Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention, 17622-17692 [2024-04458]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 68
[EPA–HQ–OLEM–2022–0174; FRL–5766.6–
02–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: Final rule.
AGENCY:
List of Abbreviations and Acronyms
The Environmental Protection
Agency (EPA) is amending its Risk
Management Program (RMP) regulations
as a result of Agency review. The
revisions include several changes and
amplifications to the accident
prevention program requirements,
enhancements to the emergency
preparedness requirements,
improvements to the public availability
of chemical hazard information, and
several other changes to certain
regulatory definitions or points of
clarification. As major and other serious
and concerning RMP accidents continue
to occur, the record shows and EPA
believes that this final rule will help
further protect human health and the
environment from chemical hazards
through advancement of process safety
based on lessons learned. These
amendments seek to improve chemical
process safety; assist in planning,
preparedness, and response to Risk
Management Program-reportable
accidents; and improve public
awareness of chemical hazards at
regulated sources. While many of the
provisions of this final rule reinforce
each other, it is EPA’s intent that each
one is merited on its own, and thus
severable.
SUMMARY:
This final rule is effective on
May 10, 2024.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OLEM–2022–0174. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
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DATES:
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available electronically through https://
www.regulations.gov.
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.
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, EPA defines the
following terms and acronyms here:
ANSI American National Standards
Institute
API American Petroleum Institute
CAA Clean Air Act
CAAA Clean Air Act Amendments
CBI Confidential Business Information
CCPS Center for Chemical Process Safety
CERCLA Comprehensive Environmental
Response, Compensation, and Liability Act
CFATS Chemical Facility Anti-Terrorism
Standards
CFR Code of Federal Regulations
CISA Cybersecurity & Infrastructure
Security Agency
CSB Chemical Safety and Hazard
Investigation Board
CSISSFRRA Chemical Safety Information,
Site Security and Fuels Regulatory Relief
Act
CVI Chemical-terrorism Vulnerability
Information
DHS Department of Homeland Security
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
FBI Federal Bureau of Investigation
FOIA Freedom of Information Act
FR Federal Register
GDC General Duty Clause
HF hydrofluoric acid
HHC highly hazardous chemical
ICR Information Collection Request
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
LOPA Layers of Protection Analysis
NAICS North American Industry
Classification System
NASTTPO National Association of SARA
Title III Program Officials
NECI National Enforcement and
Compliance Initiative
NJDEP New Jersey Department of
Environmental Protection
NRC National Response Center
NRI National Risk Index
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NTTAA National Technology and Transfer
Advancement Act
OCA offsite consequence analysis
OMB Office of Management and Budget
OSHA Occupational Safety and Health
Administration
PES Philadelphia Energy Solutions
PHA process hazard analysis
PHMSA Pipeline and Hazardous Materials
Safety Administration
PRA Paperwork Reduction Act
PSI process safety information
PSM process safety management
RAGAGEP recognized and generally
accepted good engineering practices
RCA root cause analysis incident
investigation
RFA Regulatory Flexibility Act
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
SDS Safety Data Sheet
SERC State Emergency Response
Commission
STAA safer technology and alternatives
analysis
TCPA Toxic Catastrophe Prevention Act
TMA trimethylamine
TQ threshold quantity
UMRA Unfunded Mandates Reform Act
The contents of this preamble are:
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the
Regulatory Action
C. Costs and Benefits
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 incremental costs and
benefits of this action?
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. Discussion of General Comments
A. General Comments
B. EPA Responses
V. Prevention Program Requirements
A. Hazard Evaluation Amplifications
B. Safer Technology and Alternatives
Analysis (STAA)
C. Root Cause Analysis
D. Third-Party Compliance Audits
E. Employee Participation
VI. Emergency Response
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments
VII. Information Availability
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for
Final Rule Provisions
VIII. Other Areas of Technical Clarification/
Enforcement Issues
A. Summary of Proposed Rulemaking
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B. Summary of Final Rule
C. Discussion of Comments and Basis for
Final Rule Provisions
IX. Compliance Dates
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for
Final Rule Provisions
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 14094: Modernizing 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
K. Congressional Review Act (CRA)
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I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this action is to make
changes to the Risk Management
Program (RMP) rule in order to improve
safety at facilities that use and distribute
hazardous chemicals. Because major
and other serious and concerning RMP
accidents continue to occur, this final
rule aims to better identify and further
regulate risky facilities to prevent
accidental releases before they can
occur. As explained in further detail in
following sections of this preamble, EPA
maintains that by taking a rule-based,
prevention-focused approach in this
action rather than the so-called
‘‘compliance-driven,’’ mostly postincident, approach in the 2019
reconsideration rule (84 FR 69834,
December 19, 2019), this rule will
further protect human health and the
environment from chemical hazards
through process safety advancement
without undue burden.
EPA proposed changes to its RMP
regulations (40 Code of Federal
Regulations (CFR) part 68) on August
31, 2022 (87 Federal Register (FR)
53556), after publishing a ‘‘Notice of
virtual public listening sessions; request
for public comment’’ (86 FR 28828) that
solicited comments and information
from the public regarding potential
changes to the RMP regulations. EPA
also hosted a series of virtual public
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hearings on September 26–28, 2022, to
provide interested parties the
opportunity to present data, views, or
arguments concerning the proposed
action.
B. Summary of the Major Provisions of
the Regulatory Action
This action amends EPA’s RMP
regulations at 40 CFR part 68. These
regulations apply to stationary sources
(also referred to as ‘‘facilities’’) that hold
specific ‘‘regulated substances’’ in
excess of threshold quantities. These
facilities are required to assess their
potential release impacts, undertake
steps to prevent releases, plan for
emergency response to releases, and
summarize this information in a risk
management plan (RMP) submitted to
EPA. The release prevention steps vary
depending on the type of process, but
progressively gain granularity and rigor
over three program levels (i.e., Program
1, Program 2, and Program 3).
The major provisions of this rule
include several changes to the accident
prevention program requirements, as
well as enhancements to the emergency
response requirements, and
improvements to the public availability
of chemical hazard information. Each of
these provisions is introduced in the
following paragraphs of this section and
described in greater detail in sections V
through VIII of this preamble.
Additionally, certain revised
provisions apply to a subset of the
processes based on program levels
described in 40 CFR part 68 (or in one
case, to a subset of processes within a
program level). A full description of
these program levels is provided in
section III.A. of this preamble.
Additional provisions are targeted at
subgroups of processes that pose an
elevated likelihood of impacting nearby
communities. Factors elevating the
likelihood of impacting nearby
communities include source-specific
accident history, industry accident
history, and co-location with multiple
facilities. Furthermore, some sectors are
targeted for additional provisions due to
recent accidents and widely known
safer alternative technologies.
C. Costs and Benefits
Approximately 11,740 facilities have
filed current RMPs with EPA and are
potentially affected by the rule. These
facilities include petroleum refineries
and large chemical manufacturers; 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
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distributors; midstream gas plants; and
a limited number of other sources,
including Federal installations that use
RMP-regulated substances.
In total, EPA estimates annualized
final rule costs of $256.9 million at a 3%
discount rate and $296.9 million at a
7% discount rate over a 10-year period.
The largest annualized cost of the final
rule is the Safer Technologies and
Alternatives Analysis (STAA)
implementation cost ($168.7 million at
a 3% discount rate and $204.9 million
at a 7% discount rate), followed by the
practicability study ($27.0 million at a
3% discount rate and $28.6 million at
a 7% discount rate), the STAA initial
evaluation ($18.5 million at a 3%
discount rate and $19.7 million at a 7%
discount rate), information availability
($12.8 million at both 3% and 7%
discount rates), employee participation
plans ($11.5 million at both 3% and 7%
discount rates), third-party audits ($7.5
million at both 3% and 7% discount
rates), rule familiarization ($5.8 million
at a 3% discount rate and $6.8 million
at a 7% discount rate), and community
notification systems ($4.0 million at
both 3% and 7% discount rates). The
remaining provisions impose
annualized costs under $1 million,
including root cause analysis ($0.7
million at both 3% and 7% discount
rates), emergency backup power for
perimeter monitors ($0.3 million at both
3% and 7% discount rates), and RMP
justifications for natural hazards, facility
siting, recognized and generally
accepted good engineering practices
(RAGAGEP), and no backup power,
each have annualized costs below $0.1
million (at both 3% and 7% discount
rates).
The Agency has determined that
among the 2,636 potentially regulated
private sector small entities impacted,
2,393, or 90.8 percent, may experience
a cost of revenue impact of less than one
percent, with an average small entity
cost of $72,525; 167, or 6.3 percent, may
experience an impact of between 1 and
3 percent of revenues with an average
small entity cost of $629,271; and 75, or
2.8 percent, may experience an impact
of greater than 3 percent with an average
small entity cost of $1,083,823. The
industry sectors of Farm Supplies
Merchant Wholesalers and Farm
Product Warehousing and Storage had
the most entities potentially affected,
with 146 and 96 entities, respectively.
Within the Farm Supplies Merchant
Wholesalers sector, the Agency
determined that only 8 of the 146 small
entities (6 percent of small entities) will
experience impacts of between 1 and 3
percent of revenues and only 2 small
entities (1 percent of small entities) will
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experience impacts of more than 3
percent of revenue. Within the Farm
Product Warehousing and Storage
sector, the Agency determined that only
5 of the 96 small entities (5 percent of
small entities) will experience impacts
of between 1 and 3 percent of revenues
and no small entities will experience
impacts of more than 3 percent of
revenue.
Among the 630 small government
entities potentially affected, the
minimum cost any entity will incur is
$2,000; 365, or 58 percent, would incur
costs ranging from $2,000 to $3,000;
248, or 39 percent, will incur costs
ranging from $3,000 to $10,000; and 17,
or 3 percent, will incur costs greater
than $10,000. EPA estimated that for the
rule to have a larger than 1 percent
impact on the government entity with
the largest cost impact, the entity would
need to have revenue of less than $120
per resident. For the rule to have a
larger than 1 percent impact on the
smallest government entity identified in
the data, the entity would need to have
revenue of less than $650 per resident.
Details of these analyses are presented
in Chapter 8 of the RIA, which is
available in the docket.
Major and other serious and
concerning RMP accidents have
continued to occur. EPA anticipates that
promulgation and implementation of
this final rule will reduce the risk of
such accidents and the severity of the
impacts when they occur. RMP accident
data show past accidents have generated
highly variable impacts, so the impacts
of future accidents are difficult to
predict. Nevertheless, it is clear from
RMP accident data 1 and other relevant
data from RMP regulated industry
sectors,2 that chemical accidents can
impose substantial costs on firms,
employees, emergency responders, the
community, and the broader economy.
Specifically, the EPA expects the final
rule provisions to result in a reduced
frequency and magnitude of damages
from releases, including damages that
are quantified for the baseline period
such as fatalities, injuries, property
damage, hospitalizations, medical
treatment, sheltering in place, and
evacuations. EPA also expects the final
rule provisions to reduce baseline
damages that are not quantified. These
1 EPA estimated monetized damages from RMP
facility accidents of $540.23 million per year.
2 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
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damages include potential health risks
from toxic chemical exposure, lost
productivity at affected facilities,
emergency response costs, transaction
costs from potential subsequent legal
battles, property value losses in nearby
neighborhoods, environmental damage
and costs of evacuation and shelteringin-place events, and others. They have
not been quantified because there is
either limited or no information in the
RMP data that could allow for precise
quantification. However, in some cases,
these damages could be even more
detrimental to the facility and
community than those damages that can
be quantified. For example, regarding
lost productivity, costs are highly
variable based on the type of release, the
extent of the damage, the location of the
facility, and product being produced.
Yet, Marsh Specialty, a risk
management and energy consultancy,
has collected data on 10,000 accidents
in the petrochemical sector over 40
years and published 27 editions of its
‘‘100 Largest Losses’’ reports.3 Their
data suggest that lost productivity is
typically two or three times the cost of
property damage.4 Another example of
unquantified impacts can be examined
with property value impacts. A recent
hedonic property value analysis has
examined the impact of RMP facility
accidents on residential property values
(Guignet et al. 2023a, b).5 The analysis
found that accidents with only onsite
impacts reduced nearby property values
between zero and two percent.
However, accidents with impacts that
occurred offsite, including fatalities,
hospitalizations, people in need of
medical treatment, evacuations,
sheltering in place events, and/or
property and environmental damage,
reduced home values by two to three
percent. The lower values persisted for
about 10 to 12 years on average. The
paper estimates an average loss of
$5,350 per home in 2021-year values.
Aggregating across the communities
3 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
4 Marsh JLT Specialty, ‘‘100 Largest Losses 1974–
2015: Large property damage losses in the
hydrocarbon industry,’’ 24th Edition, March 2016.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
and in a few cases, business loss costs.
5 Guignet, Dennis, Robin R. Jenkins, Christoph
Nolte, and James Belke. 2023a. The External Costs
of Industrial Chemical Accidents: A Nationwide
Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
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near the 661 facilities that experienced
an offsite impact accident in their data,
they calculate a total $39.5 billion loss.
These studies strongly suggest that
preventing or mitigating an accident at
a chemical facility may prevent or
mitigate lost productivity at RMP
facilities and property value losses in
nearby neighborhoods.
Further, in enacting section 112(r),
Congress was focused on catastrophic
accidents such as the 1984 Union
Carbide industrial disaster in Bhopal,
India,6 which are extremely rare, but
very high consequence events. While
large chemical facility accidents that
have occurred in the U.S. and Europe
have not approached this level of
damage, it is possible that could
happen. For example, one of the most
consequential chemical accidents in the
U.S.7 was the 1989 explosion at the
Phillips facility in Pasadena, TX, that
killed 23 workers ($239 million in 2022
dollars), injured at least 150 more ($7.5
million), and caused $1.8 billion in
property damage.8
The five-year baseline period accident
costs included in EPA’s analysis is $540
million per year. This cost was
estimated using impacts from accidents
during 2016 through 2020 (the last year
with complete data) reported to the
RMP plan reporting database by facility
owners and operators. EPA used this
dataset due to a lack of alternative data
describing accident impacts more
comprehensively. This estimate does
not include a major catastrophe on the
scale of Union Carbide-Bhopal, or even
Phillips-Pasadena. If the final rule
provisions were to prevent or
substantially mitigate even one accident
of this magnitude, the benefits
generated, quantified and unquantified,
will be dramatic. Further, some
6 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.; Lees, Frank P.
Loss Prevention in the Process Industries, Volume
3, 2nd ed. Appendix 5, Bhopal (Oxford:
Butterworth-Heinemann, 1996).
7 As compared to consequences resulting from
RMP accidents 2004–2020 listed in Appendix A of
the 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).
8 EPA estimated the values of injuries and deaths
that occurred in Pasadena using the same values
applied to injuries and deaths at RMP facilityreported accidents. See Exhibit 3–15 in the
accompanying RIA for specific values and section
3.2.5.1 ‘‘Fatalities and Injuries’’ in the RIA for
detailed explanations of how those values were
estimated. The $1.8 billion in property damage was
estimated by Marsh JLT Specialty, ‘‘100 Largest
Losses in the Hydrocarbon Industry,’’ 27th ed.,
March 2022. https://www.marsh.com/us/industries/
energy-and-power/insights/100-largest-losses/100largest-losses-report-download.html.
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accidents that occurred at RMP facilities
during the five-year period were not
reported to EPA because the facility
either closed after the accident,
decommissioned the process, or
removed the regulated substance from
the process involved in the accident
before it was required to submit a report
to the RMP Database.9 Additionally, the
many baseline accident impacts that are
not reflected in the $540 million
baseline accident cost estimate because
EPA was unable to monetize them,10 yet
are expected to be avoided as a benefit
of the final provisions, include
responder costs, transaction costs,
property value reductions, unmonetized
costs of evacuations and sheltering-inplace, the costs of potential health
effects from exposure to toxic
chemicals, and productivity losses,
among others. The $540 million
estimate also does not reflect the full set
of baseline inefficiencies that may be
mitigated due to the improved
information offered by several of the
final provisions such as the community
notification requirements and the backup power for monitors. As the range of
monetized accident impacts suggests
(from $100 to $700 million for 2016 to
2020 11), the variation in monetized
damages is substantial. Preventing a
single high-cost accident annually
would offset annual rule costs.
When considering this final rule’s
likely benefits of avoiding some portion
of the monetized accident impacts, as
well as the additional nonmonetized
benefits, EPA believes the costs of the
rule are reasonable in comparison to its
expected benefits. When assessing the
reasonableness of the benefits and
burdens of various regulatory options,
EPA places weight on both preventing
more common accidental releases
captured in the accident history portion
of the RMP database while also placing
weight on less quantifiable potential
catastrophic events. The Agency’s
judgment as to what regulations are
‘‘reasonable’’ is informed by both
quantifiable and unquantifiable burdens
and benefits as discussed more fully in
section III.C of this preamble.
17625
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 (42
U.S.C. 7412(r))) 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 impacts the scope
and applicability of the General Duty
Clause (GDC) in CAA section 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 FINAL RULE
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 ..................................
4246 ................................
311, 312 ..........................
211 ..................................
1,449
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
Chemical manufacturing ........................................
Chemical wholesalers ............................................
Food and beverage manufacturing ........................
Oil and gas extraction ............................................
Other ......................................................................
Other manufacturing ..............................................
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Number of
facilities
Sector
9 For example, the Philadelphia Energy Solutions
Refining and Marketing LLC facility in
Philadelphia, PA, had a fire and explosions in the
PES Girard Point refinery HF alkylation unit on
June 21, 2019, which resulted in the release of HF.
This facility deregistered the affected process before
the deadline for their subsequent RMP report. For
a description of damages from this accident see
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3,315
1,502
317
1,571
719
375
39
55
section 3.2.1 of the RIA and the CSB Report, Fire
and Explosions at Philadelphia Energy Solutions
Refinery Hydrofluoric Acid Alkylation Unit,
Factual Update, October 16, 2019, https://
www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf.
10 For descriptions on why EPA was unable to
monetize each of these impacts, see Regulatory
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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.
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.
Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is
available in the docket for this rulemaking (EPA–
HQ–OLEM–2022–0174). Chapter 6, Section 6.2.
11 Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention:
Final Rule. This document is available in the docket
for this rulemaking (EPA–HQ–OLEM–2022–0174).
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B. What action is the Agency taking?
EPA is amending its RMP regulations
as a result of Agency review. The
revisions include several changes and
amplifications to the accident
prevention program requirements,
enhancements to the emergency
preparedness requirements,
improvements to the public availability
of chemical hazard information, and
several other changes to certain
regulatory definitions or points of
clarification. Because major and other
serious and concerning RMP accidents
continue to occur, EPA believes that this
final rule will help further protect
human health and the environment
from chemical hazards through
advancement of process safety based on
lessons learned. These amendments
seek to improve chemical process safety;
assist in planning, preparedness, and
response to RMP-reportable accidents;
and improve public awareness of
chemical hazards at regulated sources.
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
finalizes 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 incremental costs and
benefits of this action?
1. Summary of Estimated Costs
Table 2 presents a summary of the
annualized final rule costs estimated in
the Regulatory Impact Analysis (RIA).12
In total, EPA estimates annualized costs
of $256.9 million at a 3% discount rate
and $296.9 million at a 7% discount
rate.
TABLE 2—SUMMARY OF ESTIMATED ANNUALIZED COSTS [MILLIONS, 2022 DOLLARS] OVER A 10-YEAR PERIOD
Total
undiscounted
Cost elements
Third-party Audits .................................................................
Root Cause Analysis ...........................................................
Safer Technology and Alternatives Analysis (STAA):
Initial Evaluation ............................................................
Practicability Study .......................................................
Implementation .............................................................
Backup Power for Perimeter Monitors .................................
Employee Participation Plan ................................................
RMP Justifications:
No Backup Power .........................................................
Natural Hazards ............................................................
Facility Siting .................................................................
RAGAGEP ....................................................................
Community Notification System ...........................................
Information Availability .........................................................
Rule Familiarization .............................................................
Total Cost * ...................................................................
Total
discounted
(3%)
Total
discounted
(7%)
Annualized
(3%)
Annualized
(7%)
$75.2
7.3
$64.2
6.2
$52.8
5.1
$7.5
0.7
$7.5
0.7
176.4
256.9
1,700.4
3.3
114.7
158.2
230.2
1,438.9
2.8
97.9
138.3
201.0
1,172.6
2.3
80.6
18.5
27.0
168.7
0.3
11.5
19.7
28.6
204.9
0.3
11.5
.2
.4
.4
.3
39.7
127.6
50.9
0.1
0.4
0.4
0.2
33.9
108.8
49.5
0.1
0.3
0.3
0.2
27.9
89.6
47.6
** 0.0
** 0.0
** 0.0
** 0.0
4.0
12.8
5.8
** 0.0
** 0.0
** 0.0
** 0.0
4.0
12.8
6.8
2,554.0
2,191.7
1,818.9
256.9
296.9
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* Totals may not sum due to rounding.
** Costs are zero due to rounding, Unrounded costs are $42,307 for Natural Hazards and Facility Siting, $27,582 for RAGAGEP, and $15,798
for No Backup Power.
The largest annualized cost of the
final rule is the STAA implementation
cost ($168.7 million at a 3% discount
rate and $204.9 million at a 7%
discount rate), followed by
practicability study ($27.0 million at a
3% discount rate and $28.6 million at
a 7% discount rate), STAA initial
evaluation ($18.5 million at a 3%
discount rate and $19.7 million at a 7%
discount rate), information availability
($12.8 million at both 3% and 7%
discount rates), employee participation
plans ($11.5 million at both 3% and 7%
discount rates), third-party audits ($7.5
million at both 3% and 7% discount
rates), rule familiarization ($5.8 million
at a 3% discount rate and $6.8 million
at a 7% discount rate), and community
notification systems ($4.0 million at
both 3% and 7% discount rates). The
remaining provisions impose
annualized costs under $1 million,
including root cause analysis ($0.7
million at both 3% and 7% discount
rates), emergency backup power for
perimeter monitors ($0.3 million at both
3% and 7% discount rates), and RMP
justifications for natural hazards, facility
siting, RAGAGEP, and no backup
power, that each have annualized costs
below $0.1 million (at both 3% and 7%
discount rates).
The Agency has determined that
among the 2,636 potentially regulated
private sector small entities impacted by
12 Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention:
Final Rule. This document is available in the docket
for this rulemaking (EPA–HQ–OLEM–2022–0174).
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this rule, 2,393, or 90.8 percent, may
experience an impact of less than 1
percent of revenue with an average
small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of
between 1 and 3 percent of revenues
with an average small entity cost of
$629,271; and 75, or 2.8 percent, may
experience an impact of greater than 3
percent with an average small entity
cost of $1,083,823. Among the 630 small
government entities potentially affected,
none would incur costs of less than
$2,000; 365, or 58 percent, would incur
costs ranging from $2,000 to $3,000;
248, or 39 percent, would incur costs
ranging from $3,000 to $10,000; and 17,
or 3 percent, would incur costs greater
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than $10,000. EPA estimated that for the
rule to have a larger than 1 percent
impact on the government entity with
the largest cost impact, it would need to
have revenue of less than $120 per
resident. For the rule to have a larger
than 1 percent impact on the smallest
government entity identified in the data,
it would need to have revenue of less
than $650 per resident.13
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 serious
injuries and fatalities. EPA is able to
present data on the total damages that
currently occur at RMP facilities each
year. In this final rule, EPA presents the
data based on a 5-year baseline period
(2016–2020), summarizes RMP accident
impacts and, when possible, monetizes
them. Due to a lack of alternative data
describing RMP accident impacts more
comprehensively, EPA chose this fiveyear dataset to reflect the most recent
trends regarding RMP accidents.14 It is
important to note, however, that many
accident costs are not required to be
reported under the RMP accident
reporting provisions (40 CFR 68.42(b))
and thus are not reflected in the data.
These include responder costs,
transaction costs, property value
reductions, unmonetized costs of
evacuations and sheltering-in-place, the
costs of potential health effects, and
productivity losses, among others.15 In
addition, some accidents that occurred
at RMP facilities during the five-year
period were not reported to EPA
because the facility either closed after
the accident, decommissioned the
process, or removed the regulated
substance from the process involved in
17627
the accident before it was required to
submit a report to the RMP Database.
For example, the Philadelphia Energy
Solutions (PES) Refining and Marketing
LLC facility in Philadelphia, PA, had a
fire and explosions in the PES Girard
Point refinery hydrofluoric acid (HF)
alkylation unit on June 21, 2019, which
resulted in the release of HF.16 This
facility deregistered the affected process
before the deadline for their subsequent
RMP report. Due to the omission of such
accidents and the omission of the cost
categories listed in the beginning of this
paragraph, the monetized costs of RMP
accidents to society underestimate the
number and magnitude of RMP
chemical accidents. Nonetheless, EPA
expects that some portion of future
damages will be prevented through
implementation of the final rule. Table
3 presents a summary of the quantified
damages identified in the analysis.
TABLE 3—SUMMARY OF QUANTIFIED DAMAGES
[Millions, 2022 dollars]
Unit
value
5-Year
total
Average/
year
Average/
accident
On site
Fatalities ...........................................................................................................
Injuries .............................................................................................................
Property Damage .............................................................................................
$10.4
0.05
........................
$187.9
28.75
2,273
$37.57
5.75
454.58
$0.38
0.06
4.66
Onsite Total ..............................................................................................
........................
2,489.49
497.90
5.10
Fatalities ...........................................................................................................
Hospitalizations ................................................................................................
Medical Treatment ...........................................................................................
Evacuations * ...................................................................................................
Sheltering in Place * .........................................................................................
Property Damage .............................................................................................
10.4
0.045
0.001
0.00
0.00
........................
0.00
1.40
0.13
18.99
12.58
178.55
0.00
0.28
0.03
3.80
2.52
35.71
0.00
0.003
0.0003
0.039
0.026
0.37
Offsite Total ..............................................................................................
........................
211.66
42.33
0.43
Total ...................................................................................................
........................
2,701.14
540.23
5.54
Off site
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* The unit value is $293 for evacuations and $147 for sheltering in place, so when expressed in rounded millions the value represented in the
table is zero.
In total, EPA estimated monetized
damages from RMP facility accidents of
$540.23 million per year, which are
divided into onsite and offsite categories
where possible. EPA estimated total,
average annual onsite damages from
chemical releases at RMP facilities of
$497.90 million. The largest monetized
category was onsite property damage,
valued at $454.58 million. The next
largest impacts were onsite fatalities
($37.57 million) and injuries ($5.75
million).
EPA estimated total, average annual
offsite damages of $42.33 million.
Property damage again was the highest
value category, estimated at
13 The Regulatory Flexibility Act defines small
governments as governments of cities, counties,
towns, townships, villages, school districts, or
special districts, with a population of less than
50,000. Most governmental RMP facilities are water
and wastewater treatment systems and listed a city
or county as the owner entity.
14 EPA used the August 1, 2021, version of the
RMP database to complete its analysis because
under 40 CFR 68.195(a), facilities are required to
report RMP accidents and specific associated
information within six months to the RMP database.
Therefore, the RMP database as of August 1, 2021,
is expected to include RMP accidents and their
specific associated information as of December 31,
2020. However, because accident data are reported
to the RMP database by facility owners and
operators, EPA acknowledges the likelihood of latereported accidents affecting these last few years of
data because some facilities may have not reported
their RMP accidents as they are required to do. See
sections 3.2 and 3.3 of the RIA for more on this and
other limitations on the number and costs of
baseline accidents.
15 Further discussed in detail in Chapter 6 of the
RIA.
16 For a description of damages from this case see
section 3.2.1 of the RIA and the CSB Report, Fire
and Explosions at Philadelphia Energy Solutions
Refinery Hydrofluoric Acid Alkylation Unit,
Factual Update, October 16, 2019, https://
www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf.
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approximately $35.71 million. In
decreasing order, the next largest
average annual offsite impact was from
evacuations ($3.80 million), then
sheltering in place ($2.52 million),
hospitalizations ($0.28 million), and
medical treatment ($0.03 million).
Regarding small entities, there were
86 accidents at facilities owned by small
entities in the 2016–2020 period, or
about 18 percent of all accidents.17
These accidents cost $141.14 million in
total over the 5-years, with an average
cost of $28.23 million per year, and
average per accident cost of $0.29
million. These accidents costs represent
about 5% of the costs of all accidents.
EPA also evaluated the range of
significant baseline damages in Table 3
that could not be quantified. These
damages include major catastrophic
releases, potential health risks from
toxic chemical exposure, lost
productivity at affected facilities,
emergency response costs, transaction
costs from potential subsequent legal
battles, property value losses in nearby
neighborhoods, environmental damage,
unquantified costs of evacuation and
sheltering-in-place events, and others.
They have not been quantified because
there is either limited or no information
in the RMP data. However, in some
cases, these damages could be even
more detrimental to the facility and
community than those damages that can
be quantified. For example, regarding
lost productivity, costs are highly
variable based on the type of release, the
extent of the damage, the location of the
facility, and product being produced.
Yet, Marsh Specialty, a risk
management and energy consultancy,
has collected data on 10,000 accidents
in the petrochemical sector over 40
years and published 27 editions of its
‘‘100 Largest Losses’’ reports.18 The data
suggest that lost productivity may range
from zero to four to five is typically two
to three times the cost of property
damage.19 Another example of
17 There are accidents at 97 facilities that were not
matched in the small entity analysis, so it is not
possible to determine if they are owned by small
or large entities with the data EPA has.
18 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
19 Marsh JLT Specialty, ‘‘100 Largest Losses
1974–2015: Large property damage losses in the
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unquantified impacts can be examined
with property value impacts. A recent
hedonic property value analysis has
examined the impact of RMP facility
accidents on residential property values
(Guignet et al. 2023a, b).20 The analysis
found that accidents with only onsite
impacts reduced nearby property values
between zero and two percent.
However, accidents with impacts that
occurred offsite, including fatalities,
hospitalizations, people in need of
medical treatment, evacuations,
sheltering in place events, and/or
property and environmental damage,
reduced home values by two to three
percent. The lower values persisted for
about 10 to 12 years on average. The
paper estimates an average loss of
$5,350 per home in 2021-year values.
Aggregating across the communities
near the 661 facilities that experienced
an offsite impact accident in their data,
they calculate a total $39.5 billion loss.
Further, the five-year baseline period
included in this analysis ($540 million
per year) does not include a major
catastrophe. In enacting section 112(r),
Congress was focused on catastrophic
accidents such as Union CarbideBhopal, which are extremely rare, but
very high consequence events. The large
chemical facility accidents that have
occurred in the U.S. and Europe have
not approached this level of damage,
although it is possible that could
happen. As mentioned previously, one
of the most consequential accidents in
the U.S.,21 the explosion at the Phillips
facility in Pasadena, TX, in 1989, killed
23 workers ($239 million in 2022
dollars), injured at least 150 more ($7.5
million), and caused $1.8 billion in
property damage. These baseline
damages are discussed in greater detail
in Chapter 6 of the RIA.
hydrocarbon industry,’’ 24th Edition, March 2016.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
and in a few cases, business loss costs.
20 Guignet, Dennis, Robin R. Jenkins, Christoph
Nolte, and James Belke. 2023a. The External Costs
of Industrial Chemical Accidents: A Nationwide
Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
21 As compared to consequences resulting from
RMP accidents 2004–2020 listed in Appendix A of
the 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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3. Summary of Estimated Benefits
RMP accident data show past
accidents have generated highly variable
impacts, so the impacts of future
accidents are difficult to predict.
Nevertheless, it is clear from RMP
accident data 22 and other relevant data
from RMP regulated industry sectors,23
that chemical accidents can impose
substantial costs on firms, employees,
emergency responders, the community,
and the broader economy.
Notwithstanding EPA’s current rules,
RMP accidents have continued to occur.
EPA anticipates that promulgation and
implementation of this final rule will
improve the health and safety protection
provided by the RMP rule and 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 final rule
provisions will reduce baseline damages
that are not quantified in Table 3 such
as lost productivity, responder costs,
property value reductions, damages
from catastrophes, transaction costs,
environmental impacts, and so on.
Although EPA was unable to quantify
the reductions in damages that may
occur as a result of the final rule
provisions, EPA expects that a portion
of future damages will be prevented by
the final rule.24 Table 4 summarizes five
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 thirteen associated
specific benefit categories, ranging from
avoided fatalities to avoided emergency
response costs.
22 EPA estimated monetized damages from RMP
facility accidents of $540.23 million per year.
23 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
24 For the discussion of how final rule provisions
are intended to lower the likelihood of future
accidents of the same or similar type, see section
6.1.1 of the RIA.
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17629
TABLE 4—SUMMARY OF SOCIAL BENEFITS OF FINAL RULE PROVISIONS
Broad benefit category
Explanation
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.
Provision of information to the public and
emergency responders.
Information Availability .......................................
Specific benefit categories
•
•
•
•
•
•
•
•
•
•
•
Reduced Fatalities.
Reduced Injuries.
Reduced Property Damage.
Fewer People Sheltered-in-Place.
Fewer Evacuations.
Avoided Health Risks from Exposure to
Toxics.
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.
For details on how quantified benefits
were estimated or discussion on
unquantified benefits, including the
difficulty in their quantification see
Chapter 6 of the RIA.
