third-party 
compliance audits after an RMP-reportable accident or findings of 
significant non-compliance by an implementing agency for facilities 
with Program 2 and Program 3 processes. EPA explained that independent 
third-party auditing can assist owners and operators, EPA (or the 
implementing agency), and the public to better determine whether the 
procedures and practices developed by owners or operators for the 
prevention program requirements are adequate and being followed.
    The 2019 reconsideration rule rescinded the third-party compliance 
audit requirements. EPA's decision to rescind the third-party audit 
requirements was to ``allow for coordination of process safety 
requirements with OSHA before proposing future regulatory changes, and 
to reduce unnecessary regulatory costs and burdens of a broad rule-
based approach to third-party audits rather than a case-by-case 
approach (84 FR 69875)''; it was not based on a determination that 
third-party audits are not beneficial or justified in certain cases. In 
the 2019 reconsideration rule, EPA further indicated that ``while EPA 
cannot inspect every RMP facility every year, the Agency performs 
approximately 300 RMP facility inspections each year and prioritizes 
inspections at facilities that have had accidental releases. Therefore, 
EPA's enforcement resources and posture are capable of addressing 
accident-prone facilities without additional broad regulatory mandates. 
The Agency's choice to use a more surgical approach to accident 
prevention at these facilities is reasonable and practicable (84 FR 
69853).''
    In proposing to reestablish third-party compliance audits, EPA has 
determined that there are likely no legitimate reliance interests 
associated with the 2019 reconsideration rule's elimination of these 
requirements. Similar to the possible reliance interests regarding root 
cause analysis, the 2019 rule has only been in place for three years, 
and any compliance audit in the past, under way, or that otherwise 
would be required that predate the proposed rule will not have to be 
revised or changed in scope should EPA finalize the proposed change. 
Since the 2019 reconsideration rule, EPA has coordinated with OSHA to 
ensure that any proposed third-party compliance audit provisions do not 
contradict OSHA PSM requirements. The Agency continues to require third 
parties to conduct compliance audits for the settlement of some RMP 
civil enforcement cases. Facilities in those cases are often required 
to also comply with the OSHA PSM standard, and conflicts between the 
third-party audit provisions of settlement agreements and the 
compliance self-auditing requirements of the PSM standard have not 
arisen with OSHA.^{182 183 184} The Agency now recognizes that 
there are some impracticalities of relying on EPA inspections, 
particularly in the wake of the COVID-19 pandemic and in consideration 
of the long time period over which some enforcement matters are 
settled. EPA realizes that a better approach is to be more proactive 
with respect to prevention and aim to prevent further accidents at 
facilities, particularly facilities that have proven to be accident-
prone.
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    \182\ United States of America v. Harcros Chemicals Inc, No. 
2:17-cv-02432, Document 3-1 (January 31, 2017), https://www.justice.gov/enrd/consent-decree/file/1280071/download.
    \183\ United States of America and the State of Kansas, ex rel. 
Kansas Department of Health and Environment v. HollyFrontier El 
Dorado Refining LLC, No. 2:20-cv-02270, Document 1 (May 28, 2020), 
https://www.justice.gov/opa/press-release/file/985591/download.
    \184\ United States of America v. Formosa Plastics Corporation, 
Texas, No. 6:21-cv-00043, Document 2-1 (September 13, 2021), https://www.justice.gov/opa/press-release/file/1432401/download.
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ii. Recent Public Input on Third-Party Compliance Audits
    Commenters provided feedback on third-party audits during the two 
2021 listening sessions and in written comments submitted in response 
to an associated request for comments.
    Several commenters expressed general support for the third-party 
audit requirement of the 2017 amendments

[[Page 53586]]

rule.\185\ A labor organization expressed support for requiring third-
party audits after an accidental release or discovery of significant 
non-compliance. The commenter stated that these audits are critical to 
protecting high-risk facilities and suggested that EPA ensure these 
audits are not used to merely satisfy a requirement. The commenter also 
suggested that EPA require auditors to be accredited by an auditing 
accreditation organization and prohibit auditors from developing 
relationships with facilities.\186\ Another individual commenter 
supported including a requirement for third-party audits in the RMP 
rule and said that auditors should engage with employees and their 
representatives to become more familiar with the facilities; this 
commenter also suggested that auditors should include comments provided 
by employee representatives in the draft and final audit report.\187\ 
Another commenter suggested that it is feasible to train engineers and 
chemists to be auditors so that they ensure industry standard practices 
are being followed, but noted that there should not be a ``revolving 
door'' between auditors and industry employees.\188\
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    \185\ EPA-HQ-OLEM-2021-0312-0170; 0057, 0076.
    \186\ EPA-HQ-OLEM-2021-0312-0057.
    \187\ EPA-HQ-OLEM-2021-0312-0076.
    \188\ EPA-HQ-OLEM-2021-0312-0383-2.
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    Several commenters expressed opposition to the third-party audit 
requirement of the 2017 amendments rule. An industry trade association 
stated that the third-party audit requirement is not realistic, would 
not support better audits of RMP facilities, and would potentially 
``degrade rather than improve safety.'' \189\ This commenter and others 
expressed concern about the potential costs and availability of third-
party auditors.\190\ One commenter stated that the industry would be 
subject to third-party consultant pricing demands, as well as 
administrative and recordkeeping burdens. The commenter stressed that 
third-party auditors may be unacquainted with certain processes, 
industries, or businesses, and argued that the 3-year disqualifier for 
auditors who have conducted past research, development, or consulting 
with the owner or operator of a facility is unrealistic, overly 
restrictive, and especially difficult for facilities in more rural 
areas.\191\
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    \189\ EPA-HQ-OLEM-2021-0312-0037.
    \190\ EPA-HQ-OLEM-2021-0312-0037; 0077.
    \191\ EPA-HQ-OLEM-2021-0312-0037.
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    Other commenters, including industry trade associations and an 
individual commenter, expressed concerns about the auditors' lack of 
industry and process knowledge.\192\ An industry trade association said 
that the audit teams at facilities are highly trained and report 
directly to a chief executive officer. These teams visit different 
facilities under one company and transfer safety knowledge from one 
facility to another without concerns about disclosing confidential 
information. The commenter explained that the potential disclosure of 
confidential information would be a concern with independent third-
party auditors who observe production processes at many 
facilities.\193\ Another industry trade association expressed 
agreement, saying that independent auditors do not hold certain 
industry knowledge and cannot be trusted.\194\ Another industry trade 
association said that because the audit mandate would not enhance 
chemical safety at facilities, it supported EPA's decision to rescind 
this provision in 2019. This commenter suggested that EPA use its own 
inspection powers to better enforce auditing practices at facilities, 
focusing on facilities responsible for the majority of the 
accidents.\195\ Another industry trade association stated that 
requiring a third-party audit after a release would be redundant due to 
the current requirement to perform a root cause analysis.\196\ The 
industry trade association further commented that requiring a 
compliance audit for each covered process every 3 years under Program 2 
and Program 3 would impose substantial burdens and cause inefficiencies 
and operation disruptions.
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    \192\ EPA-HQ-OLEM-2021-0312-0077; 0045, 0050, 0071.
    \193\ EPA-HQ-OLEM-2021-0312-0045.
    \194\ EPA-HQ-OLEM-2021-0312-0071.
    \195\ EPA-HQ-OLEM-2021-0312-0077.
    \196\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Proposed Third-Party Compliance Audit Requirements
    2017 provisions. EPA is proposing to adopt the independent third-
party compliance audit provisions as outlined in the 2017 amendments 
rule with modifications to account for EPA's recent review of the 
current RMP rule, which included data analyses and solicitation of 
comments. The proposed provisions for this action reflect that the most 
accident-prone facilities have not been able to properly evaluate and 
apply appropriate prevention program measures to regulated processes to 
stop accidents from occurring and that the availability of some 
qualified third-party auditors may be limited.
    EPA is proposing to use the same definition of ``third-party 
audit'' as in 40 CFR 68.3 in the 2017 amendments rule. Regarding when a 
third-party audit must be performed, EPA is proposing to modify the 
first condition from the 2017 amendments rule (at 40 CFR 68.58 and 
68.79) that requires a third-party audit after one accidental release 
meeting the criteria in 68.42, instead requiring it after two 
accidental releases within a 5-year period. Based on RMP-reportable 
accidents from 2016 to 2020, EPA estimates this will apply to an 
average of 70 facilities. Additionally, EPA is proposing to require all 
facilities with regulated NAICS code 324 and 325 Program 3 processes 
that have had one RMP-reportable accident and are located within a 1-
mile radius of another facility with a regulated NAICS code 324 and 325 
process to conduct a third-party audit after one accident. EPA 
discusses the increased accident severity, frequency, and consequences 
for these facilities in the STAA section (IV.A.2.a) of this preamble. 
Between 2016 and 2020, 66 accidents occurred among facilities in NAICS 
codes 324 and 325 located within 1 mile of another 324 or 325 
facility.\197\
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    \197\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    Regarding requirements for third-party auditors and third-party 
audits in new sections 68.59 and 68.80, EPA is proposing to restore the 
provisions from the 2017 amendments rule but remove the following 
auditor independence requirements contained in 40 CFR 68.59 and 
68.80(c)(2)(iii) and (iv) to allow more flexibility in choosing 
auditors:
     Auditors cannot have conducted past research, development, 
design, construction services, or consulting for the owner or operator 
within the last 2 years.
     Auditors cannot provide other business or consulting 
services to the owner or operator, including advice or assistance to 
implement the findings or recommendations of an audit report, for a 
period of at least 2 years following submission of the final audit 
report.
    As noted earlier in this section, several trade associations in the 
chemical manufacturing and petroleum refining industries have third-
party auditing as part of their industry programs on process safety 
(NACD, ACC, API, SOCMA). For owners and operators with processes in 
NAICS codes 324 and 325, the Agency expects that there would be ample 
auditors experienced in the relevant industries and knowledgeable of 
the processes available for sources in these particular NAICS codes. 
The 2017 final RMP

[[Page 53587]]

amendments approach to the independence criteria assumed that the RMP 
rule would establish a market for parties meeting the more stringent 
independence criteria, but the Agency's approach now is to be more 
flexible and take the market as it is and to better recognize within 
the rule structure the voluntary measures of industry. EPA solicits 
comment on this proposed independence criterion modified from the 2017 
rule. EPA also seeks comment on whether the selected auditor should be 
mutually approved by the owner or operator and employees and their 
representatives, and if direct participation from employees and their 
representative should be required when the third party conducts the 
audit.
    EPA contends that the remaining third-party compliance audit 
provisions, when restored, will help ensure that owners and operators 
of RMP facilities without strong prevention programs objectively and 
adequately explore all opportunities to prevent or minimize accidental 
releases of regulated substances to protect human health and the 
environment.
    Third-Party-Issued Compliance Audit Findings Information 
Availability. As discussed in section IV.A.1.e of this preamble, 
ensuring that communities, local planners, local first responders, and 
the public have appropriate chemical facility hazard-related 
information is critical to the health and safety of responders and the 
local community. EPA is proposing ways to enhance information sharing 
and collaboration between chemical facility owners and operators, 
LEPCs/TEPCs, first responders, and the public in a manner that EPA 
believes balances security and proprietary considerations with the need 
for public and local responder information availability. In addition to 
the information availability provisions in section IV.C of this 
preamble, EPA is proposing to require facilities conducting third-party 
compliance audits for the proposed provisions under 40 CFR 68.58, 
68.79, 68.59 and 68.80 to list in section 7 (Program 3) and section 8 
(Program 2) of their risk management plans, for each process, findings 
resulting from the audit that the owner or operator chooses to decline. 
EPA realizes that the number of third-party-issued findings may vary 
widely, depending on the complexity of the process or facility. 
Therefore, as in section IV.A.1.e of this preamble, EPA seeks comments 
on the format of listing the findings--whether EPA should require 
findings to be included in narrative form, or whether the Agency should 
provide specific categories of findings for facilities to choose from 
when reporting. Another option would be to allow the owner or operator 
to post this information online and provide a link to the information 
within their risk management plan.
    EPA is also proposing to adopt the same categories outlined in 
section IV.A.1.e of this preamble for owners and operators to justify 
declined third-party-issued compliance audit findings. EPA seeks public 
comment on this approach and on alternative categories or methods for 
providing justification for declining relevant findings. EPA wants to 
ensure a balanced approach to providing beneficial data to the public 
as well as a straightforward method of reporting for facility owners 
and operators.
d. Employee Participation
i. Introduction
    Employees directly involved in operating and maintaining a process 
are most exposed to its hazards. These same employees are typically the 
most knowledgeable about the daily requirements for safely operating 
the process and maintaining process equipment; they may sometimes be 
the only source of process-specific knowledge--knowledge that has been 
gained through their unique experiences. Their direct participation and 
involvement in ensuring and enhancing the safety of process operations 
are often essential to protecting their own welfare.^{198 199} 
Such actions help keep communities safe as well. A long-standing 
premise of the RMP rule is that actions that promote worker safety as 
part of a well-designed process safety system generally help protect 
the public and the environment.\200\
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    \198\ CCPS, ``Introduction to Workforce Involvement,'' accessed 
February 3, 2022, https://www.aiche.org/ccps/introduction-workforce-involvement.
    \199\ CCPS, Guidelines for Risk Based Process Safety (March 
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety, p. 47.
    \200\ See EPA, Accidental Release Prevention Requirements: Risk 
Management Programs Under Clean Air Act Section 112(r)(7), 61 FR 
31687 (June 20, 1996).
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    Employee participation is a key element of a company's commitment 
to process safety. The CCPS's ``Guidelines for Risk Based Process 
Safety'' \201\ outlines how to design and implement--or further correct 
and improve--effective PSM practices to prevent accidents based on 
process risks. It identifies essential characteristics of strong 
commitment to employee participation such as:
---------------------------------------------------------------------------

    \201\ CCPS, Guidelines for Risk Based Process Safety (March 
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
---------------------------------------------------------------------------

     Empowering individuals to successfully fulfill their 
safety responsibilities.
     Deferring to expertise.
     Ensuring open and effective communication.
     Fostering mutual trust.
     Providing timely responses to process safety issues and 
concerns.
    Employee participation and a company's commitment to process safety 
can be critical to preventing accidents. CSB recently identified 
ineffective worker participation as a contributing factor to certain 
catastrophic accidents because workers and their representatives were 
not properly engaged in process operations to help identify and 
mitigate hazards and reduce risks. To highlight this issue, in 
September 2019, CSB published ``Safety Digest: The Importance of Worker 
Participation.'' \202\ The digest discusses four catastrophic incidents 
that led to 13 employee deaths, 179 employee injuries, and, in one 
case, 15,000 residents living near the facility having to seek medical 
evaluation. The incidents took place at an explosives manufacturing 
site in Nevada, a chemical production facility in Louisiana, and oil 
refineries in Washington and California. The digest concludes that 
workers and their representatives play a critical role in hazard 
identification, risk reduction, and incident prevention. Each of these 
CSB investigations found that employee participation programs were 
inadequate, despite the existence of current Federal regulations and 
industry standards.\203\ Recommendations from CSB to create an 
effective worker participation program include:
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    \202\ CSB, Safety Digest: The Importance of Worker Participation 
(n.d.), https://www.csb.gov/assets/1/6/worker_safety_digest.pdf.
    \203\ The CSB Safety Digest identifies applicable regulations 
and industry standards including OSHA PSM, EPA RMP, Bureau of Safety 
and Environmental Enforcement's Safety and Environmental Management 
Systems rule, and the American National Standard-Occupational Safety 
and Health management Systems, ANSI/AIHA Z10.
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     Creating or improving opportunities for workers to 
participate directly in matters involving PSM and major incident 
prevention.
     Empowering workers to provide input on how work is 
performed, whether through safety-related committees, special projects, 
inspections and audits, hazard analyses, and/or other specific 
measures.
     Sharing safety information or communicating safety 
improvements as a part of strengthening a company's or

[[Page 53588]]

facility's overall safety management system.
     Enabling workers to bring safety issues to the attention 
of management without fear of retaliation or reprisal.
     Collecting data to help ensure critical information is 
retained and used to continuously improve safety.
     Worker training opportunities and information sharing 
regarding the nature of hazards present in the workplace, lessons 
learned from other sites, the outcomes of incident investigations, and 
exposure to both established industry best practices and the results of 
safety-related research relevant to a company's or facility's 
operations.
     Strengthened worker participation requirements in industry 
standards and State and Federal regulations.
    Although process industries are aware of the value of worker 
participation programs, opportunities exist to strengthen these 
programs and requirements for RMP-regulated facilities in a way that 
will protect human health and the environment. A 2017 study by Dupont 
Sustainable Solutions of 80 executives in high-hazard industries, such 
oil and gas, chemical and petrochemical, utilities, metals and mining, 
and manufacturing, found that employee participation to reduce 
catastrophic accidents that threaten their businesses could be 
improved. The study found that ``executives acknowledge there is an 
organizational disconnect and misalignment among leadership and 
employees with respect to risk management, which greatly contributes to 
the likelihood of a catastrophic event.'' One of the most notable 
discoveries of the study was that 88 percent of company executives felt 
workforce engagement was important to risk management, but only 35 
percent believed it to be a strong part of their organization.\204\
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    \204\ DuPont Sustainable Solutions, ``Lack of Internal Alignment 
and Commitment of Resources to Manage Risk Threaten Corporate 
Business Performance,'' last modified 2017, https://
www.consultdss.com/global-operational-risk-management-survey-report/
#:~:text=Lack%20of%20Internal%20Alignment%20and,Risk%20Threaten%20Cor
porate%20Business%20Performance&text=Instead%2C%20better%20understand
ing%20operational%20risks,new%20value%20from%20emerging%20opportuniti
es.
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    Many commenters, including labor unions, advocacy groups, and 
individual commenters from the 2021 listening sessions, stated that EPA 
must strengthen the RMP rules to support and facilitate effective 
participation by workers and their representatives, arguing that worker 
participation is an essential component of incident prevention and 
safety management systems.\205\ One advocacy group remarked that doing 
so would be essential to protecting public health and safety.\206\ A 
labor union asserted that genuine worker involvement in RMP 
development, program enforcement, and corrective actions would 
translate to better communication and engagement with local communities 
and more effective response plans.\207\ In discussing the need for 
updated regulations relating to worker participation, an individual 
commenter pointed out that the current RMP rule provides opportunities 
for employee participation, but these elements have not been updated 
since the regulations were first issued.\208\
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    \205\ EPA-HQ-OLEM-2021-0312-0079; 0170, 0151, 0058, 0032, 0057.
    \206\ EPA-HQ-OLEM-2021-0312-0094.
    \207\ EPA-HQ-OLEM-2021-0312-0044.
    \208\ EPA-HQ-OLEM-2021-0312-0076.
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    The existing RMP rule already requires owners or operators of 
regulated facilities to include employees in RMP-regulated process 
operations. At 40 CFR 68.83, owners or operators with Program 3 
processes are required to: (1) Develop a written plan of action 
regarding the implementation of employee participation requirements; 
(2) consult with employees and their representatives about the conduct 
and development of process hazards analyses and the development of the 
other elements of PSM; and (3) provide employees and their 
representatives with access to PHAs and all other information required 
to be developed under the rule.
    In development of the initial 1996 RMP rule, the Agency recognized 
that many workplace hazards also threaten public receptors and that 
most accident prevention steps taken to protect workers also protect 
the public and the environment. Therefore, EPA adopted and built on 
much of the existing accident prevention language from OSHA's PSM 
standard, including the employee participation language in 29 CFR 
1910.119(c). EPA considers these employee participation requirements to 
be a good basis for promoting a commitment to process safety because 
workers who are intimately familiar with the process, equipment 
operation, and possible failure modes and consequences of deviations 
serve as a mechanism for greater communication and understanding of 
specific process hazards (as opposed to general chemical hazards).\209\
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    \209\ EPA, Accidental Release Prevention Requirements: Risk 
Management Programs Under Clean Air Act Section 112(r)(7), (June 20, 
1996), 61 FR 31697.
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    Taking into account lessons learned from accidents, current 
guidance, and recent discussions within regulated industry sectors 
indicating there is room for improvement in this area, EPA believes 
that further worker involvement in process safety could help prevent 
and mitigate accidents. Therefore, EPA is proposing to add additional 
regulatory provisions to the employee participation requirements for 
owners and operators of regulated facilities with Program 2 and Program 
3 processes. EPA is specifically proposing to require employers to 
consult with employees when making decisions on implementing 
recommendations from PHAs, compliance audits, and incident 
investigations; provide employees the opportunity to stop work under 
certain circumstances; and provide opportunities for employees to 
report late or unreported accidents and other areas of RMP non-
compliance to EPA and other relevant authorities. EPA is proposing 
these provisions so that owners and operators without strong employee 
participation programs will have further measures in place to ensure 
process safety and to prevent or minimize accidental releases of 
hazardous substances. EPA does not expect these new provisions to be a 
burden to owners and operators that already have made this commitment.
ii. Recommendation Decisions
    Although employees may be involved in the development of plans and 
procedures (through 40 CFR 68.83 or otherwise), they may not be 
guaranteed ``a seat at the table'' when final decisions are made about 
process operations they are directly involved in that could threaten 
their health and safety. EPA realizes that practicable recommendations 
from hazard evaluations, incident investigations, and compliance audits 
that may reduce hazards at RMP facilities are not always implemented, 
for various reasons. The Agency believes that involving directly 
affected employees in these discussions and decisions will help ensure 
that the most effective recommendations for reducing hazards and 
mitigating risks to employees and the public are given the proper 
consideration.
    In 2019, CCPS published its ``Guide for Making Acute Risk Decisions 
(GMARD)'' \210\ to complement its Risk Based Process Safety (RBPS) 
guidelines. The GMARD is a source for recognized