When considering this final rule’s
likely benefits of this of avoiding some
portion of the monetized accident
impacts, as well as the additional
nonmonetized benefits, EPA believes
the costs of the rule are reasonable in
comparison to its expected benefits.
When assessing the reasonableness of
the benefits and burdens of various
regulatory options, EPA places weight
on both preventing more common
accidental releases captured in the
accident history portion of the RMP
database while also placing weight on
less quantifiable potential catastrophic
events. The Agency’s judgment as to
what regulations are ‘‘reasonable’’ is
informed by both quantifiable and
unquantifiable burdens and benefits.
III. Background
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A. Overview of EPA’s Risk Management
Program
EPA originally issued the RMP
regulations in two stages. First, 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.’’ 25 The Agency then published the
RMP regulations, containing risk
management requirements for covered
sources, in 1996: ‘‘Accidental Release
Prevention Requirements: Risk
25 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.
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Management Programs Under Clean Air
Act Section 112(r)(7)’’ (61 FR 31668,
June 20, 1996), hereinafter referred to as
the ‘‘1996 RMP rule.’’ 26 27 Subsequent
modifications to the list rule and the
1996 RMP rule were made as discussed
in the 2017 amendments rule
(‘‘Accidental Release Prevention
Requirements: Risk Management
Programs Under the Clean Air Act’’; 82
FR 4594 at 4600, January 13, 2017,
hereinafter referred to as the ‘‘2017
amendments rule’’). 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).
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 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.
EPA’s RMP requirements include
conducting a worst-case scenario
26 Documents and information related to
development of the 1996 RMP rule can be found in
EPA docket number A–91–73.
27 The regulation at 40 CFR part 68 applies to
owners and operators of stationary sources that
have more than a TQ of a regulated substance
within a process. The regulations do not apply to
chemical hazards other than listed substances held
above a TQ within a regulated process.
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analysis and a review of accident
history, coordinating emergency
response procedures with local response
organizations, conducting a hazard
assessment, 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 RMP 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
similar to the OSHA PSM standard and
designed to cover those processes in the
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chemical industry. EPA notes that
nothing in this final rule changes the
applicability determinations or
designations of whether a process at a
stationary source is covered under one
of the three different prevention
programs.
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,’’ 28 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 (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).29 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 amendments 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 March 1,
2024, 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
28 https://obamawhitehouse.archives.gov/thepress-office/2013/08/01/executive-order-improvingchemical-facility-safety-and-security.
29 https://www.epa.gov/petitions/petitions-officeland-and-emergency-management.
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Health and the Environment and
Restoring Science to Tackle the
ClimateCrisis.’’ 30 E.O. 13990 directed
Federal agencies to review existing
regulations and take action to address
priorities established by the Biden
Administration, which include
bolstering resilience to the impacts of
climate change and prioritizing 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
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 included 27,720
received at regulations.gov,31 35
provided during the listening session on
June 16, 2021,32 and 73 provided during
the listening session on July 8, 2021.33
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 informed the proposal.
EPA published the ‘‘RMP Safer
Communities by Chemical Accident
Prevention,’’ (SCCAP) proposed
rulemaking on August 31, 2022 (87 FR
53556), hereinafter referred to as the
‘‘2022 SCCAP proposed rule.’’ The 2022
SCCAP proposed rule included several
changes and amplifications to the
accident prevention program
requirements, enhancements to the
emergency preparedness requirements,
improvements to the public availability
of chemical hazard information, and
several other changes to certain
regulatory definitions or points of
clarification. EPA hosted virtual public
30 https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/01/20/executive-orderprotecting-public-health-and-environment-andrestoring-science-to-tackle-climate-crisis/.
31 EPA–HQ–OLEM–2021–0312.
32 EPA–HQ–OLEM–2021–0312–0011.
33 EPA–HQ–OLEM–2021–0312–0020.
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hearings on September 26, 27, and 28,
2022 to provide interested parties the
opportunity to present data, views or
arguments concerning the proposed
action.
EPA received a total of 494 discrete
public comments deemed as substantive
(i.e., the commenters presented both a
position and a reasoned argument in
support of the position) on the proposed
rulemaking. Of the 494 comments, 370
were written submitted comments and
124 were from members of the public
that provided verbal comments at the
public hearings on September 26, 27,
and 28, 2022. Of the 370, 142 were from
101 unique organizations, 6 were the
result of various mass mail campaigns
and contained numerous copies of
letters or petition signatures
(approximately 57,505 letters and
signatures were contained in these
several comments), and 31 were from
individual citizens. Discussion of public
comments can be found in topics
included in this final rule and in the
Response to Comments document,34
available in the docket for this
rulemaking.
The notice of proposed rulemaking
(NPRM) discussed how the various
proposed provisions amendments to the
RMP rule were not only integrated,
reinforcing, and complementary but also
how each was merited on its own and
severable. 87 FR 53566 (August 31,
2022). For example, EPA noted that new
substantive prevention requirements
like STAA and third-party audits
triggered by NAICS, location, and
accident history were reinforced by
provisions like local information access
and enhanced employee participation.
Nevertheless, in the body of the
preamble for the 2022 SCCAP proposed
rule, the Agency explained how each of
these provisions would help prevent
accidents and improve release
mitigation and emergency response on
its own merits.
C. EPA’s Authority To Revise the RMP
Rule
The statutory authority for this action
is provided by CAA section 112(r) (42
U.S.C. 7412(r)). Each of the portions of
the RMP regulations we are amending in
this action are based on EPA’s
rulemaking authority under 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 (‘‘regulated
34 2023. EPA Response to Comments on the 2022
SCCAP Proposed Rule (August 31, 2022; 87 FR
53556). This document is available in the docket for
this rulemaking.
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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. A more detailed discussion of
the underlying statutory authority for
the current RMP regulations appears in
the initial 1993 action that proposed the
RMP regulations (58 FR 54190–3,
October 20, 1993).
Under CAA 112(r)(7)(B)(i), Congress
authorized 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 paragraph 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 prevention program provisions
discussed in this action (hazard
evaluations of natural hazards, power
loss and stationary source siting, safer
technologies and alternatives analysis,
root cause analysis incident
investigation, third party compliance
auditing, and employee participation)
derive from EPA’s authority to
promulgate reasonable regulations for
the ‘‘prevention and detection of
accidental releases’’ (CAA section
112(r)(7)(B)(i)). Similarly, the emergency
coordination and exercises provisions in
this rule derive from EPA’s authority to
promulgate reasonable regulations to
address ‘‘response to such [accidental]
releases by the owners or operators of
the source of such releases’’ Id. Section
112(r)(7)(B)(i) calls for EPA’s regulations
to recognize differences in ‘‘size,
operations, processes, class and
categories of sources.’’ For that reason,
this action maintains distinctions in
prevention program levels and in
response actions authorized by this
provision. Finally, the information
availability provisions discussed in this
action generally assist in the
development of ‘‘procedures and
measures for emergency response after
an accidental release of a regulated
substance in order to protect human
health and the environment.’’ Id. These
information availability provisions
include requirements to disclose
information to the public within a 6-
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mile radius of sources, and are designed
to ensure that emergency plans for
impacts on the community are based on
more relevant and accurate information
than would otherwise be available and
ensures that the public can become an
informed participant in such emergency
planning. Also, as noted in the 2022
SCCAP proposed rule, requiring that
information be made available to the
public strengthens the prevention
program by leveraging public oversight
of facilities—especially prevention
provisions that are triggered by sourcespecific accident history (87 FR 53566,
August 31, 2022).
This rulemaking action finalizes
substantive amendments to 40 CFR part
68 and is authorized by CAA sections
112(r)(7)(A) and (B), as explained in
more detail in the proposed action (87
FR 53563–6), and as explained herein.
In considering whether it is legally
permissible for EPA to modify
provisions of the RMP regulations 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 640, 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.35
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,
35 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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Inc., 556 U.S. 502, 515 (2009); emphasis
in quote original.36) As explained in
detail above and throughout this notice,
the policy changes finalized 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 $540 million yearly.37
EPA monetized both onsite and offsite
damages from RMP facility accidents
from 2016–2020,38 when possible, to
determine this amount. It is important
to note, however, that many accident
costs are not required to be reported
under the RMP accident reporting
provisions (40 CFR 68.42(b)) and thus
are not reflected in the data. These
include responder costs, transaction
costs, property value reductions,
unmonetized costs of evacuations and
sheltering-in-place, the costs of
potential health risks from exposure to
toxic chemicals, and productivity
losses, among others.39 As mentioned
previously, some accidents that
occurred at RMP facilities during the
five-year period were not reported to
EPA because the facility either closed
after the accident, decommissioned the
process, or removed the regulated
substance from the process involved in
the accident before it was required to
submit a report to the RMP Database.
For example, the Philadelphia Energy
36 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).
37 A full description of costs and benefits for this
final rule can be found in the Regulatory Impact
Analysis: Safer Communities by Chemical Accident
Prevention: Final Rule. This document is available
in the docket for this rulemaking (EPA–HQ–OLEM–
2022–0174).
38 Due to a lack of alternative data describing
RMP accident impacts more comprehensively, EPA
chose this five-year dataset to reflect the most
recent trends regarding RMP accidents. EPA used
the August 1, 2021, version of the RMP database to
complete its analysis because under 40 CFR
68.195(a), facilities are required to report RMP
accidents and specific associated information
within six months to the RMP database. Therefore,
the RMP database as of August 1, 2021, is expected
to include RMP accidents and their specific
associated information as of December 31, 2020.
However, because accident data are reported to the
RMP database by facility owners and operators,
EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data
because some facilities may have not reported their
RMP accidents as they are required to do. See
sections 3.2 and 3.3 of the RIA for more on this and
other limitations on the number and costs of
baseline accidents.
39 Further discussed in detail in Chapter 6 of the
RIA.
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Solutions Refining and Marketing LLC
facility in Philadelphia, PA, had a fire
and explosions in the PES Girard Point
refinery HF alkylation unit on June 21,
2019, which resulted in the release of
HF.40 This facility deregistered the
affected process before the deadline for
their subsequent RMP report. Due to the
omission of such accidents and the
omission of the cost categories listed in
the beginning of this paragraph, the
monetized costs of RMP accidents to
society underestimate the number and
magnitude of RMP chemical accidents.
EPA estimated total average annual
onsite damages of $497.9 million. The
largest monetized, average annual,
onsite damage category was property
damage, which resulted in average
annual damage of approximately
$454.58 million. The next largest impact
was onsite fatalities ($37.57 million)
and injuries ($5.75 million). EPA
estimated total average annual offsite
damages of $42.33 million. The largest
monetized, average annual, offsite
damage category was property damage,
which resulted in average annual
damage of approximately $35.71
million. The next largest impact was
from evacuations ($3.80 million),
sheltering in place ($2.52 million),
hospitalizations ($0.28 million), and
medical treatment ($0.03 million).
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.41 The 2022 SCCAP
proposed rule not only discussed data
demonstrating this elevated risk, but
also noted that a higher frequency of
accidental releases in such communities
is consistent with the common-sense
notion that, while accidental releases
are low-probability, high consequence
events, the more facilities near a
community, the higher the likelihood
that the community will be faced with
such an event, or multiple events (all
other factors being equal). Lowering the
probability and magnitude of accidents
by putting more of a focus on
prevention reduces the risks posed by
these RMP facilities,42 which is one of
40 For a description of damages from this case see
section 3.2.1 of the RIA and the CSB Report, Fire
and Explosions at Philadelphia Energy Solutions
Refinery Hydrofluoric Acid Alkylation Unit,
Factual Update, October 16, 2019, https://
www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf.
41 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).
42 EPA notes that the two industrial sectors that
are the focus of more requirements under the
SCCAP rule, petroleum refineries (NAICS 324) and
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the objectives of the present RMP
amendments.
EPA received various comments
indicating that EPA has appropriate
authority to revise RMP regulations. For
the reasons stated directly above and
throughout the proposal where we
outline EPA’s statutory authority under
CAA section 112(r)(7), EPA agrees with
these comments. Conversely, EPA also
received comments that EPA is
exceeding its statutory authority
because it does not have jurisdiction
over worker safety issues. EPA disagrees
that it has exceeded its statutory
authority in this way in this rulemaking.
EPA acknowledges that both EPA and
OSHA have separate mandates under
the Occupational Safety and Health Act
(29 U.S.C. 651), the CAA, and the
requirements enacted in the CAAA. In
the 1990s, both Agencies fulfilled their
mandatory duties to promulgate and
issue the rules required by CAA sections
112(r)(3)–(5) and 112(r)(7)(B), as well as
section 304 of the CAAA. The focus of
OSHA’s regulations in the PSM
standard is on workplace safety, while
EPA’s focus in the RMP regulations has
been primarily on minimizing the
public impacts of accidental releases
through prevention and response. This
rule maintains EPA’s focus on
minimizing the public impacts of
accidental releases even as it also
reduces impacts on facilities and
workers. As explained throughout the
proposal and in this final action, the
OSHA PSM standard and EPA RMP
regulations are closely aligned in
content, policy interpretations, and
enforcement. This is not surprising, as
accident prevention steps that make a
process safe for workers often will be
similar, or the same as, steps that would
prevent deleterious impacts on the
public. Congress recognized this
relationship by requiring EPA to
coordinate its requirements with those
of OSHA in developing accident
prevention regulations and requiring
OSHA to coordinate with EPA when
developing its PSM standard (see CAA
section 112(r)(7)(D) and CAAA section
304(a)). Therefore, since the inception of
these regulations, EPA and OSHA have
coordinated closely on their
implementation in order to minimize
regulatory burden and avoid conflicting
chemical manufacturers (NAICS 325) have been
responsible for 42% of the accidental releases in the
RMP database over the years 2016–2020.
Approximately 83% of the costs of RMP accidental
releases during 2016–2020 are attributed to these
sectors. More details on the number and costs of
baseline RMP accidents can be found in the
Regulatory Impact Analysis: Safer Communities by
Chemical Accident Prevention: Final Rule. This
document is available in the docket for this
rulemaking (EPA–HQ–OLEM–2022–0174).
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requirements for regulated facilities.
This coordination has continued
throughout the development of this rule
and is explained further in the relevant
sections below.
A couple of commenters called on
EPA to exercise its ‘‘full statutory
authority’’ to issue measures that
prevent disasters ‘‘ ‘to the greatest extent
practicable.’ ’’EPA disagrees with these
comments. As mentioned above, while
EPA is authorized to promulgate
regulations that provide for the
prevention and detection of accidental
releases to the greatest extent
practicable, so too must these
regulations be reasonable. The relevant
statutory phrase describing EPA’s
authority to regulate under CAA section
112(r)(7)(B)(i), authorizes ‘‘reasonable
regulations . . . to provide, to the
greatest extent practicable,’’ for the
prevention and detection of and
response to accidental releases of
substances listed in 40 CFR 68.130. EPA
interprets the term ‘‘practicable’’ in this
context to include concepts such as
cost-effectiveness of the regulatory and
implementation approach, as well as the
availability of relevant technical
expertise and resources to the
implementing and enforcement agencies
and the owners and operators who must
comply with the rule. Further, an
interpretation of the statute that does
not give meaning to the qualifier
‘‘reasonable’’ to the authority to regulate
‘‘to the greatest extent practicable,’’ as
the commenters suggest, would be
inconsistent with the structure of the
statute. The terms ‘‘reasonable’’ and
‘‘practicable’’ operate both as
authorization for EPA’s regulations and
as limitations on the scope of EPA’s
authority under CAA section
112(r)(7)(B)(i), while the phrase
‘‘greatest extent practicable’’ directs
EPA to select the regulatory option that
‘‘provide[s] the greatest level of
practicable protection’’ from ‘‘among
those regulatory options that are
reasonable.’’ 84 FR 69849 (Dec. 19,
2019); see also 87 FR 53566 (Aug. 31,
2022). To the extent both the 2019
compliance-driven and the 2022 rulebased, prevention-focused approaches
are reasonable, the approach of this final
rule would be more protective and
therefore be ‘‘ ‘to the greatest extent
practicable’ among the reasonable
approaches.’’
As recognized by the Supreme Court
in Michigan v. EPA, 135 S. Ct. 2699,
2707 (2015), ‘‘reasonable regulation’’
generally involves some sort of
examination of the benefits and the
burdens of a rule. Nevertheless, the
Court in Michigan v. EPA did not
mandate a strict analysis of quantified
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cost and benefits and limit the Agency
to adopting only those measures that
have quantified costs exceeding
benefits. In assessing the types of
benefits EPA should consider in a
rulemaking under CAA 112(r)(7), EPA
recognizes that a major purpose of the
accidental release provisions of the CAA
is to help mitigate and prevent large
scale catastrophic incidents that are rare
and therefore difficult to quantify.43
Both the Senate and the House
committee reports on the CAAA
specifically identify the Union CarbideBhopal incident as one that
demonstrated the need for the
accidental release prevention provision
(House Report at 155–57; Senate Report
at 134–35, 143–44). The congressional
reports and floor debates also cite an
EPA study identifying 17 events that,
based only the volume and toxicity of
the chemicals involved (and not
accounting for factors such as location,
climate, and operating conditions) had
the potential for more damage than the
Union Carbide-Bhopal incident.44
Therefore, when assessing the
reasonableness of the benefits and
burdens of various regulatory options,
EPA places weight on both preventing
more common accidental releases
captured in the accident history portion
of the RMP database while also placing
weight on less quantifiable potential
catastrophic events. Our judgment as to
what regulations are ‘‘reasonable’’ is
informed by both quantifiable and
unquantifiable burdens and benefits.
The fact that accidents continue to
occur shows that we still have reason to
exercise statutory authority to
promulgate reasonable regulations to
provide for the prevention and detection
of those accidents to the greatest extent
practicable when the opportunity exists
to improve the performance of our
regulatory program. In determining
what is ‘‘reasonable’’ when developing
regulations under CAA section
112(r)(7)(B), EPA acknowledges that
some facilities are less likely to have an
accidental release than others and that
the statute gives the Agency the
authority to distinguish among classes
of facilities. When developing this
rulemaking, EPA therefore had the
authority to include multiple factors
when determining what is reasonable,
such as frequency of RMP accidents or
43 Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention:
Final Rule. This document is available in the docket
for this rulemaking (EPA–HQ–OLEM–2022–0174).
44 Senate Report at 135; House Report at 155;
Representative Richardson, 136 Congressional
Record 35082 (1990) (statement of Representative
Richardson); 136 Congressional Record 36057
(1990) (statement of Senator Durenberger).
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proximity to both nearby communities
and other RMP facilities that could, as
a result, make the communities and
other facilities be more susceptible
when it comes to being exposed to a
worst-case scenario. For example, as
mentioned in the proposed rulemaking,
the per facility accident rate between
2016 and 2020 45 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). Also, 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
(87 FR 53578).46 Also mentioned in the
proposed rulemaking, these surrounding
communities would benefit from rulebased prevention prior to incidents,
rather than the case-by-case oversight
approach of the 2019 reconsideration
rule (87 FR 53565). Therefore, EPA now
believes the benefits of rule-based
prevention for certain high-risk classes
of facilities could help prevent high
consequence accidents that affect
45 Due to a lack of alternative data describing
RMP accident impacts more comprehensively, EPA
chose this five-year dataset to reflect the most
recent trends regarding RMP accidents. EPA used
the August 1, 2021, version of the RMP database to
complete its analysis because under 40 CFR
68.195(a), facilities are required to report RMP
accidents and specific associated information
within six months to the RMP database. Therefore,
the RMP database as of August 1, 2021, is expected
to include RMP accidents and their specific
associated information as of December 31, 2020.
However, because accident data are reported to the
RMP database by facility owners and operators,
EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data
because some facilities may have not reported their
RMP accidents as they are required to do. While
some commenters have suggested that late reporting
may impact the count of total accidents in recent
years, neither the commenters nor EPA have
identified any impacts of late reporting on the
distribution of accidents by sector. See sections 3.2
and 3.3 of the RIA for more on this and other
limitations on the number and costs of baseline
accidents.
46 In the 2022 SCCAP proposed rule, EPA
acknowledged the likelihood of late-reported
accidents affecting the last few years of data. Based
on its prior experience, EPA judged that there
would be a slight increase in the number of
accidents in the last few years of data.
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communities and are therefore
reasonable and necessary to meet the
statutory objective ‘‘to the greatest
extent practicable.’’
As mentioned in the proposed
rulemaking, in contrast to the approach
in the 2019 reconsideration rule, the
approach taken in this action for the
new prevention program provisions—
STAA, root cause analysis incident
investigation (RCA), and third-party
compliance audits—refines the focused
regulatory approach found in the 2017
amendments rule, and finalizes
provisions 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, preventionfocused approach in this action rather
than the so-called ‘‘compliance-driven’’
approach in the 2019 reconsideration
rule, this rule will further protect
human health and the environment
from chemical hazards through process
safety advancement without undue
burden. Similarly, other 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.
By contrast with the prior approach, the
approach of this final rule is expected
to be both reasonable and more
protective, and thus provide for release
prevention, detection, and response to
the greatest extent practicable. EPA has
determined, based on the updated
factual and scientific record now before
the agency, including a thorough
evaluation of public comments, and in
view of its statutory responsibilty and
legal authority, to be the approach it
needs to take, among the potentially
available or reasonable approaches.
IV. Discussion of General Comments
This section of this preamble focuses
on general comments on the 2022
SCCAP proposed rule in its entirety and
EPA’s response to those comments.
Comments and discussion on provisionspecific topics can be found under each
individual provision heading.
Comments received on additional
considerations posed in the 2022
SCCAP proposed rule but outside the
scope of this rulemaking are included
the Response to Comments document,47
available in the docket for this
47 2023. EPA Response to Comments on the 2022
SCCAP Proposed Rule (August 31, 2022; 87 FR
53556). This document is available in the docket for
this rulemaking.
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rulemaking.48 In the proposal EPA
acknowledged 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 continues to review the
stakeholder input from this solicitation.
A. General Comments
Many commenters provided general
comments about the proposed
rulemaking. Several commenters
supported EPA’s proposed rule,
including some offering suggestions for
improvement. Several commenters
requested EPA consider making the
proposed rule stronger than it is
currently written. Several of these
commenters provided detailed examples
of recent accidents and incidents,
including health impacts to the
community, dating back to 2004 that
they hope stronger RMP regulations
would prevent. A few commenters
provided additional steps EPA should
take in tandem with the proposed rule.
Another commenter stated that the
current process puts the onus on
community members in close proximity
to facilities to protect themselves when
it is EPA’s responsibility to regulate
these facilities and ensure that the
public is safe. The commenter noted
that there needs to be more enforcement
by the Federal Government to hold
facilities accountable, especially in
States lacking enforcement. Several
commenters stated that the proposed
rule relies too much on voluntary
commitments from RMP facilities. One
commenter noted that the current
process remains reactive rather than
proactive and corrective rather than
preventative.
Several commenters opposed EPA’s
proposed rule, including some
recommending that EPA withdraw the
proposed rule. A few commenters
opposed the proposed rule due to what
the commenters asserted are vague
standards and definitions that could
create uncertainties. Several
commenters stated that the new
requirements under the 2022 SCCAP
proposed rule would impose
unnecessary burdens to facilities,
including new training and analyses,
higher costs, or lower effectiveness of
the program. Several commenters
asserted that there is no basis or
48 For
example, one such consideration posed
outside the scope of this rulemaking was the need
for reviewing the list of RMP-regulated substances.
EPA still acknowledges the need for reviewing the
list and will consider received comments when
determining whether to take further action on this
issue.
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evidence that the 2022 SCCAP proposed
rule is necessary.
B. EPA Responses
EPA is finalizing several amendments
to the RMP rule to further protect
human health and the environment
from RMP accidents. The final rule’s
emphasis is on protecting communities
most at risk of having an accidental
release from a facility in their midst.
Under the final rule, facilities in these
communities will be required to do
more to prevent chemical accidents,
including conducting an STAA, more
thorough incident investigations, and
third-party audits. The final rule also
includes new prevention provisions that
have not been addressed in prior RMP
rules, including empowering workers to
make safety decisions and report noncompliance. The Agency is also
increasing access to RMP facility
information for fenceline communities
in commonly spoken languages. EPA
believes this final rule promotes
transparency and gives more
opportunities for the public and workers
to be involved in accident prevention
and emergency planning. EPA believes
that in most cases, facilities needing to
adopt the finalized provisions from
scratch are most likely facilities that
have not fully developed strong
programs to ensure their commitment to
process safety; strengthening prevention
and response programs at such facilities
will help to prevent and minimize
accidental releases of toxic and
flammable regulated substances.
EPA disagrees that that there is no
basis or evidence that the proposed rule
is necessary. Congress charged EPA to
promulgate reasonable regulations to
provide to the greatest extent practicable
for the prevention and detection of
accidental releases. Even when EPA has
discharged its mandatory duty under
CAA section 112(r)(7)(B), the Agency
retains the discretion to amend the
regulations when they can be improved
to further the intent of the statute.
Therefore, when major concerning RMP
accidents, including major accidents,
continue to occur as they have,49 it is
EPA’s responsibility to further protect
human health and the environment, if
there are reasonable opportunities to do
so. Many of the amendments being
finalized in this action, some stronger
than what was proposed, were informed
49 As part of this rule, EPA analyzed accidents
from 2016 to 2020. The impacts of high
consequence RMP-reportable accident events
between 2016 and 2020 demonstrate the impact of
low probability, high consequence events on annual
averages. For more information see the Regulatory
Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule.
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by commenters, including many that
suffer the consequences of accidents
occurring at RMP facilities or work in
RMP-covered processes. The
amendments are also informed by RMP
accident data which indicate trends in
accident occurrence. For example, as
discussed in the proposal, recent
accidents highlight that while the
annual count of accidents decreased
overall between 2016 and 2020, in 2019,
the TPC Group (TPC) explosion and fire
in Port Neches, Texas, reported the
largest number of persons ever
evacuated (50,000 people) as the result
of an RMP-reportable incident, as well
as $153 million in offsite property
damage.50 EPA did not conduct an
inspection at TPC just prior to this
accident because as indicated in the
2019 reconsideration rule, EPA
prioritizes inspections at facilities that
have had accidental releases. TPC had
no recent prior RMP accidental release
and was not otherwise due for
inspection under EPA’s routine
oversight plan. Therefore, we believe
our current enforcement resources, and
even prioritizing inspections, are not
capable of effectively addressing
accident-prone facilities without
additional regulatory requirements
mandates.
While large events are rare, CAA
section 112(r) was intended as a
prevention program for large
catastrophic releases as well as more
common accidental releases. Post-event
compliance measures such as outreach
and enforcement are ‘‘too little, too late’’
for such large, but rare, events.
Therefore, this final rule provides
additional prevention program
provisions reasonably calculated for
stationary sources handling dangerous
chemicals to prevent potentially
catastrophic incidents. EPA therefore
believes the provisions of this final rule
will be generally effective to help
improve chemical process safety by
preventing accidents that result in harm
and damage; assist in planning,
preparedness, and responding to RMPreportable accidents; and improve
public awareness of chemical hazards at
regulated sources. Thus, these are
necessary updates to the existing RMP
rule to ensure chemical accident
prevention and mitigation. Further,
while many of the provisions of this
final rule reinforce each other, it is
EPA’s intent that each one is merited on
its own, and they are thus severable.
50 The U.S. Chemical Safety Board’s TPC incident
investigation report outlines the safety issues
contributing to the incident, conclusions,
recommendations, and key lessons for the industry.
https://www.csb.gov/tpc-port-neches-explosionsand-fire/.
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EPA also believes that because of the
performance-based nature of the
regulation, and the similar nature of
these amendments, the requirements
provide facility owners with latitude in
their methods of implementing the
requirements. This type of regulation
does not create uncertainties or
unnecessary burdens, but rather offers
reasonable flexibilities in adopting the
most effective measures to prevent and
mitigate accidents. For example, while
EPA requires implementation of at least
one practicable passive measure, or its
equivalent, the new STAA requirements
are not prescriptive in nature as to what
a facility can choose as its measure. The
rule gives facilities flexibility and
allows facility owners and operators to
exercise reasonable judgement to
determine what technology or risk
reduction measures work best for their
particular chemical uses, processes, or
facility. The final rule’s emergency
exercise requirements also give owners
and operators significant flexibility in
establishing exercise schedules and
exercise scenarios. Other provisions of
the final rule afford similar flexibilities.
EPA agrees assistance, outreach, and
enforcement will help ensure
compliance with the rule. For example,
enforcement of the RMP regulation has
and will continue to occur. Because of
that fact, EPA expects most facilities
will proactively make the necessary
prevention improvements in order to
comply with the rule and thus avoid
enforcement. Enforcement of RMP
facilities remains an Agency priority, as
indicated by its adoption as a National
Enforcement and Compliance Initiative
(NECI) since 2017. The goal of this NECI
is to reduce the risk to human health
and the environment by decreasing the
likelihood of chemical accidents.
Activities under the initiative include
having regulated facilities and industry
associations work to improve safety;
increase compliance with RMP; and
promote coordination and
communication with State and local
responders and communities. The
capacity built by the NECI will continue
to benefit oversight by EPA and its
partner implementing agencies even
after the NECI. Furthermore, EPA
intends to publish guidance for certain
provisions, such as STAA, root cause
analysis, third-party audits, and
employee participation. Once these
materials are complete, owners and
operators can familiarize themselves
with resources and best practices that
EPA has gathered and found to be useful
in helping to develop and maintain
strong prevention programs. The
Agency views these compliance
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activities as a complement to strong
accidental release prevention and
response, but they are not a substitute
for the stronger prevention measures
and response provisions set forth in the
final rule.
V. Prevention Program Requirements
A. Hazard Evaluation Amplifications
1. Summary of Proposed Rulemaking
a. Natural Hazards, 40 CFR 68.50 and
68.67
EPA proposed to require that hazard
evaluations under 40 CFR 68.50(a)(5)
and 68.67(c)(8) 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. EPA
proposed to define natural hazards as
naturally occurring events with the
potential for negative impacts, including
meteorological hazards due to weather
and climate, as well as geological
hazards.
In addition to the proposed approach,
EPA requested comment on whether the
Agency should 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. EPA further asked whether 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.
b. Power Loss, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard
evaluations under 40 CFR 68.50(a)(3)
and 68.67(c)(3) explicitly address the
risk of power failure, as well as standby
or emergency power systems. EPA also
proposed to require that air pollution
control or monitoring equipment
associated with prevention and
detection of accidental release from
RMP-regulated processes have standby
or backup power to ensure compliance
with the intent of the rule. In addition
to the proposed approach for standby or
backup power for air pollution control
or monitoring equipment, EPA
requested comment on any potential
safety issues associated with the
requirement.
c. Stationary Source Siting, 40 CFR
68.50 and 68.67
EPA proposed to require that hazard
evaluations under 40 CFR 68.50(a)(6)
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17635
and 68.67(c)(5) 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.
d. Hazard Evaluation Information
Availability, 40 CFR 68.170 and 68.175
EPA proposed to require that risk
management plans under 40 CFR
68.170(e)(7) and 68.175(e)(8) include
declined natural hazard, power loss,
and siting hazard evaluation
recommendations and their associated
justifications. In addition to the
proposed approach, EPA requested
comment on whether the Agency should
require declined natural hazard, power
loss, and siting hazard evaluation
recommendations to be included in
narrative form and 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 submitted
RMP. Further, EPA requested comment
on methods to provide justification for
declining relevant hazard evaluation
recommendations.
2. Summary of Final Rule
Based on comments on both the
proposed options and alternative
approaches presented, EPA is finalizing
the proposed provisions with the
following modifications:
• Revising the definition of ‘‘natural
hazards’’ at 40 CFR 68.3 to mean
meteorological, environmental, or
geological phenomena that have the
potential for negative impact,
accounting for impacts due to climate
change.
• Revising the hazard evaluation
regulatory text at 40 CFR 68.50(a)(5) and
68.67(c)(8) to focus amplifying language
on natural hazards rather than ‘‘external
hazards’’ and include ‘‘exacerbate’’ as
an influence on an accidental release
from natural hazards in addition to
‘‘cause.’’ EPA is also removing the
description of climate change in this
section of regulatory text because the
definition of natural hazards at 40 CFR
68.3 now includes accounting for
climate change.
• Revising 40 CFR 68.50(a)(3) and
68.67(c)(3) to require monitoring
equipment associated with prevention
and detection of accidental releases
from covered processes to have standby
or backup power.
• Revising 40 CFR 68.52(b)(9) and
68.69(a)(4) to require documentation of
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removal of monitoring equipment
associated with prevention and
detection of accidental releases from
covered processes during imminent
natural hazards.
• Revising 40 CFR 68.50(a)(6) and
68.67(c)(5) to correct the technical term
of ‘‘facilities’’ to ‘‘stationary sources.’’