[[Page 53589]]

good industry practices on how to conduct risk decision-making in the 
chemical industry. This publication aims to guide the decision process 
of common and practical risk evaluation and risk analysis tools to 
analyze decisions. The guidance outlines specific considerations when 
making decisions in chemical process safety regarding implementation of 
hazard assessments, audits, and incident investigation recommendations. 
The GMARD indicates that selection of members to analyze decisions--
like a PHA team--should be based on the skills needed to analyze the 
problem and define solutions and the level of responsibility required 
to authorize the decision team's recommendations. Stakeholders who may 
be affected by the risk decision should also be represented. These 
groups may include production and plant stakeholders such as those in 
engineering, operations, maintenance, safety, and health; and 
environmental managers. Ultimately, the team composition should be 
appropriate to the level of risk and the complexity of the potential 
resolution actions.
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    \210\ CCPS, Guide for Making Acute Risk Decisions (October 
2019), https://www.aiche.org/ccps/resources/publications/books/guide-making-acute-risk-decisions.
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    The American National Standards Institute (ANSI)/American Society 
of Safety Professionals (ASSP) Z10.0-2019 standard \211\ offers 
additional guidance on health and safety management systems for 
different types of organizations and risks. It explains that 
organizations must establish a process to ensure effective worker 
participation by those most threatened by hazards. Worker involvement 
helps determine and validate acceptable levels of risks and provides 
transparency when alternate decisions are made. This standard reflects 
industry consensus and was in part developed by the ACC and API--both 
major stakeholders representing RMP-regulated facilities.
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    \211\ ANSI and ASSP, ANSI/ASSP Z10.0--2019 Occupational Health 
and Safety Management Systems (2019), https://store.assp.org/PersonifyEbusiness/Store/Product-Details/productId/197785872.
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    In 2017, the California Department of Industrial Relations (DIR) 
formalized including employees in all phases of PSM by making additions 
and modifications to its regulations on ``Process Safety Management for 
Petroleum Refineries.'' \212\ Specifically, in the employee 
participation section of the rule, it added that employee participation 
shall occur ``throughout all phases'' and required involvement of 
affected operating and maintenance employees and employee 
representatives in developing, training, implementing, maintaining, and 
performing various process safety elements. DIR indicated that this 
modification would ensure meaningful participation and decision-making 
for employees and employee representatives from all program teams for 
all analyses required by their PSM regulations.\213\
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    \212\ DIR, Process Safety Management for Petroleum Refineries, 
CCR Title 8: section 5189.1 (July 27, 2017), https://www.dir.ca.gov/title8/5189_1.html.
    \213\ DIR, Final Statement of Reasons, CCR Title 8: new section 
5189.1 (September 15, 2016), https://www.dir.ca.gov/oshsb/documents/Process-Safety-Management-for-Petroleum-Refineries-FSOR.pdf.
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    Additionally, the United Kingdom has had regulations in place since 
1996 that address consulting employees on matters that affect their 
health and safety. The Health and Safety (Consultation with Employees) 
Regulations of 1996,\214\ specifically Regulation 4A, require employers 
to consult their health and safety representatives before making 
decisions involving work equipment, processes, or the organization that 
could have health and safety consequences for employees.\215\
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    \214\ John Selwyn Gummer, The Health and Safety (Consultation 
with Employees) Regulations 1996, 1996 No. 1513 (June 10, 1996), 
https://www.legislation.gov.uk/uksi/1996/1513/made.
    \215\ Health and Safety Executive, Consulting Workers on Health 
and Safety, L146 (Second edition with amendments) (2014), https://www.hse.gov.uk/pubns/priced/l146.pdf.
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    One of the accident investigations from the CSB safety digest 
highlights the severe consequences of a lack of an effective employee 
participation program. On April 2, 2010, the Tesoro Refining and 
Marketing Company LLC (Tesoro) petroleum refinery in Anacortes, 
Washington, experienced a catastrophic rupture of a heat exchanger. 
Hydrocarbons released from the ruptured heat exchanger ignited, causing 
an explosion and an intense fire that burned for more than 3 hours. The 
rupture fatally injured seven Tesoro employees who were working in the 
immediate vicinity of the heat exchanger at the time of the incident. 
Prior to the incident, workers had repeatedly provided input on how to 
improve the safety of the process. During a 2006 PHA revalidation on 
the unit involved in the accident, workers noted 31 near misses in the 
unit during the previous 5 years. The PHA team requested a review of 
experience and training for relevant operators to address their safety 
concerns. \216\ The action item was closed without resolution of the 
concerns expressed by the Tesoro workers on the PHA team. The Tesoro 
accident highlights what can happen when employees' views are not 
considered when making comprehensive decisions about process hazards 
and risks.
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    \216\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last 
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
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    EPA analyzed OSHA PSM violations from 2018 to 2020 to better 
understand the breadth of unresolved or improper closure of 
recommendations from PHAs, compliance audits, and incident 
investigations.\217\ In these 3 years, there were 70 violations of non-
compliance where PHA, incident investigation, or compliance audit 
recommendations were not addressed, resolved, completed, documented, or 
communicated to employees. Of these violations, the majority (56 
percent) were violations associated with PHA recommendations, 38 
percent were from compliance audits, and 6 percent were from incident 
investigations. Some of these violations were associated with RMP-
reportable accidents, which suggests that worker involvement may have 
been useful in making sure options were appropriately considered.\218\
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    \217\ EPA did not use EPA RMP enforcement information because 
statistical data on enforcement under the 1996 RMP rule is not 
available at this level of detail.
    \218\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    During the 2021 listening sessions, some commenters recommended 
allowing workers to be involved in making decisions about process 
safety. One idea was for EPA to issue specific provisions that enable 
workers and their unions to participate in the prevention of chemical 
releases by requiring the facility owner and operator to provide for 
meaningful employee participation when developing, implementing, 
maintaining, and evaluating all RMP activities--including hazard 
assessments, the prevention program, and emergency response 
activities--and to keep current a written plan that describes such 
opportunities.\219\ A commenter stated that effective worker 
participation includes having an employee representative with veto 
power. This representative--chosen by employees--would participate in 
all stages of developing and implementing a risk management program and 
have access to all documents or information pertaining to the 
facility's RMP.^{220 221} A

[[Page 53590]]

few commenters stated that increased worker participation would reduce 
the occurrence of catastrophic incidents at RMP facilities because 
workers are an excellent source of knowledge for reducing hazards in 
collaboration with plant engineers.\222\
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    \219\ EPA-HQ-OLEM-2021-0312-0079; 0149, 0058, 0148, 0076.
    \220\ EPA-HQ-OLEM-2021-0312-0079.
    \221\ Note that the current 1996 RMP rule requires the owner or 
the operator of a Program 3 process to ``provide to employees or 
their representatives access to [PHAs] and to all other information 
required to be developed under this rule''--that is, the current 
1996 RMP rule (40 CFR 68.83(c)).
    \222\ EPA-HQ-OLEM-2021-0312-0032.
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    As a result of this concern and need for employees to be involved 
in decision-making, EPA is proposing to require in 40 CFR 68.83(c) that 
the written plan of action include consultation of employees and their 
representatives on addressing, correcting, resolving, documenting, and 
implementing recommendations of PHAs, incident investigations, and 
compliance audits, at a minimum. EPA expects this would be similar to 
involving employees in the hazard evaluations under 40 CFR 68.83(b) but 
would go a step further to offer suggestions and concerns about why a 
recommendation should be adopted or declined or whether other 
alternatives should be taken. EPA expects this would address safety 
concerns that threaten the lives of workers and potentially others if a 
major chemical accident were to occur, as well as involving workers in 
ensuring items are completed in a timely manner. EPA seeks comment on 
whether there should be a representative number or percentage of 
employees and their representatives involved in these recommendations 
decision teams as well as the development of other process safety 
elements as outlined in 40 CFR 68.83(b). EPA also expects regulated 
facilities to use some of the guidance materials referenced in this 
section (e.g., CCPS' RBPS and GMARD guidelines and ANSI/ASSP Z.10) to 
comply with the requirement to effectively involve employees in 
decision-making processes. EPA seeks comment on other relevant sources 
that have provided useful guidance in making risk decisions.
iii. Stop Work Authority
    Allowing process operation employees to stop work when witnessing a 
dangerous activity could help better protect human health and the 
environment.
    In the 2014 RMP RFI, EPA requested comments on whether it should 
add provisions to the RMP rule giving workers the ability to stop work 
if they believe a situation is dangerous--an authority similar to the 
one that BSEE had recently provided for workers in the offshore oil 
industry. BSEE promulgated revisions to their SEMS II requirements to 
help ensure the safe operation of their regulated facilities.\223\ The 
revisions included several management system elements not addressed in 
the RMP regulation. In its SEMS II fact sheet, BSEE describes the stop 
work authority as an authority that creates procedures and authorizes 
offshore industry personnel who witness an imminent risk or dangerous 
activity to stop work.\224\ While the requirements of SEMS II focus on 
offshore facilities under the jurisdiction of BSEE, the same concept 
could be applied to facilities subject to RMP regulation. EPA chose not 
to pursue proposing stop work regulations in the 2017 amendments rule, 
but it is revisiting this idea to address an area that may help reduce 
accidents, particularly for those facilities that have not fully 
developed a strong prevention program.
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    \223\ Bureau of Safety and Environmental Enforcement (BSEE), Oil 
and Gas and Sulphur Operations in the Outer Continental Shelf-
Revisions to Safety and Environmental Management Systems, 78 FR 
20423-20443 (April 5, 2013).
    \224\ BSEE, Safety and Environmental Management Systems (SEMS) 
Fact Sheet (n.d.), https://www.bsee.gov/fact-sheet/safety/sems-ii-fact-sheet.
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    Various commenters from the 2014 RFI, including a consultant, the 
Mary Kay O'Connor Process Safety Center, and CCPS, supported adding 
this provision.\225\ The Mary Kay O'Connor Process Safety Center 
suggested adding a stop work authority to the RMP employee 
participation provision (40 CFR 68.83). While CSB supported EPA's 
consideration of a stop work authority, it asserted that a stop work 
authority is a less effective measure for incident prevention than good 
planning and noted that its success is contingent upon the existence of 
a ``culture of safety'' wherein workers are encouraged and empowered to 
advocate for their safety on the job. CSB argued that any program that 
does not appropriately enable stop work authority permits risks to 
occur and accumulate.\226\
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    \225\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546.
    \226\ EPA-HQ-OEM-2014-0328-0689.
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    Industry commenters generally opposed adding this authority to the 
RMP rule.\227\ API and other associations noted that employees already 
have the right to refuse work in light of a hazardous condition that 
could cause serious bodily injury or death.\228\ API stated that stop 
work authority is an inherent part of the oil and gas industry and 
pointed to training programs and API standards that outline this 
authority.\229\ API indicated that their standards inform employees 
that:
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    \227\ EPA-HQ-OEM-2014-0328-0560; 0605, 0619, 0624, 0643, 0645, 
0665, 0676.
    \228\ EPA-HQ-OEM-2014-0328-0624; 0626, 0640, 0643, 0665.
    \229\ API, ``Stop Work Authority,'' accessed February 3, 2022, 
https://www.api.org/oil-and-natural-gas/health-and-safety/worker-and-worksite-safety-resources/worker-safety-rules-to-live-by/stop-work-authority.
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     Safety is and will always be the industry's primary focus.
     As part of the oil and gas industry, workers have a duty 
to work in a safe manner.
     Workers have a personal responsibility to assure the 
safety of themselves and those around them.
     Safety and safe practices should always be at the 
forefront when carrying out job functions.
     All workers have stop work authority.
     Workers should stop and ask questions when in doubt about 
the safety of any operations.
     Workers should stop work at the jobsite if the working 
conditions or behaviors are considered unsafe.
     If a worker is discouraged from exercising their stop work 
authority or is penalized for doing so, they should report this action 
to management immediately.
    After the 2012 Chevron Refinery fire in Richmond, California,\230\ 
CSB recommended that the California State Legislature/Governor of 
California, in its PSM regulations, should provide workers and their 
representatives with the authority to stop work that is perceived to be 
unsafe until the employer resolves the matter or the regulator 
intervenes. As a result, in DIR's modifications to their Process Safety 
Management for Petroleum Refineries rule,\231\ they included stop work 
procedures. In the employee participation section, the rule indicates 
that the employer, in consultation with employees, must develop and 
implement stop work procedures that ensure there is authority for 
employees to refuse to perform a task or recommend an operation or 
process be partially or completely shut down. It also provides 
authority for a qualified operator in charge of a unit to partially or 
completely shut down an operation or process based on process safety 
hazards.\232\ In addition, the regulation

[[Page 53591]]

requires that employers document and respond in writing to employee 
reports of hazards or requests to shut down a process. CSB also made a 
similar recommendation to the State of Washington to address related 
issues after the fatal explosion and fire at Tesoro Refinery.\233\ The 
State of Washington is currently considering changes to its PSM rule 
for refineries.\234\
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    \230\ CSB, ``Chevron Refinery Fire,'' last modified January 28, 
2015, https://www.csb.gov/chevron-refinery-fire/.
    \231\ DIR, Process Safety Management for Petroleum Refineries, 
CCR Title 8: section 5189.1 (September 26, 2017), https://www.dir.ca.gov/title8/5189_1.html.
    \232\ DIR, Process Safety Management of Acutely Hazardous 
Materials, CCR Title 8: section 5189, https://www.dir.ca.gov/title8/
5189.html#:~:text=%C2%A75189.,Management%20of%20Acutely%20Hazardous%2
0Materials.&text=The%20establishment%20of%20process%20safety,(b)%20Ap
plication.
    \233\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last 
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
    \234\ Washington State Department of Labor & Industries, ``Semi-
Annual Rules Development Agenda: January 1, 2022-June 30, 2022'' 
(January 31, 2022), https://lni.wa.gov/dA/ad667425ad/RulesAgenda.pdf.
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    Recent articles and studies have attempted to examine stop work 
authority, how it is applied, and the perception of its usefulness. A 
2018 article in Safety+Health magazine indicated that while specific 
stop work authorities are not mandatory, safety professionals insist on 
their use. According to the article, key elements of a successful stop 
work authority policy include employee recognition, empowering 
employees in the stop work authority process, ensuring leadership 
supports the program, identifying expectations, promoting positive 
outcomes and correct application, and publishing effective stop work 
authority efforts as examples for employees.\235\
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    \235\ Bush, J., ``Stop-Work Authority,'' last modified July 26, 
2018, https://www.safetyandhealthmagazine.com/articles/17242-stop-
work-
authority#:~:text=Stop%2Dwork%20authority%20permits%20any,Health%20in
sist%20on%20its%20use.
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    In a 2018 study, Weber et al. examined the factors that support or 
hinder stopping work for safety.\236\ Thirty-four workers from 
different roles in the LPG industry in Australia were interviewed in 
focus groups. The study found that having a stop work policy supports 
stopping work for safety and that support from management positively 
affects its use. It also found that the training, experience, and 
seniority of employees were factors in employees choosing whether to 
use the stop work authority. The study concluded that a stop work 
authority is a starting point. To encourage, promote, and alleviate 
drawbacks to stopping work, a stop work authority has to be embedded in 
and supported by a work environment that provides the necessary 
conditions for people to discontinue work. The authors believe this can 
only be achieved when company leadership collaborates with its 
workforce to identify hazards and help resolve the challenges of 
everyday work.
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    \236\ David E. Weber et al., ``We Can Stop Work, but then 
Nothing Gets Done.' Factors that Support and Hinder a Workforce to 
Discontinue Work for Safety,'' Safety Science 108 (2018): 149-160, 
doi: 10.1016/j.ssci.2018.04.032.
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    In a 2021 study, Havinga et al. continued the conversation about 
factors that influence stopping work.\237\ Taking an ethnographic 
approach, the researchers followed 10 employees of a municipal water 
provider over 3 months. The aim of the study was to understand how 
decisions to stop work were made and when work was expected to be 
stopped based on procedures. The study concluded that these employees 
did not generally find stop work decisions to be important or 
difficult, as they often found an alternative method for completing 
work, rather than stopping work completely. Procedures were linked to 
considerations of stopping work, but they were unlikely to lead to a 
decision to stop work. These findings challenge the idea that stop work 
decisions are best supported through procedures, training, and 
policies, as these interventions suggest that workers consider stop 
work decisions difficult and significant. An alternative strategy to 
encourage workers to stop work in dangerous situations would be for 
organizations to provide alternative methods for workers to complete a 
job.
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    \237\ Jop Havinga, Kym Bancroft, and Andrew Rae, ``Deciding to 
Stop Work or Deciding How Work Is Done?'' Safety Science 141 (2021): 
105334, doi: 10.1016/j.ssci.2021.105334.
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    EPA recognizes, and other industry commenters in the past have 
concluded,\238\ that the current RMP rule, although not containing 
explicit requirements for stop work, already addresses many aspects of 
a stop work authority that provides means to identify and resolve 
imminent operational risks before they occur. For example, operating 
procedures developed under the RMP rule (40 CFR 68.69) address how and 
under what circumstances a facility should conduct normal and temporary 
operations, emergency shutdown (including the assignment of a 
responsible qualified operator to do so), emergency operations, and 
normal shutdown. Operating procedures should also address when process 
operations deviate from operating limits, steps to correct and avoid 
deviation, safety and health conditions to consider, and safety systems 
and their functions. Mechanical integrity requirements (40 CFR 
68.73(e)) ensure equipment deficiencies that are outside acceptable 
limits are corrected in a safe and timely manner or before further use 
to assure safe operation. The associated trainings for operating 
procedures (40 CFR 68.71) and maintenance (40 CFR 68.73(c)) are key to 
ensuring that those processes are well understood. EPA believes all 
these components create a stop work authority as they address the 
circumstances and procedures to identify unsafe operations. 
Furthermore, EPA believes each facility's individual operating 
procedures and approach to correcting equipment deficiencies give 
owners and operators the flexibility to design a stop work authority 
for their process operations that remains adaptable to the procedures 
already in place.
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    \238\ EPA-HQ-OEM-2014-0328-0605.
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    With the current provisions in the RMP rule, EPA believes many 
facilities with RMP processes already have the appropriate measures to 
identify, reduce, and mitigate the threat of an accidental release 
before it happens. The fact that only a small number of facilities have 
RMP accidents further supports this. However, RMP accidents do still 
occur. According to the Agency's RMP accident data, among the most 
commonly instituted changes after RMP-reportable accidents were 
improved or upgraded equipment, revised training, and revised operating 
procedures.\239\ Rather than make significant changes to these specific 
prevention program areas, EPA believes a better approach would be to 
ensure facilities' employees are aware of authorities to manage unsafe 
work, one of the last lines of defense to protect human health and the 
environment from a catastrophic release.
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    \239\ EPA Office of Land and Emergency Management, Risk 
Management Plan RMP*eSubmit User's Manual (August 2019), https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf.
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    Therefore, EPA is proposing to require at 40 CFR 68.83(d) that the 
written plan of action regarding the implementation of the employee 
participation for Program 3 processes include and ensure effective 
methods are in place so that employees and their representatives have 
authority to:
     Refuse to perform a task when doing so could reasonably 
result in a catastrophic release.
     Recommend to the operator in charge of a unit that an 
operation or process be partially or completely shut down, in 
accordance with procedures established in 40 CFR 68.69(a), based on the 
potential for a catastrophic release.
     Allow a qualified operator in charge of a unit to 
partially or completely shut down an operation or process, in 
accordance with procedures established in 40 CFR 68.69(a), based on the 
potential for a catastrophic release.

[[Page 53592]]

    Additionally, EPA is proposing to require that stop work authority 
processes within employee participation plans outline how employers 
should document and respond, in writing and within 30 days, to employee 
reports of hazards or employee recommendations to shut down or 
partially shut down a process.
iv. Accident and Non-Compliance Reporting
    Accident history reporting provides an avenue for disseminating 
valuable information about potential hazards and steps needed to 
prevent future accidents. Accident information submitted within a risk 
management plan, as required by the 5-year accident history provisions, 
includes information that could help states and EPA learn which types 
of sources are having problems, understand more about accident causes, 
track trends in chemical accidents and prevention activities, monitor 
the progress of risk management programs, focus future prevention 
activities, and avoid overregulation of industry sectors or substances. 
These important activities depend on accurate and timely information 
provided by accident reports.
    Current accident reporting provisions in the RMP rule (40 CFR 
68.42(a)) require that 5-year accident histories include all accidental 
releases from covered processes that resulted in deaths, injuries, and 
significant property damage onsite, and known offsite deaths, injuries, 
evacuations, sheltering in place, property damage, and environmental 
damage.
    When the RMP rule was first promulgated, it required that when a 
risk management plan was updated per 40 CFR 68.190, it had to contain 
an updated 5-year accident history, including all the accidents that 
met the 40 CFR 68.42 reporting criteria and those that occurred within 
5 years of the date on which the updated risk management plan was 
submitted. On April 9, 2004, EPA published a final rule that amended 
the accident history reporting requirement and certain other provisions 
of the Risk Management Program.\240\ From that date, if an accident 
occurs that meets the reporting criteria, it must be reported in the 
RMP 5-year accident history within 6 months of the accident (as 
required by 40 CFR 68.195) unless it is included in a risk management 
plan update prior to that time. EPA took this action so that 
government, industry, and the public would be more quickly alerted to 
the possibility of similar accidents occurring elsewhere.\241\
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    \240\ EPA, Accidental Release Prevention Requirements: Risk 
Management Program Requirements Under Clean Air Act Section 
112(r)(7); Amendments to the Submission Schedule and Data 
Requirements, 40 CFR part 68 (69 FR 18819; April 9, 2004), https://www.govinfo.gov/content/pkg/FR-2004-04-09/pdf/04-7777.pdf.
    \241\ EPA Office of Solid Waste and Emergency Response, 
``Chapter 3: Five-Year Accident History,'' General Guidance on Risk 
Management Programs for Chemical Accident Prevention (March 2009), 
https://www.epa.gov/sites/default/files/2013-10/documents/chap-03-final.pdf.
---------------------------------------------------------------------------

    Commenters from the 2021 listening sessions drew attention to the 
issue of RMP-reportable accidents that have not been reported or have 
been reported late. One commentor specifically provided a data analysis 
showing the lag in reporting.\242\ In recognition of these comments, 
EPA further examined RMP accident history reporting from 2004 to 2020, 
analyzing accidents where either the risk management plan correction 
date or the full risk management plan submission date was more than 6 
months from the date of the accident. This analysis found 163 RMP 
accidents reported late out of a total of 2,436 total accidents 
reported over this period (i.e., a 6.7 percent late accident reporting 
rate). One commentor indicated that there seems to be little or no 
consequence for failures and delays in accident reporting. This may 
prevent EPA from performing relevant inspections and requiring 
corrective action to prevent serious harm.\243\
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    \242\ EPA-HQ-OLEM-2021-0312-0058.
    \243\ EPA-HQ-OLEM-2021-0312-0149.
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    Other commenters from the 2021 listening sessions, including 
advocacy groups and individual commenters, recommended specific changes 
to the RMP rule addressing worker involvement in reporting areas of RMP 
non-compliance. For example, an individual commenter stated that EPA 
must strengthen worker participation, encourage workers to take action 
to protect safety and avoid incidents, ensure fast compliance deadlines 
for all requirements, and require more reporting to EPA on compliance. 
Some commenters, including advocacy groups and an individual commenter, 
emphasized that an updated RMP rule must address near-miss reporting by 
workers at RMP facilities.\244\ A few of these commenters added that 
near-miss reporting must be anonymous.\245\ One of these advocacy 
groups and an individual commenter suggested that EPA provide a hotline 
that allows workers, contractors, and anyone else with relevant 
information to report anonymous near-miss and safety information 
directly to the Agency, remarking that this would be a valuable service 
that would help ensure that EPA gets important information 
quickly.\246\
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    \244\ EPA-HQ-OLEM-2021-0312-0035; 0032, 0020, 0170.
    \245\ EPA-HQ-OLEM-2021-0312-0035; 0035, 0170, 0032.
    \246\ EPA-HQ-OLEM-2021-0312-0076.
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    EPA is also concerned about other areas of RMP non-compliance, as 
compliance with the regulations helps facilities operate and maintain a 
safe facility and consistently implement recognized good engineering 
practices that prevent accidents from occurring. EPA inspections have 
revealed significant non-compliance and an ongoing need for additional 
compliance assistance to decrease the likelihood of chemical accidents 
and reduce the risk to human health and the environment. Over the last 
5 fiscal years (October 2017 to September 2021), RMP and General Duty 
Clause (GDC) inspections resulted in a 71 percent rate of action taken 
by facilities to address issues of non-compliance with the RMP rule and 
GDC.^{247 248}
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    \247\ EPA, ``General Duty Clause Under the Clean Air Act Section 
112(r)(1),'' last modified December 21, 2021, https://www.epa.gov/rmp/general-duty-clause-under-clean-air-act-section-112r1.
    \248\ EPA, ``National Compliance Initiative: Reducing Accidental 
Releases at Industrial and Chemical Facilities,'' last modified May 
18, 2021, https://www.epa.gov/enforcement/national-compliance-initiative-reducing-accidental-releases-industrial-and-chemical.
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    Further, EPA recognizes the right workers have to participate in 
implementing agency inspections. On February 11, 2011, EPA issued a 
memo that outlined EPA's policy on involvement of facility employees 
and employee representatives in onsite compliance inspections as 
provided by CAA section 112(r)(6)(L). \249\ This section states that 
when EPA or another authorized agency conducts an inspection of a 
facility, employees and their representatives shall have the same 
rights to participate in the inspection, as provided in the 
Occupational Safety and Health Act [29 U.S.C. 651 et seq.] \250\ CSB 
also recently highlighted this authority of employees in a board 
addendum on October 24, 2018.\251\ The policy sets out to ensure 
opportunities for the participation of workers in the agency's 
investigative process.
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    \249\ EPA, Involvement of Employees and Employee Representatives 
in Clean Air Act (CAA) Section 112(r) On-Site Compliance 
Inspections--Final Guidance (February 11, 2021), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_memo.pdf.
    \250\ OSHA, Representatives of Employers and Employees, 1903.8 
(n.d.), https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.8.
    \251\ CSB, Worker Participation in Investigations--Board Order 
Addendum 40a (October 24, 2018), https://www.csb.gov/assets/record/bo40a.pdf.

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[[Page 53593]]

    After considering the issues of late reporting of accidents, non-
reporting of other compliance issues, and the role workers could plan 
in promoting compliance, EPA is proposing to require that facilities 
with Program 3 processes include in their employee participation plans 
explicit language addressing worker participation and reporting, along 
with information for how to report RMP-reportable accidents or related 
RMP non-compliance issues. Specifically, EPA is proposing to add 
additional language at 40 CFR 68.83 to indicate that written plans 
should include information for anonymously reporting unaddressed 
hazards that could lead to a catastrophic release, unreported RMP-
reportable accidents, or any other issue of non-compliance with 40 CFR 
part 68. EPA is also proposing to add an additional section under 
subpart C for owners and operators of Program 2 processes to implement 
an employee participation plan that addresses these issues. Although 
facilities with Program 2 processes account for only approximately 15 
percent (n = 357 out of 2,436) of all RMP-reportable accidents (83 
percent (n = 2,011 out of 2,436) are Program 3; 3 percent (n = 68 out 
of 2,436) are Program 1)), their accidents still have the potential to 
affect public receptors.\252\ In 2017, for example, a chlorine release 
from a Program 2 process in Texas caused 20 people to require medical 
treatment and 125 people to evacuate.\253\ In 2018, a facility with a 
Program 2 process in Iowa had an ammonia release that caused 500 
members of the public to evacuate and 45 people to shelter in 
place.\254\
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    \252\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
    \253\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
    \254\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
---------------------------------------------------------------------------

    EPA expects facilities to use available resources for their 
specific process operations and other appropriate RMP rule guidance to 
include the new anonymous reporting provisions in employee 
participation plans. EPA resources to help owners and operators 
understand what is required and how to enforce provisions include:
     EPA's Report Environmental Violations--an online portal 
for reporting possible violations of environmental laws and 
regulations.\255\
---------------------------------------------------------------------------

    \255\ EPA, ``Report Environmental Violations,'' last modified 
January 26, 2022, https://echo.epa.gov/report-environmental-violations.
---------------------------------------------------------------------------

     Guidance for Facilities on Risk Management Programs--an 
online resource hub for helping the regulated community understand the 
RMP rule.\256\
---------------------------------------------------------------------------

    \256\ EPA, ``Guidance for Facilities on Risk Management Programs 
(RMP),'' last modified December 20, 2021, https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp.
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     Region 7 Risk Management Program Webinars--webinar slides 
that discuss the requirements of CAA 112(r)(7), common compliance 
pitfalls, preparing for inspections, and case studies. \257\
---------------------------------------------------------------------------

    \257\ EPA, ``Region 7 Risk Management Program Webinars,'' last 
modified February 24, 2021, https://www.epa.gov/rmp/region-7-risk-management-program-webinars.
---------------------------------------------------------------------------

     ``Guidance for Conducting Risk Management Program 
Inspections under Clean Air Act Section 112(r)''--guidance for 
implementing agencies explaining how to conduct inspections of 
facilities subject to RMP.\258\
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    \258\ EPA Office of Solid Waste and Emergency Response and EPA 
Office of Enforcement and Compliance Assurance, Guidance for 
Conducting Risk Management Program Inspections under Clean Air Act 
Section 112(r) (January 2011), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_guidance.pdf.
---------------------------------------------------------------------------

     ``Final Combined Enforcement Policy for Clean Air Action 
Sections 112(r)(1), 112(r)(7) and 40 CFR part 68, 2012''--guidance for 
determining the appropriate enforcement response and penalty amount for 
violations in failing to comply with RMP and GDC.\259\
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    \259\ EPA, Transmittal of the Final Combined Enforcement Policy 
for Clean Air Act Sections 112(2)(1), 112(r)(7) and 40 C.F. R. Part 
68 (June 20, 2012), https://www.epa.gov/sites/default/files/documents/112rcep062012.pdf.
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     EPA chemical accident prevention publications--
publications that address the specific need for safety and chemical 
emergency and preparedness measures based on enforcement and lessons 
learned from accidents.\260\
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    \260\ EPA, ``Chemical Accident Prevention Publications,'' last 
modified November 16, 2021, https://www.epa.gov/rmp/chemical-accident-prevention-publications#advisories.
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    EPA recognizes that workers may often overlook hazards or areas 
that they know are non-compliant with standards for fear that it will 
affect their employment. This may particularly be the case for the stop 
work and accident reporting provisions. The Agency reminds owners and 
operators that OSHA enforces whistleblower protections provided under 
the CAA, the Occupational Safety and Health Act, and other Federal 
laws. Further information about those rights can be found at https://www.whistleblowers.gov.
    In addition to employee participation, CCPS' RBPS guidance 
identifies compliance with standards as a key element in committing to 
process safety. It indicates that this element helps identify, develop, 
acquire, evaluate, disseminate, and provide access to applicable 
standards, codes, regulations, and laws that affect a facility and the 
process safety requirements applicable to a facility.\261\ As with the 
other new provisions proposed in this employee participation section, 
EPA is proposing these RMP accident and non-compliance employee 
participation provisions because it wants to ensure that owners and 
operators who have not fully developed strong employee participation 
programs have further measures in place to ensure their commitment to 
process safety in order to prevent and minimize accidental releases of 
hazardous substances. EPA seeks comment on these proposed RMP accident 
and non-compliance employee participation provisions. EPA also seeks 
comments on whether owners and operators should distribute an annual 
written or electronic notice to employees that employee participation 
plans and other RMP information is readily accessible upon request and 
provide training for those plans and how to access the information.
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    \261\ CCPS, Guidelines for Risk Based Process Safety (March 
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
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B. Emergency Response

1. Review of Emergency Response Notification, Detection, and Response
    Subpart E of the RMP rule, the emergency response provisions, 
applies to facilities with Program 2 or 3 processes. These provisions 
require owners or operators of regulated facilities with Program 2 or 3 
processes to coordinate with local response authorities and, in some 
cases, develop an emergency response program in accordance with 40 CFR 
68.95 to address how the owner or operator of the facility will respond 
to accidental releases. The rule requires the owner or operator to 
prepare and implement an emergency response program to protect public 
health and the environment, unless the stationary source is a ``non-
responding'' facility included in the community emergency response plan 
developed under section 303 of the Emergency Planning and Community 
Right-to-Know Act (EPCRA) (for sources with regulated toxic substances) 
and has coordinated response actions with the local fire department 
(for sources with only regulated flammable substances).

[[Page 53594]]

An owner or operator who needs to develop an emergency response program 
(i.e., be a ``responding'' facility) will need to include the following 
elements in that program:
     An emergency response plan that includes procedures for 
informing the public and the appropriate Federal, State, and local 
emergency response agencies about accidental releases; documentation of 
proper first aid and emergency medical treatment necessary to treat 
accidental human exposures; and procedures and measures for emergency 
response after an accidental release of a regulated substance.
     Procedures for the use of emergency response equipment and 
for its inspection, testing, and maintenance.
     Training for employees.
     Procedures to review and update the emergency response 
plan to reflect changes at the stationary source and ensure that 
employees are informed of changes.
    The owner or operator must also coordinate with local response 
authorities on the emergency response plan.
    Facility owners or operators who rely on local responders to 
respond to an accidental release (i.e., a ``non-responding'' facility) 
when the stationary source has been included in the community emergency 
response plan developed under section 303 of EPCRA (for sources with 
regulated toxic substances) or who have coordinated response actions 
with the local fire department (for sources with only regulated 
flammable substances and without regulated toxic substances) are not 
required to develop an emergency response program. However, owners or 
operators must also ensure that appropriate notification mechanisms are 
in place to notify emergency responders when there is a need for a 
response and must perform annual emergency response coordination and 
notification activities.
    An RMP-regulated facility must indicate in its risk management plan 
whether it is a non-responding facility (i.e., by indicating compliance 
with mandatory elements of emergency response plans required in 40 CFR 
68.95(a)(1)) and identify the plans and procedures in place should an 
accidental release occur. EPA's review of the RMP database has shown 
that approximately 47 percent of RMP facilities claim to be non-
responding facilities. However, during facility inspections, EPA has 
often found that facilities either are not included in the community 
emergency plan or have not properly coordinated response actions with 
local authorities. State and local response officials echoed this 
concern during the 2013 to 2014 listening sessions conducted under E.O. 
13650, in responses to the 2014 RMP RFI,\262\ and again in the 2021 
listening sessions.\263\
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    \262\ EPA-HQ-OEM-2014-0328-0679; 0641.
    \263\ EPA-HQ-OLEM-2021-0312-0072.
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    New emergency response requirements added in the 2017 amendments 
rule and the 2019 reconsideration rule offer opportunities to address 
some of these concerns, such as coordination meetings with local 
responders and notification, tabletop, and field exercises.\264\ In 
particular, EPA believes the annual coordination meeting and 
notification exercises will provide a wide range of useful outcomes, 
including information sharing and evaluation of the effectiveness of 
notification, evacuation, and sheltering systems and procedures. The 
annual coordination requirement is expected to help make continual 
improvements to emergency response systems and procedures, as 
appropriate.
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    \264\ EPA, Accidental Release Prevention Requirements: Risk 
Management Programs Under the Clean Air Act, 84 FR 69893-69906 
(December 19, 2019).
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    Nevertheless, in reviewing opportunities to continually improve the 
effectiveness of emergency responses for RMP accidents, EPA reviewed 
additional data points from the RMP database and carefully considered 
comments from the 2021 listening sessions. After reviewing the data, 
EPA believes that more can be done to improve emergency responses, 
particularly in the field of timely notification of releases to the 
public and detection of those releases. The following three sections 
provide an overview of the RMP regulations and includes background 
information on accidental release notifications to both the surrounding 
community and local emergency response agencies. These sections serve 
to support EPA's proposed amendments to the emergency response 
requirements.
a. Concerns About Notification of Accidents
    Communities surrounding RMP facilities need information to 
appropriately prepare for and respond to potential emergencies related 
to the facilities. Yet commentors from the 2021 listening sessions 
pointed out that they were first notified of chemical releases 
impacting their homes and families hours after the release via 
television news or social media; this delay in notification has created 
fear among the public.\265\
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    \265\ EPA-HQ-OLEM-2021-0312-0072; 0020.
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    During the 2021 listening sessions, the National Association of 
SARA (Superfund Amendments and Reauthorization Act) Title III Program 
Officials (NASTTPO) provided comments containing recommendations to 
remedy this, urging EPA to require facilities to provide community 
notification for releases that have the potential to cross a facility's 
fenceline. NASTTPO argued that communities must receive more timely 
notification of chemical releases and accidents if they are to act in 
the ways LEPCs, emergency planners, and responders emphasize through 
public outreach and education. While only local response authorities 
can officially call for evacuations or shelter-in-place responses, the 
fundamental obligation to inform the public about whether a release has 
occurred--and about the magnitude of the release--falls upon the 
facility owner or operator, as they will have the best information 
available. NASTTPO also stated that education and awareness programs by 
LEPCs and others on protective actions for chemical release events 
cannot be successful unless the people who are expected to act receive 
timely and adequate warning information; the facility owner or operator 
must be the source of this information.\266\
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    \266\ EPA-HQ-OLEM-2021-0312-0072.
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    While EPA acknowledges that the accident rate from RMP facilities 
has declined, EPA also recognizes that approximately 39 percent (n = 
962) of reported accidents from 2004 to 2020 had offsite impacts. 
Further analysis shows that no offsite responders were notified in 192 
of the 962 accidents with offsite impacts (19 percent). Furthermore, 
approximately 19 percent (n = 36) of the facilities with the 192 
accidents self-identified as non-responders and relied on local 
responders to handle the release and public communication efforts. To 
be clear, that means that in these 36 incidents, there was no 
notification by the facilities to the entities they had designated 
would respond to incidents per the submitted risk management plans. 
Moreover, only 10 of these 192 accident investigations indicated that 
there was a revised emergency response plan because of the accident. 
These data points suggest that there is still a disconnect between the 
roles of regulated facilities and local responders, particularly when 
there are offsite impacts or the threat of such impacts.\267\
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    \267\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).