3. Discussion of Comments and Basis for
Final Rule Provisions
The discussion and basis for each
provision is below. The section is
organized by including comments and
EPA’s responses grouped by the various
aspects of each provision the Agency
received comments on (italicized
headings). The same organization is
used for the Discussion of Comments
and Basis for Final Rule Provisions
sections throughout this preamble.
a. Natural Hazards
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EPA’s Proposed Approach
i. Comments
Several commenters expressed
support for EPA requiring facilities to
conduct natural hazard assessments
since natural hazards have the potential
to initiate accidents at RMP facilities. A
few commenters provided examples of
natural disasters that have resulted in
chemical accidents and stated that
natural hazard assessments could better
protect workers and surrounding
communities from these types of
incidents. One commenter suggested
that EPA require that RMP facilities act
to address all natural hazard threats as
they will only worsen in the face of
climate change. The commenter also
suggested that the requirement should
apply to all RMP facilities.
One commenter noted that improving
the resilience of facilities to extreme
weather events is warranted because of
the direct, substantial, and cumulative
risk to EJ communities with EJ concerns
that are more likely to be located in
areas susceptible to flooding. One
commenter noted that EPA’s findings on
risks to facilities from natural hazards is
consistent with States’ and
municipalities’ analysis. The
commenter noted that several States
have already taken steps to require
facilities to consider threats from
extreme weather, including
Massachusetts and New York. A couple
of commenters expressed support for
the inclusion of natural hazard analysis
but recommended that EPA clarify the
language in the proposed rule to better
define natural hazards and climaterelated hazards. One of the commenters
suggested that the definition of natural
hazard assessments provided in the
Center for Chemical Process Safety’s
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(CCPS), ‘‘Guidelines for Hazard
Evaluation Procedures,’’ 3rd edition
(2008) is suitable.
Several commenters expressed
opposition to the inclusion of natural
hazard assessments. For example,
several commenters stated that EPA has
not provided sufficient justification for
these new requirements. One of the
commenters stated that EPA has not
indicated why the existing regulations
are inadequate. Similarly, several
commenters noted that facilities are
managing natural hazards well, and
therefore the commenters suggested that
additional requirements are not
necessary.
Several commenters noted that the
number of accidental releases caused by
natural hazards is small compared to
other causes, and small compared to
how many natural hazards occur daily,
and therefore does not justify EPA
adding additional requirements for
assessing natural hazards or other
external events. One of the commenters
noted that the small number of
accidents may be attributed to the
effectiveness of existing regulations and
voluntary measures regarding
emergency planning.
Several commenters noted that the
natural hazard assessment provisions
are already considered in the process
hazard analysis (PHA) or other current
regulations and are, therefore,
redundant. Several commenters
indicated that the natural hazard
provisions in the proposed rule overlap
with or are redundant of existing OSHA
regulations and recommended that EPA
not conflict or compete with OSHA
standards, as including them in EPA’s
rules would create duplicative work for
facilities and introduce uneven
enforcement between the two agencies.
Several commenters stated that the
proposed natural hazard assessment
provisions are overly burdensome to
facilities. One of the commenters stated
that EPA does not have authorization
from Congress to transform the PHA
program to include natural hazards
‘‘caused by climate change or other
triggering events.’’ One commenter
suggested that the determination of
whether or not to implement additional
layers of protection from natural
hazards should be left to the facility and
not subject to regulatory scrutiny.
One commenter stated that the
reference to external events should be
removed because it is an undefined and
vague term. The commenter added that
the proposed requirement that the PHA
include natural hazards ‘‘caused by
climate change or other triggering
events’’ is overly broad in that it appears
to include events that go well beyond
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the proposed definition of natural
hazards. The commenter stated that
these broadly defined and ambiguous
terms in the regulatory text could lead
to an infinite list of external events and
associated recommendations from the
PHA a facility must consider. The
commenter urged that EPA must
provide much-needed clarity and
explanation for the proposed language.
ii. EPA Responses
EPA agrees that natural hazards are
hazards for chemical facilities because
they have the potential to initiate
accidents that threaten human health
and the environment and disagrees with
comments that the Agency did not
provide sufficient justification for the
new requirements. In the proposal, the
Agency provided data which indicate
that, while not all, some RMP accidents
are being reported as having a natural
cause as the initiating event and include
unusual weather conditions as a
contributing factor.51 EPA believes that
adding clarifying language to a
provision is a simple way to promote
awareness of these potential accidents
which should help prevent some.
Additionally, EPA agrees that climate
change increases the threat of extreme
weather as a natural hazard and should
be taken into account at covered
facilities when evaluating hazard
frequency and severity. EPA is
finalizing the proposed provisions
because the Agency believes that
making the requirement more explicit to
evaluate natural hazards, which
includes taking into account climate
change, in hazard evaluations for
Program 2 and Program 3 RMPregulated processes will ensure that the
threats of natural hazards are properly
evaluated and managed to prevent or
mitigate releases of RMP-regulated
substances at covered facilities. EPA
agrees that doing so will better protect
surrounding communities from these
types of incidents.
In response to the comment that
improving the resilience of facilities to
extreme weather events is warranted
due to the risk posed to communities
with EJ concerns, EPA agrees that
accidental releases of regulated
chemicals from RMP-regulated facilities
likely pose disproportionate risks to
historically marginalized communities.
EPA expects that the benefits of this
clarified provision may lower potential
exposure for fenceline communities
with historically underserved and
51 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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overburdened populations by reducing
disproportionate damages that RMPreportable accidents might otherwise
inflict on those populations.
EPA agrees with the comment that the
Agency’s findings on risks to facilities
from natural hazards are consistent with
those of States that already require
facilities to consider threats from
extreme weather. However, because not
all States require facilities to consider
natural hazards, and because EPA
continues to see natural hazards as a
factor in RMP accidents, the Agency
believes the requirement to evaluate and
control natural hazards should be
explicitly stated in the RMP regulation.
Moreover, EPA notes that doing so is
consistent with other countries that are
also expanding efforts to address natural
hazards at chemical facilities, as
discussed in the 2022 SCCAP proposed
rule (87 FR 53568).
In response to the comments
requesting that EPA better define
natural hazards and climate-related
hazards, EPA notes that it has revised its
definition to be more closely align with
language used in the Federal Emergency
Management Agency’s (FEMA) National
Risk Index (NRI) 52 and Climate
Essentials for Emergency Managers 53
resources. For this final rule, EPA is
defining natural hazards to mean
meteorological, climatological,
environmental, or geological
phenomena that have the potential for
negative impact, accounting for impacts
due to climate change. Examples of such
hazards include, but are not limited to,
avalanche, coastal flooding, cold wave,
drought, earthquake, hail, heat wave,
hurricane, ice storm, landslide,
lightning, riverine flooding, strong
wind, tornado, tsunami, volcanic
activity, wildfire, and winter weather.
EPA believes CCPS’ definition and
guidance 54 presented in the 2022
SCCAP proposed rule, is still useful for
facilities’ evaluation of natural hazards
for process safety, however, the Agency
believes these FEMA resources reflect a
more comprehensive base to identify,
evaluate and understand relative natural
hazard risk, particularly how natural
hazards must account for a changing
climate. For example, the NRI identifies
18 specific natural hazards, which EPA
has identified in its definition, that are
further supported as their designation as
natural hazards and are able to be
52 https://hazards.fema.gov/nri/natural-hazards.
53 https://www.fema.gov/sites/default/files/
documents/fema_climate-essentials_072023.pdf.
54 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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represented in terms of expected annual
loss, which incorporate data for
exposure, annualized frequency, and
historic loss ratio.55 Additionally, the
Climate Essentials for Emergency
Managers points to many climate
change resources including the Climate
Risk & Resilience Portal 56 and the
Climate Mapping for Adaption and
Resilience Tool 57 that allows users to
examine simulated future climate
conditions associated with the natural
hazards identified in the NRI.
EPA disagrees that the natural hazard
assessment provisions are redundant
and will result in uneven enforcement
due to them already being considered in
both the PHA requirements and current
OSHA regulations. EPA’s goal of this
provision is to better reflect the
Agency’s longstanding regulatory
requirement, rather than to impose
additional regulatory requirements (and
thus potential additional costs) that
conflict with the OSHA PSM regulatory
requirements. In fact, EPA has
coordinated with OSHA throughout the
rulemaking process to ensure the intent
of adding explicit natural hazard
regulatory text does not create
conflicting requirements between the
two regulatory programs.
In response to comments that the
natural hazard assessment provisions
are overly burdensome to facilities, and
that the Agency does not have
authorization from Congress to
transform the PHA program to include
natural hazards ‘‘caused by climate
change or other triggering events’’, EPA
disagrees. EPA has stated this provision
makes more explicit what is already
required in the RMP regulations. As
noted in the proposed rule, since the
1996 RMP rule, EPA has said events
such as floods and high winds should
be considered as potential releaseinitiating events when conducting a
PHA, and the RMP guidance further
expands on this point.58 Furthermore,
the hazard evaluation amplifications
reflect existing industry practice, and
therefore, EPA assumes that these
hazard evaluation amplifications
impose no new requirements or costs on
facilities that are in compliance with the
RMP rule and common industry
practice. By amplifying and making
more explicit the need to evaluate
natural hazards as potential causes of
releases, EPA expects those facilities
that are currently not performing such
evaluations will better understand what
the rule requires. Additionally, each
modification of the RMP rule that EPA
proposed and is finalizing is based on
EPA’s rulemaking authority under CAA
section 112(r)(7). EPA has outlined its
authority for all the changes to the
regulation in section III.C of this
preamble.
In response to comments that the
determination of whether to implement
additional layers of protection from
natural hazards should be left to the
facility and not subject to regulatory
scrutiny, EPA notes that it is not
requiring implementation of protective
measures. At this time, EPA is simply
emphasizing the already-existing
requirement that the evaluation of
natural hazards be explicitly included
in hazard reviews and PHAs for
Program 2 and Program 3 RMPregulated processes. The Agency
expects stationary source management
to make reasonable decisions based on
the information collected through this
provision, like other provisions in the
PHA. EPA acknowledges that natural
hazards and process operations vary
throughout the United States, and
implementation of protective measures
will therefore also vary among RMP
processes. However, because the RMP
rule is performance-based, EPA believes
that all regulated RMP facilities can
ultimately be successful in addressing
natural hazards for their locations
within their risk management programs.
In response to the comment that the
reference to external events should be
removed because it is vague and overly
broad, EPA acknowledges that analysis
of external events may be broader than
expected. EPA is therefore revising the
regulatory language in the final rule to
focus on natural hazards rather than
external hazards. Additionally, EPA is
including ‘‘exacerbate’’ as an influence
of an accident from natural hazards in
addition to ‘‘cause’’ to further clarify the
regulatory language. As a few
commenters discussed, and EPA agrees,
in some cases natural hazards can be a
contributing factor for accidental
releases, making them more extreme or
likely, rather than causing them
independently. Finally, EPA is
removing the description of climate
change in the hazard evaluation
regulatory language to eliminate
redundancy, as EPA is defining natural
hazard as taking into account climate
change impacts.
55 https://hazards.fema.gov/nri/natural-hazards.
56 https://disgeoportal.egs.anl.gov/ClimRR/.
57 https://resilience.climate.gov/.
58 87
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Alternative Approaches for Specifying
Areas Most at Risk and Identifying
Sources With Heightened Risk of
Climate Events or Earthquakes
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i. Comments
Several commenters expressed
support for EPA specifying areas most at
risk from climate or other natural
events. One of the commenters
indicated that adopting the list of areas
exposed to heightened risk of wildfire,
flooding, storm surge, or coastal
flooding is necessary because facilities
would face difficulties in assessing
future climate risks without this
additional guidance from EPA. A couple
of commenters recommended that EPA
use the list in the U.S. Government
Accountability Office’s 2022 report,
‘‘Chemical Accident Prevention: EPA
Should Ensure Regulated Facilities
Consider Risks from Climate Change.’’ 59
One of the commenters also
recommended using the list in the 2021
report, ‘‘Preventing Double Disasters,’’
from David Flores et al.60 A couple of
commenters suggested that the list of atrisk facilities or geographic areas should
be regularly updated using the latest
available data. A couple of commenters
clarified that such a list of at-risk areas
should not be used to limit the number
of facilities that are required to conduct
a natural hazard or climate change
hazard analysis.
A couple of commenters expressed
opposition to the development of a list
of geographic areas most at risk from
natural hazards or climate-related
hazards. One of the commenters
indicated that such a list is not
necessary because facilities in these
areas are generally aware of the
potential for those hazards. The
commenter stated that EPA has not
demonstrated sufficient need to apply
geographic distinctions as a part of the
regulatory approach. One commenter
stated that according to the
Intergovernmental Panel on Climate
Change’s reporting, there are challenges
with attributing events to climate
change; therefore, the commenter stated
that they oppose EPA specifying
geographic areas most at risk from
climate impacts.
One commenter expressed support for
EPA requiring sources in areas exposed
to heightened risk of natural disasters to
conduct hazard evaluations associated
with climate or earthquakes as a
minimum, while also requiring all
sources to consider the potential for
59 https://www.gao.gov/assets/gao-22-104494.pdf.
60 https://www.ucsusa.org/sites/default/files/
2021-07/preventing-double-disasters%
20FINAL.pdf.
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natural hazards unrelated to climate or
earthquakes in their specific locations.
Similarly, another commenter urged
that it is EPA’s responsibility to regulate
chemical facilities appropriately. The
commenter noted that the co-location of
multiple polluting sites in climate
vulnerable areas is common, with
roughly a third of the nation’s RMP
facilities at increased risk from climate
impacts; however, despite known risks,
RMP facilities are not currently required
to plan for scenarios such as inland
flooding, coastal flooding, storm surge,
and wildfires.
Conversely, one commenter stated
that EPA does not need to apply
different regulatory requirements based
on geography, since EPA has not
demonstrated sufficient need to apply
such geographic distinctions as part of
any regulatory approach. Instead, the
commenter stated that a general
provision to require hazard reviews and
PHAs to evaluate the potential for
natural hazards, such as (but not
necessarily limited to) specific
examples, would be more practical.
ii. EPA Response
While EPA agrees it could be useful
to specify areas most at risk from natural
events and identify sources with
heightened risk of climate events, EPA
is not finalizing a regulatory provision
that will adopt these approaches at this
time. Rather, EPA will use these
comments, as well as those received on
guidance development, to update the
current hazard evaluation guidance and
initiate ways to share natural hazard
resources with facility owners and
operators to help them identify and
evaluate potential natural hazard risks.
EPA expects to develop and release this
guidance approximately one year after
this final rule. The 2022 SCCAP
proposed rule identified relevant new
studies for RMP facilities and the threat
of natural hazards to them. Those
studies included the Center for
Progressive Reform, Earthjustice, and
the Union of Concerned Scientists’
report ‘‘Preventing Double Disasters’’ 61
and the Government Accountability
Office’s report ‘‘Chemical Accident
Prevention: EPA Should Ensure
Regulated Facilities Consider Risks from
Climate Change.’’ 62 EPA also believes
CCPS’ guidance presented in the 2022
61 David Flores, et al., Preventing ‘‘Double
Disasters’’ (2021), https://www.ucsusa.org/sites/
default/files/2021-07/preventing-doubledisasters%20FINAL.pdf.
62 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.
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SCCAP proposed rule, is still useful for
facilities’ evaluation of natural hazards
for process safety. Lastly, EPA now also
recognizes the identification of hazards
in FEMA’s NRI 63 and Climate Essentials
for Emergency Managers 64 as the most
comprehensive foundation to identify,
evaluate and understand relative natural
hazard risk, particularly how natural
hazards must account for a changing
climate. EPA intends to incorporate and
further evaluate other resources as a
minimum in its guidance and expects
that information available in these
resources can be helpful to be consulted
to complement a facility’s more
localized information available from the
State and local government.
b. Power Loss
EPA’s Proposed Approach
i. Comments
One commenter agreed with EPA’s
approach to add regulatory text to
emphasize that loss of power is among
the hazards that must be addressed
within hazard review. A few
commenters expressed support for
facilities having contingency plans to
handle potential power loss. A few
commenters noted that power loss has
been identified as the cause of
hazardous chemical releases, such as
the Shell East Site and Arkema
incidents, and stated it is clear that
more stringent requirements are needed.
One commenter stated that they did not
oppose requiring hazard reviews and
PHAs to address power loss, but noted
that in many cases, a company’s RMP
already considers both natural hazards
and power loss. One commenter stated
that facilities should provide
information to local responders about
their backup power capabilities during
a hazard event, including the backup
generation source, fuel type, capacity
(operational hours), and process
consequences for extended power loss.
The commenter stated that the
information provided should address
how long a facility can maintain the
RMP process(es) safely with backup
power. Several commenters urged EPA
to require facilities to have backup
power systems. A few commenters
noted that EPA should require facilities
to have enough backup power to safely
run or shut down the entire facility in
the event of power loss.
Several commenters noted that EPA
has not provided data showing that
power loss is a significant cause of
accidents, and therefore the proposed
63 https://hazards.fema.gov/nri/.
64 https://www.fema.gov/sites/default/files/
documents/fema_climate-essentials_072023.pdf.
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rule is unwarranted. A few commenters
stated that from 2016–2020, only 7 out
of 448 reported accidents were linked to
power loss. A few commenters stated
that EPA did not adequately consider
the costs and benefits of the proposed
power loss provisions.
A couple commenters noted that
EPA’s proposal to explicitly require
evaluation of standby and emergency
power systems diverges with OSHA’s
PSM requirements in the PHA. The
commenter stated that this proposal
would inappropriately create an
inconsistency between the two
regulatory programs, injecting ambiguity
and uncertainty into the PHA process.
Another commenter urged EPA to not
include these additional provisions in
RMP regulations and instead allow
OSHA to continue its oversight of these
hazards.
One commenter strongly supported
requiring air pollution control or
monitoring equipment associated with
prevention and detection of accidental
releases from RMP-regulated facilities to
have standby or backup power. The
commenter claimed, however, that the
proposed amendments to 40 CFR 68.50
and 68.67 are extremely vague regarding
this requirement.
Another commenter noted that, while
fenceline monitors could detect an
accidental release in some
circumstances, high wind events such
as hurricanes can render them useless
such that a loss of power to monitors
would have no adverse effect on the
source or the surrounding community.
A couple of commenters stated that a
focus on maintaining air pollution
control or monitoring equipment during
a power loss, while important, may
detract from the fundamental purpose of
the RMP.
One commenter requested that the
final rule require all facilities to have
real-time fenceline air monitors with
enforcement mechanisms and robust
penalties for intentionally removing air
monitors from service. The commenter
stated that there are currently no
penalties for facilities that shut down
their monitoring during an incident.
The commenter requested that EPA
strengthen the proposed rule to require
expanded fenceline monitoring and
adequate backup power for air monitors
to operate continuously and that this be
documented in a written plan that
includes the location of the monitors.
Conversely, a couple of commenters
claimed that EPA made an unjustified
assumption in the preamble of the
proposed rule that facilities will remove
air monitoring and control equipment
from service prior to a natural disaster
to evade monitoring requirements. The
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commenters stated that the suggestion
that facilities attempt to evade
regulatory agency requirements in the
event of a natural disaster is improper
and inappropriate.
A few commenters stated that EPA’s
proposal to explicitly require backup
and emergency power systems exceeds
the scope of RMP without proper
justification. One commenter expressed
concern that the proposed backup
power requirements exceed EPA’s
statutory authority and lack a reasoned
basis. A couple of commenters also
questioned whether EPA’s statutory
authority allows it to require such
actions. The commenters contended that
air emission monitoring equipment is
typically regulated under other EPA
CAA regulatory programs (New Source
Performance Standards, National
Emission Standards for Hazardous Air
Pollutants, and Title V permitting
program).
ii. EPA Responses
EPA agrees that power loss can
threaten RMP-regulated processes and
cause accidental releases if not properly
managed, and therefore disagrees that
the provisions are unwarranted. In the
proposed rule, EPA provided data
showing that power loss has resulted in
serious accidental release incidents at
RMP-regulated facilities (87 FR 53569),
and EPA believes making more explicit
this already-existing accident
prevention program requirement to
evaluate hazards of the process 65 will
ensure that threats of power loss are
properly evaluated and managed to
prevent or mitigate releases of RMPregulated substances at covered
facilities. Therefore, EPA is finalizing
the proposed revisions.
In response to the comment that
facilities should provide local
responders with their backup power
capabilities during a hazard event, EPA
maintains that it is very important to
ensure that Local Emergency Planning
Committees (LEPCs) or local emergency
response officials have the information
necessary for developing local
emergency response plans; however,
EPA believes it is not necessary to
specify in the RMP rule the types or
format of information that LEPCs or
emergency response officials may
request. Section 303(d)(3) of the
Emergency Planning and Community
Right to Know Act already provides the
necessary authority to allow LEPCs to
request information needed to develop
65 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) through (c) for Program 3 processes.
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the local emergency response plan.
Furthermore, as part of the annual
coordination between facilities and
local emergency responders, responders
may obtain information on backup
power as appropriate.
In response to the comments
requesting that EPA require facilities to
have enough backup power to safely run
in the event of power loss, EPA is not
requiring implementation of standby or
emergency power for the entirety of an
RMP process at this time. However, the
Agency is requiring the source to
consider the appropriateness of backup
power for their process and to explain
decisions not to implement backup
power. There may be situations where
backup power is not critical to chemical
release prevention, so the rule provides
sources the opportunity to explain their
decision-making. Such an approach is
consistent with the performance-based
structure of the rule that relies on
examination of process safety issues by
the source, rational decision-making on
the part of owners and operators, and
oversight by implementing agencies
through compliance assistance and
enforcement and the public through
disclosure. EPA takes a slightly different
approach with respect to backup power
for monitors. EPA is requiring standby
or backup power for air pollution
control or monitoring equipment
associated with prevention and
detection of accidental releases from
RMP-regulated processes and has
amended regulatory language to reflect
the requirement. EPA believes that
doing so will help ensure compliance
with the intent of the rule and ensure
that the 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.
While the Agency acknowledges that
there may be processes that do not
require backup power, the Agency
believes that once a facility has made
and documented the determination that
it is appropriate to have monitors for
accidental releases, then ensuring their
operation through requiring backup
power is an appropriate operational
requirement.
In response to comments that the
requirements would create
inconsistency between EPA and OSHA
regulatory programs, EPA seeks only to
better reflect its longstanding regulatory
requirement that loss of power is among
the hazards that must be addressed
within hazard evaluations, rather than
impose additional regulatory
requirements (and thus potential
additional costs) that conflict with the
OSHA PSM regulatory requirements.
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In response to the comment that the
amendments to 40 CFR 68.50 and 68.67
are vague, EPA again notes these
amplifications are already preexisting
requirements. Also, EPA’s general
approach in 40 CFR part 68 has been to
recognize that process safety requires
owners and operators to exercise
reasonable judgement in making their
facility safer. Therefore, EPA has, and
continues to, allow substantial
flexibility for sources on how to comply
with the RMP rule. As noted in the
proposal, EPA believes many facilities
are already managing the hazard of
power loss well and thus does not
believe the amplification of power loss
in the hazard evaluation regulatory text
will negatively affect evaluation of this
hazard.
In response to comments regarding
facilities’ removal of air monitoring
equipment,66 EPA notes that the final
rule is revising 40 CFR 68.52(b)(9) and
68.69(a)(4) to require documentation of
the removal of monitoring equipment
for accidental releases during disasters
in facility operating procedures. In
doing so, the Agency addresses the
concern that the threat of extreme
weather events has, and will continue to
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 (87 FR 53571). To prevent
accidental releases, RMP owners or
operators are required to develop a
program that includes monitoring for
such releases. EPA does not believe all
natural disasters should be treated as an
exception to this requirement. However,
EPA understands that, in some
situations, such as hurricane winds,
there is a potential for damage to, or by,
monitoring equipment if not secured
and allows a source to shut down
monitoring equipment in such cases
provided that an explanation is
included in its RMP.
EPA disagrees that the backup and
emergency power system requirements
exceed the scope of the RMP rule and
EPA’s statutory authority and also
disagrees that the monitoring
requirements may detract from the
fundamental purpose of the RMP rule.
Each modification of the RMP rule that
EPA proposed and is finalizing is based
on EPA’s rulemaking authority under
CAA section 112(r)(7). Both paragraph
(A) and subparagraph (B)(i) of section
112(r)(7) explicitly grant EPA the
authority to require monitoring for
accidental releases. See CAA section
112(r)(7)(A)) (EPA ‘‘authorized to
promulgate release prevention,
detection, and correction requirements
which may include monitoring’’); CAA
section 112(r)(7)(B)(I) (as appropriate,
the accidental release regulations shall
cover the use, operation, and upkeep of
equipment to monitor accidental
releases). The original rule established,
through its statutory authority, the
requirement to monitor for accidental
releases to help prevent and mitigate
releases. Therefore, backup and
emergency power system requirements
being finalized in this rule simply
ensure proper operation of monitors and
continuous compliance with the
existing requirement.
In response to comments that EPA did
not adequately consider the costs and
benefits of the power loss provisions,
EPA notes that it is not finalizing
additional regulatory requirements from
what already exists in the RMP
regulations. The current RMP rule’s
PHA requirements include determining
and evaluating ‘‘the hazards of the
process’’ as well as ‘‘engineering . . .
controls applicable to the hazards and
their interrelationships such as
appropriate application of detection
methodologies.’’ (40 CFR 68.67(c)(1) and
(3)) Loss of power is one such hazard,
and backup power is an engineering
control applicable to the hazard and
detection methodologies. Similar but
less detailed requirements apply to
Program 2 processes (40 CFR 68.50(a)).
The hazard evaluation requirements
reflect not only the OSHA and EPA
rules but also existing industry
recommended practices, and therefore,
EPA assumes that these hazard
evaluation amplifications impose no
new requirements or costs on facilities.
As EPA has discussed in prior RMP
rulemaking RIAs, it is not possible to
estimate quantitative benefits for
proposed rule provisions as EPA has no
data to project the specific contribution
of each to an accident’s impacts. As
shown by accident trends, accident
frequency and severity are difficult to
predict. However, the 2022 SCCAP
proposed rule and the accompanying
Technical Background Document show
that past accidents have been caused by
power failure, and the backup power
provisions target these events. Based on
RMP-reportable accident and other data
from RMP regulated industry sectors,67
66 The backup power requirement of this rule
only addresses monitors for accidental releases of
regulated substances under 40 CFR 68.130. This
rule does not create any obligation to provide
backup power to monitors that may be required by
other CAA programs.
67 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
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chemical accidents can impose
substantial costs on firms, employees,
emergency responders, the community,
and the broader economy. Reducing the
risk of such accidents, the severity of
the impacts when accidents occur, and
improving information availability, as
the provisions of this final rule intend,
will provide benefits to the potentially
affected members of society.
c. Stationary Source Siting
EPA’s Proposed Approach
i. Comments
A few commenters expressed support
for EPA’s proposal to amend regulatory
text for Program 2 and 3 processes to
define stationary source siting
evaluations as including placement of
processes, equipment, buildings, and
hazards posed by proximate facilities
and accident release consequences
posed by proximity to the public. One
commenter stated that doing so would
ensure the protection of human health
and the environment. Another
commenter stated that EPA should
require implementation of stationary
source siting recommendations found in
the analysis to the greatest extent
practicable to assure protection for
fenceline communities. Similarly,
another commenter suggested that if it
is practicable for a facility to take an
action to eliminate or lessen hazards
associated with RMP processes through
different siting, it should be required to
do so.
Several commenters expressed
concerns about the proposed
requirements related to siting
evaluations. Several commenters noted
that implementing the facility siting
requirements are unnecessary and
duplicative because facilities covered by
OSHA’s PSM regulations already
undergo similar requirements. The
commenters stated that this creates the
opportunity for inconsistent
enforcement between EPA and OSHA.
Several commenters expressed
concern that EPA did not define the
term ‘‘proximate facilities.’’ Many
commenters were also concerned that
when these facilities are identified, it is
not practical to expect them to share
information with each other due to
confidential business information (CBI)
and security concerns. One of the
commenters suggested that EPA update
the regulatory text to make an allowance
for instances where neighboring
facilities do not cooperate in the siting
evaluation.
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
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A couple of commenters stated that it
is impracticable for EPA to require
existing facilities to move processes to
comply with any new siting
requirements. The commenters
suggested that EPA clarify that these
requirements do not apply to existing
facilities. One commenter stated that
imposing new siting requirements after
a facility that has been established
would raise fundamental fairness issues,
as well as possible regulatory ‘‘takings’’
issues, potentially requiring
compensation to the affected sources.
One commenter noted that conducting a
siting analysis is a significant
undertaking for existing sources who do
not have potential to cause offsite
consequences. The commenter stated
that it would be a costly and arduous
undertaking to determine exactly what
facilities are proximate and understand
their internal operations.
One of the commenters noted that the
proposed requirements should be
narrowly interpreted to preserve local
zoning authority. Another commenter
mentioned that neither the facility nor
EPA have any authority or control over
local zoning ordinances that may have
allowed development within an area
that EPA’s new criteria may deem to
have inappropriate buffers or setbacks.
Another commenter stated that the
facility siting provision could negatively
affect where facilities could be built,
depending on the distance between a
facility process and offsite populations.
The commenter encouraged EPA to
consider a policy restricting outside
populations from building close to a
facility which could interfere with real
estate plans and impact local building
regulations.
ii. EPA Responses
EPA agrees that amending the
regulatory text to make more explicit the
requirement that process hazard
evaluations for both Program 2 (hazard
review) and Program 3 (PHA) include in
the siting evaluation the placement of
processes, equipment, buildings, and
hazards posed by proximate facilities,
and accident release consequences
posed by proximity to the public, will
help ensure the protection of human
health and the environment. As
discussed in the proposal, 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
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processes. The proposal offered several
examples of accidental releases which
illustrate the significant effects of the
lack of sufficient distance between the
source boundary and neighboring
residential areas.
In response to comments that EPA
should require implementation of
stationary source recommendations,
EPA notes that, at this time, the Agency
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 instead
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. EPA continues
to believe the performance-based nature
of both this provision and the overall
rule allow facility owners and operators
the discretion to determine what risk
reduction measures work best for their
particular chemical use, process, or
facility. Furthermore, EPA disagrees
with comments that implementing the
facility siting requirements would create
the opportunity for inconsistent
enforcement between EPA and OSHA.
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.68 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.69
In response to the comments
regarding the definition of ‘‘proximate
facilities’’ and CBI, EPA notes that the
provision is for facility owners and
operators to be aware of and consider
the apparent presence of facilities
within release impact zones that could
occur from their facility, and how those
releases would be affected because of
the presence of nearby facilities. While
EPA encourages sharing of chemical and
process information between facilities,
particularly for emergency response
purposes, EPA does not believe this is
68 OSHA, Final Rule on Process Safety
Management of Highly Hazardous Chemicals;
Explosives and Blasting Agents, 29 CFR part 1910
(1992), 57 FR 6356 (February 24, 1991), https://
www.osha.gov/laws-regs/federalregister/1992-02-24.
69 61 FR 31687, June 20, 1996.
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required in order to comply with the
provision. Nevertheless, when
conducting siting evaluations, EPA
would reasonably expect sources to
consult publicly accessible information
on nearby sources, such as RMPs and
information available through LEPCs.
This type of information is not CBI.
EPA disagrees that it is impracticable
to require existing facilities to comply
with siting requirements. EPA notes that
there is a breadth of guidance on siting,
and the Agency therefore believes there
is adequate information available for
facilities to comply with the text in this
final rule. EPA expects facilities to
continue to use available resources and
any additional industry-specific
guidance to properly evaluate siting
hazards. The rule does not mandate that
existing sources modify their footprint
as a result of a siting analysis. The
approach taken in this rule is similar to
how hazard evaluations have proceeded
in the past: require the analysis of
hazards and rely upon owners and
operators to use the information
reasonably when determining what
measures should be undertaken. The
Agency also notes that Program 1
processes are not covered by this
requirement; Program 2 and 3 sources
subject to this requirement will have
undertaken offsite consequence analyses
and determined that they may have
offsite impacts that disqualify them
from Program 1. Finally, while EPA has
in the past discussed the potential for
requiring minimal setbacks and other
specific location restrictions,
notwithstanding local zoning, the siting
requirement in this rule does not
contain such a restrictions on location.
d. Hazard Evaluation Information
Availability
EPA’s Proposed Approach
i. Comments
Several commenters expressed
support for EPA’s proposed hazard
evaluation information availability
requirements. One commenter stated
that failing to finalize the proposal
would be arbitrary and capricious
because owners and operators can
continue to ignore recommendations
from hazard evaluations with no
justification, even if the
recommendations are feasible and
effective. One commenter strongly
supported EPA’s decision to require
RMP facilities to report declined
recommendations in hazard evaluations
but also suggested there should be a
baseline checklist of natural hazard
mitigation measures. A couple of the
commenters noted that facilities should
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be required to implement practicable
recommendations.
Several commenters expressed
concern that there is no reasonable
explanation for requiring the reporting
of rejected recommendations. A few
commenters mentioned that the
proposed requirements are unnecessary
because this information is already
documented as part of the PHA or
Layers of Protection Analysis (LOPA)
and adding it to the RMP only produces
double documentation without added
benefit. Some commenters mentioned
that EPA did not consider the labor
costs and time that would be devoted to
preparing a written justification for
rejected recommendations. One of the
commenters stated that the time and
resources could be better spent on
implementing accepted
recommendations. A few commenters
suggested that there is no evidence that
requiring individual facilities to provide
such documentation will reduce
accident rates and may lead some to
believe that it is possible to eliminate all
risks, including potential risks, which
could lead to a release.
Some commenters noted that the
requirement will likely cause facilities
to consider a narrower scope of
recommendations to avoid making this
exercise more burdensome. Similarly,
one commenter expressed concern that
the proposed requirement will
discourage facility leaders from pushing
their PHA/LOPA teams from identifying
unmitigated hazards to limit the amount
of information they are required to
report to EPA. Another commenter
recommended that EPA make clear that
an appropriately justified denial during
initial review of a facility’s RMP plan
should not have to be re-justified in
subsequent reviews of the plan.
ii. EPA Responses
EPA believes that finalizing the
hazard evaluation recommendation
information availability provisions will
enable the public to ensure facilities
have conducted appropriate evaluations
to address potential hazards that can
affect communities near the fenceline of
facilities. At this time, EPA is not
requiring facilities to implement
practicable recommendations from
natural hazard, power loss, and siting
hazard evaluations, as long as facilities
list in their risk management plans the
recommendations that were not
implemented and the justification for
those decisions. EPA disagrees that the
requirements are unnecessary and
provide no benefits. EPA believes the
requirements are important to help the
public understand how facilities
address the hazards that may affect their
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community to keep the risk at or below
an ‘‘acceptable level,’’ which include
adherence to RAGAGEP, and the
reasonable judgments and efforts of
compliance programs aimed at
preventing or mitigating accidental
releases. In response to comments that
requiring such documentation will not
reduce accident rates, EPA believes that
when local citizens have adequate
information and knowledge about the
risks associated with facility hazards,
facility owners and operators may be
motivated to further improve their
safety performance in response to
community oversight. At a minimum,
better community understanding of
identified hazards and remedies not
implemented will promote better
community emergency planning.
In response to comments that EPA did
not consider the costs of preparing
written justifications for rejected
recommendations, EPA notes that the
RIA for the final rule estimates
anticipated costs for preparing written
justifications.
In response to the comments that the
requirement will discourage facilities
from considering recommendations and
identifying unmitigated hazards, EPA
notes that the hazard evaluation
requirements for Program 2 (40 CFR
68.50) and Program 3 (40 CFR 68.67)
processes remain unchanged—to
identify, evaluate, and control hazards
involved in the process, assuring the
recommendations are resolved in a
timely manner. When facilities fail to
conduct these activities, they will not be
in compliance with the hazard
evaluation provisions. EPA believes the
flexibility permitted in hazards
evaluations, that is, allowing facility
owners and operators to choose which
recommendations will be implemented,
is the best approach for exercising
reasonable judgement to determine what
risk reduction measures work best for
their particular chemical use, process,
or facility. However, EPA views
choosing to leave hazards unaddressed
out of fear of public scrutiny as not
exercising reasonable judgement,
particularly when it may leave the
process more vulnerable to accidental
releases.
Methods To Provide Justification
i. Comments
A few commenters expressed support
for using categories, such as those in
OSHA’s 1994 Compliance Directive,70
for declining to adopt a PHA
recommendation. One of the
70 https://www.osha.gov/sites/default/files/
enforcement/directives/CPL02-02-045_CH-1_
20150901.pdf.
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commenters noted that requiring owners
and operators to choose one of four preselected categories makes it easier for
owners and operators to understand and
comply with their duties. The
commenter suggested that EPA should
not include alternative categories or a
catch-all ‘‘other’’ category because doing
so would dilute the purpose of the
amendment by allowing facilities to
decline recommendations for
potentially insufficient reasons. Another
commenter expressed concern that the
list of possible natural hazards, loss of
power, and siting evaluation
recommendations that might not be
adopted could be expansive; therefore,
the commenter suggests EPA should
provide specific categories of
recommendations for facilities to choose
from when reporting.
One commenter recommended that
the information be presented in a public
and easily accessible space across many
different sites and locations. Similarly,
another commenter suggested that
owners of RMP facilities should be
obligated to post hazard-related
information online and provide a link in
risk management plans so responders
and local communities can access this
information.
A commenter recommended that EPA
require owners and operators to include
not only documentation that one of the
four justifications is met, but also a
narrative explaining how the
documentation shows that the
justification has been met. Conversely,
another commenter noted that requiring
covered facilities to provide declined
hazard evaluation recommendations in
narrative form is an unnecessary
intrusion into internal practices at a
facility that does not improve that
facility’s safety.
One commenter noted that the
proposed requirement for selection of
‘‘preselected categories’’ does not
appear in the proposed regulatory text
and recommended that if EPA intends
to make the use of these categories
mandatory, it must put them into the
regulatory text. The commenter also
noted that these categories are good
conclusions for internal facility
evaluations that assess complex
considerations, but they provide little to
no useful information to LEPCs and
local communities.
ii. EPA Responses
EPA agrees that requiring owners and
operators to choose one of four preselected categories makes it easier for
owners and operators to understand and
comply with their duties and is thus
finalizing this component in the rule.
EPA is not requiring narrative
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explanations to be reported as there is
concern that such explanations may be
greatly inconsistent as they would
require large amounts of technically
challenging and varying information to
be comparably condensed. The Agency
believes the four pre-selected categories
ensures a balanced approach to
providing beneficial data to the public
as well as a straightforward method of
reporting for facility owners/operators.
While EPA is not adding the categories
to the regulatory text, EPA will plan to
revise its online RMP submission
system, RMP*eSubmit,71 to include the
categories,72 similar to the those in
OSHA’s 1994 Compliance Directive,
which will mimic the approach for
other data components required by 40
CFR 68.170 and 68.175. Sources will
therefore be able to update their RMPs
with the information once the
additional data field is incorporated into
the system, and in accordance with
applicable compliance dates. EPA also
plans to update the RMP*eSubmit
User’s Manual 73 to provide guidance for
entering declined recommendations and
applying these categories to them.
B. Safer Technology and Alternatives
Analysis (STAA)
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1. Summary of Proposed Rulemaking
a. Definitions, 40 CFR 68.3
EPA proposed to define ‘‘inherently
safer technology or design’’ (IST/ISD) to
mean 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.
EPA also proposed definitions for
‘‘passive,’’ ‘‘active,’’ and ‘‘procedural’’
measures. EPA proposed to define
‘‘passive measures’’ as risk management
measures that use design features that
reduce either the frequency or
consequence of the hazard without
human, mechanical, or other energy
input. EPA proposed to define ‘‘active
measures’’ as risk management
measures or engineering controls that
rely on mechanical, or other energy
input to detect and respond to process
deviations. Lastly, EPA proposed a
definition for ‘‘procedural measures’’ as
risk management measures such as
policies, operating procedures, training,
71 https://www.epa.gov/rmp/rmpesubmit.
72 These changes will be made to the submission
system prior to the 4-year compliance date as
described further in section IX.C.8. of this
preamble.
73 https://www.epa.gov/rmp/rmpesubmit-usersmanual.
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administrative controls, and emergency
response actions to prevent or minimize
incidents.
Finally, EPA proposed to define
‘‘practicability’’ as the capability of
being successfully accomplished within
a reasonable time, accounting for
technological, environmental, legal,
social, and economic factors.
b. Process Hazard Analysis, 40 CFR
68.67
EPA proposed to modify the PHA
provisions by adding an additional
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 process address safer
technology and alternative risk
management measures applicable to
eliminating or reducing risk from
process hazards. EPA proposed that ‘‘1
mile’’ be interpreted to mean ‘‘1 mile to
the nearest fenceline’’ for a facility with
a NAICS 324 or 325 process. EPA
proposed 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. EPA also
proposed that all facilities with 324
processes using hydrofluoric acid (HF)
in an alkylation unit conduct an STAA
for the use of safer alternatives
compared to HF alkylation, regardless of
proximity to another NAICS 324- or
325-regulated facility process.
EPA proposed to require owners and
operators subject to the STAA provision
to include an evaluation, including the
results of the STAA analysis, as part of
the PHA requirements in 40 CFR
68.67(e). In addition, EPA proposed to
add paragraph (c)(9)(ii) to require that
the owner or operator determine and
document the practicability of the IST
or ISD considered. This process would
be separate and additional to the PHA
requirements in 40 CFR 68.67(e). 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. Lastly, EPA proposed to
add paragraph (c)(9)(iii) to require 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.
In addition to the proposed approach
to STAA, EPA sought feedback 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
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17643
benefit of such a provision. EPA
solicited comment on whether the
Agency should only require the STAA
as part of the PHA, without the
additional practicability assessment.
EPA also sought comment on other
alternative approaches considered. One
approach was applying STAA
requirements to facility processes in
NAICS codes 324 and 325 with a
reportable accident within the last 5
years. Another approach was applying
these provisions to all NAICS codes 324
and 325 facility processes. Lastly, EPA
sought comment on whether the Agency
should require implementation of
technically practicable IST/ISD and
STAAs.
c. STAA Technology Transfer, 40 CFR
68.175(e)(7)
EPA proposed to add 40 CFR
68.175(e)(7) to require owners or
operators to report whether their 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.
2. Summary of Final Rule
As discussed below, the final rule
adopts three measures related to STAA:
a broad requirement to conduct a STAA
applicable to two sectors, petroleum
refining (NAICS 324) and chemical
manufacturing (NAICS 325); a
requirement to conduct a practicability
assessment for IST/ISD for a subset of
facilities with processes in these sectors
(co-located sources within 1 mile,
refinery HF alkylation processes, and
those that have had a reportable
accident within the 5 preceding years);
and a requirement for the same subset
of facilities to implement at least one
practicable passive measure or similarly
protective active or procedural
measure(s) after each STAA. These
measures also are severable from each
other. Even without a mandate to
implement any measures resulting from
an STAA or to conduct a formal,
documented practicability assessment,
an owner or operator of a facility may
identify and decide to implement new
prevention measures resulting from the
STAA. Similarly, even without a
requirement to implement practicable
IST/ISD measures or conduct a broader
STAA review, a practicability
assessment may lead to the adoption of
an IST or ISD at the subset of sources
required to conduct such an assessment.
Finally, the requirement for a subset of
sources to implement a passive measure
or an equally protective active
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measure(s) or procedural control(s) does
not depend on whether an IST/ISD
practicability assessment was performed
or whether the broader industry is
performing a STAA. While each of these
measures relate to STAA generally, they
are distinct regulatory requirements of
value independent of each other.
The Agency acknowledges that, prior
to this final rule, EPA has not made
implementation of any IST/ISD or any
measure identified in a STAA either a
preferred option at proposal or an
adopted requirement in a final rule. Our
prior rulemakings have discussed our
policy view of the merits of requiring
implementation. Our prior decisions
have not questioned what we view to be
clear on the face of the statute: that the
CAA authorizes EPA to require
implementation of IST/ISD and other
STAA measures. As discussed below
(section V.B.3—Hydrogen fluoride),
both subparagraphs (A) and (B) of CAA
section 112(r)(7) authorize requiring
implementation of safer technologies,
and as discussed in the ‘‘safeguard
implementation’’ section, EPA has
appropriately justified our change in our
view of the policy merits of the
requirement promulgated in this final
rule. The 2017 amendments rule, the
2019 reconsideration rule, and the 2022
SCCAP proposed rule all had vigorous
discussion of the merits of
implementing STAA throughout the
rulemaking process, and the 2022
SCCAP proposed rule solicited
comment on whether implementation
should be required. Therefore, sources
were on notice that the decision was an
open matter and any reliance that we
would not adopt an implementation
requirement in response to comments
and data was not reasonable. Moreover,
to the extent sources relied on our
preferred option regarding
implementation at proposal, EPA
believes the compliance period is
adequate to allows sources to meet the
rule requirements.
Based on comments on both the
proposed options and the alternative
approaches presented, EPA is finalizing
the proposed provisions for STAA with
the following modifications:
• Revising 40 CFR 68.67(c)(9) to
expand the STAA evaluation to all
regulated facilities with Program 3
processes in NAICS codes 324 and 325.
• Revising 40 CFR 68.67(c)(9)(ii) to
expand the IST/ISD practicability
assessment to regulated facilities with
Program 3 processes in NAICS codes
324 and 325 that also have had at least
one RMP-reportable accident under 40
CFR 68.42 since the facility’s most
recent PHA.
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• Adding 40 CFR 68.67(h) to require
implementation of at least one passive
measure at an applicable facility, or an
inherently safer technology or design, or
a combination of active and procedural
measures equivalent to or greater than
the risk reduction of a passive measure.
3. Discussion of Comments and Basis for
Final Rule Provisions
a. General STAA Provision Comments
STAA as Part of PHA
i. Comments
A couple of commenters stated that
they support EPA’s proposal that
owners and operators of RMP-covered
facilities be required to include
consideration and documentation of the
feasibility of applying safer technologies
and alternatives in their PHAs. One of
the commenters noted, however, that
only doing STAAs within the PHA will
limit the effectiveness of the
evaluations, and therefore, STAA
should be evaluated within the PHA
process as well as outside of the PHA in
a separate study to evaluate each
existing process.
Some commenters expressed
opposition to EPA requiring a
mandatory STAA component in the
PHA. A few commenters noted that
mandating a full IST or ISD review
would require a completely different
PHA team, extensively increase the time
and resources necessary to complete a
PHA, require the PHA team to perform
hazard assessments of ever-changing
technology they may not be familiar
with, and dilute a PHA’s core purpose.
One commenter noted that the
proposed rule’s STAA requirements do
not acknowledge the value of the PHA
risk assessment function. Another
commenter stated that the analysis of
passive measures, active measures, and
procedural measures already occurs as
part of the PHA, as required by 40 CFR
68.67(c)(3) and (4) and (6) and (7), and
no modification of the current
regulations is thus required to ensure
that this analysis occurs. The
commenter added that STAA
requirements will detract from and
reduce the effectiveness of PHAs as it
will divert resources from PHA
processes that are currently working
well at regulated facilities. The
commenter noted the effectiveness of a
PHA depends heavily upon the
availability of high-quality process
safety information (PSI), yet the
proposed rule provides no direction on
how the PHA team is to assemble the
PSI needed to perform the STAA. The
commenter explained that facilities
would not normally have information
about processes not in use there. The
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commenter added this detracts from the
PHA focus on existing facility processes
and potentially reduces the
effectiveness of the analysis.
ii. EPA Responses
EPA believes that STAA analysis can
be incorporated in the existing RMP
PHAs by using PHA techniques such as
the Hazard and Operability Study,
What-If? Method, checklists, a
combination of these, or other
appropriate equivalent methodologies.
(See 40 CFR 68.67(b)) These techniques
themselves are not requirements, but
tools available to help the facility owner
or operator to identify, evaluate, and
control the hazards involved in the
process. The Agency also notes that,
when EPA previously considered an IST
requirement, commenters noted that
‘‘PHA teams regularly suggest viable,
effective (and inherently safer)
alternatives for risk reduction,’’ and
EPA observed that ‘‘good PHA
techniques often reveal opportunities
for continuous improvement of existing
processes and operations’’ (61 FR
31699–700).
Therefore, EPA agrees with
commenters expressing support for
including a STAA in the PHA and
disagrees with commenters that argue it
is not appropriate to include a STAA in
the PHA. In fact, the RMP PHA
requirements include other aspects of
analysis that are typically associated
with process design. For example, the
PHA must also address stationary
source siting issues, which involve the
location and proximity of the source
relative to local populations.
Nevertheless, EPA agrees that for
situations where a STAA involves a
novel process that is entirely different
from the current process, the process
design must exist or be developed
within the industry, and PSI be
compiled, to conduct a PHA for this
new process. EPA does not expect
facility owners or operators to research
and create new processes or conduct
research into all possibilities for the use
of new chemicals. Instead, the STAA
should focus on the industry known and
existing substitute processes and
chemicals that have been demonstrated
to be safe in commercial use.
If a facility is considering an IST
chemical substitution or process change
from their STAA that involves a
significant redesign of their process,
such efforts involved with redesign and
its evaluation may need to be
undertaken as part of a practicability
study. The definition of practicability
allows for consideration of
technological factors, which could
include whether the potential safer
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alternative can be designed and
operated to meet the process functions
needed. However, not all IST involves
substituting a chemical or an entirely
new process. Also, there are other types
of IST measures (minimization,
moderation, or simplification) that can
be considered to address various points
within the current process where
hazards and risks exist.
Facilities may, if desired, conduct a
separate STAA analysis of each entire
process, outside of the PHA process, as
long as it is done in the same timeframe
as the PHA, and the results are
documented. If a facility does not have
staff capable to identify and evaluate
alternatives, the facility owner or
operator may obtain outside assistance
from engineering firms or consultants.
Furthermore, the Agency has accounted
for the technical capabilities of facilities
in the sectors targeted for STAA when
determining reasonable requirements
that provide for the prevention of
accidents to the greatest extent
practicable.
Due to the performance-based
approach of the current RMP PHA
requirements at 40 CFR 68.67(c)(3), to
identify, evaluate, and control the
hazards involved in the process, EPA
believes some facilities may have
already performed a STAA-type analysis
as part of their PHA. If the facility has
already performed such STAA analysis
in the past, then the owner or operator
should consider these analyses when
updating or revalidating their PHAs and
determine whether there is new
information that should be considered
as part of conducting the current STAA.
Costs and Benefits of Implementing
STAA as Part of PHA
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i. Comments
A couple of commenters stated that
the STAA provisions would not be costeffective. The commenters stated that
the STAA represents 70 percent of the
total costs EPA estimated apply to the
proposed rule. The commenters noted
that the proposed STAA requirement is
solely for consideration of possible
alternatives and has unproven and
unquantified benefits that do not justify
the annual cost of $51.8 million. One of
the commenters added that EPA stated
that they expect ‘‘some portion of future
damages would be prevented through
implementation of a Final Rule,’’ but
they did not identify any benefits
specifically tied to the STAA provision.
The commenter stated that there is
consensus on the theoretical value of
STAA as a tool to inform future
investment decisions and said that once
a facility has committed to a particular
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production technology, STAA is not
particularly useful nor informative. In
contrast, another commenter stated that
the costs of transitioning to safer
alternatives are not sufficiently weighed
against the costs of a major incident.
The commenter provided an example
that indicates that safety improvements
could avoid major incidents costing
owners $220 million on average. The
commenter also noted that this figure
does not include costs to society, such
as human lives, economic stress, and
health care and emergency service costs.
ii. EPA Responses
EPA disagrees that the benefits of the
STAA requirements do not justify the
costs. EPA believes that the STAA
should identify potential IST process
changes that, if implemented, would
result in owners or operators using less
hazardous substances, minimizing the
amount of regulated substances present
in a process, moderating process
conditions and reducing process
complexity. The STAA also should
identify potential passive, active, or
procedural safeguards that, when
implemented, will result in changes to
make processes safer. Such changes
help reduce the prevalence of higher
risk processes and thereby prevent
accidents by either: (1) Eliminating the
possibility of an accidental release
entirely, by making a process more
fault-tolerant, such that a minor process
upset, or equipment malfunction does
not result in a serious accidental release;
and (2) reducing the severity of releases
that do occur.
RMP accident data show past
accidents have generated highly variable
impacts, so the impacts of future
accidents are difficult to predict.
Nevertheless, it is clear from RMP
accident data 74 and other data from
RMP regulated industry sectors,75 that
chemical accidents can impose
substantial costs on firms, employees,
emergency responders, the community,
and the broader economy. Because
major and other concerning RMP
accidents continue to occur, by lowering
risk of accidents, the benefits include:
reductions in the number of fatalities
and injuries both onsite and offsite and
residents evacuated or otherwise
inconvenienced by sheltering in place;
reductions in the damage caused to
74 EPA estimated monetized damages from RMP
facility accidents of $540.23 million per year.
75 Marsh JLT Specialty, ‘‘100 Largest Losses in the
Hydrocarbon Industry,’’ 27th Edition, March 2022.
Accessed from https://www.marsh.com/uk/
industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large
property damage losses in the hydrocarbon industry
from 1974 to 2021 in current and 2021 dollars and
in a few cases, business loss costs.
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17645
property onsite and offsite of the facility
including damages to product,
equipment, and buildings; reductions in
damages to the environment and
ecosystems; and reductions in resources
diverted to extinguish fires and clean up
affected areas. Preventing serious
accidents avoids numerous direct costs,
including worker, responder, and public
fatalities and injuries, public
evacuations, public sheltering in place,
and property and environmental
damage. It also avoids indirect costs,
such as lost productivity due to lost or
damaged property and business
interruption both onsite and offsite,
expenditure of emergency response
resources and attendant transaction
costs, and reduced offsite property
values. Actions that prevent or reduce
the severity of accidents in RMPcovered processes are also likely to
prevent or mitigate non-RMP accidents
at the same facilities because the same
or similar actions can be taken for
processes and equipment not subject to
the regulation, often at minimal
additional cost.
Further, for IST/ISD practicability and
implementation of certain measures,
EPA recognizes facilities will most
likely implement IST/ISD when an IST/
ISD’s net cost is less than a passive
measure’s cost. The Agency assumes
owners and operators will likely explore
specific benefits to their facility when
making decisions and expects the
evaluation to consider several factors,
such as:
• Operating and Maintenance (O&M)
cost—IST/ISD may have a change in
O&M costs compared to passive
measures. For example, chemicals used
in the process may change, which could
cause changes in recurring input costs,
including potentially lower those costs.
• Productivity improvements—IST/
ISD could result in productivity
improvements from more efficient
process and changes to input costs.
• Safety improvements—IST/ISD may
reduce risks of an accident more than
would a passive-equivalent measure. A
lower accident risk will result in facility
safety benefits and social benefits from
fewer accidents.
• Capital/facility reduced losses—
Similar to safety, a lower accident risk
will reduce losses to capital as well as
shorter than expected facility shutdown
time from accidents.
These facility specific factors will
further help owners and operators
justify identify facility-specific benefits
associated with the costs to comply with
this provision. EPA continues to believe
the performance-based nature of both
this provision and the overall rule allow
facility owners and operators the
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discretion to determine which IST/ISDs
and passive, active and procedural
safeguard measures work best for their
particular chemical use, process, or
facility and for protecting the
community potentially affected.
EPA disagrees that the benefits of the
STAA requirements are unproven. Since
1996, EPA has seen that advances in
ISTs and safer alternatives are becoming
more widely available and are being
adopted by some companies. Voluntary
implementation of some ISTs has been
identified through surveys and studies
and potential opportunities have been
identified through EPA enforcement
cases and the U.S. Chemical Safety and
Hazard Investigation Board (CSB)
incident investigations. As discussed in
the 2017 amendments rule (82 FR 4645,
Jan. 13, 2017), the Contra Costa County
Health Services and New Jersey
Department of Environmental Protection
(NJDEP) IST regulations have resulted in
some facilities adopting IST measures.
EPA disagrees that STAA is not useful
or informative for facilities that have
committed to a particular production
technology. Innovations and research in
chemical process safety have evolved
and continue to evolve. For those
facilities who have not considered
adopting any IST or have only done so
in limited fashion, EPA believes that
there is value in requiring facilities with
regulated substances to evaluate
whether they can improve risk
management of current hazards through
potential implementation of ISTs or risk
management measures that are more
robust and reliable than ones currently
in use at the facility. For those facilities
who have already considered IST, EPA
believes facilities should re-evaluate
whether any improvements in hazard or
risk reduction can be made.
In response to the comment that EPA
did not identify any benefits specifically
tied to the STAA provision, EPA was
able to qualitatively judge that the risk
reduction from STAA implementation 76
reasonably justified the costs. In
principle, the STAA eliminates or
minimizes the opportunities for a
chemical release because identification
and implementation of ‘‘safer’’
technologies and alternatives, should
result in a hazard or risk reduction for
a particular RMP chemical or process.
EPA recognizes that neither IST nor
other procedural, active, or passive
measures alone will eliminate all
hazards or risks and that reliance on a
combination of risk reduction measures
76 This is further discussed in greater detail in
Chapter 6 of the RIA.
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will probably be needed for other points
in a process.
Hydrogen Fluoride
i. Comments
Some commenters were concerned
that the proposed rule leaves the
continued use of HF up to owners/
operators. A few commenters urged EPA
to strengthen the proposed rule by
requiring facilities to switch from HF or
other acutely toxic substances to a safer
alternative whenever feasible, since
safer alternatives are available. One of
the commenters noted the CSB’s 2022
report recommendations that HF in
remaining alkylation units in the U.S. be
eliminated and replaced, if necessary,
with less hazardous chemicals that are
consistent with ISD. One commenter
requested that safer alternatives to HF
be implemented across all oil refineries
in the U.S.
One commenter stated that the
proposed rule was not comprehensive
enough to adequately mitigate the
inherent risks associated with using HF.
The commenter stated that asking these
facilities to merely consider switching
from HF alkylation to safer alternatives
and requiring them to include an STAA
as part of their PHA was not enough to
eliminate the inherent risk of having HF
onsite. A couple of commenters
recommended that the use of HF in
refineries be banned. One of the
commenters urged EPA to establish an
aggressive timeline to phase out HF’s
use and said that further study is a
waste of time. Another commenter
contended that adding a larger scale ban
of HF across all the oil refineries in the
U.S. would safeguard millions of
Americans from facing disaster in the
event of an accidental release. Several
commenters stated that the history of
HF use and accidents supported the
idea that stronger EPA action was
necessary to protect communities.
Several commenters stated a range of
concerns regarding the dangers of HF. A
few of the commenters specifically
noted near misses or releases of HF and
their associated harms and costs. One
commenter noted the dangers of HF and
the risks to communities, workforces,
wildlife, hospitals, and first responders.
Another commenter noted the risk of a
catastrophic event caused not only by
accidents and human error, but also
from terrorism and natural disasters,
which the commenter claimed cannot
be mitigated. One commenter noted that
earthquakes could cause the release of
HF from refineries. One commenter
noted the prevalence of refineries using
HF near urban centers. Another
commenter noted their concerns
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regarding the hazards of HF, specifically
the dangers for nearby school children
and a lack of emergency preparedness in
schools.
Conversely, one commenter urged
EPA not to advance requirements
specific to HF alkylation units. The
commenter claimed that EPA has no
legal authority to mandate STAA on
existing processes and that the proposed
STAA requirements on all HF alkylation
processes at petroleum refineries are
arbitrary and unlawful. The commenter
claimed that EPA did not provide a
meaningful account of the benefits
associated with this requirement, failed
to state specifically how this
requirement would fulfill any statutory
requirements of the RMP, and has little
or no data to support its proposal. The
commenter further claimed that the data
indicates that the industry is safely
managing the risks with HF.
One commenter claimed that data
show that HF alkylation processes are
well managed by refiners. The
commenter noted EPA’s 1993 report on
HF 77 and the continuous improvement
of industry-developed HF management
policy American Petroleum Institute
(API) Recommended Practice 751, ‘‘Safe
Operation of Hydrofluoric Acid
Alkylation Units’’ (RP 751).78 The
commenter stated that RP 751 is
recognized by OSHA and the CSB as
providing effective guidance for the safe
operation of HF alkylation units and
management of HF catalyst. The
commenter claimed that there have
never been life-threatening injuries to
people in surrounding communities
stemming from HF-related incidents at
refineries, which the commenter noted
was because of multiple layers of
mitigation technologies and emergency
procedures. The commenter claimed
that the benefits of STAA are flawed
because the commenter noted that EPA
failed to consider the measures taken at
facilities that follow or audit against RP
751.
ii. EPA Responses
EPA notes that HF is an extremely
toxic chemical used for alkylation at 27
percent of facilities in NAICS 324 (45 of
163). EPA is requiring that all HF
alkylation processes at petroleum
refineries (NAICS 324) conduct an
initial STAA evaluation, a practicability
assessment for IST/ISD, and
77 EPA, Hydrogen Fluoride Study, Report to
Congress section 112(n)(6) Clean Air Act As
Amended, https://nepis.epa.gov/Exe/ZyPDF.cgi/
10003920.PDF?Dockey=10003920.PDF.
78 API, Recommended Practice 751 (2021),
https://www.api.org/oil-and-natural-gas/healthandsafety/refinery-and-plant-safety/process-safety/
process-safety-standards/rp-751.
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implementation of at least one passive
measure (or combination of active or
procedural measures equivalent to the
risk reduction of a passive measure),
primarily due to recent incidents where
HF was nearly released when there were
explosions, fires, and other releases that
could have triggered releases of HF.
While API RP 751 offers industry
guidance to help safely manage HF
alkylation process and its hazards, those
process hazards still exist. In contrast,
there are recognized potentially safer
chemical 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. These eliminate the hazard.
With several known alternatives and
with recent incident history, EPA
believes the process of HF alkylation
merits a rule-based prevention approach
rather than only selective oversight. In
response to the comments urging EPA to
require facilities to switch from HF to a
safer alternative whenever feasible, the
practicability of these potentially safer
alternatives is situation-specific, and
owners and operators are usually in the
best position to make these
determinations.
EPA summarized its legal authority
for the various provisions of this final
rule in the preamble to the proposed
rule, specifically identifying STAA as a
prevention measure authorized under
CAA section 112(r)(7) (87 FR 53563–64,
Aug. 31, 2022). EPA’s legal authority to
require an STAA evaluation and
implementation of reasonable STAA
measures is well-established under both
paragraphs (A) and (B) of CAA section
112(r)(7). In authorizing rules for the
prevention of accidental releases of
regulated substances, subparagraph (A)
of section 112(r)(7) specifically allows
for rules that address design,
equipment, and operations while
permitting EPA to distinguish among
classes of facilities based on factors
‘‘including, but not limited to . . .
location [and] process.’’ This language
authorizes EPA to put restrictions on
and impose requirements for
permissible design of a process and the
types of equipment used as well as
continuing operation of such designs
and technologies. With respect to HF
alkylation processes, not only does the
statute authorize consideration of
location when identifying classes to
regulate, it also provides that EPA may
consider the ‘‘potency of substances’’
when making distinctions among
facilities that are covered by regulations
under section 112(r)(7)(A). As discussed
in the proposed rule, HF is a
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particularly potent regulated substance.
87 FR 53576 (Aug. 31, 2022).
In addition to the authority granted by
subparagraph (A), the authority in
subparagraph (B) to develop ‘‘reasonable
regulations [that] provide, to the greatest
extent practicable, for the prevention
and detection of accidental releases’’
authorizes reasonable regulations to
mandate examination of potential
methods to prevent releases, to examine
the practicability of alternative designs
and technologies, and to require
adoption of release prevention measures
when practicable. Many of the same
terms appear in both subparagraph (B)(i)
as in subparagraph (A)—the
requirement to cover ongoing
operations, the authority to recognize
‘‘differences in . . . operations,
processes and class . . . of sources,’’
while also granting authority to regulate
‘‘use’’ of regulated substances.
Subparagraph (7)(B)(ii) authorizes rules
to ‘‘minimize’’ accidental releases,
which encompasses a mandate to
implement practicable passive
mitigation measures or their equivalent
active and procedural measures. STAA
is a ‘‘safety precaution’’ under the
prevention program. CAA
112(r)(7)(B)(ii)(II).
As noted in the 2017 amendments
rule (82 FR 4630, Jan 13, 2017), both the
Conference Report for the 1990 CAAA 79
and the 1989 Senate Report related to
the CAAA 80 provide substantial
support for the concepts of STAA. The
Conference Report included support for
‘‘a review of the efficacy of various
prevention and control measures,
including process changes or
substitution of materials’’ (Conference
Report pp. 340–41). Further, the Senate
Report supported ‘‘release prevention
measures’’ that contemplate IST and
STAA (Senate Report p. 242). While
neither the 1996 RMP rule nor the 2019
reconsideration rule required IST or
STAA, neither action based those
decisions on a lack of authority under
CAA section 112(r)(7) to require
examination of safer alternatives at
either existing or new processes.
Furthermore, in discussing the
purpose of the chemical accident
provisions, the Senate Report identified
a preference for measures that promote
safer technologies to those that merely
mitigate or respond to releases (pp. 208–
209):
Systems and measures which are
effective in preventing accidents are
preferable to those which are intended
to minimize the consequences of a
release. Measures which entirely
79 H.R.
80 S.
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Rep. No. 101–952 (1990) (Conf. Rep.).
Rep. No. 101–228 (1989).
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17647
eliminate the presence of potential
hazards (through substitution of less
harmful substances or by minimizing
the quantity of an extremely hazardous
substance present at any one time), as
opposed to those which merely provide
additional containment, are the most
preferred.
The Senate Report is entirely
consistent with a preference for the
hierarchy of controls that forms the
basis of STAA.
b. STAA Evaluation
Applicability
i. Comments
Several commenters recommended
that EPA expand STAA requirements to
cover more facilities. Some of the
commenters highlighted that the
proposed rule would only require
approximately 5 percent of RMP
facilities to conduct STAAs, which is a
small subset of facilities. Some of the
commenters suggested EPA require all
RMP facilities to develop a hierarchy of
hazard controls in sequence and priority
order to eliminate risks of catastrophic
releases. One commenter noted that
EPA has failed to justify excluding any
refineries, chemical manufacturing
plants, pulp/paper mills, wastewater
treatment, agricultural chemical or
fertilizer plants, or thousands of other
hazardous facilities where safer
technologies are available.