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[[Page 53595]]

    Responding facilities also had problems notifying the public of 
releases, even though they are required to develop procedures for 
informing the public and the appropriate Federal, State, and local 
emergency response agencies. Eighty-one percent (n = 156) of responding 
facilities still did not notify local responders when there were 
offsite impacts.\268\ Per 40 CFR 68.95(c), responding facilities are 
required to promptly provide local emergency response officials with 
information necessary for developing and implementing the community 
emergency response plan.\269\
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    \268\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
    \269\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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    When local responders are not notified, they cannot implement the 
community response plan that communities rely on for their safety. For 
example, on June 10, 2014, in St. David, Cochise County, Arizona, 
Apache Nitrogen Products Inc. (ANPI) released 52,000 pounds of 
anhydrous ammonia from a rail car when a sight glass in the ammonia 
piping broke. The community alarm process identified in the facility's 
emergency response program required the deployment of an employee to 
drive to the facility's fenceline and use a handheld ammonia monitor to 
determine if the alarm should be activated. However, the facility did 
not carry out the employee deployment and fenceline ammonia monitoring 
needed for action, so appropriate notification did not occur. This 
facility's emergency response program exemplifies that current 
compliance to the RMP rule's existing public notification provision can 
be ineffective and that notifications can improve. In a subsequent 
enforcement action, in addition to requiring upgraded ammonia detection 
devices, EPA had the facility owner develop response procedures and 
training. The procedures require relevant ANPI employees and 
contractors to request that Cochise County send an alert to mobile 
phones in areas where a release of anhydrous ammonia may reach public 
receptors. This community notification system must also provide 
appropriate instructions to the public, such as shelter-in-place or 
evacuation warnings.\270\
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    \270\ Plaintiff v. Apache Nitrogen Products, Inc., an Arizona 
Corporation, No. 4:20-cv-00463-BGM, Document 3-1 (October 28, 2020), 
https://www.justice.gov/enrd/consent-decree/file/1332206/download.
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    CSB also highlighted these emergency response concerns in a 2018 
safety digest: ``Emergency Planning and Response--The Importance of 
Preparation, Training and Communication.'' \271\ The digest gives 
examples from four major catastrophic accidents: the Bayer Crop Science 
pesticide waste tank explosion in Institute, West Virginia in 2008; 
\272\ the West Fertilizer explosion and fire in West, Texas, in 2013; 
\273\ the MGPI Processing, Inc., toxic chemical release in Atchison, 
Kansas, in 2016; \274\ and the Arkema Inc. chemical plant fire in 
Crosby, Texas, in 2017.\275\ These examples highlight the importance of 
an effective emergency response to prevent injuries and fatalities from 
chemical accidents. The digest further highlights lessons learned from 
at least 16 CSB accident investigations from 2010 to 2018 wherein there 
was ineffective emergency response training, planning, and 
communication between companies, emergency responders, and the 
community. Among others, some of the key lessons were:
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    \271\ CSB, Safety Digest: Emergency Planning and Response 
(2018), https://www.csb.gov/assets/1/17/csb_emerg_resp_safety_digest.pdf?16429.
    \272\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,'' 
last modified January 20, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
    \273\ CSB, ``West Fertilizer Explosion and Fire,'' last modified 
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
    \274\ CSB, ``MGPI Processing, Inc. Toxic Chemical Release,'' 
last modified January 3, 2018, https://www.csb.gov/mgpi-processing-inc-toxic-chemical-release-/.
    \275\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified 
May 24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
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     There must be effective communications and information 
sharing between facilities with hazardous chemicals, emergency 
responders, and community members before, during, and after 
emergencies.
     Communities should have redundant communication systems in 
place to notify residents of a chemical emergency.
b. Release Detection
    CAA section 112(r)(7)(B)(ii) clearly anticipated a potential 
regulatory requirement for facilities to detect accidental releases of 
their substances to protect human health and the environment. 
Conforming to the performance-based nature of the RMP rule, the 
existing regulations allow facility owners or operators to develop 
mechanisms to detect releases and notify local authorities and the 
public--either directly or through local authorities--of releases at 
their facility.
    Currently, RMP facilities are required to collect information and 
evaluate how they will detect releases at their facility. For example, 
facilities with Program 2 processes are required in their hazard review 
to identify any steps used or needed to detect or monitor releases (40 
CFR 68.50(a)(4)). Facilities with Program 3 processes are required to 
identify detection systems when compiling their process safety 
information (40 CFR 68.65(d)(1)(viii)) and address appropriate 
application of detection methodologies to provide early warning of 
releases in their PHA (40 CFR 68.67(c)(3)).
    RMP facilities with Program 2 and 3 processes are also required to 
report in their risk management plans, the monitoring and detection 
systems in use for their regulated processes (40 CFR 68.170(e)(5) and 
68.175(e)(5)). When reporting in their risk management plans, owners 
and operators can select up to four categories that apply to how 
releases are detected from their processes: ``process area detectors'', 
``perimeter monitors'', ``none'', or ``other monitoring/detection 
system in use''. When process area detectors or perimeter monitors are 
selected, no further information is collected. To better understand 
electronic detection methodologies available and in use among RMP 
facilities, EPA is proposing to require owners and operators to input, 
in an open text field in the risk management plan, specific information 
on their process area detectors and perimeter monitor technologies and 
models in use to detect RMP-regulated substances.
    Due to the numerous RMP-regulated substances--and different 
technologies and methods available of accurately detecting those 
substances--EPA expects facilities to identify the most effective 
method of detecting releases of their specific substances, from their 
specific process operations, based on RAGAGEP. For example, EPA would 
expect facilities with anhydrous ammonia in ammonia refrigeration 
systems to adopt IIAR 9-2020, ``Minimum System Safety Requirements for 
Existing Closed-Circuit Ammonia Refrigeration Systems'' \276\ 
(specifically, section 7.3.12), to address the specific requirements 
for ammonia detection and alarms in machinery rooms. For water and 
wastewater treatment facilities using gaseous chlorine, EPA would 
expect adoption of the Chlorine Institute's ``Pamphlet 73, Atmospheric 
Monitoring Equipment for Chlorine

[[Page 53596]]

(2021)'' \277\ to ensure best practices for detecting chorine. For 
petroleum refineries using HF in alkylation units, an appropriate 
guideline is API's ``Safe Operation of Hydrofluoric Acid Alkylation 
Units (2021)'' \278\ (section K.3.2), which covers how to provide early 
and reliable HF detection.
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    \276\ IIAR, ANSI/IIAR Standard 9-2020 (2020).
    \277\ The Chlorine Institute, Pamphlet 73) Atmospheric 
Monitoring Equipment for Chlorine (2021), https://bookstore.chlorineinstitute.org/pamphlet-73-atmospheric-monitoring-equipment-for-chlorine.html?Session_ID=66da3abed669d2ecb4448e5c1c17ba5e.
    \278\ API, Recommended Practice 751 (2021), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-751.
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c. Emergency Response Guidance
    Current widely accepted industry guidance indicates that timely 
notification is necessary during hazardous chemical release events and 
that relying only on emergency responders, particularly those with 
inadequate resources, may not be enough to protect the public.
    The NFPA 1600[supreg], ``Standard on Continuity, Emergency, and 
Crisis Management (2019),'' \279\ indicates that entities shall develop 
a plan and procedures to disseminate information to--and respond to 
requests for information from--both internal and external audiences. It 
states that the entity should determine its warning, notification, and 
communication needs; in addition, the systems must be reliable, undergo 
testing, and include issuing warnings through authorized agencies. It 
also states that facilities should establish and implement a process 
whereby all appropriate stakeholders have a common reference for the 
types of incidents that could adversely affect people, property, 
operations, or the environment and are able to warn, notify, and report 
on the circumstances.
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    \279\ NFPA, NFPA 1600: Standard on Continuity, Emergency, and 
Crisis Management (2019), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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    The American Society for Testing and Materials (ASTM) 
International's 2020 ``Standard Guide for Coordination and Cooperation 
between Facilities, Local Emergency Planning Committees, and Emergency 
Responders'' (ASTM E3241-20) \280\ aims to provide increased 
coordination and cooperation among stakeholders to develop better 
community preparedness for accidents involving hazardous chemicals. The 
standard indicates that facilities must be part of the preparedness 
effort because of their greater expertise on the properties of the 
hazardous chemicals present, as well as their knowledge of operating 
systems and procedures, hazard assessments, and their emergency 
response capabilities. ASTM E3241-20 specifically indicates that 
facilities must participate in the development of public warning and 
evacuation procedures and that they must collaborate with local 
emergency responders to mutually develop protocols for public warning 
and orders to shelter or evacuate.
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    \280\ ASTM International, ``Standard Guide for Coordination and 
Cooperation Between Facilities, Local Emergency Planning Committees, 
and Emergency Responders,'' last modified May 25, 2020, https://www.astm.org/e3241-20.html.
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    The United Nations Environment Programme's 2015 ``Awareness and 
Preparedness for Emergencies at the Local Level'' handbook \281\ offers 
processes to improve community awareness and preparedness for 
technological hazards and environmental emergencies. The handbook 
indicates that facility owners and operators are fully responsible for 
accident prevention and emergency response procedures for their 
operations. The handbook also states that the facility will best 
understand the hazards and risks, protective measures, and response 
procedures--and that these must be shared both during preparedness 
planning and during the response to any accident.
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    \281\ United Nations Environment Programme, Awareness and 
Preparedness for Emergencies at Local Level (2015), https://www.preventionweb.net/files/45469_unepawarenesspreparednessemergencie.pdf.
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    These guidance documents outline the importance of having a 
coordinated effort to ensure public notification of accidental 
releases. They also encourage facility owners and operators to be 
accountable in their role for providing accurate information to the 
necessary authorities to ensure appropriate data are shared with the 
people who are affected by the release.
2. Proposed Modification and Amplifications of Emergency Response 
Requirements
a. Proposed Regulations To Address Community Notification of RMP 
Accidents
    EPA is proposing to amend 40 CFR 68.90(b) by adding a requirement 
necessary for RMP facility owners and operators to designate their 
facility as a non-responding facility. The proposed provision would 
require facilities to develop and implement, as necessary, procedures 
for informing the public and the appropriate Federal, State, and local 
emergency response agencies about accidental releases of RMP-regulated 
substances and ensure that a community notification system is in place 
to warn the public within the area threatened by a release. Expanding 
the recordkeeping and implementation aspect of this provision to non-
responding facilities would help ensure that all facilities subject to 
subpart E, have documented knowledge of the public notification process 
that would occur when there is an accidental release at the facility. 
Consistent with the overall performance-based nature of the RMP rule, 
the owner or operator of a facility has some flexibilities in the 
development of its procedures so long as the procedures meet the 
performance-based requirement to inform and notify the public and 
response agencies. This provides facilities with flexibility in the 
design of the procedures so long as the procedures are implemented in 
the event of an accidental release.
    The proposed amendment would also help clarify the facility's role 
in the implementation of that notification process by requiring the 
owner or operator to provide the information needed to initiate a 
public release notification. EPA anticipates that in most cases, these 
notification procedures may be identical to those coordinated with and 
relied upon by local public responders. EPA expects that this proposed 
provision, in combination with the required annual emergency 
coordination meetings and notification exercises, would enhance 
coordinated notification to the public and improve documented 
accountability for the notification process. EPA is also proposing that 
these notification procedures be available by the facility upon request 
to the public living in close proximity (approximately within 6 miles) 
to RMP facilities, to help ensure that members of the public are aware 
of the steps the facility has taken to notify them when a release 
occurs. Further details pertaining to information available to the 
public is discussed in section IV.C of this preamble.
    EPA is also proposing to amend 40 CFR 68.95(a)(1)(i), which 
currently requires responding facilities to have procedures for 
informing the public and the appropriate Federal, State, and local 
emergency response agencies about accidental releases. This proposed 
amendment would ensure that a community notification system is in place 
in order to quickly and efficiently warn the public within the area 
that could be threatened by a release.
    EPA can expect facilities to ensure that a community notification 
system is available because the Federal Emergency Management Agency 
(FEMA) has established the Integrated

[[Page 53597]]

Public Alert & Warning System (IPAWS) for community notification.\282\ 
This system provides authenticated emergency and life-saving 
information to the public through mobile phones using wireless 
emergency alerts. It also provides alerts to radio and television via 
the Emergency Alert System and on the National Oceanic and Atmospheric 
Administration's Weather Radio. The Emergency Alert System devices 
found at radio, TV and cable stations can support multiple languages 
and wireless Emergency Alerts can support both English and 
Spanish.\283\ EPA believes that the presence of State and/or local 
IPAWS alerting authorities--with the designated authority to alert and 
warn the public when there is an impending natural or human-made 
disaster, threat, or dangerous or missing person \284\--in all 50 
states provides the necessary infrastructure for facilities to ensure 
that a community notification system is operational within any impact 
zones of releases that occur from their facility. The most applicable 
alerts through this system would be the imminent threat and public 
safety alerts. Imminent threat alerts include natural or human-made 
disasters, extreme weather, active shooters, and other threatening 
emergencies that are current or emerging. Public safety alerts contain 
information about a threat that may not be imminent, or about an 
imminent threat that has occurred.\285\
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    \282\ FEMA, ``Integrated Public Alert & Warning System,'' last 
modified January 27, 2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system.
    \283\ FEMA, ``Alerting People with Disabilities and Access and 
Functional Needs,'' accessed March 17, 2022, https://www.fema.gov/es/emergency-managers/practitioners/integrated-public-alert-warning-system/public/alerting-people-disabilities.
    \284\ FEMA, ``Alerting Authorities,'' last modified January 6, 
2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system/public-safety-officials/alerting-authorities.
    \285\ FEMA, TIP 38: Imminent Threat vs. Public Safety (2021), 
https://www.fema.gov/sites/default/files/documents/fema_ipaws-tip-38-it-vs-ps.pdf.
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    EPA expects local responding authorities to notify the community as 
authorized through IPAWS. In the RMP General Guidance, EPA states that 
although a non-responding facility is not responsible for developing 
emergency response capabilities, it is responsible for ensuring 
effective emergency response to any releases at the facility. If local 
public responders are not capable of providing such response, EPA 
guidance urges facilities to take steps to ensure that effective 
response is available.\286\ Therefore, EPA expects facilities to work 
with the local responders to ensure that, during a release, all 
necessary resources are in place for a community notification system to 
function and operate as expected.
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    \286\ EPA, General Guidance on Risk Management Programs Chapter 
8: Emergency Response (2021), p. 8-6, https://www.epa.gov/sites/default/files/2013-11/documents/chap-08-final.pdf?VersionId=vLaBwe1S2zXXrwsxM3HfR0Ko4ZvYXvWD.
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    EPA is also proposing to amend 40 CFR 68.90(b)(3) and 68.95(c) to 
require facilities to provide necessary entities with initial RMP 
accidental release information during releases of regulated substances 
in order to ensure that information is available to the public and the 
appropriate Federal, State, and local emergency response agencies. 
Specifically, EPA is proposing that whichever method is used to detect 
accidental releases,\287\ the facility--regardless of responding 
status--must ensure that the public is promptly notified by the method 
outlined in the facility's emergency response plan in coordination with 
local responders. Facilities should do this by providing appropriate, 
timely data and information to local responders, and detailing the 
current understanding and best estimates of the nature of the release. 
This should include the regulated substance released, estimated time 
the release began, estimated quantity already released and potential 
quantity to be released, and potential consequences of the release to 
human health and the environment. EPA realizes that when facility 
owners and operators first detect a release, they may not have all the 
details of the situation. However, EPA expects RMP facility owners and 
operators to be familiar enough with their regulated substances, 
processes, and potential release scenarios to promptly notify the 
public to support timely protective actions. EPA would also expect 
owners and operators to provide follow-up information about the release 
to local responders as soon as possible, to either provide more 
accurate data or to correct erroneous data that had been previously 
relayed. EPA expects that the annual emergency response coordination 
meetings (40 CFR 68.93) and notification exercises (40 CFR 68.96(a)) 
will help to ensure that these plans and procedures are discussed and 
practiced.
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    \287\ EPA acknowledges the multiple comments received regarding 
fence-line monitoring of RMP releases and seeks additional comment 
to gather further information on the consideration of fenceline 
monitoring for the RMP rule. Information sought per this issue is 
outlined in the Technical Background Document.
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    The Agency recognizes the possible tradeoff between early 
notification and accuracy. In some cases, a potential or actual release 
may be averted or mitigated within the facility well before any 
exposure to toxic fumes, intense heat, or blast overpressure occurs to 
the community. Early notification, or even ``false positives'' have the 
potential to disrupt communities and divert public response resources. 
Nevertheless, given the gravity of potential accidental releases of 
regulated substances from processes subject to the RMP rule--and in 
light of repeated expressions of concern heard at the 2021 listening 
sessions--EPA believes its proposed amendments will provide a greater 
level of comfort and overall safety to communities surrounding RMP 
facilities. EPA requests public comment on the Agency's proposed 
approach.
    While responding and non-responding facilities should have 
mechanisms and procedures in place to notify the public through 
emergency response plans at 40 CFR 68.90(b)(3) and 68.95(a)(1)(i), 
amending the current requirements to explicitly include the current 
understanding and best estimates of data and information pertaining to 
the release would help ensure timely decisions about notification of 
those releases, particularly those with offsite impacts. EPA expects 
that the requirement to provide this information will help ensure that 
local responders have sufficient information to make the best decision 
on whether community notification is appropriate. Through this proposed 
provision, along with the recently promulgated requirements for annual 
coordination meetings and notification exercises, EPA expects that 
emergency response efforts and communications will be practiced and 
refined. EPA also seeks comment on what additional information would be 
useful to share in these scenarios.
b. Community Emergency Response Plan Amplifications
    According to 40 CFR 68.90(b)(1) and 40 CFR 68.95(c), respective 
non-responding and responding facilities are currently required to be 
coordinated with the community emergency response plan developed under 
EPCRA Section 303, 42 U.S.C. 11003, ``Comprehensive Emergency Response 
Plans.'' \288\ The plan is prepared by LEPCs/TEPCs to evaluate the need 
for resources necessary to develop, implement, and exercise the 
emergency plan. The plan must include at least the following:
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    \288\ Comprehensive Emergency Response Plans, 42 U.S.C. 11003, 
(October 17, 1986), https://www.govinfo.gov/content/pkg/USCODE-2020-title42/pdf/USCODE-2020-title42-chap116-subchapI-sec11003.pdf.