One commenter claimed that there
was no valid justification not to require
a refinery or chemical manufacturer to
assess IST and consider ways to operate
more safely simply because it was not
within 1 mile of another refinery or
chemical plant. The commenter claimed
that the 1-mile radius restriction was
unworkable as well as unjustifiable and
that it was unclear how to determine the
distance restriction. The commenter
stated that a 1-mile radius restricted the
likely impact area for severe hazards
and releases from refineries and
chemical plants especially for
communities where there are many
facilities within a 1-to-10-mile radius
that can impact health, the ability of
communities to evacuate, and the ability
of first responders to assist. The
commenter additionally noted that a
hurricane, flooding, wildfire, or
earthquake tended to have impacts
greater than a 1-mile radius.
Several commenters stated that the
use of the 1-mile distance from
fencelines instead of process location is
unreasonable as there are facilities that
have processes hundreds of yards from
their fenceline. The commenters
suggested that this additional distance
should be accounted for in this
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provision and requested that EPA use
distances between the covered processes
at the adjacent stationary source as
opposed to fencelines.
A couple of commenters stated that
STAA is inappropriate and costprohibitive for existing processes. These
and other commenters urged that EPA
should limit any STAA requirement to
the design and development phases of
new processes. A couple of commenters
stated that the reasons different
technologies are not implemented after
a facility is already built are complex—
ranging from chemical production or
storage capability to life expectancy of
operating equipment, capital
expenditures, and market demands.
Some commenters noted that EPA does
not have the statutory authority under
CAA section 112(r) to impose facility
design requirements at any stage of a
regulated facility’s lifespan, much less
for existing facilities.
A couple of commenters noted that
the considerations of STAA would have
little relevance among the diverse
processes, formulations, and
applications relevant to the fertilizer
industry, specifically. The commenters
added that forcing companies to
incorporate this ill-fitting approach in
their PHAs would lead to higher RMPcompliance costs that would be passed
on to farmers and consumers. One of the
commenters further added these
increased costs provide no benefit to the
communities in which regulated
facilities are located.
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ii. EPA Responses
EPA agrees in part with commenters
requesting that the applicability of the
STAA provision be expanded to apply
to more facilities compared to the
requirements included in the proposed
rule. In this final rule, EPA is expanding
the initial STAA evaluation to all
Program 3 facilities with NAICS 324 and
325 processes. EPA believes that high
RMP accident frequency among NAICS
324 and 325 processes as shown by
recent data 81 presented in the proposed
rule, is reasonable justification for
requiring RMP owners and operators to
evaluate safer technologies and
alternatives to help prevent accidental
releases. As noted in the proposed rule,
between 2016 and 2020,82 sector
81 Such data are also consistent with accident
frequency data that formed part of the basis for the
STAA applicability provisions in the 2017
amendments rule. See 81 FR 13668–69, March 14,
2016 (amendments rule NPRM); 82 FR 4632–34,
January 13, 2017.
82 Due to a lack of alternative data describing
RMP accident impacts more comprehensively, EPA
chose this five-year dataset to reflect the most
recent trends regarding RMP accidents. EPA used
the August 1, 2021, version of the RMP database to
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accident rates (unique facilities having
accidents) for NAICS 324 and 325 were,
respectively, seven times higher (23
percent, n = 41 out of 177) and two
times higher (6 percent, n = 96 out of
1631) than the rate for all RMPregulated facilities (87 FR 53578).83 By
expanding applicability of the STAA
evaluation to these additional NAICS
324 and 325 processes, EPA expects to
also capture complex facilities in less
facility-dense areas that nonetheless
may cause significant harm to human
health and the environment.
In response to the comment stating
that EPA has failed to justify excluding
any hazardous facilities where safer
technologies or alternatives are
available, EPA notes that it has provided
justification for applying the STAA
requirement to facilities with NAICS
324 and 325 processes and does not
believe that the final provisions have
been limited arbitrarily, or that the
Agency’s decision to limit applicability
of the STAA provisions to the
petroleum refining and chemical
manufacturing sectors implies that other
sectors do not have viable safer
technology alternatives. EPA notes that
sources involved in complex
manufacturing operations have the
greatest range of opportunities to
identify and implement safer
technologies, particularly in the area of
inherent safety, because these sources
generally produce, transform, and
consume large quantities of regulated
substances under sometimes extreme
process conditions and using a wide
range of complex technologies.
Therefore, such sources can often
consider the full range of inherent safety
options, including minimization,
substitution, moderation, and
simplification, as well as passive, active,
and procedural measures. Further, EPA
complete its analysis because under 40 CFR
68.195(a), facilities are required to report RMP
accidents and specific associated information
within six months to the RMP database. Therefore,
the RMP database as of August 1, 2021, is expected
to include RMP accidents and their specific
associated information as of December 31, 2020.
However, because accident data are reported to the
RMP database by facility owners and operators,
EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data
because some facilities may have not reported their
RMP accidents as they are required to do. See
sections 3.2 and 3.3 of the RIA for more on this and
other limitations on the number and costs of
baseline accidents.
83 The list of these accidents and their details can
be found in the 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,
https://www.regulations.gov/document/EPA-HQOLEM-2022-0174-0065. These accidents are
specifically identified in Column BZ.
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notes that RMP facilities in the selected
sectors have been responsible for a
relatively large number of accidents,
deaths, injuries, and property damage
and have significantly higher accidents
rates as compared to other sectors. The
5 percent of sources mentioned by the
commenter, augmented by those
refineries and chemical manufacturer
sources that have had accidents in the
past 5 years, are responsible for 42% of
the total accidents from RMP-covered
sources over the period from 2016–
2020, and 83% of the accident damage.
Concentrating the most demanding
requirements on this subset of sources
recognizes the track record of
heightened risk presented by these
sources to their nearby communities.
While EPA is not requiring all
Program 3 sources, or all sources in
industry sectors where feasible safer
technology alternatives have been
identified to perform a STAA, the
Agency encourages such sources to
consider performing a STAA, and to
determine practicability of IST or ISD
considered, even if they are not subject
to the STAA provisions of the final rule.
EPA expects guidance for this provision
and the data resulting from the STAA
Technology Transfer described in
section e. of this section will be useful
for all facilities to adopt to identify
potential IST/ISD and safeguards. As
noted in the preamble of the 2016
proposed amendments rule, provisions
in the existing rule provides several
incentives to encourage the use of STAA
and the adoption of safer technologies,
including having applicability based on
a chemical threshold, allowing a source
to take credit for passive mitigation in
calculating its worst-case scenario and
both passive and active controls when
calculating its alternative scenarios (81
FR 13663, Mar. 14, 2016). Consistent
with EPA’s general approach to the RMP
regulations, the Agency allows
flexibility for owners and operators to
adopt various methods to meet
performance standards, with more
specific, demanding standards for
sources that pose a greater likelihood of
an accidental release and have greater
complexity, and for sources that pose a
greater risk to nearby communities.
In the final rule, the definition of the
1-mile radius is relevant to the
applicability of the IST/ISD
practicability assessment and safeguard
implementation only. Acknowledging
that refineries and chemical
manufacturers have sector accident rates
that are higher than the general rates for
RMP-covered facilities, close co-location
of sources in NAICS codes 324 and 325
further increases the risk to the public
that may be potentially exposed to a
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release from multiple sources. It is
appropriate to increase the stringency
and transparency of the requirement for
so situated sources. Discussion of the
application of the 1-mile criteria is later
discussed in the Practicability
Assessment and Safeguard
Implementation sections of this
preamble.
In response to the comments that the
STAA requirement should be limited to
the design and development phases of
new Program 2 and Program 3
processes, EPA disagrees. While the
greatest potential opportunities for
using IST may exist early in process
design and development, many IST
options may still be practicable after the
initial design phase. Furthermore,
STAA involves more than just IST. Safer
technology alternatives also include
passive measures, active measures, and
procedural measures, and these
measures can be modified and improved
after the initial design of a facility. EPA
notes that while many RMP-regulated
facilities were originally constructed
decades ago, major enhancements have
been reported in some plants that have
been operating for many years.
Moreover, to the extent that particular
measures are cost-prohibitive, the rule
allows for that to be a factor in assessing
whether a measure is practicable.
The Agency disagrees with the
comments that the CAA does not
authorize the STAA provisions of this
final rule. Both paragraphs (A) and (B)
of CAA section 112(r)(7) authorize
STAA and IST in particular. EPA cited
all of section 112(r)(7) as authority for
‘‘[e]ach of the portions of the Risk
Management Program rule we propose
to modify’’ (81 FR 13646, March 14,
2016). The authority section for 40 CFR
part 68 references CAA section 112(r)
and is not limited to particular
paragraphs. The proposed rule also
noted that paragraph 112(r)(7)(A) had
been invoked in the rulemaking petition
on IST. Therefore, EPA provided
sufficient notice that the Agency
contemplated action under any
authority under CAA section 112(r)(7).
Nevertheless, EPA also views its
authority to require STAA assessments
or an IST review, or implementation of
safeguards to reduce risk as being
consistent with paragraph 112(r)(7)(B).
Under paragraph (B), EPA has authority
to develop ‘‘reasonable regulations . . .
for the prevention of accidental
releases.’’ The reduction in severity of
conditions in a process plainly impacts
the accidental release conditions and
thus the modeling called for in section
112(r)(7)(B)(ii)(I). Moreover, section
112(r)(7)(B)(ii)(II) specifically mentions
that prevention programs in risk
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management plans shall provide for
‘‘safety precautions;’’ STAA measures
are a type of safety precaution. Finally,
as noted above, the Conference Report
for the 1990 CAAA and the Senate
Report both demonstrate that Congress
intended the regulations to prioritize
STAA as a prevention measure.
With regard to comments relating to
STAA requirements for the fertilizer
industry, EPA is not requiring
agricultural fertilizer retail facilities to
perform a STAA, and thus there should
be no burden to this particular industry
as a result of the STAA provision. The
STAA requirement in the PHA will only
apply to Program 3 facilities in chemical
manufacturing (NAICS code 325) and
petroleum and coal products
manufacturing (NAICS code 324).
c. Practicability Assessment
i. Comments
One commenter expressed support for
EPA’s proposal to require owners and
operators to identify, evaluate, and
document the practicability of
implementing inherent safety measures,
including documenting the
practicability of publicly available safer
alternatives. Another commenter stated
that EPA should include the STAA
practicability assessment as part of the
PHA because such an assessment will
provide additional context to the public,
local officials, and emergency managers
regarding a facility’s consideration of
risk management. The commenter
added that the assessment should be
used internally by the facility to plan
future process and technology
improvements to increase safety. One
commenter urged EPA to move beyond
just the assessment and reporting of
safer technologies and require that
facilities implement the identified
alternatives when practicable, working
with employees and communities to do
so expeditiously.
One commenter opposed the
proposed new 40 CFR 68.67(c)(9)(ii) and
stated that EPA should not adopt the
proposed practicability assessment
requirement. The commenter expressed
opposition to any requirement to
consider IST in existing processes at
covered stationary sources. A couple of
commenters questioned how EPA,
focused on process safety, would be able
to assess social and economic factors as
part of the PHA STAA component. The
commenters noted that the
consideration of ‘‘social’’ factors extend
far beyond the traditional, performanceoriented ‘‘process safety’’ scope of a
PHA, presenting a conflict with the
scope of the PHA required by the OSHA
PSM standard. The commenters also
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17649
noted that EPA’s ‘‘practicability’’
definition and evaluation does not
distinguish between technologies or
practices that have been proffered in
research papers or demonstrated in pilot
plants versus at the large-scale facilities
subject to the RMP and required to
perform a STAA. The commenters
emphasized that ‘‘real-world’’
technologies should be the focus of the
STAA, not theoretical or possible
technologies that have not been tested
or tried at RMP-regulated sources.
ii. EPA Responses
In this final rule, EPA is expanding
the applicability of the IST/ISD
practicability assessment to apply to
more facilities compared to the
requirements included in the proposed
rule. The IST/ISD practicability
assessment will also apply to the owner
or operator of a facility with Program 3
processes in NAICS codes 324 and 325
that has had an accidental release that
meets the accident history reporting
requirements under 40 CFR 68.42 since
the facility’s most recent PHA. As EPA
noted in the 2019 reconsideration rule,
a past accident is one of the best
predictors of future accidents that could
potentially threaten a facility’s nearby
community. Additionally, as indicated
in the proposal, of the 70 facilities
experiencing 2 or more incidents
between 2016 and 2020, 43 (60 percent)
were in NAICS 324 and 325. The
facilities required to conduct
practicability assessments for IST/ISDs
identified in the STAA accounted for
42% of all accidents and 83% of the
cost of accidents among all RMP
facilities during the period from 2016–
2020.84 A more in-depth look at
implementation of IST/ISD by: (1) These
facilities with accidents; (2) those
identified in the proposal at facilities
with processes in NAICS 324 and 325
located within 1 mile of another NAICS
324 or 325 facility; (3) and facilities
with hydrofluoric alkylation, should
lead to avoiding or reducing hazards at
these facilities. At this time, EPA
believes it is best to further focus the
practicability assessment of IST/ISD on
this subset of facilities as they present
an even more heightened risk to a
facility’s surrounding community than
other facilities with NAICS 324 and 325
processes.
EPA agrees that the practicability
assessment will provide the public and
local emergency managers with
important context regarding a facility’s
84 Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention:
Final Rule. This document is available in the docket
for this rulemaking (EPA–HQ–OLEM–2022–0174).
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consideration of safer technologies and
alternatives. In response to the comment
that the practicability assessment
should be used by facilities to increase
safety, EPA believes that the final rule
will allow the owner or operator to
consider the potential for risk reduction,
risk transfers, and tradeoffs when
determining whether it is practicable to
implement ISTs or ISDs considered. IST
is a relative concept dependent on the
hazard, the technology, and the facility.
Therefore, EPA is requiring facilities to
only consider IST as a possibility for
addressing hazards rather than requiring
ISTs be implemented. The final rule
will give the facility owner or operator
the flexibility to assess and to determine
the practicability of any measures
considered based on various factors for
IST (including those involving risk
transference).
In response to the comment that EPA
should require facilities to implement
identified alternatives when practicable,
in this final rule, EPA is requiring
implementation of at least one passive
measure at an applicable facility, or an
inherently safer technology or design, or
a combination of active and procedural
measures equivalent to or greater than
the risk reduction of a passive measure;
further discussion of this requirement is
below in the Safeguard Implementation
section (V.B.3.d) of this preamble. EPA
is not requiring implementation of
identified IST. EPA believes facility
owners and operators will adopt IST
even in the absence of a mandate when
it is practicable technically and
economically and when the hazard
reduction is significant. Part of the basis
for this belief is the likelihood that most
of the economic savings resulting from
reduced accidents will be from reduced
onsite property damage to the owner or
operator’s facility.
In response to the comment that the
consideration of ‘‘social’’ factors extends
far beyond the traditional, performanceoriented ‘‘process safety’’ scope of a
PHA, EPA disagrees. While the PHA
identifies the hazards, the RMP PHA
requires the facility to identify the risk
management measures applicable to
eliminating or reducing the risks from
the process hazards. EPA believes that
it is appropriate for a facility to consider
the five practicability factors (i.e.,
economic, environmental, legal, social
and technological) for evaluating the
appropriateness of implementing for
potential IST measures because some
IST can involve significant costs or
involve impacts that go beyond the
facility. These factors are recognized
and further discussed in in CCPS’ 2019
‘‘Guidelines for Inherently Safer
Chemical Processes, A Life Cycle
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Approach,’’ 3rd edition, and NJDEP’s
Guidance for Toxic Catastrophe
Prevention Act (TCPA), ‘‘Inherently
Safer Technology (IST) Review,’’
Attachment 1 ‘‘Feasibility guidance.’’ 85
In response to comments stating that
‘‘real-world’’ technologies should be the
focus of the STAA, not theoretical or
possible technologies that have not been
tested or tried at RMP-regulated sources,
EPA expects that facilities will only
evaluate chemical substitutes that have
already been shown to be commercially
viable and does not expect facility
owners or operators to expend a major
effort on hypothetical or untested
chemical substitutes or uses. This
approach is consistent with EPA’s
authority to require reasonable
regulations that prevent accidental
releases to the greatest extent
practicable.
In the final rule, the definition of the
1-mile radius is relevant to the
applicability of the practicability
assessment and safeguard
implementation only. Acknowledging
that refineries and chemical
manufacturers have sector accident rates
that are higher than the general rates for
RMP-covered facilities, close co-location
of sources in NAICS codes 324 and 325
further increases the risk to the public
that may be potentially exposed to a
release from multiple sources. In these
sectors, the worst-case scenarios of 80
percent of sources extend at least 1 mile,
therefore the communities surrounding
these sources will typically face
multiple threats. It is appropriate to
increase the stringency and
transparency of the requirement for so
situated sources. In the proposal, EPA
proposed to define facility location
based on distance to the facility
fenceline but sought comment on other
definitions of facility proximity.
Recognizing that the distance from a
process is a more accurate way to
calculate a release scenario than the
distance from a fenceline, EPA will
nevertheless retain 1 mile from the
fenceline as the applicability criterion,
as opposed to 1 mile from process
locations, both for simplicity in
implementation and also in deference to
restrictions on source-specific
information on release scenarios. The
Agency believes that regulated facilities,
the public, and implementing agencies
can more easily calculate and verify a
fenceline-to-fenceline measurement
than a process-to-process measurement
because it does not require access to
facility-specific process information.
85 https://www.nj.gov/dep/enforcement/tcpa/
downloads/istguidance_rev2.pdf.
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d. Safeguard Implementation
i. Comments
A couple of commenters
recommended EPA require industries to
seek out solutions that pose less
inherent risk and danger to their
employees and surrounding
communities and that they implement
all practicable alternatives that could
eliminate risks of a catastrophic release.
A couple of commenters urged EPA to
require that facilities work with
employees and communities to
implement the identified alternatives
when practicable. A few commenters
called on EPA to add a requirement to
implement recognized safer alternatives.
One of the commenters stated that
relying on voluntary measures alone
does not satisfy the requirement of the
Act for EPA to assure prevention ‘‘to the
greatest extent practicable.’’ The
commenter noted the proposal is
inconsistent with the CSB
recommendation requiring both
assessment and implementation of IST.
One commenter claimed that relying on
voluntary implementation alone is
insufficient to protect fenceline
communities who have seen nearby
facilities repeatedly refuse to implement
safer ways to operate, no matter how
inexpensive or easy they may be.
Because risks faced by nearby
communities impose costs that are
external to the firm, there is a market
failure and firms do not face an
appropriate level of incentive to reduce
these risks. The commenter stated that
voluntary measures cannot be relied
upon given that market failure has
delayed and prevented common-sense
solutions. The commenter stated that,
while the STAA, practicability
assessment, and justification report are
all valuable and should be expanded
and finalized, the rule should require
the implementation of practicable IST
through careful consultation with
workers and worker representatives and
community members.
Some of the commenters asserted that
EPA does not have the statutory
authority, under section 112(r) of the
CAA, to impose facility design
requirements at any stage of a regulated
facility’s lifespan, much less for existing
facilities. Several commenters noted IST
and ISD are in the best interest of
facilities to implement where there are
practical and effective; therefore, there
is no reason to require it. The
commenters also expressed concern
over excessive costs to implement
unnecessary technologies if required to
implement inherently safer
technologies.
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The commenters urged EPA to allow
facilities to decide what is best on a
case-by-case basis due to instances
where adopting an inherently safer
process may not actually make a process
safer when put into practice. One
commenter added there are cases where
there are no safer alternatives and
conducting an STAA is not necessary,
does little to improve safety, and creates
extra complexity for employers to
present a case to regulators for their
processes. The commenter also said that
regulations should be straightforward
and easy to understand, so a vague
requirement to require facility owners to
present a case that their processes are
safe will create confusion and not
improve safety.
Some commenters noted that the
proposed STAA requirement is solely
for consideration of possible alternatives
and has unproven and unquantified
benefits that do not justify the annual
cost of $51.8 million. One of the
commenters added that EPA stated that
they expect ‘‘some portion of future
damages would be prevented through
implementation of a Final Rule,’’ but
they do not identify any benefits
specifically tied to the STAA provision.
The commenter expressed concern that
EPA did not review and summarize
literature on STAA in the proposed rule
since there are a large amount of studies
on its practical effectiveness; the
commenter stated that there is
consensus on its theoretical value as a
tool to inform future investment
decisions, and that once a facility has
committed to a particular production
technology, STAA is not particularly
useful nor informative.
ii. EPA Responses
The CAA directs EPA to ‘‘promulgate
reasonable regulations . . . to provide,
to the greatest extent practicable, for the
prevention and detection of accidental
releases . . .’’ In some circumstances,
solely relying on voluntary
implementation of STAA measures is
not reasonable and would be inadequate
to prevent accidents ‘‘to the greatest
extent practicable.’’ This is particularly
true when safeguards are identified and
generally deemed practicable, but not
implemented. A reasonable decision to
not implement such safeguards at a
facility must be supported with a
comprehensive review of factors like
cost, risk reduction, risk transfer,
employee input, and engineering that
concludes the technology is not
practicable contextually. EPA’s 2022
SCCAP proposed rule emphasized the
importance of identifying ‘‘new risk
reduction strategies, as well as
revisit[ing] strategies that were
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previously evaluated to determine
whether they are now practicable as a
result of changes in cost and
technology.’’ Safer design and
technology information and lessons
learned are continually being generated,
and facilities should integrate such
updated information to help prevent
accidents.
Taking an important step to reinforce
these crucial factors, this final rule is
requiring processes subject to the IST
practicability assessment to also
implement at least one practicable
passive measure resulting from the
STAA evaluation. For this provision,
practicable active and procedural
measures or their combination can be
implemented as a substitute to
practicable passive measures if no
practicable passive measures are
identified or if they achieve layers of
protection equivalent to or greater than
the risk reduction of passive measures.
This provision is intended to reduce the
risks of the accidental releases by
requiring processes that EPA has
identified to present a heightened risk to
a community to implement reliable
safeguards necessary to help prevent or
mitigate chemical releases and their
consequences; in particular, the
provision requires RMP-regulated
facilities with P3 processes: (1) In
NAICS codes 324 and 325 located
within 1 mile of another NAICS 324 or
325 facility; (2) in NAICS codes 324 and
325 that has had an accidental release
that meets the accident history reporting
requirements under 40 CFR 68.42 since
the facility’s most recent PHA; and (3)
in NAICS 324 with hydrofluoric
alkylation processes—to implement
practicable safeguards that help prevent
or mitigate chemical releases and their
consequences.
The PHA requirements at 40 CFR
68.67 have always required sources to
‘‘identify, evaluate and control the
hazards involved in the process.’’
Currently the provision does not
prescribe exactly which type or what
measures must be implemented to
control the hazards. In guidance, the
Agency discusses how sources can
resolve hazard evaluation
recommendations after identifying and
evaluating solutions to control hazards,
stating that, ‘‘EPA does not require that
you implement every recommendation.
It is up to you to make reasonable
decisions about which
recommendations are necessary and
feasible. You may decide that other
steps are as effective as the
recommended actions or that the risk is
too low to merit the expense. You must,
however, document your decision on
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each recommendation.’’ 86 Guidance
further indicates, ‘‘You may not always
agree with your PHA team’s
recommendations and may wish to
reject a recommendation. OSHA’s
compliance directive CPL 2–
2.45A(revised) states that you may
decline a team recommendation if you
can document one of the following: (1)
The analysis upon which the
recommendation is based contains
relevant factual errors; (2) the
recommendation is not necessary to
protect the health of employees or
contractors; (3) an alternative measure
would provide a sufficient level of
protection; or (4) the recommendation is
infeasible. For part 68, you may also
decline a recommendation if you can
show that it is not necessary to protect
public health and the environment.’’ 87
While EPA continues to believe that the
source has the primary expertise and
resources to weigh decisions on process
design, process safety and accident
prevention, EPA is concerned that
controlling hazards and adopting
reasonable safety measures and layers of
protection necessary to keep the public
and environment safe from chemical
releases based on reasoned, documented
decision-making do not always occur.
In two recent CSB accident reports,
‘‘FCC Unit Explosion and Asphalt Fire
at Husky Superior Refinery’’ 88 and
‘‘Fire and Explosions at Philadelphia
Energy Solutions Refinery Hydrofluoric
Acid Alkylation Unit,’’ 89 the CSB
addresses safeguards that should have
been in place to prevent or mitigate
major accidents at refineries. These
cases highlight the consequences to
workers and the surrounding
community when sources do not take
the necessary steps to implement
safeguards to control known hazards.
On April 26, 2018, an explosion and
subsequent fire occurred at Husky
Energy’s Superior Refining Company
LLC refinery in Superior, Wisconsin
(Husky). The incident occurred during a
planned maintenance event when
flammable hydrocarbons inadvertently
mixed with air. As a result of the
explosion and fire, 36 refinery and
contract workers were injured and
sought medical attention. The CSB
found that Husky failed to properly
86 EPA, General RMP Guidance—Chapter. 6:
Prevention Program (Program 2) (2004), pp. 6–11,
https://www.epa.gov/sites/default/files/2013-11/
documents/chap-06-final.pdf.
87 EPA, General RMP Guidance—Chapter 7:
Prevention Program (Program 3) (2004), pp. 7–7,
https://www.epa.gov/sites/default/files/2013-11/
documents/chap-07-final.pdf.
88 https://www.csb.gov/husky-energy-superiorrefinery-explosion-and-fire/.
89 https://www.csb.gov/philadelphia-energysolutions-pes-refinery-fire-and-explosions-/.
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implement safeguards that could have
prevented the inadvertent mixing of air
and hydrocarbons during the shutdown.
The safeguards CSB identified, a steam
barrier, gas purge, and slide valves, are
typically vital to this type of process
and are generally known and broadly
applied within the refining industry.
Not applying these safeguards allowed
oxygen to enter and accumulate in
process equipment containing
flammable material, which ignited and
exploded.
On Friday June 21, 2019, Philadelphia
Energy Solutions (PES) refinery in
Philadelphia, Pennsylvania, had a
release of propane and toxic
hydrofluoric acid vapor from a ruptured
pipe in the PES refinery alkylation unit.
The vapor found an ignition source,
causing a fire and multiple explosions.
Five workers and a firefighter
experienced minor injuries during the
incident and response. The incident
also resulted in estimated property
damage of $750 million. The CSB
determined the cause of rupture was
from a piping component that corroded.
CSB indicated that the absence of
safeguards, remotely operated
emergency isolation valves, and passive
safeguards to prevent incident-induced
damage to the water mitigation system,
contributed to the severity of the
incident.
As discussed in previous
rulemakings, the hierarchy of control
methods in an STAA analysis—IST/ISD,
passive, active, procedural—
systematically provides for the
identification of practicable control
methods. The Agency expects the STAA
analyses to lead to new hazard control
approaches at sources where
management finds such approaches to
be reasonable and practicable. The
Agency acknowledges requiring
facilities to implement IST can involve
extensive changes to a facility’s process,
depending on the IST, especially if it
involves substitution of alternative
chemicals and/or major process
redesign to existing processes. EPA
believes that measures lower on the
hierarchy of controls, passive, active
and procedural measures, when
implemented appropriately, can be used
to help operate a hazardous chemical
process safely and can also reduce
hazard risks of that process. When
compared with IST, these measures
could also more likely be added,
modified, and improved after the initial
design or operation of a facility.
Nothing in this rule forces the
adoption or abandonment of any
technology or design. The mandate we
adopt is limited to selecting additional
mitigation periodically for specific
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processes so long as the risk of an
impact release persists,90 with a
preference consistent with the wellunderstood hierarchy of controls.
EPA is requiring implementation of
passive measures as a priority rather
than active and procedural because it is
the next highest level below IST on the
hierarchy of controls and the most
reliable in comparison to active and
procedural safeguards, as they reduce
risks without human, mechanical, or
other energy input. As discussed in
CSB’s PES report, active safeguards that
require a person or technology to trigger
their activation have the potential to fail
in major incidents involving fire or
explosions, which was the case in the
PES accident and could be a likely
release scenario for flammable
substances, which are regulated
substances often present at refineries
and chemical manufacturers.
EPA recognizes that passive
safeguards may not exist or may not be
practicable for a variety of reasons and
other safeguards are needed to cover
gaps in process safety risk reduction.
EPA also recognizes that a passive
measure may be even more effective
when applied appropriately with other
measures. This concept of layers of
protection acknowledges that individual
safeguards are not completely reliable or
effective, and thus multiple safeguards
(‘‘layers’’) may be needed to minimize
the chances of an initial fault
propagating to a full-blown incident
with potential for harm. This is often
illustrated using the ‘‘Swiss Cheese’’
model for incidents. In this model, each
safeguard layer has the potential to fail,
with highly reliable safeguards (e.g.,
‘‘inherent’’ ones) having relatively few
‘‘holes’’, and less reliable safeguards
(e.g., ‘‘procedural’’) having more. While
no single layer can adequately control
the hazard, having enough adequately
reliable safeguards can greatly reduce
the chance of all of the ‘‘holes’’ lining
up so that an incident actually occurs.
This final rule will give the facility
owner or operator the flexibility to
assess and potentially implement IST,
implement passive measures, or
implement a combination of active and
procedural measures to reduce risk
associated with a process. The approach
adopted in this final rule does not
require a facility to implement a hazard
reduction approach beyond what is to
the greatest extent practicable among
the reasonable options.
EPA acknowledges that because the
requirement to control hazards has been
a PHA requirement since the inception
of the rule, some passive (or equivalent)
safeguards to control hazards are likely
already in place within facility
processes. Facilities that have already
implemented passive measures or an
equivalent level of risk reduction should
document their implementation in their
next PHA, determine whether there is
additional information that should be
considered in their STAA, and continue
to consider additional passive (or
equivalent) measures during subsequent
PHA re-validation cycles.
The Agency recognizes that requiring
any implementation of STAA measures
is a departure from both the 2017
amendments rule (82 FR 4648–49, Jan.
13, 2017) and the 2022 proposed rule
and that the Agency identified reasons
for not requiring implementation of any
STAA in the 2022 proposed rule (87 FR
53580, Aug. 31, 2022).91 However, the
2017 amendments rule and the 2022
proposed rule primarily focused
discussion on the reasonableness of
mandating adoption of IST/ISD rather
than passive, active, or procedural
measures. For example, in 2017, EPA
explained that one reason the Agency
did not require implementation of IST/
ISD is that a source may reasonably
decide to employ more than one method
of hazard reduction to address a hazard
or that a given type of safer technology
may not exist for a particular hazard
point (82 FR 4649, Jan. 13, 2017);
consistent with these observations, this
rule allows a source to adopt layering
active and procedural measures to
achieve the equivalent risk reduction a
passive measure would achieve and
does not adopt a requirement for an IST/
ISD at each hazard point. The Agency
retains substantial flexibility for owners
and operators to select among passive
measures they deem appropriate for
their stationary sources. The final rule
allows for consideration of factors
highlighted in the 2017 amendments
rule like chemical formula
specifications for toll manufacturers, the
potential for risk transfer, supply chain
90 If passive mitigation or other adopted
mitigation measures would be sufficient to change
all NAICS 324 or 325 processes to Program 1, then
the source no longer would have an obligation to
add additional mitigation measures in future PHAs,
as the mandate for safeguard implementation only
applies to Program 3 processes. If the adopted
mitigation measure is insufficient to meet Program
1 at all NAICS 324 and 325 processes at the source,
then the potential for offsite impacts presenting risk
would remain.
91 The 2019 reconsideration rule did not
specifically discuss requiring or not requiring
implementation of measures identified in a STAA
because it more generally rescinded all prevention
measures promulgated in 2017. With no
requirement to perform an STAA, there was no
need to assess whether implementation of measures
identified in such an analysis needed to be
implemented. The proposed rule and this final rule
discuss the reasons for adopting a different broad
approach to prevention than that adopted in 2019.
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limitations, and the need to address
security implications of any change
when assessing whether to reject
particular passive measures. See 82 FR
4635–36 (toll manufacturers), 4643 (risk
transfer), 4648 (supply chain), and 4649
(security).
The 2022 proposed rule contended
that a requirement for implementation
of IST/ISD or any measure was
unnecessary because sources were likely
to implement practicable measures
when economically and technically
reasonable and risk reduction would be
significant. EPA partially based this
contention on the observation that most
of the economic savings from reducing
accidents would accrue to the source
itself (87 FR 53580, Aug. 31, 2022).
However, not all damages accrue to the
source responsible for the accident. For
example, offsite impacts such as
injuries, sheltering in place events,
evacuations, environmental damage,
and so on are experienced by people
other than the regulated facility.
Because these costs are external to the
facility, there is a market failure, and
firms do not have an appropriate level
of incentive to prevent them. This
market failure has been noted by
commenters with respect to catastrophic
events, the prevention of which is a
primary purpose of enacting CAA
section 112(r). Catastrophic events
impose extensive burdens on people
external to the source responsible for
the accident. Moreover, these incidents
are low probability, high consequence
events that are difficult for owners and
operators to assess; therefore, it may be
unreasonable to rely primarily on
sources to make the ultimate decision
on whether to adopt any measures at all.
The standard adopted in this final rule
for sources presenting elevated risks to
communities, wherein EPA mandates
adoption of at least one passive measure
at the facility, or an inherently safer
technology or design, or a combination
of active and procedural measures
equivalent to or greater than the risk
reduction of a passive measure,
reasonably addresses the potential
market failure that would lead to less
implementation than would be
necessary for risk reduction.