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[[Page 53598]]

     Identification of facilities within the emergency planning 
district, identification of routes likely to be used for the 
transportation of substances on the list of extremely hazardous 
substances, and identification of additional facilities contributing or 
subjected to additional risk due to their proximity to facilities 
subject to the requirements of EPCRA subchapter I under Title 42, 
Chapter 116, such as hospitals or natural gas facilities.
     Methods and procedures to be followed by facility owners 
and operators and local emergency and medical personnel to respond to 
any release of such substances.
     Designation of a community emergency coordinator and 
facility emergency coordinators, who shall make determinations 
necessary to implement the plan.
     Procedures providing reliable, effective, and timely 
notification by the facility emergency coordinators and the community 
emergency coordinator to persons designated in the emergency plan, and 
to the public, that a release has occurred.
     Methods for determining the occurrence of a release, and 
the area or population likely to be affected by such release.
     Description of emergency equipment and facilities in the 
community and at each facility in the community subject to the 
requirements of EPCRA subchapter I under Title 42, Chapter 116, and an 
identification of the persons responsible for such equipment and 
facilities.
     Evacuation plans, including provisions for a precautionary 
evacuation and alternative traffic routes.
     Training programs, including schedules for training of 
local emergency response and medical personnel.
     Methods and schedules for exercising the emergency plan.
    EPA wants to ensure RMP-regulated facilities understand how their 
facility's processes could impact the larger community emergency 
response plan, and the facility's role in coordination on the required 
plan provisions. Therefore, EPA is proposing to explicitly state the 
required provisions of the community response plan in the RMP 
regulatory text. EPA would expect the facility to discuss the community 
plan with appropriate LEPC officials as part of the facility's 
coordination activities. Only if the LEPC plan was clearly deficient 
would EPA consider any action against the facility for relying on it 
for response.
    Additionally, the Agency realizes community emergency response 
plans contain useful information for the public to learn how RMP 
facility processes are accounted and planned for if there is an RMP-
regulated accidental release. EPA seeks comment about impediments to 
accessing community emergency response plans and potential solutions to 
having the plans more accessible within the scope of the RMP 
regulations.
3. Emergency Response Exercises
a. Proposed Amendments to the Emergency Response Requirements
    EPA is proposing to revise 40 CFR 68.96(b)(1)(i) to require all 
facilities with Program 2 and Program 3 processes and subject to the 
emergency response program requirements of subpart E (i.e., the 
responding stationary source), at a minimum, conduct field exercises 
involving a simulated accidental release of a regulated substance once 
every 10 years, unless local responders indicate that frequency is 
infeasible. EPA is also proposing to amend 40 CFR 68.96(b)(3) to 
require that the current recommended field and tabletop exercise 
evaluation report components be mandatory.
b. Field Exercise Frequency
    The 2017 amendments rule added the field exercise provision to 
support reducing accident impacts by ensuring that emergency response 
personnel understood their roles in the event of an incident, that 
local responders were familiar with the hazards at a facility, and that 
the emergency response plans were up to date. The Agency believed that 
even the smallest sources would be able to hold field exercises at 
least once each decade and, in many cases, it expected sources would 
hold field exercises more often.\289\
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    \289\ EPA, 2017 Accidental Release Prevention Requirements: Risk 
Management Programs Under the Clean Air Act 82 FR 4594 (January 13, 
2017).
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    In the 2019 reconsideration rule, EPA modified the frequency of 
field exercises by removing the minimum frequency requirement of at 
least every 10 years. The Agency removed the 10-year field exercise 
frequency to reduce burden on local emergency responders with multiple 
RMP-covered facilities and on small counties with limited resources--
many of which are rural and rely on volunteers.\290\ The final rule was 
therefore modified to require the owner or operator to consult with 
local emergency response officials to establish an appropriate 
frequency.
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    \290\ EPA, 2019 Accidental Release Prevention Requirements: Risk 
Management Programs Under the Clean Air Act, 84 FR 69834 (December 
19, 2019).
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    Emergency response field exercise frequency was the theme of 
multiple comments submitted during the 2021 listening sessions. Labor 
unions, multiple advocacy groups, and an individual commenter all 
submitted comments requesting EPA to not only require emergency 
response exercises, but to also set deadlines for their 
completion.\291\ Further, a State regulatory agency suggested that EPA 
require RMP facilities to complete an annual full-scale emergency 
response exercise that would include testing containment, mitigation, 
and monitoring equipment. The commenter indicated that regular, hands-
on practice is important due to the frequent turnover of RMP facility 
personnel.\292\ In contrast, an industry trade association argued that 
the emergency response exercises under the current regulations work 
well and that flexibility regarding the timing of the exercises 
benefits both RMP facilities and emergency response organizations.\293\
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    \291\ EPA-HQ-OLEM-2021-0312-0057; 0058, 0079, 0149, 0032, 0170.
    \292\ EPA-HQ-OLEM-2021-0312-0039.
    \293\ EPA-HQ-OLEM-2021-0312-0071.
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    EPA is cognizant of the resources (e.g., staff, experts, funds) 
that field exercises demand, particularly in small rural communities 
and those with multiple RMP facilities. However, EPA maintains that 
exercising emergency response plans within a reasonable, frequent time 
frame is vital to ensuring that emergency response programs will work 
well in the event of an accidental release. The NFPA 1600[supreg] 
Standard on Continuity, Emergency, and Crisis Management takes a 
similar position, indicating that exercises and tests should be 
conducted at the frequency needed to establish and maintain required 
capabilities.\294\
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    \294\ NFPA, ``NFPA 1600[supreg] Standard on Continuity, 
Emergency, and Crisis Management,'' accessed March 1, 2022, https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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    A 2016 NASTTPO survey, which aimed to gather information about 
levels of activity of LEPCs and identify areas for improvement, found 
that the number of LEPCs had decreased nationwide due to complacency, 
time, interest, and funding.^{295 296} While 87 percent of 
LEPCs indicated that they had participated in emergency response

[[Page 53599]]

exercises, over 50 percent reported that conducting drills/exercises 
was an area where they felt additional assistance could be provided. 
EPA wants to ensure that facilities are accountable to the communities 
in which they are located. One way to do this is to make sure that 
communities have mechanisms to evaluate the resources and capabilities 
needed to assist in a response to an accidental release and that they 
can perform field exercises involving actual emergency response 
functions to simulated release events.
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    \295\ NASTTPO, 2016 Local Emergency Planning Committee (LEPC) 
Survey: Final Report (2016), https://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Local%20Emergency%20Planning%20Committee/Meetings%20Agendas%20and%20Minutes/2016/2016%20LEPC%20Survey%20Final%20Report%20-%20FInal.pdf.
    \296\ EPA, 2008 Nationwide Survey of Local Emergency Planning 
Committees (LEPCs): Final Report (2008), https://www.epa.gov/sites/default/files/2013-08/documents/2008_lepcsurv.pdf.
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    EPA believes many responding facilities with RMP processes are 
making plans and intending to conduct field exercises on a timeline 
that is appropriate for establishing and maintaining required emergency 
response capabilities. However, EPA is concerned that some responding 
sources may use the flexibility in the current regulation to never hold 
field exercises with local responders or to hold them so infrequently 
that the owner or operator's response to an accidental release would be 
ineffective. One listening session commentor in support of setting 
deadlines for field exercises indicated that without a compliance 
frequency, the provision to conduct emergency field exercises is purely 
symbolic and is an empty requirement.\297\ EPA wants to ensure all 
facilities conduct regular field exercises if they have the resources 
and capabilities to do so. The Agency hopes to avoid a scenario where 
responding sources impose a schedule that practically exempts them from 
the exercise program requirements, particularly if the local responders 
know that conducting exercises would be beneficial for response 
efforts.
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    \297\ EPA-HQ-OLEM-2021-0312-0170.
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    Therefore, EPA is proposing to amend 40 CFR 68.96(b)(1)(i) to 
require all facilities with Program 2 and Program 3 processes and 
subject to the emergency response program requirements of subpart E 
(i.e., the responding stationary source) to, at a minimum, conduct 
field exercises involving a simulated accidental release of a regulated 
substance once every 10 years unless local responders indicate that 
frequency is impractical. EPA expects assigning this frequency to the 
provision, but providing for relief in specific circumstances, will 
work for all organizations and communities to prepare for or further 
assess the ability to respond to accidental releases. Because 
facilities have always had a requirement to do a field exercise, an 
added provision with a 10-year phase in should have minimal impact on 
sources who may have relied upon the 2019 provision, which has been in 
place for only three years. Moreover, local responders continue to have 
the option not to participate, which also diminishes any possible 
reliance interests. EPA expects that the frequency of field exercises 
and any justification for not being able to conduct them on a 10-year 
schedule will be discussed through annual coordination meetings. 
Although written justification from local responders will allow 
facilities with relief from this proposed provision, EPA expects this 
dialogue will address supposed barriers to carrying out field exercises 
with some frequency and result in creative solutions such as focusing 
the scope of exercises or conducting joint exercises with neighboring 
facilities. This proposed amendment will help ensure the safety of 
communities by more frequently confirming that local responders are 
prepared for an accidental release.
c. Exercise Evaluation Reports
    The 2017 amendments rule added the field and tabletop exercise 
evaluation report provision. This provision required either the 
preparation of a report within 90 days of each field and tabletop 
exercise (40 CFR 68.96(b)(3)) or, an after-action report comparable to 
the exercise evaluation report required when owners or operators use a 
response to an accidental release to meet their field exercise 
requirement (40 CFR 68.96(c)(2)). The report in either situation would 
be required within 90 days of the exercise or accident and must include 
a description of the 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. EPA believed 
that maintaining a written record including, among other things, the 
identification and affiliation of exercise participants, would be 
useful in planning future exercises.
    The 2019 reconsideration rule scaled back the exercise reporting 
requirements, making the exercise report elements recommended rather 
than mandatory. The Agency indicated that making the reporting 
requirements non-mandatory would reduce the regulatory burden and allow 
emergency response personnel the flexibility to decide which exercise 
documentation would be most appropriate for the facility and community.
    EPA now recognizes there may be an inconsistency between the 
recommended exercise evaluation and mandatory incident investigation 
documentation requirements, as one provision can be used to satisfy the 
other. Current incident investigation regulations under 40 CFR 68.60 
and 68.81 require incident investigation reports to include specific 
elements: the date of incident, the date the investigation began, a 
description of the incident, the factors that contributed to the 
incident, and any recommendations resulting from the investigation. 
Under the current field and tabletop documentation provisions, 
facilities would be allowed to satisfy the documentation requirement 
for field and tabletop exercises through an after-action report 
following an accidental release. EPA believes that, in most cases, 
these accidental releases would be those that need to be investigated 
per 40 CFR 68.60 and 68.81. Many of the incident investigation and 
exercise evaluation reporting requirements are similar. EPA believes it 
should be consistent in its requirements to ensure there is no 
confusion related to reports that can be used interchangeably.
    Therefore, EPA is proposing to amend 40 CFR 68.96(b)(3) to require 
that the current recommended exercise evaluation report elements be 
mandatory rather than recommended. EPA contends that making these 
exercise report components mandatory will help not only to eliminate 
confusion about what is required when evaluating an actual or simulated 
response, but also provide consistency on elements that are crucial to 
the exercise improvement planning process.

C. Information Availability

    EPA is proposing to amend 40 CFR 68.210 to allow the public to 
request specific chemical hazard information if they reside within 6 
miles of a facility. As discussed below, the 6-mile restriction would 
allow access to information for the vast majority of the public that 
are within worst case scenario impact zones. Having received such a 
request, the facility would be required to provide certain chemical 
hazard information and access to community emergency preparedness 
information. This proposal is similar to the 2017 amendments rule, with 
the added modification that information be restricted to those persons 
within 6 miles of the facility.
1. Recent Public Input on Information Availability
    During EPA's 2021 listening sessions, approximately 210 commenters

[[Page 53600]]

provided feedback on information availability requirements. Multiple 
commenters, including advocacy groups, individual commenters, and labor 
unions, expressed support for expanding information availability to 
improve the safety of first responders and community members.\298\ An 
association of government agencies said that LEPCs' access to 
information is vital and suggested that EPA grant LEPCs the ability to 
request relevant information from RMP facilities, similar to the level 
of access under EPCRA for facilities with extremely hazardous 
substances.\299\ Multiple advocacy groups, via a joint submission, and 
an individual wrote that EPA's Chemical Emergency Preparedness and 
Prevention Office and CSB agreed that ``transparency between industry 
and the public improves community safety.'' \300\ An advocacy group 
said that many residents near RMP facilities are not aware that they 
are located near these facilities, as EPA has not shared a list of 
where the communities most at risk are located.\301\ Multiple advocacy 
groups and an individual commenter said that risk management plans 
should be available online--for example, through EPA's website, the RMP 
facility's corporate website, and public libraries.\302\ A State 
elected official suggested that EPA create an online database through 
which the public can read summaries of risk management plans; this 
would avoid releasing sensitive security information about RMP 
facilities while also informing the public of relevant community safety 
concerns.\303\
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    \298\ EPA-HQ-OLEM-2021-0312-0016; 0020, 0025, 0026, 0035, 0036, 
0040, 0042, 0051, 0057, 0058, 0060, 0072, 0358, 0387.
    \299\ EPA-HQ-OLEM-2021-0312-0072.
    \300\ EPA-HQ-OLEM-2021-0312-0151; 0149.
    \301\ EPA-HQ-OLEM-2021-0312-0170.
    \302\ EPA-HQ-OLEM-2021-0312-0035; 0042, 0036, 0060, 0149.
    \303\ EPA-HQ-OLEM-2021-0312-0043.
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2. Information Availability in the 2017 Amendments and the 2019 
Reconsideration Rule
    The 2017 amendments rule added new information availability 
requirements, including the requirement for the owner or operator to 
provide--within 45 days of receiving a request by any member of the 
public--specified chemical hazard information for all RMP-regulated 
processes. The provision required the owner or operator to provide 
ongoing notification on a company website, on social media platforms, 
or through other publicly accessible means such that the information is 
available to the public upon request, along with the information 
elements that may be requested and instructions for how to request the 
information. In the 2019 reconsideration rule, EPA removed these 
elements because of a benefit versus risk calculation, observing that 
much RMP information was available through other means while widespread 
anonymous access to the consolidated information posed potential 
security risks.
    EPA stated in its 2019 reconsideration rule that part of its 
rationale for rescinding information availability provisions was that 
the 2017 amendments rule ``underweighted security concerns in balancing 
the positive effects of information availability on accident prevention 
and the negative effects on public safety from the utility to 
terrorists and criminals of the newly available information and 
dissemination methods.'' In its rationale for the 2019 reconsideration, 
EPA cited the Department of Justice (DOJ) report ``Assessment of the 
Increased Risk of Terrorist or Other Criminal Activity Associated with 
Posting Off-Site Consequence Analysis Information on the internet,'' 
\304\ which found that assembling the otherwise-public data is valuable 
in identifying and focusing on sources that have conducted criminal 
acts. The goal of DOJ's assessment was to determine which variables and 
forms of dissemination would create vulnerabilities enabling a 
terrorist attack. In the 2019 reconsideration rule, EPA stated the 2017 
provisions would make otherwise-public information newly anonymously 
accessible via the web and other means in a more consolidated fashion. 
EPA observed that this consolidated information ``may present a more 
comprehensive picture of the vulnerabilities of a facility than would 
be apparent'' otherwise, and thus potentially increasing terrorist risk 
(84 FR 69887, December 19, 2019).
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    \304\ DOJ, Assessment of the Increased Risk of Terrorist or 
Other Criminal Activity Associated with Posting Off-Site Consequence 
Analysis Information on the internet (2000), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-2003, EPA-HQ-OEM-
2015-0725-2003.
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    EPA is proposing a provision to increase information availability 
to communities that balances information availability to communities 
with the previously identified security concerns. EPA believes the 
proposed amendment to add a 6-mile radius ensures that even if 
community members obtain information related to offsite consequences 
analysis (OCA) data, it would require a difficult nationwide-
coordinated effort among people within 6 miles of each facility to 
create the type of online database described in DOJ's report. The 
proposed provisions simply require RMP facilities to provide their 
chemical hazard information to communities within a 6-mile radius of 
the facility, when previously they were not required to. Because RMP 
facilities were, and will continue to be, in possession of this 
information, it is unlikely that such a change would result in any 
possible prejudice to the facilities based on their reliance on the 
2019 reconsideration rule provisions, which have only been in place for 
3 years.
    In its 2019 reconsideration rule, EPA mentioned that members of the 
public can view risk management plans at Federal Government reading 
rooms, obtain risk management plan information from State or local 
government officials with risk management plan data access, or submit a 
request to EPA under the FOIA (for non-OCA risk management plan 
information). EPA also mentioned that owners and operators of regulated 
facilities may disclose risk management plan information for their own 
facilities if they so choose. While current OCA provisions allow for a 
person visiting a reading room to request information of up to 10 
facilities per year regardless of location as well as the OCA 
information for all facilities with a vulnerable zone that extends into 
the jurisdiction of the LEPC/TEPC where the person lives or works, 
there are a limited number of reading rooms even in large states, and 
these reading rooms generally are not located close to the communities 
potentially impacted by process safety at particular facilities. While 
the reading room restrictions are necessary for OCA information, the 
restrictions in locations and access make them an inefficient way to 
access information in the risk management plans that Congress chose not 
to restrict when it enacted the Chemical Safety Information, Site 
Security and Fuels Regulatory Relief Act 42 U.S.C. 7412(r)(7)(H)(ii). 
By creating a 6-mile radius, EPA allows communities with more than one 
facility to request information on all the sources to which they may be 
potentially exposed in the event of a release.
    The 2019 reconsideration rule mentioned that community members may 
request information from their LEPCs; however, subsequent analysis of 
active facility risk management plan submissions demonstrates that 10 
percent of active facilities have not provided information on the names 
of their LEPCs.\305\ Without further

[[Page 53601]]

information as to why facilities left this portion of the risk 
management plan submission blank, it is possible that LEPCs may not 
exist for those facilities, that the LEPC may have existed but is 
inactive, or that the facility is not in communication with its LEPC. 
EPA routinely receives FOIA requests for OCA and non-OCA versions of 
the risk management plan database from local and State emergency 
response entities, which may indicate that local emergency response 
entities also have difficulty in obtaining this information from 
facilities.
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    \305\ 40 CFR 68.160(b)(18).
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    EPA also conducted a parallel benefits assessment in 2000, 
describing the benefits of providing community access to risk 
management plan information.\306\ EPA found that public disclosure of 
risk management plan information would likely lead to a reduction in 
the number and severity of accidents. It also found that comparisons 
between facilities, processes and industries would likely lead industry 
to make changes and would stimulate dialogue among facilities, the 
public, and local officials to reduce chemical accident risks. EPA also 
concluded that given the opportunity, the public would use hazard 
information to take action, thus lead to risk reduction, citing the 
reduction in emissions following publicly available TRI information.
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    \306\ EPA. April 18, 2000. Assessment of the incentives created 
by public disclosure of off-site consequence analysis information 
for reduction in risk of accidental releases.
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    EPA is proposing individuals within a 6-mile radius of RMP 
facilities be able to obtain specific chemical hazard information. EPA 
believes this distance to be reasonable as 90 percent of all toxic 
worst-case distances to endpoints are 6 miles or less, and almost all 
flammable worst-case distances are less than 1 mile. The 6-mile radius 
for being able to request information from facilities allows people in 
most areas potentially impacted by a WCS to have access to information 
while also providing a limit on widespread access to nationwide 
assembly of data. The proposed approach uses aggregate worst case 
scenario data and does not rely on individual worst cases for each 
facility because EPA cannot by rule force disclosure of OCA information 
to the public. EPA notes that 5 percent of worst-case distances for 
toxics are more than10 miles, while 67 percent of scenarios are under 3 
miles. EPA seeks comment on whether the 6-mile radius is appropriate 
and provides the information on 10 miles and 3 miles as potential 
alternatives. For alternative distances supported by commenters, EPA 
requests information on the justification for these alternative 
distances.
3. Proposed Regulatory Revisions
    In the 2017 amendments rule, EPA added several new provisions to 40 
CFR 68.210, ``Availability of Information to the Public.'' These 
included:
     A requirement for the owner or operator to provide, upon 
request by any member of the public, specified chemical hazard 
information for all regulated processes, as applicable, including names 
of regulated substances held in a process; Safety Data Sheets (SDSs) 
for all regulated substances located at the facility; accident history 
information required to be reported under 40 CFR 68.42; and emergency 
response program information, including whether or not the source 
responds to releases of regulated substances, name and phone number of 
local emergency response organizations, and procedures for informing 
the public and local emergency response agencies about accidental 
releases.
     A requirement for the owner or operator to provide ongoing 
notification on a company website, on social media platforms, or 
through other publicly accessible means that the above information is 
available to the public upon request, along with the information 
elements that may be requested and instructions for how to request the 
information, as well as information on where members of the public may 
access information on community preparedness, including shelter-in-
place and evacuation procedures.
     A requirement for the owner or operator to provide the 
requested chemical hazard information within 45 days of receiving a 
request from any member of the public.
    EPA is proposing to restore these provisions for community members 
living within 6 miles of a facility. EPA contends this will allow 
affected communities to obtain information from RMP facilities. 
Allowing all community members demonstrating residence within 6 miles 
of the facility to request this information would ensure information 
availability in areas without LEPCs/TEPCs. The proposed 6-mile 
limitation seeks to limit the potential security risk of allowing 
anonymous confidential access of this information to the entire public 
that was of concern to EPA in the 2019 reconsideration rule. The 
proposed approach strikes a better balance between those security 
concerns and the interests of people living near facilities who could 
benefit from the information: personal preparedness in the event of an 
accident, knowledge of safety conditions where one lives, and more 
informed participation in community safety planning. EPA seeks comment 
on the 6-mile limitation and whether it balances security concerns and 
community access to information. While much, if not all, of the 
information to be disclosed upon request to facilities under this 
proposed provision is otherwise publicly available with little 
geographic limitation, the additional method of access EPA is proposing 
make access simpler for people who are near facilities.
a. Request for Comment on Potential Non-Rule RMP Access Policy Changes
    While these proposed regulatory changes will improve information 
sharing within communities, they do not resolve concern that fenceline 
communities are often unaware of RMP facilities near them. To request 
facility information, a member of the public would need to know how to 
access it, have the means to access it, and know that the facility 
exists in their community in order to determine how to access and 
request the information. These barriers do not appropriately facilitate 
community right-to-know or equitable distribution of knowledge on 
fenceline community risks to those most affected by potential releases. 
In the 2019 proposed rule comment period, commenters pointed out that 
reading rooms are not a realistic avenue for public access to 
information.\307\ EPA also recognizes the additional impracticalities 
that the COVID-19 pandemic has imposed on reading room options. Many 
commenters mentioned delays in accessing information and limitations on 
data requests from reading rooms. Further, most states only have one 
reading room, which complicates public access to information from that 
source. Commenters also mentioned equity issues given the expertise and 
language issues required to access information. In its 2000 benefits 
assessment,\308\ EPA also noted that obtaining information from LEPCs 
is difficult and a central repository would improve ease of information 
access. EPA's past experience in implementing EPCRA had shown that many 
State and local officials needed assistance in managing the chemical 
information submitted to them on paper by industry under that

[[Page 53602]]

law, and that the public often did not take advantage of this 
information since it was not conveniently available. Additionally, 
information on multiple RMP facilities is needed as it allows 
communities to compare risks between facilities, as well as potential 
cumulative risks owing to multiple facilities within a community. For 
communities with more than one facility, e.g., communities like Harris 
County, Texas with large numbers of facilities, residents should not be 
expected to request information from each of these facilities, but 
rather, EPA should aggregate this information in a central location.
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    \307\ EPA-HQ-OEM-2015-0725-1598; 1869, 1925, 1969.
    \308\ EPA. April 18, 2000. Assessment of the incentives created 
by public disclosure of off-site consequence analysis information 
for reduction in risk of accidental releases.
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    By policy, EPA has restricted access to the RMP database even 
though only a portion of the database is restricted by CAA 112(r)(7)(H) 
and its implementing regulations in 40 CFR part 1400. Other programs 
within EPA have demonstrated that facility and chemical information can 
be made publicly available, in a readily accessible format. EPA intends 
to, at a prospective date, begin publishing non-OCA risk management 
plan data annually, less any CAA 112(r)(7)(H) protected sensitive 
information. EPA has received comments in the past with concerns 
regarding confidential business information and directs these 
commenters to the requirements in 40 CFR 68.152 for substantive 
criteria set forth in 40 CFR 2.301. EPA notes that 40 CFR 1400.5 allows 
for the Administrator to include only the following OCA data elements 
in a database on the internet: (a) the concentration of the chemical; 
(b) the physical state of the chemical; (c) the statistical model used; 
(d) the endpoint used for the flammables in the worst-case scenario; 
(e) the duration of the chemical release for the worst-case scenario; 
(f) the wind speed during the chemical release; (g) the atmospheric 
stability; (h) the topography of the surrounding area; (i) the passive 
mitigation systems considered; and (j) the active mitigation systems 
considered. This initiative is in line with other hazardous substance 
reporting programs that have been long established at EPA. Further, EPA 
believes it can no longer not make this information available, as 5 
U.S.C. 552(a)(2)(D)(ii)(II) requires that information that has been 
requested via FOIA three or more times be made ``available for public 
inspection in an electronic format'' when the information is likely to 
be requested again in the same format and is not otherwise privileged 
from disclosure. EPA is requesting comment on the variables provided in 
the Technical Background Document (Section 10), most of which are for 
public availability, and which (or combination of which) pose potential 
significant security risks.
b. Current Data Availability of Risk Management Plan Information
    Currently, with few exceptions as indicated below, EPA does not 
make any of its OCA or non-OCA data available to the public online. The 
public can access or request risk management plan information through 
the methods described below. Based on these methods, EPA contends that 
current, publicly available information on the risk management plan 
national database is insufficient for informing communities about RMP-
regulated facilities.
     Facility Registry Service (FRS) and Envirofacts.\309\ 
EPA's FRS provides information about facilities regulated by a large 
number of EPA regulations under various statutes. Currently, the only 
information provided in the FRS for RMP-regulated facilities is the EPA 
Facility ID, EPA's unique identifier for RMP-regulated facilities. 
Because Envirofacts provides a multi-system search of facilities, 
including FRS, RMP EPA Facility IDs are also available in Envirofacts. 
Currently, neither public-facing version of the databases provides 
additional information or allows users to export information on more 
than one RMP facility.
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    \309\ Facility Registry Service, https://www.epa.gov/frs. 
Envirofacts, https://enviro.epa.gov/.
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     FOIA requests. EPA has processed FOIA requests for non-OCA 
data 242 times since 2015, an average of 35 times a year. Because the 
database is provided in Microsoft Access format and requires some 
technical background to examine results, most requestors tend not to be 
individuals or nonprofit environmental groups, but rather other 
government entities (both Federal and State), as well as consulting 
groups and government contractors.
     Federal reading rooms. 40 CFR part 1400 requires the 
Federal Government to allow any member of the public to obtain access 
to OCA information for up to 10 facilities per calendar month located 
anywhere in the country, without geographical restrictions, as well as 
any stationary sources in the jurisdiction of the LEPC where the person 
lives or works and for any other stationary source that has a 
vulnerable zone that extends into that LEPC's jurisdiction. Although 
EPA does not have plans to release protected OCA information on the 
internet, EPA hopes that making non-OCA risk management plan data 
publicly available will reduce the need for the public to access risk 
management plan data only through Federal reading rooms.
     Other information already publicly available. EPA notes 
that it appears information from the risk management plan database, 
less OCA sections, has been publicly available on the internet for over 
20 years.\310\ EPA is aware of other sources of information online for 
risk management plan data, however, these data are often outdated. The 
dataset provides information on location, amount of chemical stored, 
emergency response capabilities (i.e., responding versus non-responding 
facility status), contact information, executive summary, and 5-year 
accident history.
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    \310\ The Right-to-Know Network, ``Risk Management Plans 
(RMP),'' last modified March 14, 2019, https://rtk.rjifuture.org/rmp/.
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c. Other EPA Facility Hazardous Substance Registries
    EPA makes information available for several other Federal hazardous 
substances programs, such as the Toxics Release Inventory \311\ under 
EPCRA and Chemical Data Reporting (CDR) \312\ under the Toxic 
Substances Control Act, both of which have readily downloadable 
information (in Microsoft Excel format) \313\ on facility quantity and 
location for facilities with regulated, threshold quantities of listed 
hazardous substances. EPA likewise seeks to make its non-OCA risk 
management plan information available in a readily accessible manner, 
akin to these two programs, and will coordinate with these two long-
standing programs to consider relevant data quality and security 
concerns.
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    \311\ EPA, ``Toxics Release Inventory (TRI) Program,'' last 
modified January 20, 2022, https://www.epa.gov/toxics-release-inventory-tri-program.
    \312\ EPA, ``Chemical Data Reporting Under the Toxic Substances 
Control Act,'' last modified August 25, 2021, https://www.epa.gov/chemical-data-reporting.
    \313\ EPA, ``Access CDR Data,'' last modified November 9, 2021, 
https://www.epa.gov/chemical-data-reporting/access-cdr-data#2020.
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d. Balancing Security Risks and Community Right-To-Know
    EPA maintains that public disclosure of risk management plan 
information would likely lead to a reduction in the number and severity 
of accidents.\314\ Although EPA does intend to make its risk management 
plan data publicly available, it seeks comment on an approach that 
balances community

[[Page 53603]]

right-to-know and security concerns that arise by making such data 
publicly available in an easily accessible, consolidated location. EPA 
requests public comment on which specific information would be of most 
benefit and most concern.
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    \314\ EPA, Assessment of the Incentives Created by Public 
Disclosure of Off-Site Consequence Analysis Information for 
Reduction in Risk of Accidental Releases (April 18, 2000).
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    EPA has long received comments on the potential security concerns 
in releasing risk management plan information. For example, in EPA's 
recent 2021 listening sessions, some commenters, including several 
industry trade associations, expressed opposition to expanding risk 
management plan information availability due to increased risks of 
terrorist attacks, cyberattacks, or other intentional acts of 
harm.\315\ One industry trade association argued that certain 
information about RMP facilities needs to be kept confidential, such as 
the information deemed ``Chemical-terrorism Vulnerability Information'' 
or ``Sensitive Security Information'' under the Department of Homeland 
Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) and 
the Maritime Transportation Security Act, respectively.\316\ However, 
these comments did not specifically explain how releasing risk 
management plan data would increase particular security risks. EPA 
already protects OCA information as required by the CAA and will ensure 
that this action does not violate the CAA.
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    \315\ EPA-HQ-OLEM-2021-0312-0005; 0020, 0031, 0045, 0053, 0071, 
0077.
    \316\ EPA-HQ-OLEM-2021-0312-0031.
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    There exists no publicly available database of intentional acts 
upon the chemical process industries in the United States. In a 2021 
study, researchers attempted to compile a database of such incidents, 
finding documentation of 84 incidents in the chemical and petrochemical 
industries.^{317 318} Root cause data on these incidents, which 
are not available, would be needed to determine if availability of 
information on the facility contributed to terrorist incidents, which 
were second to cybersecurity incidents as the most frequent overall 
cause. According to the database, no terrorist event in the process 
industries (excluding transportation and pipelines) has occurred in 
North America after the 1970s.\319\ However, a lack of incidents may 
result from the safeguards currently in place. DHS promulgated CFATS in 
accordance with the Homeland Security Appropriations Act of 2007, owing 
to insufficient security at industrial facilities. In promulgating 
CFATS, DHS did not intend for information created under CAA 112(r) to 
constitute ``Chemical-terrorism Vulnerability Information,'' which is 
sensitive information pursuant to CFATS requirements (72 FR 17714). EPA 
routinely coordinates with DHS as part of the Chemical Facility 
Security and Safety Working Group and commits to working with DHS to 
find regulatory solutions that balance community right-to-know with 
security concerns.
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    \317\ Valeria Casson Moreno et al., ``Analysis of Physical and 
Cyber Security-Related Events in the Chemical and Process 
Industry,'' Process Safety and Environmental Protection 116 (2018), 
621-31, doi:10.1016/j.psep.2018.03.026.
    \318\ Matteo Iaiani et al., ``Analysis of Events Involving the 
Intentional Release of Hazardous Substances from Industrial 
Facilities,'' Reliability Engineering & System Safety 212 (2021), 
107593, doi:10.1016/j.ress.2021.107593.
    \319\ This is not a complete dataset, because it was developed 
based on publicly available information. Available in the 
supplemental material of Matteo Iaiani et al., ``Analysis of Events 
Involving the Intentional Release of Hazardous Substances from 
Industrial Facilities,'' Reliability Engineering & System Safety 212 
(2021), 107593, doi:10.1016/j.ress.2021.107593.
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    Accidental releases occur much more often than intentional events 
(about 100 per year using EPA RMP-reportable accidents). Pre-incident 
information, such as the locations of facilities and potential 
disasters, allows communities to be more prepared for disasters,\320\ 
which DOJ also recognized in its 2000 risk assessment.\321\ With over 
20 years of data now, EPA has based many of the proposed provisions on 
prior accident information.
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    \320\ Holly Carter, John Drury, and Richard Aml[ocirc]t, 
``Recommendations for Improving Public Engagement with Pre-incident 
Information Materials for Initial Response to a Chemical, 
Biological, Radiological or Nuclear (CBRN) Incident: A Systematic 
Review,'' International Journal of Disaster Risk Reduction 51 
(2020), 101796, doi:10.1016/j.ijdrr.2020.101796.
    \321\ DOJ, Assessment of the Increased Risk of Terrorist or 
Other Criminal Activity Associated with Posting Off-Site Consequence 
Analysis Information on the internet (2000), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-2003, EPA-HQ-OEM-
2015-0725-2003.
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    EPA acknowledges that the Agency must consider whether some non-OCA 
data elements, or combinations of elements, may not be suitable for 
public release and should be restricted based on potential security 
risks. EPA has been and will continue to work with DHS, DOJ, and other 
Federal partners on identifying these risks. EPA is also involving the 
public through seeking comment. EPA requests comments on which 
elements, or combinations of elements, may pose a security risk if 
released to the public. EPA also notes that, while several commenters 
offered support in the 2019 reconsideration comment period for 
rescinding information availability requirements on the part of the 
facility, no commenters provided additional information to support 
security concerns.\322\ For each element or combination of elements 
identified, EPA requests: (1) Specific comments on why the element or 
combination of elements presents a security risk and (2) documentation 
or basis for these security claims, such as risk or intelligence 
analysis, a prior incident, security threat, or near miss incident.
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    \322\ EPA-HQ-OEM-2015-0725-1461; 1867, 1904, 1909.
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D. Other Areas of Technical Clarification

    EPA has provided compliance assistance, conducted inspections, and 
undertaken enforcement of the RMP program since 1996. During that time, 
the Agency developed guidance documents, model RMPs, and answers to 
frequently asked questions to help facilities implement the RMP rule. 
Based on experience, EPA has identified various aspects of the RMP rule 
that use different terminology for the same requirement, have outdated 
definitions, or would be simpler for sources to implement with more 
discussion in the text of the regulation. The intent of the proposed 
changes to the regulatory text discussed in this section is to simplify 
implementation for facilities as well as oversight, thereby improving 
chemical safety. The proposed amendments do not change the meaning of 
the RMP rule. These points are raised below.
1. Process Safety Information
    RMP regulations require that facilities keep process safety 
information up to date. For processes subject to Program 2 
requirements, RMP regulatory text explicitly states in 40 CFR 68.48(a) 
that ``[t]he owner or operator shall compile and maintain the following 
up-to-date safety information related to the regulated substances, 
processes, and equipment.'' This is also addressed in 40 CFR 68.48(c), 
which states: ``The owner or operator shall update the safety 
information if a major change occurs that makes the information 
inaccurate.''
    For processes subject to Program 3 requirements, the process safety 
information requirements within 40 CFR 68.54 do not explicitly address 
updating process safety information. Instead, that subject is addressed 
in several other parts of the Program 3 requirements, including the 
management of change requirements in 40 CFR 68.75, the pre-startup 
review requirements in 40 CFR 68.77, and the requirement to document 
that

[[Page 53604]]

equipment complies with RAGAGEP in 40 CFR 68.65(d)(2).
    Management of change requirements only apply to processes subject 
to Program 3 requirements, because there are no corresponding 
requirements for Program 2 processes. The management of change 
requirements address changes to process chemicals, technology, 
equipment, and procedures, as well as changes to stationary sources 
that affect covered processes. Pursuant to 40 CFR 68.75(d), process 
safety information is required to be kept up to date ``If a change 
covered by this paragraph results in a change in the process safety 
information required by Sec.  68.65 of this part, such information 
shall be updated accordingly.''
    The pre-startup review requirements in 40 CFR 68.77(a) apply to new 
stationary sources and modified stationary sources when the 
modification is significant enough to require a change in process 
safety information. Pursuant to 40 CFR 68.77(b), the pre-startup safety 
review must confirm that construction and equipment meets design 
specifications.
    Therefore, in order to make the regulation more consistent 
throughout, EPA is proposing to clarify that the requirement to keep 
process safety information up to date also explicitly applies to 
Program 3 processes. 40 CFR 68.65 states that ``[t]he owner or operator 
shall complete a compilation of written process safety information 
before conducting any process hazard analysis required by the rule.'' 
Refining the language of 40 CFR 68.65 to reflect existing requirements 
would clarify that such process safety information is required to be up 
to date for Program 3 processes--just as for Program 2 processes--
without the need for evaluating compliance with management of change, 
conducting a pre-startup safety review, or meeting PHA requirements.
2. Program 2 and 3 Requirements for Compliance With RAGAGEP
    The current RMP regulations outline two different, albeit similar, 
ways to comply with RAGAGEP. First, the requirement for Program 2 
processes at 68.48(b) states: ``The owner or operator shall ensure that 
the process is designed in compliance with recognized and generally 
accepted good engineering practices. Compliance with Federal or State 
regulations that address industry-specific safe design or with 
industry-specific design codes and standards may be used to demonstrate 
compliance with this paragraph.'' Second, the requirement for Program 3 
processes at 40 CFR 68.65(d)(2) states: ``The owner or operator shall 
document that equipment complies with recognized and generally accepted 
good engineering practices.''
    EPA is therefore proposing to harmonize these two provisions so 
that the requirements are identical. EPA has found that the distinction 
between ``ensure'' for Program 2 processes and ``document'' for Program 
3 processes creates confusion. Additionally, the language for Program 3 
refers to ``equipment,'' while the language of Program 2 refers to the 
``process.'' Requiring facilities to document compliance, rather than 
merely ``ensure'' compliance, removes this ambiguity. EPA is also 
proposing to remove the sentence ``Compliance with Federal or State 
regulations that address industry-specific safe design or with 
industry-specific design codes and standards may be used to demonstrate 
compliance with this paragraph.'' In some cases, Federal or State 
regulations lag behind current RAGAGEP and thus do not provide the same 
level of protection. For example, OSHA recognized that OSHA's flammable 
liquid standard at 49 CFR 1910.106 is not as up to date as NFPA or 
International Fire Code standards for flammable liquids.\323\ EPA 
therefore proposes to replace both provisions to indicate that the 
owner or operator shall ensure and document that the process is 
designed in compliance with RAGAGEP.
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    \323\ https://www.osha.gov/laws-regs/standardinterpretations/2001-08-27.
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3. Retention of Hot Work Permits
    The requirement to issue a hot work permit,\324\ including 
documentation of necessary fire protection and prevention measures, is 
currently in the RMP regulation only for Program 3 processes. Pursuant 
to 40 CFR 68.85(b), ``The permit shall be kept on file until completion 
of the hot work operations.''
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    \324\ 40 CFR 68.3: ``Hot work means work involving electric or 
gas welding, cutting, brazing, or similar flame or spark-producing 
operations.''
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    Under the existing RMP regulations, it can be difficult for 
implementing agencies to determine if the facility has been conducting 
hot work in compliance with the requirements of 40 CFR 68.85, unless 
the facility is conducting hot work at the time of the inspection and 
has hot work permits on file. Adding a requirement to retain hot work 
permits after the completion of operations would address this issue.
    Therefore, EPA is proposing to require retention of hot work 
permits for 5 years, in accordance with the recordkeeping requirements 
in 40 CFR 68.200.\325\ Implementing agencies would be able to determine 
whether: (1) The owner or operator of the facility had any hot work 
permits, and (2) the hot work permits are in compliance with the 
documentation requirements of 40 CFR 68.85(b).\326\ EPA seeks comment 
on this proposed hot work provision amendment.
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    \325\ 40 CFR 68.200: ``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.''
    \326\ 40 CFR 68.85(b): ``The permit shall document that the fire 
prevention and protection requirements in 29 CFR 1910.252(a) have 
been implemented prior to beginning the hot work operations; it 
shall indicate the date(s) authorized for hot work; and identify the 
object on which hot work is to be performed. The permit shall be 
kept on file until completion of the hot work operations.''
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4. Storage Incident to Transportation
    Currently, under 40 CFR 68.3, the term ``stationary source'' does 
not apply to transportation activities, including storage incident to 
transportation for any regulated substance or any other extremely 
hazardous substance.\327\ A stationary source does include 
transportation containers connected to loading/unloading equipment or 
used for storage not incident to transportation, but the term ``storage 
not incident to transportation'' is not defined in the RMP regulations. 
Preamble language and responses to frequently asked questions posted on 
the Agency's website clarify that a container is considered to be in 
transportation as long as it is attached to the motive power (e.g., 
truck or locomotive) that delivered it to the site.^{328 329} 
If the tank car is detached