EPA disagrees with commenters
indicating implementation of STAA
measures has no proven benefits. A
review of corrective actions following
RMP accidents provides insight that
practicable methods to address hazards
are not infrequently found after
accidents, which suggests the rule could
be strengthened by providing incentives
to implement those controls in advance
of the accident. In reviewing RMP data
from facilities subject to the
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practicability assessment and this STAA
safeguard implementation provision
(621 facilities), 59 percent of facilities
indicated in their most recent PHA,
some type of change was implemented.
On average, 1.2 process safety
changes 92 were implemented because of
the PHA, but of those facilities having
accidents (16.8 percent), an average of
2.2 process safety changes were made
after an accident occurred.93 This
review was one piece of evidence
supporting EPA’s reasoned judgment
that the risk reduction benefits of the
STAA implementation justified the
costs. Therefore, as RMP facility process
change data has shown, EPA expects
there are benefits to make risk reduction
changes through the PHA prior to an
accident occurring.
In response to comments concerning
costs for implementing STAA measures,
EPA believes there is an overemphasis
on initial costs leading to less
consideration of safer, reliable methods
to reduce process risks. CCPS’ 2019
‘‘Guidelines for Inherently Safer
Chemical Processes, A Life Cycle
Approach’’ discusses the tradeoff of
initial and operating costs of
implementing different STAA measures.
CCPS indicates that while inherently
safer and passive measures do tend to
have higher initial capital costs,
operating costs are usually lower than
those for the other measures. For active
measures as compared to inherently
safer and passive measures, reliability is
typically lower, and complexity is
greater. Operating costs are also actually
likely to be the greatest for active
solutions. While procedural measures
are most often tempting solutions due to
their initial very low capital cost and
typically lower complexity, they are
often also the least reliable and should
be considered only after other solutions
have been explored. Similarly, EPA
believes passive measures (or active/
procedural equivalent) measures that
reduce risk and are practicable should
be implemented.
The Agency is not requiring formal
practicability assessments (as is now
required for IST) for passive, active, or
procedural measures. Since evaluation
92 Changes include chemical reduction, chemical
increase, change in process parameters, installation
of process controls, installation of process
detection, installation of perimeter monitoring,
installation of mitigation systems, revised
maintenance, revised training, revised operating
procedures, or other changes not included in these
categories. These change categories are those
reported in RMPs under 40 CFR 68.175(e)(6).
93 The list of RMP facilities whose most current
RMP plans (as of December 31, 2020) were
reviewed is provided in the docket for this
rulemaking, EPA–HQ–OLEM–2022–0174, RMP
facilities in PHA_accident change analysis.
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of passive, active and procedural
measures have been a part of the RMP
rule, leading to implementation of some,
it is expected that the determination of
their practicability already occurs. The
Agency believes the requirement to
determine what actions are to be taken
in 40 CFR 68.67(e) suffices as a
practicability determination for the less
extensive upgrades or changes to the
process as compared to IST. However, to
ensure the assessment determining a
measure is not practicable complies
with the final rule definition, sources
will be required to document this
conclusion to the implementing
agency’s satisfaction; this requirement
will help ensure costs alone are not the
sole factor in determining practicability.
Finally, contrary to the assertion that
the statute does not authorize
regulations that impose design
standards, the Agency notes that the
statute explicitly provides the
Administrator with the authority to
promulgate ‘‘design, equipment, work
practice, and operational requirements’’
in CAA section 112(r)(7)(A), as well as
requirements for ‘‘preventing accidental
releases of regulated substances,
including safety precautions and
maintenance’’ in CAA section
112(r)(7)(B)(ii)(II). The regulation
promulgated in this final rule simply
imposes standards on continuing safe
operations and equipment. Furthermore,
the regulations required by CAA section
112(r)(7)(B)(i), ‘‘shall cover the use,
operation, repair, replacement, and
maintenance of equipment to monitor,
detect, inspect, and control’’ accidental
releases of regulated substances as
appropriate (emphasis added). Terms
such as ‘‘use’’ and ‘‘operation’’
necessarily allow EPA to address
ongoing activities and not simply the
pre-construction phase, and
‘‘replacement’’ of ‘‘equipment’’ to
‘‘control’’ releases authorizes EPA to
require upgrades to release prevention
measure such as practicable passive
control measures. As discussed above,
the Conference Report and the Senate
Report provide ample support for
requiring implementation of process
and control measures to lessen the
likelihood and impact of accidental
releases.
e. STAA Technology Transfer
i. Comments
Several commenters supported EPA’s
proposed technology transfer
provisions. A few commenters stated
that EPA should require every RMP
facility to routinely report the safer
technologies/designs evaluated,
implemented, or planned because, as
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proposed, 95 percent of RMP facilities
will not report any solutions data. One
of the commenters stated this will allow
EPA to better assess the impacts of its
own activities for promoting prevention
of catastrophic releases. Another
commenter suggested that this reporting
occur as a regular part of semi-annual
CAA compliance reports, and at a
minimum, as a regular part of RMP
reporting to EPA. One commenter stated
that EPA should require the STAAexempt 95 percent of RMP facilities to
report whether they have evaluated IST/
ISD and, if so, identify the major options
evaluated, implemented, or planned.
The commenter stated that this
approach would be low cost, fill a major
information gap, and yield invaluable
insights. Another commenter supported
expanding the technology transfer
provision to cover more facilities and
gather additional valuable information,
including on wastewater and water
treatment plants.
A couple of commenters opposed the
submission of STAA findings as part of
the STAA technology transfer section.
One commenter noted that any
submitted STAA findings would
probably not consider the nuance of the
real practicality of switching between
technologies, and if facilities are not
required to switch to alternate
technologies, it is unclear how EPA
intends to effectively use these data.
Another commenter stated that EPA
should not require reporting of STAA
measures implemented in facilities’ risk
management plans because this
requirement would create significant
potential for third parties to insert
themselves into what is a highly
technical and site-specific analysis. The
commenter added that EPA does not
provide a clear basis in the proposed
rule for its assumption that reporting
and public availability of information
on IST/ISD measures implemented will
improve facility safety or mitigate the
potential for accidental releases in any
measurable way; therefore, determining
that reporting this information in the
RMP is simply not justified.
ii. EPA Responses
EPA is requiring that basic
information on IST, facility information,
categories of safer design identified and
implemented and causal factor for
initiating safer design implementation
be provided in the RMP submission in
accordance with 40 CFR 68.175(e)(7).
Facilities must provide in their RMP
any IST/ISD measures implemented
since the last PHA, if any, and the
technology category (substitution,
minimization, simplification and/or
moderation). These technology transfer
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provisions apply to all facilities
required to conduct any component of
STAA (evaluation or practicability)
under the final rule. This reporting is
also voluntary for all other facilities,
including deregistered facilities, by
which EPA expects to capture useful
information about how some facilities,
on their own accord, choose to make
their processes safer. EPA intends for
this not to be a cumbersome exercise,
but rather, one that is based on
information facilities likely already
have. The intended fields of check
boxes, dates, and numbers that
summarize STAA activities for this
provision will help facilitate data
analysis for EPA to compile and make
available for other industries to identify
safer alternatives.
EPA believes that the primary utility
of STAA information for the public is to
identify whether facilities are
implementing IST and the nature of that
change. In addition to information
exchanged through an information
request under 40 CFR 68.210, EPA
encourages facilities to provide
information about any IST or other safer
technology alternatives that the facility
is using or could be using at the public
meeting forum under 40 CFR 68.210 or
any other community outreach
opportunity. Facilities should expect
that a community wants to discuss
hazards and risks associated with their
chemical processes. Effective
communication with the public can be
an opportunity to develop robust
relationships with communities, and
trust is gained when considering the
needs and challenges facing those
potentially affected by accidents.
Additionally, as will be discussed
further in the Information Availability
section (VII) of this preamble, having
information available to the public
builds upon the planning approach of
Emergency Planning and Community
Right-to-Know Act (EPCRA) and Agency
studies of the value of right-to-know in
emergencies, and promotes accident
prevention by facilitating public
participation at the local level. The
Agency expects a more informed and
involved public to have less fear of the
unknown.
C. Root Cause Analysis
1. Summary of Proposed Rulemaking
a. Definition of ‘‘Root Cause’’ in 40 CFR
68.3
EPA proposed to define ‘‘root cause’’
in 40 CFR 68.3 to mean a fundamental,
underlying, system-related reason why
an incident occurred.
EPA did not propose a definition of
‘‘near miss’’ as part of the proposed
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rulemaking. Nevertheless, EPA solicited
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 considered near
misses that should be investigated. EPA
solicited 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. EPA stated
that, based on these comments, EPA
may propose a definition of ‘‘near miss’’
in a future rulemaking.
b. Incident Investigation/Root Cause
Analysis, 40 CFR 68.60 and 68.81
EPA proposed to revise 40 CFR 68.60,
which is applicable to Program 2
processes, and 40 CFR 68.81, which is
applicable to Program 3 processes, by
adding a new paragraph (h) which
would require the owner or operator to
investigate specific factors that
contributed to an incident, for incidents
that meet the accident history reporting
requirements under 40 CFR 68.42.
Proposed paragraph (h)(1) would
require that a report be prepared at the
conclusion of the investigation and
completed within 12 months of the
incident (though it allowed for facility
owners or operators to request an
extension from the implementing
agency). Proposed paragraph (h)(2)
would require specific factors to be
investigated, including the initiating
event, direct and indirect contributing
factors, and root causes. Additionally,
determination of root causes would be
required by conducting an analysis for
each incident using a recognized
method.
2. Summary of Final Rule
EPA is finalizing the definition of root
cause under 40 CFR 68.3 with
modifications. Root cause will be
defined as a fundamental, underlying,
system-related reason why an incident
occurred that identifies a correctable
failure(s) in management systems and, if
applicable, in process design.
EPA is finalizing the provisions of the
incident investigation sections at 40
CFR 68.60(h) and 68.81(h) as proposed.
Although EPA solicited comments on
a potential definition of ‘‘near miss,’’
EPA is not finalizing a definition of
‘‘near miss.’’
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3. Discussion of Comments and Basis for
Final Rule Provisions
a. Definitions
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i. Comments
Root cause. A couple of commenters
expressed support for the proposed
definition of ‘‘root cause.’’ However, a
commenter requested that if EPA
determines that all incident
investigations require a root cause
analysis, EPA update the definition for
‘‘root cause’’ to remove the ‘‘systemrelated’’ and ‘‘in management systems’’
language. The commenter suggested that
by focusing on system-related releases,
EPA ignores that humans or
environmental causes could be the
cause of an incident. Conversely,
another commenter suggested EPA
revise the definition to state, ‘‘Root
cause means a fundamental, underlying,
system-related reason why an incident
occurred that identifies a correctable
failure(s) in process design and/or
management systems.’’
Near miss. Several commenters
supported the development of a
definition of ‘‘near miss.’’ Additionally,
one commenter expressed a concern
about selective enforcement in the
absence of a clarifying definition, while
another commenter said that without
specificity to define a near miss, the
language might have established due
process concerns as the proposal failed
to provide adequate notice to the
regulated community. However, several
commenters opposed the development
of a definition for ‘‘near miss,’’ stating
that they oppose a definition due to the
broad nature of facilities subject to the
rule and that developing a definition
would be difficult due to the context
required to determine what a near miss
is. Another commenter suggested that
EPA provide guidance on near misses
but allow facilities to determine their
own definition. Additionally, several
commenters opposed a universal
definition of near miss, as a one-sizefits-all approach will be
overburdensome and challenging for
facilities to implement.
ii. EPA Responses
EPA is finalizing the proposed
definition of ‘‘root cause’’ with
modifications to include that the root
cause must identify a correctable
failure(s) in management systems, and if
applicable, in process design. In
finalizing this definition, EPA
recognizes that an incident may have
more than one root cause. EPA
acknowledged in the proposal that the
CCPS root cause definition identified
that a root cause includes a correctable
failure in management systems. EPA
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intended to use CCPS’ definition in its
entirety due to its wide use among the
process safety industry. As such, EPA
will include management systems as a
correctable failure that must be
identified when determining root causes
for incident investigations. EPA also
believes adding process design to the
definition of root cause is useful as
process design points to a specific
management system failure that may
offer facilities an opportunity to design
their process more safely.
EPA did not propose a definition of
near miss in the proposal. However,
EPA will consider these comments
when determining whether to develop a
regulatory definition of ‘‘near miss’’ to
identify incidents that require
investigation in a future action.
b. Root Cause Analysis
i. Comments
Many commenters supported the
proposed approach to require facilities
to conduct root cause analyses after an
incident. One of the commenters
suggested that the proposed
requirements would likely prevent harm
from repeated incidents. Another
commenter noted that root cause
analyses provide an additional
opportunity to better understand the
processes, procedures, and culture that
may contribute to accidents.
Several commenters did not support
the revision of the incident investigation
provision to include root cause analysis
requirements. Several commenters
suggested that EPA has not justified the
additional regulation, shown that the
current rules are ineffective, or proven
that root cause analysis is effective at
reducing accidents. A couple of the
commenters stated that EPA does not
provide data to show that repeat
accidents are partially or fully caused by
a facility’s failure to conduct a root
cause analysis. A commenter also stated
that the concept of ‘‘root cause’’ can be
misleading, as there is not always a
singular reason for why an incident
occurred. The commenter said EPA
should recognize that a root cause
analysis is not always the most
appropriate post-incident investigation
method. Several commenters noted that
the inclusion of the root cause analysis
requirements is duplicative of existing
regulations or common industry
practices, is unnecessary, and thus will
not result in meaningful benefits.
Several commenters stated that OSHA
PSM programs already include root
cause analysis as a part of incident
investigations. A couple of commenters
suggested that EPA not expand incident
investigation thresholds without
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coordination with OSHA’s anticipated
updates to the PSM standard. One
commenter noted that OSHA has
primary jurisdiction on this issue, and
therefore EPA should ensure
consistency with current and future
changes to the PSM.
ii. EPA Responses
EPA is finalizing the requirements as
proposed. EPA agrees with those
comments supporting the proposed
provision and believes that requiring
root cause analyses after RMP-reportable
accidents, and including root cause
information in incident investigation
reports, is vital for understanding the
nature of these events and how they
may occur.
In response to comments asserting
that EPA has not justified the root cause
analysis requirement or provided data to
show that repeat accidents are partially
or fully caused by a facility’s failure to
conduct a root cause analysis, EPA
acknowledges that such data has not
been provided to show causation, but
notes that EPA has not previously
required a root cause analysis for
incident investigations, and therefore,
does not have data available to compare
the frequency of repeat accidents at
facilities conducting (or failing to
conduct) root cause analyses. However,
EPA did perform an analysis of EPA’s
RMP accident reporting data and
identified repeat accidents at facilities
within the same process.94 The result of
this analysis demonstrates that, among
facilities reporting accidents, facilities
that reported one accident often have a
history of multiple accidents, thus
indicating a failure to properly address
circumstances leading to subsequent
accidents. 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.
With regard to comments about the
appropriateness of a root cause analysis
as a post-incident investigation method,
EPA has provided detailed background
information on the usefulness of root
cause analysis in both the 2016
amendments proposed rule (81 FR
13638) and the 2022 SCCAP proposed
rule (87 FR 53556). EPA also notes that
the final rule does not require facilities
to use a specific root cause analysis
method, select from a predetermined list
of root causes, or force-fit investigation
findings into an inappropriate category.
94 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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With regard to comments that noted
potential overlap with existing
regulations, EPA notes that a regulated
source already subject to another
requirement that duplicates the RMP
root cause analysis requirement may use
its compliance with the other
requirement to demonstrate compliance
with the equivalent RMP root cause
analysis requirement. Additionally, EPA
continues to routinely coordinate with
OSHA to ensure that any incident
investigation root cause analysis
provisions do not contradict OSHA PSM
requirements.
c. Applicability of the Root Cause
Analysis Requirements
i. Comments
A commenter expressed support for
EPA’s proposal to limit the root cause
analysis requirements to Program 2 and
Program 3 processes. A couple of
commenters recommended that EPA
expand coverage of this requirement to
apply to all RMP facilities. A couple of
commenters proposed that EPA further
limit facilities subject to the root cause
analysis requirements. One of the
commenters recommended that the root
cause analysis requirement should only
be mandated for Program 3 facilities,
since they have the most complex
processes, which is where root cause
analyses are most useful. The
commenter suggested that conducting
root cause analyses is resource intensive
and costly, and imposing the
requirements on other non-Program 3
facilities will be overly burdensome
without commensurate benefits.
Another commenter recommended that
EPA only require root cause analyses for
larger, more complex water systems, as
the root cause analysis process is
resource intensive and burdensome.
Commenters asked EPA to clarify that
root cause analysis is still required
where a process is decommissioned or
destroyed.
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ii. EPA Responses
EPA is finalizing the applicability of
the root cause analysis provision, as
proposed. EPA believes this provision is
most appropriate for Program 2 and 3
processes because facilities with these
processes have RMP-reportable
accidents more often (Program 2 = 15
percent, Program 3 = 83 percent of total
accidents from 2004–2020) and pose a
greater risk to the public because their
worst-case scenario distance would
affect public receptors. Program 1
processes only account for few of the
total RMP-reportable accidents (3
percent of total accidents from 2004–
2020), do not have recent accident
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history with specific offsite
consequences, and have no public
receptors within the worst-case release
scenario distance.95
While it is true that most RMPreportable accidents occur at Program 3
processes, EPA decided that there was
little justification for limiting the root
cause requirements to only Program 3
processes, because serious accidents
also occur at Program 2 processes (87 FR
53593). Also, the Agency notes that
some of the accidents at Program 2
processes occur at publicly-owned
water and wastewater treatment
facilities that are not in Program 3 only
because they are not located in a State
with an OSHA-approved State Plan.96
While State and local government
employees at facilities in States with
OSHA-approved State Plans must
comply with State Plan requirements
that are at least as effective as the
Federal OSHA PSM standard, State and
local government employees at facilities
in States under Federal OSHA authority
are not covered by the OSHA PSM
standard or any equivalent measures.
This results in regulated processes at
these sources being placed in Program 2,
even though the processes generally
pose the same risk as similar processes
at publicly owned water or wastewater
treatment processes that are located at
sources in States with an OSHA State
Plan. With regard to those commenters
that recommended narrowing the
applicability of the root cause analysis
requirement because of the burden
associated with the requirement, EPA
notes that the burden of the proposed
root cause analysis is relatively small.
Few sources will have to conduct a root
cause analysis because accidents occur
at only a small number of sources, and
many sources already perform root
cause analyses in a manner consistent
with industry or company protocols.
Therefore, EPA does not believe that the
anticipated burden of this requirement
is a rationale for revising the
applicability of the requirements.
With regards to clarity on
applicability of decommissioned or
destroyed processes to the root cause
analysis provision, the Agency did not
propose, and therefore will not require,
decommissioned or destroyed
processes, as long as they remain in that
decommissioned or destroyed state, to
comply with this provision. As
discussed in the previous rulemakings,
95 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).
96 See 40 CFR 68.10 (Program 2 eligibility
requirements).
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commenters have not identified a
significant number of release incidents
at RMP facilities that had resulted in a
destroyed or decommissioned process
without any RMP accident report. The
absence of a substantial number of
examples leads the Agency to conclude
that the gap is not significant enough to
address at this time.
d. Use of a Recognized Investigation
Method
i. Comments
Several commenters provided
feedback on the investigation methods
and analysis elements described in the
proposed rule. Several commenters
noted that EPA should not mandate the
use of a recognized method for the
analysis, as there are many ways to
conduct the analysis. One of the
commenters indicated that prescribing a
method may interfere with a facility’s
engineering judgement and use of
investigative practices that are tailored
to their unique facilities. Another
commenter said EPA should ensure that
owners and operators have flexibility to
modify recognized investigation
methods to reflect the context, which
may involve very complex or relatively
simple processes or incidents. A couple
of commenters requested that EPA
define ‘‘recognized investigation
method’’ to clarify what entity is
approving a methodology. One of the
commenters recommended revising the
language to read ‘‘investigation method
recognized by applicable industry code
writing or RAGAGEP establishing
body.’’ One commenter suggested that
EPA require that incident investigations
include staff with expertise in: the
process involved, the facility’s root
cause analysis method, and overseeing
incident investigation analysis.
ii. EPA Responses
EPA is finalizing, as proposed, the
requirements that root causes must be
determined through the use of a
recognized method. The final rule will
allow the owner or operator to
determine root causes using a
‘‘recognized method’’ that is appropriate
for their facility and circumstance. EPA
disagrees that the Agency should
specify recognized investigation
methods or point to specific entities for
such methods. Investigation methods
evolve over time, and new methods may
be developed. Therefore, any list
promulgated by EPA in this rule may
soon be obsolete. The Agency took a
similar approach in the PHA
requirements for the existing rule,
where it listed several potential
methods, but also included the option to
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use an appropriate equivalent
methodology. EPA recommends that
owners and operators consult available
literature on root cause investigation
methodologies to select those
appropriate for their facility and
processes. For example, CCPS has
published ‘‘Guidelines for Investigating
Process Safety Incidents,’’ which
provides extensive guidance on incident
investigations, near miss identification,
root cause analysis, and other related
topics.97
In response to comments requesting
that the incident investigation team be
required to include someone
knowledgeable in the root cause
analysis technique, EPA believes this is
already required under 40 CFR 68.60(c)
and 68.81(c), where the incident
investigation team is required to consist
of ‘‘persons with appropriate knowledge
and experience to thoroughly
investigate and analyze the incident.’’
EPA intends this phrase to include a
person knowledgeable in selection and
use of root cause analysis techniques.
e. Investigation Timeframe
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i. Comments
Several commenters suggested a
shorter investigation timeframe. A few
commenters suggested an initial report/
investigation be completed within 90
days, and a final report within a shorter
timeframe, such as 6 months. One
commenter also suggested EPA require
initiation of incident investigations and
root cause analyses within 24 hours
after the incident. Several commenters
supported the 12-month requirement for
completing an incident investigation. A
couple of commenters also supported
EPA allowing extensions, when
necessary. One commenter also said
EPA should not question extension
requests from facilities, as some
thorough investigations will require
more than 12 months. Several
commenters opposed the regulatory
deadlines for root cause analysis
investigations. A couple of commenters
stated that based on the complexity of
the incident and level of input needed
from external technical experts, a 12month timeline may not provide enough
time. One commenter requested that
EPA clarify that the 12-month timeline
is only for the completion of the
investigation, not when the
recommendations must be
implemented.
97 CCPS 2019. Center for Chemical Process Safety,
Guidelines for Investigating Process Safety
Incidents, 3rd Edition, NY: AIChE.
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ii. EPA Responses
After considering these comments,
EPA has is finalizing the requirement to
complete incident investigations within
12 months as proposed. EPA believes
that this timeframe will provide a
reasonable amount of time to conduct
most investigations, while also ensuring
that investigation findings are available
relatively quickly in order to assist in
preventing future incidents. For very
complex incident investigations that
cannot be completed within 12 months,
EPA is allowing an extension of time if
the implementing agency (i.e., EPA and
delegated authorities) approves such an
extension, in writing. EPA encourages
owners and operators to complete
incident investigations as soon as
practicable and believes that 12 months
is typically long enough to complete
even complex incident investigations.
However, EPA has provided flexibility
for facilities to request more time to
complete investigations when they
consult with their implementing agency
and receive written approval for an
extension. EPA also re-emphasizes the
importance of implementing
recommendations as soon as possible
after incident investigation completion
to prevent future similar incidents.
D. Third-Party Compliance Audits
1. Summary of Proposed Rulemaking
a. Definitions, 40 CFR 68.3
EPA proposed to define ‘‘third-party
audit’’ to mean a compliance audit
conducted pursuant to the requirements
of 40 CFR 68.59 and/or 68.80,
performed or led by an entity
(individual or firm) meeting the
competency and independence
requirements in those sections.
b. Compliance Audits, 40 CFR 68.58(a)
and 68.79(a)
EPA proposed to edit 40 CFR 68.58(a)
and 68.79(a) to add the language ‘‘for
each covered process’’ to compliance
audits, self and third-party, to address
compliance with the provisions of
subpart C or D for each covered process.
EPA also added a sentence at the end
of the paragraph to reference when a
compliance audit must be a third-party
audit.
c. Third-Party Audit Applicability for
Compliance Audits, 40 CFR 68.58(f) and
68.79(f)
EPA proposed to add paragraph (f) to
40 CFR 68.58 and 68.79 which
identified third-party audit
applicability. EPA proposed that the
next required compliance audit for an
RMP facility would be a third-party
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audit when one of the following
conditions apply:
• Two accidental releases within five
years meeting the criteria in 40 CFR
68.42(a), from a covered process have
occurred.
• One accidental release within five
years meeting the criteria in 40 CFR
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.
• 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
40 CFR 68.59(c) or 68.80(c).
In addition to the proposed approach
for third-party audit applicability, EPA
particularly sought comment on the two
new conditions modified from the 2017
amendments rule, which applied
increased accident severity, frequency,
and consequences as a basis for the
proposed provision.
d. Third-Party Audit Implementing
Agency Notification and Appeals, 40
CFR 68.58(g) and 68.79(g)
EPA proposed to add paragraph (g) to
40 CFR 68.58 and 68.79 which
described the procedure when an
implementing agency requires a thirdparty audit and proposed an internal
appeals process. EPA proposed to
require an implementing agency to
provide written notice to the facility
owner or operator stating the reasons for
the implementing agency’s preliminary
determination that a third-party audit is
necessary. The owner or operator would
have an opportunity to respond by
providing information to, and
consulting with, the implementing
agency. The implementing agency
would then provide a final
determination to the owner or operator.
If the final determination requires a
third-party audit, the owner or operator
would have an opportunity to appeal
the final determination. EPA proposed
that the implementing agency would
provide a written, final decision on the
appeal to the owner or operator after
considering the appeal.
e. Schedule for Conducting a ThirdParty Audit, 40 CFR 68.58(h) and
68.79(h)
EPA proposed to add paragraph (h) to
40 CFR 68.58 and 68.79 which
described the schedule for completing
third-party audits. For third-party audits
required pursuant to paragraph (f)(1) of
the section, the proposed language
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required the audit and associated report
to be completed within 12 months of the
second of 2 releases within 5 years. For
third-party audits required pursuant to
paragraph (f)(2) of the section, the
proposed language required the audit
and associated report to be completed
within 12 months of the release. For
third-party audits required pursuant to
paragraph (f)(3) of the section, the
proposed language required the audit
and associated report to be completed
within 12 months of the date of the final
determination pursuant to paragraph
(g)(3) of the section, or if the final
determination is appealed pursuant to
paragraph (g)(4) of the section, within
12 months of the date of the final
decision on the appeal.
f. Third-Party Audits Applicability, 40
CFR 68.59(a) and 68.80(a)
EPA proposed to add 40 CFR 68.59
and 68.80, which included requirements
for both third-party audits and thirdparty auditors. In paragraph (a), EPA
proposed that owners or operators
engage a third-party to conduct an audit
that evaluates compliance with the
provisions of subpart C or D (as
applicable) when the applicability
criteria of 40 CFR 68.58(f) or 68.79(f) are
met.
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g. Third-Party Auditors and Auditing
Teams, 40 CFR 68.59(b) and 68.80(b)
EPA proposed to include paragraph
(b) to 40 CFR 68.59 and 68.80 which
provides that owners or operators either
engage a third-party auditor meeting the
competency and independence criteria
of paragraph (c) of the section, or
assemble an auditing team, led by a
third-party auditor meeting the
competency and independence criteria
of paragraph (c) of the section. The team
may include other employees of the
third-party auditing firm or other
personnel, including facility personnel.
h. Third-Party Auditor Qualifications,
40 CFR 68.59(c) and 68.80(c)
EPA proposed to include paragraph
(c) to 40 CFR 68.59 and 68.80 which
includes qualifications for third-party
auditors and required facility owners
and operators to document that the
third-party auditor(s) meet the
competency and independence
requirements. Specifically, EPA
proposed that facility owners or
operators determine and document that
the third-party auditors meet the
competency requirements set forth in
paragraph (c)(1) and the independence
requirements in paragraph (c)(2).
The proposed competency
requirements for auditors require thirdparty auditors to be:
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• Knowledgeable with the
requirements of 40 CFR part 68.
• Experienced with the facility type
and processes being audited and the
applicable RAGAGEP; and
• Trained or certified in proper
auditing techniques.
The proposed independence
requirements that would apply to the
third-party auditors require the thirdparty auditors to:
• Act impartially when performing all
activities under this section.
• Receive no financial benefit from
the outcome of the audit, apart from
payment for the auditing services.
• 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.
• 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 40 CFR 68.59
or 68.80.
In paragraph (c)(3), the proposed rule
required the auditor to have written
policies and procedures to ensure that
all personnel comply with the
competency and impartiality
requirements.
In addition to the proposed approach
for third-party auditor qualifications,
EPA particularly sought comment on
the proposed independence criterion as
it is modified from the 2017
amendments rule.
i. Third-Party Auditor Responsibilities,
40 CFR 68.59(d) and 68.80(d)
EPA proposed to include paragraph
(d) to 40 CFR 68.59 and 68.80 which
includes the responsibilities for thirdparty auditors. Specifically, EPA
proposed that the owner or operator
ensure that the third-party auditor:
• Manages the audit and participates
in audit initiation, design,
implementation, and reporting.
• Determines appropriate roles and
responsibilities for the audit team
members based on the qualifications of
each team member.
• Prepares the audit report and where
there is a team, documents the full audit
team’s views in the final audit report.
• Certifies the final audit report and
its contents as meeting the requirements
of this section.
• Provides a copy of the audit report
to the owner or operator.
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j. Third-Party Audit Report, 40 CFR
68.59(e) and 68.80(e)
EPA proposed requirements for the
audit report in paragraph (e) of 40 CFR
68.59 and 68.80. Specifically, EPA
proposed that the audit report:
• 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 the
section are met.
• Describe or incorporate by reference
the policies and procedures required
under paragraph (c)(3) of the section.
• 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.
• Document the findings of the audit,
including any identified compliance or
performance deficiencies.
• Summarize any significant
revisions (if any) between draft and final
versions of the report.
• 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.
k. Third-Party Audit Findings, 40 CFR
68.59(f) and 68.80(f)
EPA proposed requirements for the
audit findings in paragraph (f) of 40 CFR
68.59 and 68.80. EPA proposed in
paragraph (f)(1), to require owners or
operators, as soon as possible, but no
later than 90 days after receiving the
final audit report, to determine an
appropriate response to each of the
findings in the audit report and develop
and provide a findings response report.
EPA proposed that the findings
response report would include:
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• A copy of the final audit report.
• An appropriate response to each of
the audit report findings.
• A schedule for promptly addressing
deficiencies.
• A statement, signed and dated by a
senior corporate officer, certifying that
appropriate responses to the findings in
the audit report have been identified
and deficiencies were corrected, or are
being corrected, consistent with the
requirements of subpart C or D of 40
CFR part 68.
EPA proposed in paragraph (f)(2), to
require the owner or operator to
implement the schedule to address
deficiencies identified in the audit
findings response report, and document
the action taken to address each
deficiency, along with the date
completed.
Proposed paragraph (f)(3) required the
owner or operator to provide a copy of
documents required under paragraphs
(f)(1) and (2) to the owner or operator’s
audit committee of the Board of
Directors, or other comparable
committee, if applicable.
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l. Third-Party Audit Recordkeeping, 40
CFR 68.59(g) and 68.80(g)
Finally, in paragraph (g) of 40 CFR
68.59 and 68.80, EPA proposed
recordkeeping requirements for the
owner or operator regarding third-party
audits. The proposal required the owner
or operator to retain records at the
stationary source, including: the two
most recent final third-party audit
reports, related findings response
reports, documentation of actions taken
to address deficiencies, and related
records. EPA proposed that these
requirements would not apply to any
documents that are more than five years
old.
2. Summary of Final Rule
Based on review of comments, EPA is
finalizing the proposed provisions for
third-party audits with the following
modifications:
• EPA is revising the requirements in
paragraph (f) of 40 CFR 68.58 and 68.79
that triggered when a third-party audit
would be required. For the final rule,
two of the three proposed conditions
(i.e., two accidental releases within five
years meeting the criteria in 40 CFR
68.42(a), from a covered process have
occurred; or one accidental release
within five years meeting the criteria in
40 CFR 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) are being replaced with one
condition—one accidental release
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meeting the criteria in 40 CFR 68.42(a),
from a covered process. The other
condition allowing an implementing
agency to require a third-party audit is
being finalized as proposed.
• EPA is not finalizing compliance
audit language at 40 CFR 68.58(a) and
68.79(a) which proposed auditing for
every covered process at a facility. This
corrects an error in the proposed
rulemaking text. By not finalizing this
language, compliance audits will remain
consistent with the current practice,
which allows for representative
sampling. A discussion of representative
sampling as an acceptable practice for
compliance audits can be found in the
reconsideration final rule.98
• EPA is also not finalizing
compliance audit language at 40 CFR
68.58(h) and 68.79(h) which proposed a
12-month timeline for a third-party
audit after a triggering criterion. The
revised final requirement relies on the
language at 40 CFR 68.58(f) and 68.79(f)
which refers to the timeline of a thirdparty audit to be the ‘‘next required
compliance audit,’’ which is at least
every 3 years under 40 CFR 68.58(a) and
68.79(a).