[[Page 53605]]

from the motive power, and therefore no longer in transportation, the 
contents of the tank car must be considered in the threshold 
determination.
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    \327\ ``Stationary source'' is defined at 40 CFR 68.3 as 
follows: ``Stationary source means any buildings, structures, 
equipment, installations, or substance emitting stationary 
activities which belong to the same industrial group, which are 
located on one or more contiguous properties, which are under the 
control of the same person (or persons under common control), and 
from which an accidental release may occur. The term stationary 
source does not apply to transportation, including storage incident 
to transportation, of any regulated substance or any other extremely 
hazardous substance under the provisions of this part. A stationary 
source includes transportation containers used for storage not 
incident to transportation and transportation containers connected 
to equipment at a stationary source for loading or unloading. 
Transportation includes, but is not limited to, transportation 
subject to oversight or regulation under 49 CFR parts 192, 193, or 
195, or a State natural gas or hazardous liquid program for which 
the State has in effect a certification to DOT under 49 U.S.C. 
60105. A stationary source does not include naturally occurring 
hydrocarbon reservoirs. Properties shall not be considered 
contiguous solely because of a railroad or pipeline right-of-way.''
    \328\ EPA, List of Regulated Substances and Thresholds for 
Accidental Release Prevention; Amendments, 40 CFR part 68 (January 
6, 1998).
    \329\ EPA, ``Are Chemicals in a Tank Car Exempt from Threshold 
Determinations Under 40 CFR part 68?'' last modified September 1, 
2021, https://www.epa.gov/rmp/are-chemicals-tank-car-exempt-threshold-determinations-under-40-cfr-part-68.
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    EPA is proposing additional regulatory language that includes a 
specified number of hours that a transportation container may be 
disconnected from the motive power that delivered it to the site before 
being considered part of the stationary source. EPA believes that this 
provision would provide clarity for regulated parties and implementing 
agencies on whether a transportation container used for onsite storage 
must be incorporated into a facility's risk management plan. EPA is 
proposing to apply a 48-hour time frame to this term based on the 
Department of Transportation (DOT), Pipeline and Hazardous Materials 
Safety Administration, Carriage by Rail regulations at 49 CFR 
174.14(a), that indicate rail carriers must forward each shipment of 
hazardous materials promptly within 48 hours after acceptance or 
receipt. EPA seeks comment on this 48-hour time frame, suggestions for 
other appropriate time frames, and any safety concerns that may arise 
from transportation containers being exempt from the RMP regulations 
when disconnected for less than 48 hours. The 48 hours would be the 
total amount of time, such that a railyard could not move a rail car 
around in the railyard using a mobile railcar mover to start the clock 
again.
    EPA is also proposing to modify the definition of stationary source 
to further clarify ``storage incident to transportation'' in 40 CFR 
68.3 by adding an explanation to the transportation container language 
in the stationary source definition. The proposed regulatory text would 
add examples of what a transportation container could be, such as a 
truck or railcar, and that for RMP purposes, railyards and other 
stationary sources actively engaged in transloading activities may 
store regulated substances up to 48 hours total in a disconnected 
transportation container without counting the regulated substances 
contained in that transportation container toward the regulatory 
threshold.
5. Retail Facility Exemption
    The current definition of ``retail facility'' at 40 CFR 68.3 is ``a 
stationary source at which more than one-half of the income is obtained 
from direct sales to end users or at which more than one-half of the 
fuel sold, by volume, is sold through a cylinder exchange program.''
    The period of sales to end users is unclear; it lacks a definite 
time frame in which to calculate whether more than one-half of the 
facility's direct sales are to end users. Specifying a definite period 
of time would eliminate this uncertainty and allow owners and operators 
to determine more accurately whether regulated substances in a process 
are subject to the RMP provisions. It also may reduce the amount of 
sales documentation that the owner or operator of a regulated facility 
must provide to establish its status as a retail facility.
    EPA is therefore proposing to adjust the regulatory text to clarify 
that the definition of ``retail facility'' is one in which more than 
one-half of the ``annual'' income ``in the previous calendar year'' is 
obtained from direct sales to end users or at which more than one-half 
of the fuel sold over that period, by volume, is sold through a 
cylinder exchange program. EPA is proposing one year of sales activity 
because the Agency believes it captures the seasonality of propane 
sales at propane distribution facilities. EPA seeks comment on the 
proposed annual time frame for sales documentation.
6. RAGAGEP
    EPA initially looks to the latest version of industry codes, 
standards, and guidelines to determine whether an owner or operator has 
documented compliance with RAGAGEP under 40 CFR 68.65(d)(2), given that 
40 CFR part 68 does not define the phrase ``recognized and generally 
accepted good engineering practices.'' EPA believes this application 
makes sense, because the plain meaning of the phrase is that practices 
should be ``recognized,'' ``good,'' and ``generally accepted'' and the 
latest version of RAGAGEP contains industry's most up-to-date 
assessment of practices that meet these criteria. Also, under the 
structure of the CAA, stationary sources subject to 40 CFR part 68 are 
also subject to the GDC in 42 U.S.C. 7412(r)(1).\330\ Neither the text 
nor the legislative history of the GDC mentions locking obsolete 
industry standards into place. EPA also believes there is no practical 
reason to have a stricter standard for facilities that are subject to 
the GDC, but not to 40 CFR part 68.\331\ Further, a facility subject to 
the GDC may have RMP-regulated substances in amounts lower than the RMP 
regulatory threshold.
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    \330\ See 40 CFR 68.1.
    \331\ For example, subjecting facilities with 5,000 lbs. of 
anhydrous ammonia, which are subject only to the GDC, to higher 
standards than a facility with 50,000 pounds, which would be subject 
to 40 CFR part 68.
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    To address these concerns, EPA is proposing that the RMP 
regulations clarify that PHAs must include an analysis of the most 
recently promulgated RAGAGEP in order to identify any gaps between 
practices related to the facility's design, maintenance, and operation 
and the most current version of RAGAGEP.
    EPA is also proposing to require owners or operators to specify in 
their risk management plans why PHA recommendations associated with 
adopting practices from the most recent version of RAGAGEP are not 
implemented. EPA is proposing to adopt three of the four rationales 
identified in section IV.A.1.e of this preamble.\332\ EPA is not 
proposing to adopt the rationale that ``[t]he recommendation is not 
necessary to protect public receptors,'' because there are many safety 
measures such as pipe labeling, training, and some standard operating 
procedures that do not directly affect public receptors, but that can 
have indirect or secondary effects on responders or public receptors. 
By allowing owners or operators to screen out recommendations that do 
not directly affect public receptors, the Agency is concerned that 
facilities may discount important recommendations. For this provision, 
the Agency is also proposing to modify the rationale that ``[a]n 
alternative measure would provide a sufficient level of protection'' by 
adding that the safety measures adopted in lieu of the ones recommended 
by the PHA team must be recognized and generally accepted. This will 
help ensure that facilities do not ignore updated RAGAGEP when making 
decisions about which PHA recommendations to accept or reject. EPA 
seeks comment on the proposed rationales for not adopting practices 
from the most recent version of RAGAGEP.
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    \332\ The four rationales are: 1. The analysis upon which the 
recommendation is based contains material factual errors. 2. The 
recommendation is not necessary to protect to protect public 
receptors. 3. An alternative measure would provide a sufficient 
level of protection. 4. The recommendation is infeasible.
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E. Compliance Dates

    The initial 1996 RMP rule was 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 
proposal modify terms of the existing rule, and, in some cases,

[[Page 53606]]

amplify or clarify existing requirements. Therefore, in modifications 
to 40 CFR 68.10, EPA is proposing to:
     Require regulated sources to comply with new STAA, 
incident investigation root cause analysis, third-party compliance 
audit, employee participation, emergency response public notification 
and exercise evaluation reports, and information availability 
provisions, unless otherwise stated, 3 years after the effective date 
of the final rule (i.e., FR publication date).
     Require regulated sources to comply with the revised 
emergency response field exercise frequency provision by March 15, 
2027, or within 10 years of the date of an emergency response field 
exercise conducted between March 15, 2017, and August 31, 2022 in 
accordance with 40 CFR 68.96(b)(1)(ii).
     Allow regulated sources 1 additional year (i.e., 4 years 
after the effective date of the final rule) to update and resubmit risk 
management plans to reflect new and revised data elements.
    For STAA, this means that by 3 years after the effective date of 
the final rule, the owner or operator of a source with a regulated RMP 
process involving HF alkylation, or a source with a process in NAICS 
code 324 or 325, located within 1 mile of another NAICS code 324 or 325 
RMP facility process, must have completed or updated their PHA to 
include an STAA. Recognizing that some facilities may have performed 
PHAs recently or may be due to perform PHAs shortly after EPA issues a 
final rule, the Agency seeks comment on a second option for STAA 
compliance, which would require any stationary source that must perform 
STAA as part of its PHA to comply with the STAA requirement for PHAs 
performed after 1 year from the date of the final rule.
    For incident investigation root cause analysis, this means that the 
owner or operator of a source that experiences any RMP-reportable 
accident more than 3 years after the effective date of the rule must 
conduct a root cause analysis for their incident investigation of the 
accident.
    For third-party compliance audits, this means that the owner or 
operator of a source where a second RMP-reportable accident occurs 
within 5 years--or of a source where one reportable accident in an RMP-
regulated process in NAICS code 324 or 325, located within 1 mile of 
another source's RMP-regulated NAICS code 324 or 325 process, occurs 
after 3 years of the effective date of the final rule--must obtain a 
third-party audit for their next required compliance audit.
    For employee participation, this means that by 3 years after the 
effective date of the final rule, the owner or operator of a source 
must have updated or developed--and begun implementing--an employee 
participation plan that addresses employee consultation when resolving 
PHA, compliance audit, and incident investigation recommendations and 
decisions; stop work authorities; and RMP accident and non-compliance 
reporting.
    For emergency response, the proposed provisions means that by 3 
years after the effective date of the final rule, the owner or operator 
of a non-responding source must have onsite documentation of emergency 
response public notification procedures. It also means that by 3 years 
after the effective date of the final rule, owners or operators of non-
responding and responding sources must have the means to ensure that a 
community notification system is in place to warn the public of 
releases. It also means that for any RMP-reportable accident occurring 
more than 3 years after the effective date of the final rule, sources 
must provide appropriate and timely data and information to local 
responders detailing their current understanding and best estimates of 
the nature of the release. It also means that by 3 years after the 
effective date of the rule, emergency exercise evaluation reports must 
include documentation of specific exercise elements.
    For information availability, this means that by 3 years after the 
effective date of the final rule, the owner or operator must make the 
required chemical hazard information available to the public upon 
request and provide notification to the public that the information is 
available.
    EPA is proposing to provide this 3-year phase-in for several 
reasons. First, the initial 1996 RMP rule required compliance per the 
statute within 3 years. EPA believes the proposed provisions outlined 
today are not as extensive as developing a full RMP program. While some 
may argue that some sources already had an accident prevention program 
in place due to the OSHA PSM standard, some facilities did not, yet the 
rule still required development and compliance within 3 years. 
Therefore, EPA does not believe compliance with these proposed 
provisions should require a longer time frame than compliance with the 
initial rule. Second, while EPA believes that for most sources, 
activities associated with these proposed provisions may reasonably 
require significant time to complete, the 3-year phase-in is as 
expeditious as practicable considering the circumstances. For example, 
the new incident investigation root cause analysis, employee 
participation, emergency response, and information availability 
requirements will involve training and program development activities. 
For the third-party audit provisions, the extended compliance timeframe 
will allow potential auditors enough time to meet the competency and 
independence criteria necessary to serve as a third-party auditor. EPA 
believes that in many cases, sources subject to the STAA provisions 
will prefer to perform a full PHA update when implementing the STAA 
requirements. Sources subject to STAA provisions 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 5-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. For the emergency response provisions, evaluating and securing 
resources for public notification systems and the associated training 
with local responders will take time to be coordinated. Lastly, EPA 
intends to publish guidance for certain provisions, such as STAA, 
incident investigation root cause analysis, third-party audits, 
employee participation, and emergency response. 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.
    For field exercises, EPA is proposing to require the owners or 
operators of sources to have planned, scheduled, and conducted their 
first field exercise by March 15, 2027. For this provision, EPA is 
proposing to revert to the original timeframe in the 2017 amendments 
rule, based on the Agency's view that this change will allow local 
authorities to set longer time periods to address the major concern 
that the 2019 reconsideration rule identified with the practicability 
of the 2017 date, which was the potential inability of local 
authorities to voluntarily participate in the exercises when they had 
multiple facilities in their jurisdiction.
    EPA is also proposing to provide 1 additional year for owners or 
operators to update risk management plans to reflect proposed new or 
revised data elements in subpart G of the regulations. The additional 
year will allow owners and operators an opportunity to begin to comply 
with the new or revised regulatory provisions prior to certifying

[[Page 53607]]

compliance in the risk management plan. Additionally, the Agency will 
need to make significant revisions to its online risk management plan 
submission system, RMP*eSubmit, to accommodate the newly required and 
revised data elements, and sources will not be able to update risk 
management plans 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 risk management plans will prevent potential 
problems with thousands of sources submitting updated risk management 
plans on the same day.

V. Additional Considerations

    EPA acknowledges the need for reviewing the list of RMP-regulated 
substances. Section 112(r)(3) requires periodic review of the RMP 
regulated substance list. A priority chemical for EPA's upcoming review 
will be ammonium nitrate. EPA also acknowledges the need for 
considering expanding fenceline monitoring for RMP-regulated 
facilities. While EPA is considering both of these issues for a future 
action, they are beyond the scope of this NPRM. EPA welcomes comment on 
these issues which are further discussed in the Technical Background 
Document.\333\
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    \333\ Technical Background Document for Notice of Proposed 
Rulemaking: Risk Management Programs Under the Clean Air Act, 
Section 112(r)(7); Safer Communities by Chemical Accident Prevention 
(April 19, 2022).
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VI. Statutory and Executive Orders 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 (Docket ID Number EPA-HQ-OLEM-2022-
0174). Chapters 4-6 of the RIA developed for this proposed action 
provide additional details on costs and benefits.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule will be 
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 2725.01. A copy of the ICR is available in the 
docket for this rule, and it is briefly summarized here.
    This new ICR adds new information collection activities related to 
a previously approved ICR (1656.18), OMB Control No. 2050-0144. That 
ICR covers the Risk Management Program rule, originally promulgated on 
June 20, 1996; and the current rule, including previous amendments, 
codified as 40 CFR part 68. This ICR addresses the proposed information 
requirements that are part of the proposed revision to the rule.
    EPA believes that the Risk Management Program regulations have been 
effective in preventing and mitigating chemical accidents in the United 
States. However, EPA believes that revisions could further protect 
human health and the environment from chemical hazards through 
advancement of process safety management based on lessons learned. 
These revisions are a result of review of the existing Risk Management 
Program and information gathered from the 2021 listening sessions. 
State and local authorities will use the information in RMPs to modify 
and enhance their community response plans. The agencies implementing 
the RMP rule will use RMPs to evaluate compliance with part 68 and to 
identify sources for inspection because they may pose significant risks 
to the community. Citizens may use the information to assess and 
address chemical hazards in their communities and to respond 
appropriately in the event of a release of a regulated substance. These 
revisions are a result of a review of the existing Risk Management 
Program and are proposed under the statutory authority provided by 
section 112(r) of the CAA as amended (42 U.S.C. 7412(r)).
    Respondents/affected entities: The industries that are likely to be 
affected by the requirements in the proposed regulation fall into 
numerous NAICS codes. The types of stationary sources affected by the 
proposed rule 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. 
Among the stationary sources potentially affected, the Agency has 
determined that 2,911 are regulated private sector small entities and 
630 are small government entities.
    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: 14,226.
    Frequency of response: On occasion.
    Total estimated burden: 797,642 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $79,248,522 (per year); includes $2,817,907 
annual operations and maintenance costs and $78,400 annual capital 
costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden to the EPA using the docket identified 
at the beginning of this rule. The EPA will respond to any ICR-related 
comments in the final rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs using the 
interface at www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. OMB must receive 
comments no later than October 31, 2022.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. The 
small entities subject to the requirements of this action include small 
businesses and small governmental entities. The Agency has determined 
that among the 2,911 potentially regulated private sector small 
entities so impacted, 2,822, or 96.9 percent, may experience an impact 
of less than one percent with an average small entity cost of $10,618; 
and 84, or 2.9 percent, may experience an impact of between one and 
three percent of revenues with an average small cost entity of 
$108,921. The industry sectors of Farm Product Warehousing and Storage, 
and All Other

[[Page 53608]]

Miscellaneous Chemical Product and Preparations Manufacturing had the 
most entities potentially affected between one and three percent of 
revenues, with 5 and 6 entities, respectively. For detailed costs by 
provision and NAICS code see Chapter 8 of the RIA.
    Among the 630 small government entities potentially affected, 488, 
or 77 percent would incur costs of less than $1,000; 109, or 17 percent 
costs ranging from $1,000 to $2,000; 18, or 3 percent costs ranging 
from $2,000 to $3,000; and only one would incur costs greater than 
$10,000, and EPA estimated that for the rule to have a larger than one 
percent impact on this entity, it would need to have revenue of less 
than $103 per resident.
    EPA solicits comment on the number of small entities affected and 
the estimated cost impacts on small entities. Details of these analyses 
are presented in Chapter 8 of the proposed rule RIA, available in the 
docket.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not include any Federal mandate that may result in 
the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
for inflation) in any one year and does not significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1531-1538).

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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.
    EPA consulted with Tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes on previous RMP 
rulemakings. EPA will consult again with Tribal officials as it 
develops this regulation to permit them to have meaningful and timely 
input into its development. Consultation will include conference calls, 
webinars, and meetings with interested Tribal representatives to ensure 
that their concerns are addressed before the rule is finalized. In the 
spirit of E.O. 13175 and consistent with EPA policy to promote 
communications between EPA and Tribal governments, EPA specifically 
solicits comment on this proposed rule from Tribal officials.

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

    This action is not subject to E.O. 13045 because EPA does not 
believe the environmental health risks or safety risks addressed by 
this action present a disproportionate risk to children. This action's 
health and risk assessments are contained in the Chapter 9 of the RIA 
for this rule, available in the docket.

H. Executive Order 13211: Actions Concerning Regulations 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in E.O. 12898 (59 FR 7629, February 16, 1994). To the extent 
that populations living closer to facilities are more likely to be 
exposed if an accidental release at an RMP facility occurs, these 
releases pose a greater risk to these key demographic groups. 
Therefore, the benefits of this regulation would reduce risk for 
historically underserved and overburdened populations.
    E.O. 12898 directs Federal agencies, to the greatest extent 
practicable and permitted by law, to make EJ part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States. The consideration of EJ into EPA 
rulemaking is guided by two EPA documents: (1) ``Technical Guidance for 
Assessing Environmental Justice in Regulatory Analysis'' \334\ and (2) 
``Guidance on Considering Environmental Justice During the Development 
of Regulatory Action.'' \335\ The first of these documents \336\ 
establishes the expectation that analysts conduct the highest quality 
EJ analysis feasible in support of rulemakings, recognizing that what 
is possible will be context specific. One method recommended by the 
guidance documents includes screening for potential EJ concerns by 
identifying the proximity of regulated sources to historically 
underserved and overburdened communities. E.O. 12898 places a 
responsibility on Federal agencies for ``identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations in the United States.''
---------------------------------------------------------------------------

    \334\ EPA. (2016). Technical Guidance for Assessing 
Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
    \335\ EPA. (2018). Guidance on Considering Environmental Justice 
During the Development of Regulatory Actions. https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf.
    \336\ EPA. (2016). Technical Guidance for Assessing 
Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
---------------------------------------------------------------------------

    EPA conducted an EJ analysis using the Agency's EJ screening tool, 
EJSCREEN.\337\ The EJ analysis shows that historically underserved and 
overburdened populations live within proximity to those facilities (and 
thus at greater risk) than other populations. The analysis also found 
evidence that included facilities are disproportionately located within 
historically underserved and overburdened communities. Thus, EPA 
recognizes that accidental releases of regulated chemicals from 
facilities regulated by this action would likely pose disproportionate 
risks to historically marginalized communities. However, EPA has 
concluded that the regulatory requirements will advance

[[Page 53609]]

fair treatment of those populations by reducing the disproportionate 
damages from accidental releases from RMP-regulated facilities might 
otherwise inflict on those populations. EPA's full EJ analysis is 
documented in the RIA, which is available in the docket for this 
action.
---------------------------------------------------------------------------

    \337\ https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------

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.