3. Discussion of Comments and Basis for
Final Rule Provisions
In the proposed rule, EPA sought
comment on several aspects of the
Agency’s proposed approach for thirdparty audits. As described in the
proposed rule, third-party audits were
included in the 2017 amendments rule,
and at that time EPA addressed many
general comments regarding the
inclusion of third-party audits in the
RMP rule, including the justification for
and legality of, third party audits, and
the benefits of third-party audits. This
final rule contains some differences
from both the 2017 amendments rule
and the 2022 SCCAP proposed rule.
EPA specifically sought comment on
some of the changes, including: the
proposed approach for third party
audits; the proposed independence
criteria, as modified from the 2017
amendments rule; whether the selected
auditor should be mutually approved by
the owner or operator and employees
and their representatives; if direct
participation from employees and their
representative should be required when
a third party conducts an audit; and,
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.
The following discusses EPA’s basis for
98 84
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17659
the third-party audit provisions adopted
in this final rule.
a. Proposed Approach for Third-Party
Audits
Regarding the proposed approach for
third-party audits, EPA received
comments supporting, opposing, and
suggesting improvements to various
aspects of the new proposed approach.
Numerous commenters expressed
support for restoring the third-party
auditing requirements of the 2017
amendments rule. One of the
commenters noted that third-party
auditing helps to ensure a systematic
evaluation of the full prevention
program for covered processes, while
self-auditing may be insufficient to
prevent accidents and ensure
compliance. Another commenter
emphasized that third-party audits will
also ensure they are unbiased, compared
to self-audits. Many commenters
expressed opposition to the third-party
audit provision. Some commenters
argued that the third-party auditing
requirements are unnecessary, would be
too burdensome, and could be
potentially costly for facilities. Some
commenters proposed that the language
in the provision should be revised to
state that audits should be performed
every three years, pointing out an
inconsistency in when audits would be
required.
Several commenters recommended
that the requirement triggering a thirdparty audit after 2 accidental releases
within a 5-year period is not stringent
enough, and facilities should be
required to conduct a third-party audit
after one accidental release or discovery
of significant non-compliance. One of
the commenters suggested that a 5-year
window for accident history is too
narrow. A few commenters suggested
that third-party audits be required for all
RMP facilities without waiting for an
incident to occur. Several commenters
opposed the 2-accident trigger for thirdparty compliance audits due to its vague
nature that could result in facilities
conducting audits when they are not
warranted. One of the commenters
suggested that EPA narrow the thirdparty audit trigger from reportable
accidents to catastrophic releases.
Another commenter noted that
accidental releases already trigger
incident investigations, including the
proposed root cause analysis; therefore,
an additional third-party audit will
unnecessarily dilute the investigation
effort and will be overly burdensome to
facilities.
Comments were received regarding
the 1-mile audit triggering criteria,
mostly in opposition, for various
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reasons, including that it is too vague
and overly broad. Another commenter
interpreted this requirement as
emphasizing protecting select facilities
over protecting the public. One
commenter suggested that this
requirement could penalize facilities
with an otherwise outstanding
environmental and safety record
because a neighboring facility within
one mile does not. One commenter
suggested that that the requirement
triggering a third-party audit should be
required after one accidental release at
a facility with a 324 or 325 NAICS code
regardless of location to another facility.
Another commenter suggested that EPA
develop a more user friendly, up-todate, and accessible method of
determining if a facility is within 1 mile
of another facility with a 324 or 324
NAICS code to ensure compliance with
this provision.
ii. EPA Responses
EPA agrees with the comments in
support of the third-party compliance
audit requirement to be included in the
final rule and believes it is appropriate
to require a subset of RMP-regulated
facilities to engage competent and
independent third-party auditors
following the conditions set forth in this
final rule after: (1) One accidental
release meeting the criteria in 40 CFR
68.42(a) from a covered process at a
stationary source has occurred; or (2) an
implementing agency requires a thirdparty 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
40 CFR 68.80(c). As indicated in the
proposal, 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 1 RMPreportable accident and 0.5 percent (n =
70) of all RMP facilities had 2 or more
RMP-reportable accidents. EPA views
one 40 CFR 68.42(a) accidental release
as a serious matter, considering the
possible outcomes are deaths, injuries,
or significant property damage on site,
or known offsite deaths, injuries,
evacuations, sheltering in place,
property damage, or environmental
damage. Further, the average per
accident damage estimate from 2016–
2020 is $5.5 million. It is arguable that
having even one accident should be a
cause for concern considering most
RMP facilities have never had any
accidents. Additionally, of these 70
facilities that had at least 1 RMPreportable accident, 61 percent (n = 43)
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had experienced another accident prior
to 2016. EPA does not believe affected
communities should have to experience
the adverse consequences of a second
reportable accident before an objective
party comes in to evaluate the facility
for compliance. The pattern of repeated
accidents at RMP facilities provide a
reasoned basis for EPA’s focus on these
facilities to apply a greater level of risk
reduction measures.
EPA notes that under 40 CFR part 68,
sources with any Program 2 and/or
Program 3 processes are already
required to conduct compliance audits
every three years. This rule does not
change the requirement that RMP
facilities regularly conduct RMP
compliance audits, but adds that, in
specific situations, those audits must be
performed by a third-party or a team led
by a third-party, pursuant to the
requirements and schedule in 40 CFR
68.58 and/or 68.79 of the rule. EPA
notes that having a third-party conduct
a compliance audit does not preclude
the facility from conducting an in-house
compliance audit in tandem. If the goal
is to ensure that preventative measures
are in place to prevent future accidents,
EPA hopes that a facility would want to
implement all such measures to ensure
it is compliant. EPA disagrees that the
third-party audit requirement should be
expanded to include, as some
commenters suggested, all RMP
facilities without waiting for an
accident. While independent third-party
audits help to ensure an independent
systematic evaluation of the full
prevention program at an RMP facility,
EPA is not making this a regulatory
requirement for all RMP sources before
an accident, at this time, due to the
increased burden associated with these
audits.
EPA acknowledges the costs
associated with third-party audit
requirements. Although this final rule
requires a larger group of stationary
sources to conduct third-party audits
than the proposal, the costs are justified.
The Agency believes the affected group
of stationary sources are sources that
will benefit from an independent
objective audit of their compliance with
prevention program requirements, as
they have already had one RMPreportable accidental release. As
described in the proposed rule, EPA
recognizes that a relatively small
number of RMP-regulated facilities have
had RMP-reportable accidents. EPA
continues to be concerned with these
RMP facilities that—despite current
RMP regulations, enforcement, and
lessons learned from previous
accidents—continue to have accidents
and, in some cases, multiple accidents,
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thereby continuing to put nearby
communities at risk. Sources that have
had one accident are substantially more
likely to have another accident than the
general population of RMP-regulated
sources. EPA is concerned that those
facilities may not have 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 accident releases from
occurring. Considering the goal of the
RMP regulations is to prevent accidental
releases, EPA believes that the increased
cost of third-party compliance audits at
such facilities is therefore justified.
In response to comments on when
third-party audits are required, EPA is
clarifying and finalizing that, whichever
criteria triggers the requirement, a thirdparty need only be engaged for the next
required compliance audit(s), which is
no later than 3 years from the previous
compliance audit. The revised final
requirement relies on the language at 40
CFR 68.58(f) and 68.79(f) which refer to
the timeline of a third-party compliance
audit to be the ‘‘next required
compliance audit,’’ which is at least
every 3 years under 40 CFR 68.58(a) and
68.79(a). For example, if a facility
conducted an internal compliance audit
in August 2024 and had an RMPreportable accident in October 2024, the
next compliance audit, required by
August 2027, would be a third-party
audit. EPA believes this approach is
appropriate because it will allow the
source to remain within their already
required scheduled timing for audits.
Further, when an accident occurs, the
source will be required to conduct an
RCA within 12 months; the 3-year
finalized timeframe for the audit will
give the source flexibility to accomplish
both within their compliance due dates.
If the third-party audit is completed
after the RCA, it will give the source an
additional opportunity to uncover
deficiencies that led to the accident. In
other words, the third-party audit will
be a follow-up to review the RCA and
ensure all practices to prevent an
accident have been resolved.
The third-party audit provision is
intended to reduce the risk of future
accidental releases by requiring an
objective auditing process to assist
owners and operators in determining
whether facility procedures and
practices comply with subparts C and/
or D of the RMP rule (i.e., the prevention
program requirements), are adequate,
and are being followed. Thus, EPA is
finalizing requirements for third-party
audits under 40 CFR 68.58 and 68.79 to
require that owners and operators
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ensure that third-party auditors meet
qualification criteria, that audits are
conducted and documented, and that
findings are addressed pursuant to the
requirements of 40 CFR 68.59 and 68.80,
as applicable.
b. Proposed Independence Criteria
In the preamble to the 2022 SCCAP
proposed rule, EPA sought comment on
the proposed independence
requirements modified from the 2017
amendments rule. The modification was
to 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.
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i. Comments
Many of the comments received
regarding independence requirements
did not address the change, which
removed these two requirements. As
with the 2017 amendments rule, EPA
has received comments generally in
support of the proposed independence
requirements, and some generally
opposed to the independence
requirements. Such general comments
were previously addressed by EPA
during the 2017 rulemaking.99
However, EPA did receive some
comments specifically regarding this
proposal to remove these two
independence requirements, generally
in support of removing these
requirements. One commenter
supported removing these requirements,
describing them as unrealistic and
unworkable, and another commenter
described them as onerous and
unnecessary. This commenter further
stated that these requirements would
have resulted in an insufficient pool of
qualified auditors, harmed the quality of
audits, and significantly driven up
costs. However, another commenter
requested that EPA reconsider the
proposal to remove the proposed
auditor independence requirements,
99 Response to Comments on the 2016 Proposed
Rule Amending EPA’s Risk Management Program
Regulations; https://www.epa.gov/sites/default/
files/2016-12/documents/rmp_rtc_compiled_12-2116.pdf.
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stating that auditor independence is of
paramount importance.
ii. EPA Responses
EPA is finalizing the proposed
independence requirements and
believes this is an important and
necessary aspect of third-party audits.
EPA notes that these independence
requirements were simplified and
streamlined from the 2017 rule, which
included a limitation for auditors who
conducted consulting type services for
the owner or operator within the last
two years, or for a period of at least 2
years following the audit report. EPA
believes the provision, as adopted,
ensures additional available
independent auditors to act in an
independent and impartial manner,
allowing more flexibility in choosing
auditors.
c. Employee Participation
In the preamble to the proposed rule,
EPA sought 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 a third party
conducts an audit.
i. Comments
EPA received comments in support
and in opposition to these provisions.
One commenter supported the provision
that the selection of a third-party
auditor be mutually approved by the
owner or operator and employee
representatives and suggested that
employees and their representatives be
involved in all stages of the audit.
However, several commenters expressed
opposition to a requirement that the
selected auditor be mutually approved
by the owner/operator, employees, and
employee representatives. One
commenter noting that this requirement
would increase the time needed to vet
and approve auditors, causing
unnecessary delays. Another commenter
suggested that the auditor be selected by
facility management and that bringing
unknowledgeable employees into the
decision-making process would be
burdensome and will not improve
compliance.
ii. EPA Responses
While EPA encourages sources to
include employee participation during
third-party audits, EPA is not finalizing
a provision that requires employee
participation in third-party audits at this
time. The Agency expects the
enhancements to employee
participation required by this rule will
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17661
motivate owners and operators to
recognize the benefit of involving their
employees and their representatives in
all aspects of the process safety
management at their facility.
d. Format of Declined Third-Party
Compliance Audit Findings
i. Comments
EPA has received comments in
support of, and in opposition to,
requiring declined findings to be
included in narrative form. One
comment in support argued that more
detailed information on the
recommendations and decisions are
needed to ensure that a facility does not
avoid implementing necessary or
practical recommendations. Another
commenter noted that the suggested
categories would fall short of capturing
the reasons to decline an audit
recommendation, such as a
recommendation that is impractical or
ineffective.
Several commenters expressed
opposition to requiring facilities to
provide declined findings in narrative
form in the RMP. Several commenters
noted that this requirement would be
overly burdensome. Several commenters
raised concerns that the public release
of this information would be confusing
to those that are not knowledgeable
about a facility’s processes. Some
commenters noted that public pressure
may result in difficult technical debates
about unfounded findings or cause
facilities to address findings they
disagree with. Another commenter
recommended that the justification for
declined findings should be consistent
with the criteria outlined by OSHA’s
1994 Compliance Directive, asserting
that this would make a narrative text in
the RMP repetitive. One commenter
noted concerns about releasing
information to local responders, who
may lack the expertise in chemical
processes, could result in incorrect
response activities during an accidental
release. A couple of commenters
suggested that this requirement would
discourage facility leaders from
encouraging audit teams to identify
potential hazards to limit the
information that must be reported to
EPA. The commenters also suggested
that audit findings are already readily
available to EPA. Several commenters
requested that EPA not mandate that
facilities make declined findings
publicly available online due to security
concerns of releasing highly sensitive
information.
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ii. EPA Responses
In the final rule, EPA is requiring
facilities to choose from categories,
similar to those in OSHA’s 1994
Compliance Directive, as the Agency
believes it will ease the use and general
consistency for facilities to report and
communities to review declined thirdparty audit recommendations. This
format will also help EPA administer
and track how facilities choose to
comply with this provision.
e. Reporting Requirements
A commenter suggested that EPA
ensure that the reporting requirements
for Program 3 facilities match those for
Program 2 facilities, noting that 40 CFR
68.175(k) is missing the key language in
proposed 40 CFR 68.170(i): ‘‘and
findings declined from third-party
compliance audits and justifications.’’
EPA notes that this was an error, and
this has been corrected in the final rule.
E. Employee Participation
1. Summary of Proposed Rulemaking
a. Recommendation Decisions, 40 CFR
68.83(c)
EPA proposed to revise 40 CFR 68.83,
which is applicable to Program 3
processes, by adding an additional
provision, paragraph (c), to the written
employee participation plan of action.
Proposed paragraph (c) would require
the owner or operator to consult with
employees and their representatives on
addressing, correcting, resolving,
documenting, and implementing
recommendations and findings of PHAs
under 40 CFR 68.67(e), compliance
audits under 40 CFR 68.79(d), and
incident investigations under 40 CFR
68.81(e).
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b. Stop Work Authority, 40 CFR
68.83(d)
EPA proposed to revise 40 CFR 68.83,
which is applicable to Program 3
processes, by adding an additional
provision, paragraph (d), to the written
employee participation plan of action.
Proposed paragraph (d) would require
the owner or operator to provide the
following authorities to employees and
their representatives, and to document
and respond in writing, within 30 days
of the authority being exercised:
• 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.
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• 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.
c. Accident and Noncompliance
Reporting, 40 CFR 68.62, 68.83(e)
EPA proposed to add 40 CFR 68.62,
which is applicable to Program 2
processes, to require the owner or
operator to:
• Develop a written plan of action
regarding the implementation of the
employee participation requirements.
• 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.
• Provide employees and their
representatives access to hazard reviews
and to all other information required to
be developed under this rule.
EPA proposed to revise 40 CFR 68.83,
which is applicable to Program 3
processes, by adding an additional
provision, paragraph (e), to the written
employee participation plan of action.
Proposed paragraph (e) would require
the owner or operator to 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.
In addition to the proposed approach
to accident and noncompliance
reporting, EPA solicited comment on
whether owners and operators should:
(1) Distribute an annual written or
electronic notice to employees that
employee participation plans and other
RMP information is readily accessible
upon request; (2) provide training for
those plans; and (3) provide training on
how to access the information.
2. Summary of Final Rule
EPA is finalizing the proposed
provisions for employee participation
with the following modifications:
• Revising 40 CFR 68.83(c) to
specifically apply only to those
employees knowledgeable in the
process.
• Removing from 40 CFR 68.83(d) the
stop work criterion allowing an
employee to refuse to perform a task
when doing so could reasonably result
in a catastrophic release.
• Revising 40 CFR 68.83(d) so that the
two remaining stop work criteria
specifically apply only to those
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employees knowledgeable in the
process.
• Removing from 40 CFR 68.83(d) the
requirement to document and respond
in writing within 30 days of the stop
work authority being exercised.
• Revising 40 CFR 68.62(b) and
68.83(e) to allow the person reporting an
unaddressed hazard, unreported
accident, or noncompliance to decide
whether or not they wish to make an
anonymous report or attribute their
identity to the report.
• Revising 40 CFR 68.62(b) and
68.83(e) to specify the methods of
making a report to the owner and
operator and EPA.
• Adding a provision to 40 CFR
68.62(b) and 68.83(e) to require the
owner or operator to keep a written
record of the report of noncompliance.
• Adding a provision to 40 CFR
68.62(a)(1) and 68.83(a)(1) for the owner
or operator to provide an annual written
or electronic notice to employees
indicating RMP information is available.
• Adding a provision to 40 CFR
68.62(a)(2) and 68.83(a)(2) requiring the
owner or operator to provide training on
the written employee participation plan.
• Revising 40 CFR 68.62(a) and
68.83(a) to add the word ‘‘requirements’’
as a clarifying edit.
3. Discussion of Comments and Basis for
Final Rule Provisions
a. Recommendation Decisions, 40 CFR
68.83(c)
i. Comments
Many commenters expressed support
for the proposed requirement in 40 CFR
68.83(c) for the owner or operator to
consult with employees and their
representatives on addressing,
correcting, resolving, documenting, and
implementing recommendations and
findings of PHAs, compliance audits,
and incident investigations as a way of
promoting collaboration between
employees and management
representatives. One State agency
remarked that the goal of the provision
is to ensure the team remains effective
and is reflective of diverse viewpoints
and backgrounds. However, other
commenters opposed the provision,
stating that transferring decision-making
authority to employees presents
additional legal issues in terms of
employee responsibility and
accountability, such as in the event an
incident occurs, is investigated, and
results in disciplinary action or legal
liability. Another commenter noted that
EPA’s use of ‘‘employees and their
representatives’’ can be viewed too
broadly.
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ii. EPA Responses
EPA disagrees that this provision
presents additional legal issues. This
provision does not transfer decisionmaking responsibility to employees and
their representatives. The provision also
does not attempt to shift ultimate
accountability to the employee for
decisions that the owner or operator is
responsible for. For example, at 40 CFR
68.67(e), the PHA provision indicates
the owner or operator shall establish a
system to promptly address the team’s
findings and recommendations, to
assure that the recommendations are
resolved in a timely manner, and that
the resolutions are documented. Despite
this provision, the regulated entity
remains the owner or operator of the
stationary source. The requirement to
consult with employees and their
representatives does not make
employees the decision-making
authority. This provision does, however,
provide for consultation that gives
employees the opportunity to provide
their input and perspective, based on
their firsthand knowledge of specific
process safety concerns, before final
decisions are made regarding whether to
implement recommended process safety
solutions. This provision helps ensure
that a well-informed approach is
applied when finalizing resolutions for
reducing hazards and mitigating process
safety risks.
In response to the comment that the
term ‘‘employees and their
representatives’’ can be viewed too
broadly, EPA has amended the language
to specify that the provision only
applies to employees knowledgeable in
the process and their representatives.
EPA expects employees involved in the
consultation to be knowledgeable in the
process, as these employees are
expected to have a better firsthand
understanding of the process than
employees who do not work in the
process, who are new to the process, or
who do not understand the process.
EPA expects that these employees are
likely to also be the employees that have
the qualifications to participate as a
team member when developing
recommendations from incident
investigations under 40 CFR 68.81(c),
compliance audits under 40 CFR
68.79(b), and PHAs under 40 CFR
68.67(d). At 40 CFR 68.67(d), the PHA
provision indicates that the PHA shall
be performed by a team with expertise
in engineering and process operations,
and the team shall include at least one
employee who has experience and
knowledge specific to the process being
evaluated. EPA believes it is prudent to
apply at least the same qualification
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criterion to employees who can
participate in developing
recommendations as to those who can
assist in deciding whether those
recommendations will be implemented.
After review of the comments, the
Agency continues to believe that
involving directly affected employees
and their representatives in
recommendation 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. EPA is finalizing
the proposed provision with the
modification, for clarity, that those
employees who are to be consulted on
addressing, correcting, resolving,
documenting, and implementing the
recommendations and findings of PHAs,
compliance audits, and incident
investigations must be those
knowledgeable in the process.
b. Stop Work Authority, 40 CFR
68.83(d)
i. Comments
Several commenters supported the
proposed stop work authority provision
of the employee participation plan
under 40 CFR 68.83(d). One Federal
agency indicated that any program that
does not appropriately enable workers
to freely exercise stop work authority in
necessary circumstances would allow
risks to occur and accumulate. Some
commenters supported the provision in
principle but recommended
modifications. A couple of commenters
recommended removing the 30-day
response period arguing that it should
not be necessary when the authority is
primarily used in imminently dangerous
situations. A few commenters asserted
that EPA should also require prompt
reports of all stop-work authority usage
so that EPA and the public are made
aware and can evaluate whether
additional quick action is needed to
support the workers, assure compliance,
and save lives.
Some commenters did not support the
proposed stop work authority provision
of the employee participation plan. One
commenter noted that having uniform
requirements and procedures for an
operation shutdown ignores the diverse
array of regulated facilities in terms of
industry and process. The commenter
asserted that EPA should allow for
operational flexibility in recognition of
these circumstances and emphasized
the risk an abrupt shutdown of complex
chemical processes would pose.
Another commenter asserted that the
underlying intent of the provision can
be better addressed by establishing clear
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written guidelines on how employees
can raise such concerns in ‘‘real time.’’
Several commenters claimed that the
stop work authority could result in
increased safety risks, indicating the
potential for employees to lack adequate
knowledge or training to make such a
decision. The commenters expressed
further concern that the frequency of
transient operations could increase, and
that more unplanned or abrupt
shutdowns could occur, which are often
dangerous. A few of the commenters
noted that giving this authority to all
employees would leave facilities more
susceptible to RMP incidents occurring
and make the processes at RMP-covered
facilities less safe.
A couple of commenters opposed the
provision and noted that the language in
the stop work authority provision would
be too general, inevitably allowing every
RMP covered process to be shut down
by an employee. The commenters noted
that this does not align with EPA’s
stated purpose of the RMP rule, which
is to improve safety at facilities. One
State agency expressed concerns about
and opposed the provision allowing
employees to refuse to perform a task
when they believe doing so could
reasonably result in a catastrophic
failure. The commenter further stated
that it is extremely important that any
stop work authority be implemented in
a manner that minimizes the chance for
adverse unintended consequences.
ii. EPA Responses
The proposed stop work provision
within the employee participation
section of this final rule is intended
only to include the stop work
authorities, established by the operating
procedure provisions under 40 CFR
68.69(a), into the written employee
participation plan. This provision is not
intended to create new authorities or
require additional components to those
already developed. The final rule
conforms the amendments to this intent.
Therefore, while EPA believes that it is
useful to evaluate any stop work
authority exercised, EPA expects these
internal evaluations to already be
occurring in the owner or operator’s
annual review of operating procedures,
through training activities, or when
conducting compliance audits. The final
rule does not add a provision to require
evaluations be included in the written
plan. Additionally, EPA agrees that stop
work authorities are expected to be
carried out in imminently dangerous
situations such that a 30-day response to
an authority being exercised long after
the threat has passed may not be
practical. Regarding providing reports of
stop work to EPA, the Agency disagrees
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that this is necessary because stop work
should be exercised to prevent
imminently dangerous situations from
resulting in catastrophic releases and
therefore should not be contingent on or
require quick action by outside parties.
Furthermore, the Agency does not have
the capability or resources to
immediately respond to all instances of
stop work being exercised. If, for some
reason, quick action by outside parties
was needed, EPA believes that the
emergency response plans required by
the rule should already outline a plan
for responding to dangerous situations
by the facility and/or local responders
as they will be the most familiar with
the source’s processes and hazards.
The proposed rule provided an
extensive discussion of the stop work
authority that is already inherent in the
current RMP rule.100 As the proposed
rule explained, the current RMP rule
already addresses many aspects of a
stop work authority that provides means
for employees to identify and resolve
imminent operational risks before they
occur. Operating procedures,
maintenance/mechanical integrity, and
their associated training requirements,
which are already mandatory under the
rule, create a stop work authority as
they address the circumstances and
procedures to identify unsafe
operations. 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. Therefore,
EPA disagrees with the comments that
a stop work authority documented in
the employee participation plan would
cause more shutdowns and possibly
more accidents, as the authority that is
being provided by the final rule’s
provisions leverages existing operating
procedure and maintenance
requirements. In reference to the
comment citing the potential for an
increase in safety risks when an
employee lacks adequate knowledge to
make a stop work decision, EPA has
amended the provision to specify that
this authority should be exercised only
by employees knowledgeable in the
process and their representatives.
EPA disagrees that the new stop work
authority provision does not align with
the purpose of the RMP rule. Under the
existing RMP rule, operating procedures
are designed for, and assigned to,
employees who will be trained on
performing the tasks described, thereby
producing employees knowledgeable in
100 87
FR 53591.
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the process they are working in.
However, because of the significant
disruption to process operations that
can occur when stop work authority is
exercised, EPA agrees that it is useful to
explicitly state that these authorities are
applicable only to employees who are
knowledgeable in the process. Further,
EPA believes a work culture that
promotes process safety allows for
opportunities for employees to refuse to
perform work. In a scenario where there
is a potential for a catastrophic release,
EPA believes it is important to take
further steps to shutdown a process to
prevent an accident. Rather than
refusing to perform work only, steps
necessary to shut down the process
should be set in motion. Therefore, the
Agency is deleting the change noted
below from 40 CFR 68.83(d) to ensure
that potentially imminent catastrophic
releases are followed through with
properly. The basis for including stop
work authorities in the employee
participation plan is to enhance
authorities already provided to
employees under the rule.
After review of comments, EPA
maintains that it is important to ensure
facilities’ employees have authorities to
manage unsafe work as they are one of
the last lines of defense to protect
human health and the environment
from a catastrophic release. EPA,
however, does agree with some
recommendations offered in the
comments to enhance the provision.
Therefore, EPA is finalizing the
proposed provision with the following
modifications as discussed above:
• Removing from 40 CFR 68.83(d) the
requirement to document and respond
in writing within 30 days of the stop
work authority being exercised.
• Removing from 40 CFR 68.83(d) the
stop work criterion allowing an
employee to refuse to perform a task
when doing so could reasonably result
in a catastrophic release.
• Revising 40 CFR 68.83(d) so that the
two remaining stop work criteria
specifically apply to those employees
knowledgeable in the process and their
representatives.
c. Accident and Non-Compliance
Reporting, 40 CFR 68.62(b) and 68.83(e)
i. Comments
EPA received comments supporting,
opposing, and suggesting improvements
to the accident and non-compliance
reporting provision. One commenter
supported EPA’s proposal to require an
anonymous reporting mechanism. The
commenter stated that owners and
operators should be required to make all
employee participation plans and RMPs
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accessible and also should be required
to provide annual training, at minimum,
to facility employees. One of the labor
commenters who supported the
provision in principle also expressed
concern that the language proposed
does not adequately specify what the
reporting process should be. The
commenter also stated that the
provision is of limited value since an
employee could report anonymously
without a formal process. The
commenter likewise stated that the
provision is restrictive since, as written,
the requirement excludes reporting in
situations where the reporter does not
wish to remain anonymous. Although a
couple of commenters agreed that it is
important that employees can voice
concern without fear of repercussions,
these commenters stated that
anonymous reports require someone to
judge the validity of the report. Some of
the industry commenters also stated that
anonymous reports could create a
burden. The commenters expressed
further concern that, for example,
reports could be filed by misinformed
persons, thus necessitating the
development of methods and time
frames to determine the credibility of
reports as well as when appropriate
action should be taken. One of the
commenters stated that a better
approach is to allow RMP-regulated
entities to continue efforts to improve
safety cultures, strengthen safety teams,
and foster employee communication in
lieu of expending resources on
anonymous reporting features.
ii. EPA Responses
EPA does not expect to see a ‘‘onesize fits-all’’ plan developed by sources
for reporting areas of non-compliance.
Some RMP facilities are less complex,
operating with a handful of employees,
while other RMP facilities have very
complex processes that involve
hundreds of employees. Like other
provisions of the RMP regulation, the
employee participation provisions allow
facility owners and operators the
flexibility to exercise reasonable
judgement in determining how to best
engage their employees and make them
aware of their facility’s efforts to apply
the RMP rule to process operations. In
the absence of a more specific
performance standard like RAGAGEP or
a specific direction, the RMP rule relies
on the reasonable judgments and efforts
of regulated entities in designing
compliance programs that are aimed at
preventing or mitigating accidental
releases. EPA agrees with commenters
that it is useful for individual RMP
facility owners and operators to
continually improve their efforts to
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enhance safety cultures, strengthen
safety teams, and foster employee
communication. EPA also agrees that
the most effective programs probably
already comply with most aspects of the
provision. EPA believes that sources
should create a welcoming atmosphere
for employees to discuss safety concerns
internally. However, commenters,
particularly commenters from labor
organizations who supported the
provision, stated that this is not always
the case. Therefore, EPA maintains that
this provision is necessary to establish
a minimum standard for conduct. To
ensure a consistent understanding of
EPA’s expectations for this provision,
modifications to the provision are
discussed below.
To clarify EPA’s intent in the
proposal, EPA is specifically defining in
this final rule that the process
developed to report noncompliance
must detail how to report to the owner
or operator and/or EPA. It is
understandable that in some instances
employees will feel more comfortable
reporting to one or the other entity (or
both), which will be up to the reporter,
but the details provided in the plan
should provide clear instructions for
how to report to both entities. Reporting
areas of non-compliance to the owner or
operator allows employers to become
aware of areas of concern and/or
opportunities to improve process safety.
It is expected that validating reports will
not impose a heavy burden on the
owner or operator as they should
already be familiar with their level of
compliance with the rule through
regular compliance monitoring
activities, such as triennial compliance
audits. While EPA is not prescribing
details of how a facility needs to followup with the report, the owner or
operator will be required to at least
maintain a record of the report. EPA
believes it is in the owner or operator’s
best interest for the necessary follow-up
to address employees’ process safety
concerns and/or areas where the owner
or operator may have fallen short on
compliance with the rule. When an
employer is engaged first and does not
resolve an issue, it is expected that the
next step for reporting noncompliance
will be to report to EPA. Reporting areas
of non-compliance to EPA 101 will allow
the Agency’s Office of Enforcement and
Compliance Assurance to determine the
validity of the report received through
appropriate levels of follow-up,
101 Some EPA resources to report RMP noncompliance include: https://echo.epa.gov/reportenvironmental-violations, https://www.epa.gov/
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investigation, and enforcement, if
necessary.
Regarding anonymous reporting, EPA
recognizes both the concern for
anonymity and the desire from
employees wanting to identify
themselves as the reporter. EPA believes
this option to remain anonymous or not
will be particularly useful if there are
additional follow-up steps that the
reporter and or the owner/operator must
take in order to resolve an issue.
Regarding the concern that reporting
could create a burden or be performed
by misinformed employees, EPA notes
that the current Program 3 employee
participation provisions under 40 CFR
68.83 already provide employees access
to all RMP-related information. The new
requirement for Program 2 processes
under 40 CFR 68.62(c) will allow this as
well. However, EPA is concerned that
some sources may provide RMP-related
information to their employees without
providing details or explanations of the
information. EPA agrees with comments
stating that workers without required
information and training may be
unaware of their opportunities and
authorities to participate in hazard
prevention, and that the lack of worker
understanding will inevitably lead to
less participation. Therefore, to ensure
that employees are regularly reminded
that RMP information is available to
them, owners and operators of all
Program 2 and Program 3 processes will
be required to provide an annual written
or electronic notice to employees
indicating that RMP information is
available.
The Agency also believes that
management, employees, and their
representatives involved in the process
could benefit from training on employee
participation plans to ensure these
facility stakeholders are aware of the
information included in the plans or
otherwise available. A more thorough
understanding through the training may
help reduce unvalidated noncompliance reports, some of which
commenters indicated could become a
concern associated with this
noncompliance reporting provision.
Ultimately EPA expects training on
employee participation plans will help
employees identify, and owners and
operators correct, issues that may
prevent and mitigate accidents.
After review of EPA’s preferred
approach, options, and comments, the
Agency maintains that workers can play
an important role in promoting process
safety through reporting
noncompliance. EPA, however, does
agree with some recommendations
offered in the comments to enhance the
clarity of the provision. Therefore, EPA
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17665
is finalizing the proposed provision
with the following modifications as
previously discussed:
• Revising 40 CFR 68.62(b) and
68.83(e) to specify the report methods to
either or both the owner and operator
and EPA.
• Revising 40 CFR 68.62(b) and
68.83(e) to let anonymity be decided by
the reporter.
• Adding a provision to 40 CFR
68.62(b) and 68.83(e) to require the
owner or operator to keep a written
record of the report of noncompliance.