Michael S. Regan,
Administrator.
    For the reasons stated in the preamble, Title 40, chapter I, part 
68, of the Code of Federal Regulations is proposed to be amended as 
follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

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

    Authority:  42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
0
2. Amend Sec.  68.3 by
0
a. Adding in alphabetical order definitions for ``Active measures,'' 
``Inherently safer technology or design'', ``Natural hazard'', 
``Passive measures'', ``Practicability'', and ``Procedural measures'';
0
b. Revising the definition of ``Retail facility'';
0
c. Adding in alphabetical order a definition for ``Root cause'';
0
d. Revising the definition of ``Stationary source''; and
0
e. Adding in alphabetical order a definition for ``Third-party audit''.
    The additions and revisions 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).
* * * * *
    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.
* * * * *
    Natural hazard means naturally occurring events that have the 
potential for negative impact including meteorological or geologic 
hazards. Meteorological hazards include those that naturally occur due 
to the weather cycle or climatic cycles, and include flooding, 
temperature extremes, snow/ice storms, wildfire, tornado, tropical 
cyclones, hurricanes, storm surge, wind, lightening, hailstorms, 
drought, etc. Geologic hazards are those occurring due to the movement 
of the earth and the internal earth forces, and include seismic events, 
earthquakes, landslides, tsunami, volcanic eruptions, and dam rupture.
* * * * *
    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 environmental, 
legal, social, technological and economic 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.
* * * * *
    Retail facility means a stationary source at which more than one-
half of the annual income (in the previous calendar year) is obtained 
from direct sales to end users or at which more than one-half of the 
fuel sold, by volume, is sold through a cylinder exchange program.
* * * * *
    Root cause means a fundamental, underlying, system-related reason 
why an incident occurred.
* * * * *
    Stationary source means any buildings, structures, equipment, 
installations, or substance-emitting stationary activities which belong 
to the same industrial group, which are located on one or more 
contiguous properties, which are under the control of the same person 
(or persons under common control), and from which an accidental release 
may occur. The term stationary source does not apply to transportation, 
including storage incident to transportation, of any regulated 
substance or any other extremely hazardous substance under the 
provisions of this part. A stationary source includes transportation 
containers used for storage not incident to transportation and 
transportation containers connected to equipment at a stationary source 
for loading or unloading. A transportation container is in storage 
incident to transportation as long as it is attached to the motive 
power that delivered it to the site (e.g., a truck or locomotive); 
however, railyards and other stationary sources actively engaged in 
transloading activities may store regulated substances up to 48 hours 
total in a disconnected transportation container without counting the 
regulated substances contained in that transportation container toward 
the regulatory threshold. Transportation includes, but is not limited 
to, transportation subject to oversight or regulation under 49 CFR part 
192, 193, or 195, or a State natural gas or hazardous liquid program 
for which the State has in effect a certification to DOT under 49 
U.S.C. 60105. A stationary source does not include naturally occurring 
hydrocarbon reservoirs. Properties shall not be considered contiguous 
solely because of a railroad or pipeline right-of-way.
    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 
requirements 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 (g) through (k) as paragraphs (j) through 
(n); and
0
c. Adding new paragraphs (g) through (i).
    The revisions and additions read as follows:


Sec.  68.10  Applicability.

    (a) Except as provided in paragraphs (b) through (i) 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;

[[Page 53610]]

    (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.
* * * * *
    (g) By [DATE 3 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner 
or operator shall comply with the following provisions promulgated on 
[EFFECTIVE DATE OF FINAL RULE]:
    (1) Third-party audit provisions in Sec. Sec.  68.58(f) through 
(h), 68.59, 68.79(f) through (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) Employee participation provisions in Sec. Sec.  68.62(d)(7) and 
68.82(d)(7);
    (5) Emergency response provisions in Sec. Sec.  68.90(b) and 
68.95(a).
    (6) Availability of information provisions in Sec.  68.210(d) 
through (f).
    (h) By March 15, 2027, or within 10 years of the date of an 
emergency response field exercise conducted between March 15, 2017, and 
August 31, 2022 in accordance with Sec.  68.96(b)(1)(ii).
    (i) By [DATE 4 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner 
or operator shall comply with the risk management plan provisions of 
subpart G of this part promulgated on [EFFECTIVE DATE OF FINAL RULUE].

Subpart C--Program 2 Prevention Program

0
4. Amend Sec.  68.48 by revising paragraph (b) to read as follows:


Sec.  68.48  Safety information.

* * * * *
    (b) The owner or operator shall ensure and document that the 
process is designed in compliance with recognized and generally 
accepted good engineering practices.
* * * * *
0
5. Amend Sec.  68.50 by revising paragraph (a)(3) and adding paragraphs 
(a)(5) and (6) to read as follows:


Sec.  68.50  Hazard review.

    (a) * * *
    (3) The safeguards used or needed to control the hazards or prevent 
equipment malfunction or human error including standby or emergency 
power systems;
* * * * *
    (5) External events such as natural hazards, including those caused 
by climate change or other triggering events that could lead to an 
accidental release; and
    (6) Stationary source siting, including the placement of processes, 
equipment, buildings within the facility, and hazards posed by 
proximate facilities, and accidental release consequences posed by 
proximity to the public and public receptors.
* * * * *
0
6. 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 this subpart 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 
applies:
    (1) Two accidental releases within five years meeting the criteria 
in Sec.  68.42(a) from a covered process at a stationary source have 
occurred; or
    (2) One accidental release within five years meeting the criteria 
in Sec.  68.42(a) from a covered process at a stationary source in 
NAICS code 324 or 325, located within 1 mile of another stationary 
source having a process in NAICS code 324 or 325, has occurred; or
    (3) 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)(3) 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)(3) 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 second of two releases within 
five years; or
    (2) For third-party audits required pursuant to paragraph (f)(2) of 
this section, within 12 months of the release; or
    (3) For third-party audits required pursuant to paragraph (f)(3) 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
7. Section 68.59 is added 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 
any 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

[[Page 53611]]

    (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 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) 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 (c)(2); and
    (iv) 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 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
8. Amend Sec.  68.60 by adding paragraph (h) to read as follows:


Sec.  68.60  Incident investigation.

* * * * *

[[Page 53612]]

    (h) The owner or operator shall ensure the following are addressed 
when the incident in Sec.  68.60(a) meets the accident history 
reporting requirements under Sec.  68.42:
    (1) The report shall be completed within 12 months of the incident, 
unless the implementing agency approves, in writing, to an extension of 
time.
    (2) The report in paragraph (d) of this section shall include 
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.
0
9. Section 68.62 is added to subpart C to read as follows:


Sec.  68.62  Employee participation.

    (a) The owner or operator shall develop a written plan of action 
regarding the implementation of the employee participation required by 
this section.
    (b) The owner or operator shall develop and implement a process to 
allow employees and their representatives to anonymously report 
unaddressed hazards that could lead to a catastrophic release, 
unreported RMP-reportable accidents, or any other noncompliance with 
this part.
    (c) The owner or operator shall provide to employees and their 
representatives access to hazard reviews and to all other information 
required to be developed under this rule.

Subpart D--Program 3 Prevention Program

0
10. Amend Sec.  68.65 by revising paragraphs (a) and (d)(2) 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. The compilation of written process safety information is to 
enable the owner or operator and the employees involved in operating 
the process to identify and understand the hazards posed by those 
processes involving regulated substances. This process safety 
information shall include information pertaining to the hazards of the 
regulated substances used or produced by the process, information 
pertaining to the technology of the process, and information pertaining 
to the equipment in the process.
* * * * *
    (d) * * *
    (2) The owner or operator shall ensure and document that the 
process is designed and maintained in compliance with recognized and 
generally accepted good engineering practices.
* * * * *
0
11. Amend Sec.  68.67 by revising paragraphs (c)(3) and (5) and adding 
paragraph (c)(8) through (10) to read as follows:


Sec.  68.67  Process hazard analysis.

* * * * *
    (c) * * *
    (3) Engineering and administrative controls applicable to the 
hazards and their interrelationships such as appropriate application of 
detection methodologies to provide early warning of releases and 
standby or emergency power systems.
* * * * *
    (5) Stationary source siting, including the placement of processes, 
equipment, and buildings within the facility, hazards posed by 
proximate facilities, and potential accidental release consequences to 
nearby public and environmental receptors;
* * * * *
    (8) External events such as natural hazards, including those caused 
by climate change or other triggering events that could lead to an 
accidental release;
    (9) For processes in NAICS codes 324 and 325, located within 1 mile 
of another stationary source having a process in NAICS codes 324 or 325 
and for processes in NAICS 324 with hydrofluoric acid alkylation 
processes, safer technology and alternative risk management measures 
applicable to eliminating or reducing risk from process hazards.
    (i) The owner or operator shall consider and document, 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 and document the 
practicability of the inherently safer technologies and designs 
considered. The owner or operator shall include in documentation any 
methods used to determine practicability. For any inherently safer 
technologies and designs implemented, the owner or operator shall 
document and submit to EPA a description of the technology implemented.
    (iii) The analysis shall be performed by a team that includes 
members with expertise in the process being evaluated, including at 
least one member who works in the process. The team members shall be 
documented.
    (10) Any gaps in safety between the codes, standards, or practices 
to which the process was designed and constructed and the most current 
version of applicable codes, standards, or practices.
* * * * *
0
12. 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 subpart 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 or more of the following 
conditions applies:
    (1) Two accidental releases within five years meeting the criteria 
in Sec.  68.42(a) from a covered process at a stationary source has 
occurred; or
    (2) One accidental release within five years meeting the criteria 
in Sec.  68.42(a) from a covered process at a stationary source in 
NAICS code 324 or 325, located within 1 mile of another stationary 
source having a process in NAICS code 324 or 325; or
    (3) 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)(3) 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.

[[Page 53613]]

    (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)(3) 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 second of two releases within 
five years; or
    (2) For third-party audits required pursuant to paragraph (f)(2) of 
this section, within 12 months of the release; or
    (3) For third-party audits required pursuant to paragraph (f)(3) 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
13. Section 68.80 is added 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 
any 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 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) 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 (c)(2); and
    (iv) 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 this section.
    (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, 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

[[Page 53614]]

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
14. Amend Sec.  68.81 by adding paragraph (h) to read as follows:


Sec.  68.81  Incident investigation.

* * * * *
    (h) The owner or operator shall ensure the following are addressed 
when the incident in Sec.  68.81(a) meets the accident history 
reporting requirements under Sec.  68.42:
    (1) The report shall be completed within 12 months of the incident, 
unless the implementing agency approves, in writing, an extension of 
time.
    (2) The report in paragraph (d) of this section shall include 
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.
0
15. Revise Sec.  68.83 to read as follows:


Sec.  68.83  Employee participation.

    (a) The owner or operator shall develop a written plan of action 
regarding the implementation of the employee participation required by 
this section.
    (b) The owner or operator shall consult with employees and their 
representatives on the conduct and development of process hazards 
analyses, and on the development of the other elements of process 
safety management in this rule.
    (c) The owner or operator shall consult with employees and their 
representatives on addressing, correcting, resolving, documenting, and 
implementing recommendations and findings of process hazard analyses 
under Sec.  68.67(e), compliance audits under Sec.  68.79(d), and 
incident investigations under Sec.  68.81(e).
    (d) The owner or operator shall provide the following authorities 
to employees and their representatives, and document and respond, in 
writing within 30 days of the authority being exercised:
    (1) Refuse to perform a task when doing so could reasonably result 
in a catastrophic release.
    (2) Recommend to the operator in charge of a unit that an operation 
or process be partially or completely shut down, in accordance with 
procedures established in Sec.  68.69(a), based on the potential for a 
catastrophic release.
    (3) Allow a qualified operator in charge of a unit to partially or 
completely shut down an operation or process, in accordance with 
procedures established in Sec.  68.69(a), based on the potential for a 
catastrophic release.
    (e) The owner or operator shall develop and implement a process to 
allow employees and their representatives to anonymously report 
unaddressed hazards that could lead to a catastrophic release, 
unreported RMP-reportable accidents, or any other noncompliance with 
this part.
    (f) The owner or operator shall provide to employees and their 
representatives access to process hazard analyses and to all other 
information required to be developed under this rule.
0
16. Revise Sec.  68.85 by revising paragraph (b) and adding paragraph 
(c) to read as follows:


Sec.  68.85  Hot work permit.

* * * * *
    (b) The permit shall document that the fire prevention and 
protection requirements in 29 CFR 1910.252(a) have been implemented 
prior to beginning the hot work operations; it shall indicate the 
date(s) authorized for hot work; and identify the object on which hot 
work is to be performed.
    (c) The permit shall be retained for five years after the 
completion of the hot work operations.

Subpart E--Emergency Response

0
17. Amend Sec.  68.90 by revising paragraphs (b)(1) and (3) and adding 
paragraph (b)(6) to read as follows:


Sec.  68.90  Applicability.

* * * * *
    (b) * * *
    (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. The community emergency response plan should include the 
following components: identification of facilities within the emergency 
planning district, identification of routes likely to be used for the 
transportation of substances on the list of extremely hazardous 
substances, and identification of additional facilities contributing or 
subjected to additional risk due to their proximity to facilities, such 
as hospitals or natural gas facilities; methods and procedures to be 
followed by facility owners and operators and local emergency and 
medical personnel to respond to any release of such substances; 
designation of a community emergency coordinator and facility emergency 
coordinators, who shall make determinations necessary to implement the 
plan; procedures providing reliable, effective, and timely notification 
by the facility emergency coordinators and the community emergency 
coordinator to persons designated in the emergency plan, and to the 
public, that a release has occurred; methods for determining the 
occurrence of a release, and the area or population likely to be 
affected by such release; description of emergency equipment and 
facilities in the community and at each facility in the community, and 
an identification of the persons responsible for such equipment

[[Page 53615]]

and facilities; evacuation plans, including provisions for a 
precautionary evacuation and alternative traffic routes; training 
programs, including schedules for training of local emergency response 
and medical personnel; and methods and schedules for exercising the 
emergency plan.
* * * * *
    (3) Appropriate mechanisms are in place to notify emergency 
responders when there is a need for a response, including providing 
timely data and information detailing the current understanding and 
best estimates of the nature of the release.
* * * * *
    (6) The owner or operator maintains and implements, as necessary, 
procedures for informing the public and the appropriate Federal, State, 
and local emergency response agencies about accidental releases of RMP-
regulated substances and ensure that a community notification system is 
in place to warn the public within the area potentially threatened by 
the release.
0
18. Amend Sec.  68.95 by revising paragraphs (a)(1)(i) and (c) to read 
as follows:


Sec.  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, including assurance that a community notification system is 
in place to warn the public within the area threatened by the release;
* * * * *
    (c) The emergency response plan developed under paragraph (a)(1) of 
this section shall include providing timely data and information 
detailing the current understanding and best estimates of the nature of 
the release when a release occurs and be coordinated with the community 
emergency response plan developed under 42 U.S.C. 11003. The community 
emergency response plan should include identification of facilities 
within the emergency planning district, identification of routes likely 
to be used for the transportation of substances on the list of 
extremely hazardous substances, and identification of additional 
facilities contributing or subjected to additional risk due to their 
proximity to facilities, such as hospitals or natural gas facilities; 
methods and procedures to be followed by facility owners and operators 
and local emergency and medical personnel to respond to any release of 
such substances; designation of a community emergency coordinator and 
facility emergency coordinators, who shall make determinations 
necessary to implement the plan; procedures providing reliable, 
effective, and timely notification by the facility emergency 
coordinators and the community emergency coordinator to persons 
designated in the emergency plan, and to the public, that a release has 
occurred; methods for determining the occurrence of a release, and the 
area or population likely to be affected by such release; description 
of emergency equipment and facilities in the community and at each 
facility in the community, as well as an identification of the persons 
responsible for such equipment and facilities; evacuation plans, 
including provisions for a precautionary evacuation and alternative 
traffic routes; training programs, including schedules for training of 
local emergency response and medical personnel; and methods and 
schedules for exercising the emergency plan. 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
19. Amend Sec.  68.96 by revising paragraphs (b)(1)(i) and (b)(3) to 
read as follows:


Sec.  68.96  Emergency response exercises.

* * * * *
    (b) * * *
    (1) * * *
    (i) As part of coordination with local emergency response officials 
required by Sec.  68.93, the owner or operator shall conduct a field 
exercise at least once every 10 years unless the appropriate Federal, 
State, and local emergency response agencies agree in writing that such 
frequency is impractical. If emergency response agencies so agree, the 
owner or operator shall consult with emergency response officials to 
establish an alternate appropriate frequency for field exercises.
* * * * *
    (3) Documentation. The owner or operator shall prepare an 
evaluation report within 90 days of each field and tabletop 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.
* * * * *

Subpart G--Risk Management Plan

0
20. Amend Sec.  68.160 by adding paragraph (b)(22) to read as follows:


Sec.  68.160  Registration.

* * * * *
    (b) * * *
    (22) Method of communication and location of the notification that 
chemical hazard information is available to the public residing within 
6 miles of the stationary source, pursuant to Sec.  68.210(d).
0
21. Amend Sec.  68.170 by adding paragraph (e)(7) revising paragraph 
(i) to read as follows:


Sec.  68.170  Prevention program/Program 2.

* * * * *
    (e) * * *
    (7) Recommendations declined from natural hazard, power loss, and 
siting hazard evaluations and justifications.
* * * * *
    (i) The date of the most recent compliance audit; the expected date 
of completion of any changes resulting from the compliance audit and 
identification of whether the most recent compliance audit was a third-
party audit, pursuant to Sec. Sec.  68.58 and 68.59; and findings 
declined from third-party compliance audits and justifications.
* * * * *
0
22. Amend Sec.  68.175 by adding paragraphs (e)(7) through (9) and 
revising paragraph (k) to read as follows:


Sec.  68.175  Prevention program/Program 3.

* * * * *
    (e) * * *
    (7) Inherently safer technology or design measures implemented 
since the last PHA, if any, and the technology category (substitution, 
minimization, simplification and/or moderation).
    (8) Recommendations declined from natural hazard, power loss, and 
siting hazard evaluations and justifications.
    (9) Recommendations declined from safety gaps between codes, 
standards, or practices to which the process was designed and 
constructed and the most current version of applicable codes, 
standards, or practices.
* * * * *
    (k) The date of the most recent compliance audit; the expected date 
of completion of any changes resulting from the compliance audit; and 
identification of whether the most recent compliance audit was a third-

[[Page 53616]]

party audit, pursuant to Sec. Sec.  68.79 and 68.80.
* * * * *

Subpart H--Other Requirements

0
23. Amend Sec.  68.210 by adding paragraphs (d) through (f) to read as 
follows:


Sec.  68.210  Availability of information to the public.

* * * * *
    (d) Chemical hazard information. The owner or operator of a 
stationary source shall provide, upon request by any member of the 
public residing within 6 miles of the stationary source, the following 
chemical hazard information for all regulated processes in the language 
requested, as applicable:
    (1) Regulated substances information. Names of regulated substances 
held in a process;
    (2) Safety Data Sheets (SDSs). 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) 
and the emergency response provisions of subpart E as applicable:
    (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.
    (e) Notification of availability of information. The owner or 
operator shall provide ongoing notification on a company website, 
social media platforms, or through other publicly accessible means 
that:
    (1) Information specified in paragraph (d) of this section is 
available to the public residing within 6 miles of the stationary 
source 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, mailing address, and/or telephone or website request);
    (2) Identify where to access information on community preparedness, 
if available, including shelter-in-place and evacuation procedures.
    (f) Timeframe to provide requested information. The owner or 
operator shall provide the requested information under paragraph (d) of 
this section within 45 days of receiving a request.

[FR Doc. 2022-18249 Filed 8-30-22; 8:45 am]
BILLING CODE 6560-50-P

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