• Adding a provision to 40 CFR
68.62(a)(1) and 68.83(a)(1) for the owner
or operator to provide an annual written
or electronic notice to employees
indicating RMP information is available.
• Adding a provision to 40 CFR
68.62(a)(2) and 68.83(a)(2) for training
on the written employee participation
plan.
VI. Emergency Response
A. Summary of Proposed Rulemaking
1. Community Emergency Response
Plan Amplifications, 40 CFR 68.90(b),
68.95(c)
EPA proposed to revise 40 CFR
68.90(b)(1) and 68.95(c), which are
applicable to non-responding and
responding facilities respectively, to
detail the required elements of the
EPCRA community emergency response
plan in RMP regulatory text. The
proposed RMP regulatory text indicated
that the EPCRA community emergency
response plan should include: (1)
Identification of facilities within the
emergency planning district; (2)
identification of routes likely to be used
for the transportation of substances on
the list of extremely hazardous
substances (EHS); (3) identification of
additional facilities contributing or
subjected to additional risk due to their
proximity to facilities, such as hospitals
or natural gas facilities; (4) 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; (5) designation of a
community emergency coordinator and
facility emergency coordinators, who
shall make determinations necessary to
implement the plan; (6) 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; (7) methods for determining
the occurrence of a release, and the area
or population likely to be affected by
such release; (8) description of
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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; (9)
evacuation plans, including provisions
for a precautionary evacuation and
alternative traffic routes; (10) training
programs, including schedules for
training of local emergency response
and medical personnel; and (11)
methods and schedules for exercising
the emergency plan. The proposed
revisions also included that upon
request of the LEPC or emergency
response officials, the owner or operator
would be required to promptly provide
to the local emergency response officials
information necessary for developing
and implementing the community
emergency response plan.
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2. Community Notification of RMP
Accidents, 40 CFR 68.90(b), 68.95(a), (c)
EPA proposed to revise and add
provisions to 40 CFR 68.90(b),
paragraphs (b)(3) and (6) respectively,
pertaining to non-responding facility
designation qualifications. Revised
proposed paragraph (b)(3) would have
required the owner or operator to
provide to emergency responders timely
data and information detailing the
current understanding and best
estimates of the nature of a release when
there is a need for a response. Proposed
paragraph (b)(6) would require the
owner or operator to maintain 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. Proposed paragraph (b)(6)
would additionally require the owner or
operator to ensure that a community
notification system is in place to warn
the public within the area potentially
threatened by the release.
EPA proposed to revise 40 CFR 68.95,
which is applicable to responding
facilities, by revising paragraphs (a)(1)(i)
and (c). Revised proposed paragraph
(a)(1)(i) would have required the owner
or operator to include in the procedures
for informing the public about releases,
assurance that a community notification
system is in place to warn the public
within the area threatened by the
release. Revised proposed paragraph (c)
would additionally require the
emergency response plan to include
providing timely data and information
detailing the current understanding and
best estimates of the nature of the
release when a release occurs.
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3. Emergency Response Exercise
Program, 40 CFR 68.96(b)
EPA proposed to revise 40 CFR 68.96,
which is applicable to responding
facilities, by revising the frequency
requirement for field exercises under
paragraph (b)(1)(i) and the
documentation requirements for field
and tabletop exercises under paragraph
(b)(3). Proposed paragraph (b)(1)(i)
would require the owner or operator to
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 agree, the
owner or operator shall consult with
emergency response officials to
establish an alternate appropriate
frequency for field exercises. Proposed
paragraph (b)(3) would require the field
and tabletop exercise reports to 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.
B. Summary of Final Rule
EPA is not finalizing the proposed
community emergency response plan
amplifications at 40 CFR 68.90(b)(1) and
68.95(c).
EPA is finalizing the proposed
provisions for community notification
of RMP accidents and the emergency
response exercise program with the
following modifications:
• Revising 40 CFR 68.90(b)(3) and
68.95(c) to allow other existing
notification mechanisms or regulations
that satisfy the notification
requirements, if applicable.
• Revising 40 CFR 68.90(b)(6) and
68.95(a)(1)(i) to specify that the owner
or operator should partner with local
response agencies to ensure a
community notification system is in
place, and to document the
collaboration.
• Removing from 40 CFR
68.96(b)(1)(i) the requirement that
Federal and State agencies require
consultation when determining a field
exercise frequency less than once every
10 years.
• Revising 40 CFR 68.95(a)(1)(i) to
add the word ‘‘potentially’’ as a
clarifying edit.
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C. Discussion of Comments
1. Community Emergency Response
Plan Amplifications, 40 CFR 68.90(b),
68.95(c)
a. Comments
EPA received comments supporting
and opposing the proposal to revise 40
CFR 68.90(b)(1) and 68.95(c) to detail
the required elements of the EPCRA
community response plan in RMP
regulatory text. Some commenters in
support of the amplifications indicated
that it is important to reaffirm and
ensure coordination with the EPCRA
emergency response planning teams.
Another commenter mentioned that the
use of ‘‘should’’ in the community
response plan renders the entire section
as voluntary while the commenter
suggested that the section should
instead be required. Some commenters
stated that EPA should not expand the
regulatory language. One commenter
expressed concern that it is not
reasonable to expect facilities to ensure
that plans include the features in
proposed 40 CFR 68.90(b). The same
commenter also asked for greater clarity
over the use of the word ‘‘should,’’
rather than ‘‘must.’’ One commenter
noted that it is inappropriate for EPA to
put the responsibility of the community
plan on the RMP facility. Some
commenters expressed confusion over
the requirement that RMP facilities
assume responsibility for an emergency
plan only if the LEPC’s current plan is
inadequate. These commenters further
explained that this places the burden of
being held accountable on the RMP
facility for the adequacy of a plan that
they have no control over.
b. EPA Responses
EPA notes that the modification to 40
CFR 68.90(b)(1) and 68.95(c) in the
proposed rule was intended only to
include details of EPCRA’s community
emergency response plan requirements
into RMP regulatory text for reference,
not to ultimately transfer plan
development and implementation
responsibility to RMP facilities. Rather,
EPA’s goal was to make it simpler for
RMP-regulated facilities to be
knowledgeable about the components of
the community emergency response
plan to ensure that they understand how
their facility’s processes could impact
the larger community emergency
response plan and understand the
facility’s role in coordination of the
required plan provisions. While this
proposed modification did not include
a new regulatory requirement, EPA
acknowledges the confusion expressed
by including EPCRA requirements in
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the RMP regulatory text. Therefore, after
reviewing the comments, the Agency
has decided not to finalize this
proposed regulatory text modification.
EPA notes that 40 CFR 68.90(b)(1) and
68.95(c) will continue to reference the
statutory citation for the EPCRA
community response plan, 42 U.S.C.
11003. EPA encourages owners and
operators to be familiar with all the
elements of the community emergency
response plan to effectively consider the
potential impacts of a chemical release
from their facility on the community.
2. Community Notification of RMP
Accidents, 40 CFR 68.90(b), 68.95(a), (c)
Providing Timely Data to First
Responders
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a. Comments
Some commenters supported the
proposed provision for facility owners
and operators to provide timely release
data to local first responders when there
is a need for such response. One
commenter in support indicated that,
while it is true that LEPCs and local first
responders can utilize tools to perform
analyses outside the fence line, the
facility’s own first-hand information
will improve this process and increase
first responder awareness and safety
during a response. Some supporters also
offered modifications to the provision.
One commenter suggested that EPA
require a follow-up notice of the actual
final release information in the shortterm in addition to the public meeting
requirement. Similarly, another
commenter pointed out that real-time
air quality data should be made
available to the public and not just
select officials. Some commenters did
not support the proposed provision. A
few commenters stated that the
requirement to provide ‘‘necessary
entities’’ with ‘‘accurate and timely
data’’ is duplicative and vague. These
commenters urged EPA to remove this
provision. Commenters added that
facilities are already required to notify
and provide information of certain
releases to the National Response Center
(NRC), State Emergency Response
Commissions (SERCs), and LEPCs under
EPCRA and the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA).
b. EPA Responses
EPA disagrees that the provision is
duplicative and vague. EPA believes
that the provision offers the appropriate
level of flexibility that may be needed
during accidental release events. As
stated in the proposal, the expectation
for this provision is for owners and
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operators to provide initial information
about their release to local responders as
soon as possible, and to provide more
accurate data or correct erroneous data
that had been previously relayed when
new information is available. EPA
acknowledges that the time to gather
and update release information can vary
widely depending on the circumstances,
extent and consequences of the release,
and the status of individuals conducting
the investigation during the accident.
EPA also acknowledges that local
responders may be different entities
(e.g., fire department, Hazmat team,
police, etc.) depending on the
community. The initial and follow-up
information required by this provision
will help facilitate proper
communication among responders and
the facility to ensure the appropriate
type and level of response is provided
during a release.
While EPA encourages follow-up
communication with local responders
and the public after conclusion of
response activities, EPA does not
believe that an interim written followup-notice of the actual final release
information should be required after the
response ends. EPA believes that the
public meeting requirement at 40 CFR
68.210 and the five-year accident
history requirement at 40 CFR 68.42
provide adequate time for the facility to
gather and finalize information to share
with the public. The Agency notes that
sources are required to update their
accident histories in their RMPs within
6 months of an RMP-reportable accident
(40 CFR 68.195(a)). Additionally, many
States separately require follow-up
release reporting within a short time
after response activities are concluded
(e.g., 30 days), and this information may
be publicly available.
Regarding providing real time air
quality data to the public, EPA
acknowledges the need to consider
expanding fenceline monitoring
requirements for RMP-regulated
facilities to provide real time data to
local responders and the public. EPA
took comment on this in the proposal
and is reviewing the comments received
in consideration for a future rulemaking.
In response to the comment that
facilities are already required to notify
and provide information about
imminent releases to the NRC, SERCs,
and LEPCs under CERCLA and EPCRA,
EPA has amended the language in the
final rule to allow existing release
notification requirements to satisfy this
provision, if applicable. EPA
acknowledges that EPCRA section 304,
CERCLA section 103, and the CSB have
similar Federal reporting requirements,
and that there may also be State-only
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17667
requirements for release notification and
reporting that could meet this
requirement. Therefore, EPA believes
the amendment to this provision can
help prevent any undue burden in
complying with multiple requirements
when a chemical release occurs. EPA
believes this provision is particularly
useful in closing regulatory gaps for
chemical release notification where
other statutory requirements do not
apply. For example, reporting under
EPCRA section 304 is required only to
the SERC and LEPC, and reporting
under CERCLA section 103 is required
only to the NRC. Additionally, not all
RMP regulated substances are EPCRA
extremely hazardous substances and/or
CERCLA hazardous substances (e.g.,
propane, butane, pentane, and hydrogen
are regulated under RMP, but not under
EPCRA section 304 or CERCLA section
103); thus, while there might be some
overlap, some chemicals will require
only Federal release reporting under
RMP.
After review of comments, EPA
maintains that the requirement to
provide timely release data to
responders in the case of an accidental
release will help ensure that local
responders have sufficient information
to make the best decision on whether
community notification is appropriate.
Furthermore, EPA does agree with the
recommendation offered in the
comments to prevent undue burden in
complying with multiple requirements
when a chemical release occurs. EPA is
therefore finalizing the proposed
provision with the following
modification as previously discussed—
revising the proposed provisions for 40
CFR 68.90(b)(3) and 68.95(c) to allow
existing notification mechanisms or
regulations to satisfy the RMP release
notification requirements if applicable.
Ensure a Community Notification
System is in Place
a. Comments
Some commenters supported the
provision that facilities ensure a
community notification system is in
place. One commenter explained that
current notification procedures are
inadequate, with some community
members not learning about a release
until hours afterward. One commenter
noted that while they support the
presence of State and/or local alerting
authorities, EPA should consider that
this notification system may not be
appropriate for all communities,
especially those that are dealing with
systemic barriers to safety and justice. A
few commenters suggested that, to
remove the burden on facilities to
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ensure the notification systems of local
responders, EPA should change ‘‘and
ensure that’’ to ‘‘and partner to ensure
that.’’ Some commenters opposed the
language requiring RMP facilities to be
responsible for community warning
systems and notification of emergencies
to the local community. Several
commenters stated the requirements of
public notification are better suited to
third parties, LEPCs, and government
agencies already tasked with this
coordination. A couple of the
commenters stated these agencies have
the resources and infrastructure needed
for disseminating emergency
information to a community and
coordinating local response. A few
commenters noted that while Integrated
Public Alert & Warning Systems
(IPAWS) are in use in communities
nationwide, many facilities are not in
areas with these systems. Furthermore,
a few commenters expressed that
neither the burden of ensuring IPAWS
capabilities nor providing direct
notification to the public should fall on
RMP facilities. Another commenter
noted that IPAWS does not accept
information from private entities, only
government entities. One commenter
stated that while they support the need
for a community notification system,
they believe EPA should ensure that
RMP facilities covered under this rule
are in areas already covered by the
IPAWS and, if so, re-evaluate how this
may impact local governments and their
ability to allocate resources.
b. EPA Responses
In response to comments that the
language in this provision should be
changed from ‘‘and ensure that’’ to ‘‘and
partner to ensure that’’ a community
notification system is in place, EPA has
amended the language as suggested. It
was not EPA’s intention in the proposed
provision to transfer inherent
government responsibilities to RMP
regulated facilities. Rather, EPA’s
intention for this provision has always
been for facility owners and operators to
work with the local responders to
ensure that, during a release, a
notification system is in place that will
notify the public of the impending
situation. The Agency expects that in
most cases government emergency
response officials will be the entities
providing the notice. However, for the
purposes of this rule, regulated facilities
which have accidental releases are
responsible for ensuring a prompt
emergency response to any release at
their facility’s covered processes in
order to protect human health and the
environment. As discussed in the
proposal, if local public responders are
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not capable of providing such a
response, the owner or operator is
ultimately responsible for ensuring
effective emergency response to any
release at their facility occurs.
EPA expects the partnership between
facility owners and operators and
emergency response officials to ensure a
public notification system is in place
should occur at least during annual
coordination discussions under 40 CFR
68.93. Under 40 CFR 68.93, owners and
operators are required, among others, to
annually coordinate response needs
with local emergency planning and
response organizations to determine
how the facility is addressed in the
community emergency response plan. A
component of the community
emergency response plan is public
notification of chemical releases, and it
is expected that this component will be
discussed and documented by the
facility owner or operator as part of the
annual coordination obligations.
With regard to specific comments
about IPAWS, EPA acknowledges that
while IPAWS is not currently
operational in all communities, it could
be. IPAWS is available in all States
statewide, and, if not currently available
in certain local communities, it can be
made available if the local designated
government authorities apply to be an
Alerting Authority.102 While IPAWS is
a well-known option as a notification
system compliant with this provision,
EPA is not requiring the use of this
specific system to be the one solely used
to notify the public. EPA encourages
facility owners and operators to work
with response agencies to determine
how best to alert a potentially affected
community about impending chemical
releases.
After review of comments, EPA
maintains that the requirement to
ensure that, during a release, all
necessary resources are in place for a
community notification system to
function and operate as expected will
help protect the public from accidental
releases. Furthermore, EPA agrees with
the recommendation offered in the
comments to enhance the provision.
EPA is therefore finalizing the proposed
provision with the following
modification as previously discussed—
revising the proposed provisions for 40
CFR 68.90(b)(6) and 68.95(a)(1)(i) to
specify that the owner or operator
should partner with local response
102 A jurisdiction 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; https://
www.fema.gov/emergency-managers/practitioners/
integrated-public-alert-warning-system/publicsafety-officials/sign-up.
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agencies to ensure a community
notification system is in place and to
document the collaboration.
3. Emergency Response Exercises, 40
CFR 68.96(b)
Field Exercises
a. Comments
Several commenters expressed
support for the 10-year timeline for
conducting field exercises. One of the
commenters noted that the timeline
would allow local responders to
maintain capabilities and familiarity
with facility processes for responding to
accidental releases. The same
commenters added that the timeline
also would allow industry to obtain
appropriate staff, experts, and funds. A
few commenters particularly expressed
support for EPA’s efforts to encourage
and require facilities to coordinate with
LEPCs in circumstances where it is
practical. Other commenters opposed
the proposed provision, with some
offering suggestions for improvement.
Several commenters noted that EPA
should recognize that not every location
has a functioning LEPC that can
coordinate field exercises with facilities
and that clear carve outs should be
established. The commenters suggested
that EPA allow facilities to demonstrate
a good faith effort to coordinate with
LEPCs or demonstrate the absence of an
LEPC as exemptions from this
requirement. A few commenters
expressed concerns regarding the
proposed requirement for State and
Federal approval of a change in
frequency. The commenters noted that it
would be inappropriate for EPA to
provide Federal and State officials veto
power over scheduling an exercise for
which they have no required role. One
of the commenters recommended that
EPA remove the reference to Federal
and State agencies, to clarify that RMP
facilities do not need to obtain approval
from Federal or State agencies if the
local emergency responders have
identified the frequency of an exercise
is impractical.
b. EPA Responses
EPA agrees with comments that
describe the varying capabilities of
LEPCs and responding agencies and
believes the approach the Agency offers
supports those comments. The Agency
believes the frequency exemption
provided, which allows facilities and
communities that do not have resources
to complete field exercises every 10
years to work together to determine a
lesser frequency, is more useful than the
Agency being more prescriptive about
when the frequency does not apply.
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EPA believes various communities have
different concerns as to why they would
need to conduct field exercises less
frequently and therefore does not expect
a one-size fits all approach to be
appropriate in accommodating those
various circumstances. Additionally,
EPA understands that there may be
cases where local emergency response
agencies are unable or unwilling to
coordinate with a regulated facility on
exercise frequencies. In such cases, the
owner or operator may establish
appropriate exercise frequencies and
plans on their own, provided they meet
the minimum requirements set forth in
40 CFR 68.96. The final rule will not
specifically require the owner or
operator to document unsuccessful
coordination attempts, but EPA believes
it will be in the owner or operator’s best
interest to do so and allow the owner or
operator to demonstrate their good faith
efforts for consultation in the event that
an implementing agency requests this
information.
In response to comments that EPA
should remove the reference to
consultation with Federal and State
agencies when developing field exercise
frequencies, EPA has amended the
language to reflect that the consultation
required for this provision need only be
with local emergency responding
agencies. EPA acknowledges that the
emergency response exercise program
provisions under 40 CFR 68.96(b), only
require coordination with local public
emergency response officials, and wants
to remain consistent with activities that
most likely will occur on the local level.
Therefore, EPA is finalizing the
requirement for facility owners and
operators to coordinate with local
emergency response officials to
establish an appropriate frequency for
field exercises at a minimum at least
once every ten years unless the
appropriate local emergency response
agencies agree in writing that such
frequency is impractical. EPA is not
finalizing the requirement for Federal
and State agencies to be consulted when
coordinating the 10-year (or other
determined) frequency.
Emergency Exercise Reports
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a. Comments
Several commenters expressed their
support for the requirement that the
current recommended field and tabletop
exercise evaluation report components
be mandatory. Other commenters
opposed the provision. One of the
commenters noted that EPA failed to
consider the paperwork burden, hours
and costs associated with requiring the
reporting of such information. One
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commenter mentioned that, in 2019,
EPA recognized 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. The commenter urged EPA
to retain this flexibility and not add this
requirement to the existing RMP rule.
Another commenter noted that the
proposed post-exercise reporting
requirements provide little value to the
program.
b. EPA Responses
EPA disagrees that the requirement of
this provision—to make the scope and
documentation requirements of the
exercise evaluation report mandatory—
is overly burdensome. While the
elements of the evaluation report were
not previously mandatory, there was
already a requirement to develop a
report. In most cases, for those
previously voluntary report elements,
particularly lessons learned and
recommendations for improvement,
EPA had expected these to be included
in the report, as they are advantageous
in assuring that over time emergency
response efforts improved. Other report
elements such as names and
organizations of each participant are
expected to be collected using low-cost
methods, such as sign-in sheets or
registration websites. Local emergency
response organizations participating in
exercises will also likely be able to
assist the owner or operator in
collecting and providing this
information. EPA has updated the RIA
to consider the minimal paperwork
hours and costs associated with this
provision.
The Agency acknowledges that it had
previously stated in the 2019
reconsideration rule that the scope and
documentation provisions left as
discretionary would allow owners and
operators to coordinate with local
responders to design exercises that are
most suitable for their own situations.
Different facilities use a variety of
emergency response equipment types
and may have many different actions
specified in their emergency response
plans. However, as discussed in the
proposal, EPA now finds it beneficial to
provide consistency between exercise
evaluation and incident investigation
documentation requirements, as
incident investigation reports can be
used to satisfy response exercise
evaluation report requirements under
the current rule. Since EPA cannot
anticipate all variations of incidents that
may occur, EPA also cannot anticipate
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17669
all variations of appropriate exercises.
The current provision for incident
investigation reports under 40 CFR
68.60 and 68.81 identifies general topics
that must be included in the report but
does not contain further prescriptive
requirements about how those topics
need to be addressed. Similarly, so will
similar general elements guide the
content of exercise evaluation reports.
The flexibility in both provisions allows
participants to develop an evaluation
that owners, operators, and responders
can learn from.
Upon consideration of comments,
EPA is finalizing the provision to
require mandatory reporting for exercise
evaluation reports as proposed.
VII. Information Availability
A. Summary of Proposed Rulemaking
EPA proposed to amend 40 CFR
68.210 by adding new paragraphs (d),
(e), and (f). Proposed 40 CFR 68.210(d)
required the owner or operator of a
stationary source to provide, upon
request by any member of the public
residing within six miles of the
stationary source, certain chemical
hazard information for all regulated
processes in the language requested.
EPA proposed to require the owner or
operator to provide, as applicable:
• Names of regulated substances held
in a process.
• Safety Data Sheets (SDS) for all
regulated substances at the facility.
• The facility’s five-year accident
history required under 40 CFR 68.42.
• Emergency response program
information concerning the source’s
compliance with 40 CFR 68.10(f)(3) and
the emergency response provisions of
subpart E, as applicable, including: (1)
Whether the source is a responding
stationary source or a non-responding
stationary source; (2) name and phone
number of local emergency response
organizations with which the owner or
operator last coordinated emergency
response efforts, pursuant to 40 CFR
68.180; and (3) for sources subject to 40
CFR 68.95, procedures for informing the
public and local emergency response
agencies about accidental releases.
• A list of scheduled exercises
required under 40 CFR 68.96.
• LEPC contact information,
including LEPC name, phone number,
and web address as available.
Proposed 40 CFR 68.210(e) required
the owner or operator to provide
ongoing notification on a company
website, social media platforms, or
through other publicly accessible means
that:
• Information specified in proposed
40 CFR 68.210(d) is available to the
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public residing within six miles of the
stationary source upon request. This
notification is required to: (1) Specify
the information elements, identified in
40 CFR 68.210(b), that can be requested;
and (2) provide instructions for how to
request the information.
• Identifies where to access
information on community
preparedness, if available, including
shelter-in-place and evacuation
procedures.
Proposed 40 CFR 68.210(f) required
the owner or operator to provide the
requested information under proposed
40 CFR 68.210(d) within 45 days of
receiving a request.
In addition to the proposed approach
to this information availability
provision, EPA also sought feedback on
if the 6-mile radius for requesting
information is appropriate, or if other
alternative distances would be more
suitable. The Agency also requested
specific information on the increased
likelihood of security threats arising
from dissemination of this information,
and which data elements, or
combinations of elements, may pose a
security risk if released to the public.
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B. Summary of Final Rule
EPA is finalizing 40 CFR 68.210 with
changes to address public comments,
including potential security concerns.
Under 40 CFR 68.210(d), the final rule:
• Expands the population eligible to
submit information requests to include
members of the public residing,
working, or spending significant time in
a 6-mile radius from the fenceline of the
facility, as opposed to just those
residing in a 6-mile radius.
• Includes a verification process to
confirm that members of the public
submitting information requests reside,
work, or spend significant time in the 6mile radius, and a recordkeeping
component of the requestors.
• Limits the language translations
offered for information available upon
request to at least two major languages
used in the community (other than
English), while the proposed rule would
have required the owner or operator of
a stationary source to provide
information in any language requested.
• Excludes dates of exercises
occurring within one year of the date of
request.
• Expands the list of information
required to be available upon request to
include declined recommendations
reported under 40 CFR 68.170(e)(7) and
68.175(e)(7) through (9).
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C. Discussion of Comments and Basis
for Final Rule Provisions
1. Requirement To Make Information
Available to the Public
EPA’s Proposed Approach
a. Comments
Several commenters generally
supported increasing information
sharing and provided further
recommendations in addition to the
provisions outlined in the proposed
rule.
Several other commenters generally
opposed the proposed information
availability requirements, including
those who opposed the provision
because it may create unintended
community anxiety. Several
commenters noted that due to the
complex technical information such as
SDSs, it will have limited value or use
to the public, and instead EPA’s efforts
should focus on improving the LEPC’s
ability to interpret the information. One
commenter noted that the LEPC should
be provided with relevant chemical
hazard information, which then could
be shared with local citizens. A
commenter stated that the general
premise that making the RMP more
accessible to the public will encourage
facility operators to be more safetyconscious via the imposition of
‘‘community pressure and oversight’’ is
misguided. The commenter added that
requiring members of the public to
‘‘pull’’ the information from the facility
does little to promote proactive safety
and accident/risk reduction at the
fencelines as that public member must
first have some idea that a facility
presents a risk.
Several commenters indicated that the
proposed information availability
requirements would be burdensome for
facilities. A few commenters stated that
EPA underestimates the costs to deliver
community information requests. One
commenter noted that facilities may not
have the expertise for communicating
the information as envisioned by EPA.
One commenter stated that the
requirement to disclose information
would potentially make facilities with
covered processes the target of high
volumes of requests submitted by
individuals or groups.
A few commenters noted that the
proposed requirements would be
duplicative of EPCRA. Some
commenters recommended EPA
consider existing programs that already
require facilities to report specific
information.
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b. EPA Responses
EPA continues to believe that
providing chemical hazard information
to the general public will allow people
that live or work near a regulated
facility to improve their awareness of
risks to the community and to be
prepared to protect themselves in the
event of an accidental release. The
public’s ability to participate in
emergency planning and readiness is
enhanced by being better informed
about accident history, types of
chemicals present, and how to interact
with the stationary source. In drafting
both the proposed and final rule, EPA
has been selective in identifying what
information a source must make
available; for example, the Agency has
not required the facility to provide an
entire RMP to the public.
The Agency disagrees that community
involvement in prevention and response
planning, which in effect is a form of
oversight and may be perceived as
‘‘pressure,’’ does not have value in
minimizing the likelihood of accidental
releases and in improving the responses
to such releases. The statute itself
provides support for the Agency’s
position by generally making RMPs
available to the public, subject to
limited restrictions (42 U.S.C. 7414(c),
42 U.S.C. 7412(r)(7)(H)). In the 2022
SCCAP proposed rule, the Agency
discussed its multiple means of access
to information about a source to
facilitate involvement about the risks a
source presents (87 FR 53602). The
Agency believes every RMP regulated
source presents some level of risk, as
each regulated source stores and
manages toxic or flammable substances
which may be accidentally released.
Having the source provide the
information set out in 40 CFR 68.210
directly to the public within the
confines of the final rule promotes
accident prevention and response by
facilitating public participation at the
local level.
Under CAA section
112(r)(7)(H)(ii)(I)(bb), EPA conducted a
benefits assessment in 2000, describing
the benefits of providing community
access to OCA information specifically
but also addressing the benefits of
public disclosure of risk management
plan information. EPA found that public
disclosure of risk management plan
information would likely lead to a
reduction in the number and severity of
accidents.103 It also found that
comparisons between facilities,
103 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, at 2.
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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. The
approach taken in this final rule builds
upon the planning approach of EPCRA
and EPA studies of the value of ‘‘right
to know’’ in emergencies.
While EPA acknowledges the
potential for ‘‘community anxiety’’ as a
result from the affected public having
easier access to information about safety
risks, public participation in the prerulemaking listening sessions and
during the public hearings in this
rulemaking demonstrate that anxiety
among the public near facilities already
plainly exists as a result of the more
cumbersome disclosure authorizations
of the current rule. The Agency expects
a more informed and involved public, as
a result of this final rule, to have less
fear of the unknown.
In response to commenters
recommending that the facility share the
information with the LEPC, which
would then be responsible for sharing
the information with interested
members of the public, EPA notes
analysis of active facility risk
management plan submissions
demonstrates that 10 percent of active
facilities have not provided the names
or information about their LEPCs.
Without further 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 Freedom
of Information Act (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. Therefore, EPA believes
that providing information solely to
LEPCs would not be sufficient or
improve safety as effectively as
additionally requiring that information
be provided directly to the affected
public.
Regarding comments on the burden of
the information availability
requirements, EPA notes that other
statutes and regulatory programs, or
other provisions of the RMP, require the
stationary source to assemble the
information that the rule makes
available upon request (e.g., accident
history, SDSs, and aspects of the
emergency response program). Thus, the
burden of making this information
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directly available from the source is
minimal.
Regarding comments stating that the
proposed requirements are duplicative
of existing reporting requirements, EPA
believes, for the reasons already stated,
that this information should be more
easily accessible to the public than the
existing approaches to access
information under EPCRA and other
programs/regulations.
Translation Requirements
A commenter stated that the
information should be provided in plain
language and in multiple languages.
Another commenter stated it is difficult
for facilities to translate technical
information into multiple languages. A
couple of commenters noted that the
proposed translation requirements go
beyond EPA authority and would be
burdensome and costly.
The final rule requires that language
translations be offered in at least two
other major languages in the
community. EPA expects owners and
operators to use the most recent Census
Language Use data,104 or other recent
authoritative information,105 to
determine the two major languages
spoken in a comparable size designation
to the six-mile or worst-case release
scenario distance radius of their facility.
EPA believes this will provide the vast
majority of the surrounding community
with the information requested and
account for language barriers while
minimizing burden to facilities.
Requiring translation in up to two of the
major non-English languages of the
community reflects a balance of the
right-to-know purposes of CAA section
112(r)(7)(B)(iii) with the time and
financial burden of providing such
translations. The Agency believes
community involvement is integral to a
well-functioning accident prevention
program, and the translation
requirement promotes accomplishing
this objective.106
Notification Requirements
One commenter noted that the
information available to the public is
meaningless if the public does not know
104 https://data.census.gov/table?t=Language+
Spoken+at+Home.
105 https://www.lep.gov/language-accessplanning.
106 While not the basis of this provision, these
language translation requirements advance the
policies in Executive Orders 13166 and 14096: 88
FR 25251 (April 26, 2023), https://www.federal
register.gov/documents/2023/04/26/2023-08955/
revitalizing-our-nations-commitment-toenvironmental-justice-for-all; 65 FR 50121 (August
16, 2000), https://www.federalregister.gov/
documents/2000/08/16/00-20938/improving-accessto-services-for-persons-with-limited-englishproficiency.
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it exists. Therefore, the commenter
suggested that EPA require facilities to
provide notice to communities within
six miles that they have the right to
request this information.
EPA agrees with the commenter that
the information availability
requirements are most impactful if the
public is aware of the availability of the
information. Therefore, EPA is
finalizing the proposed requirements
that the owner or operator of the facility
provide ongoing notification on either a
company website, social media
platforms, or through other publicly
accessible means, that facility
information is directly available to the
public within six miles upon request.
45-Day Disclosure Timeline
A few commenters suggested EPA
shorten the required response time. A
couple of commenters specifically
expressed concern that the 45-day
period to receive information once
requested is too long for people to wait
for that urgently needed information.
EPA is finalizing the 40 CFR 68.210(g)
requirement that the facility owner or
operator provide the information under
40 CFR 68.210(d) to the requester within
45 days of receiving a request. EPA
selected 45 days because that timeframe
is consistent with the requirement for
the public availability provision of
facility chemical inventory information
(i.e., ‘‘Tier II information’’) under
section 312(e)(3)(D) of EPCRA, which
states, ‘‘a State emergency response
commission or LEPC shall respond to a
request for Tier II information under
this paragraph no later than 45 days
after the date of receipt of the request.’’
EPA believes the 45-day timeline
appropriately balances the burden
imposed on facilities to keep chemical
hazard information updated and the
need to provide the public with timely
access to this information. EPA
encourages facilities to update their
chemical hazard information as needed
to ensure that accurate information can
be made available to the requester
within the required timeframe.
Suggestions for EPA To Disclose Facility
Information
Many commenters suggested that EPA
create an online database to contain
information from facilities. A couple of
commenters stated that it is essential for
EPA to take prompt action to provide
publicly accessible information on RMP
facility hazards and safety plans on the
Agency’s website. Similarly, a few
commenters stated that EPA should
develop, maintain, and update a public,
multilingual online database containing
non-protected RMP information.
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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 section 112(r)(7)(H) and its
implementing regulations in 40 CFR
part 1400. As described in the 2022
SCCAP proposed rule, EPA intends to,
at a prospective date, begin publishing
non-OCA risk management plan data
annually, less any CAA section
112(r)(7)(H) protected sensitive
information (87 FR 53602). The
discussion in the proposed rule was
intended to highlight some of the issues
that are relevant to relaxing restrictions
on data availability.
Environmental Justice and Fenceline
Communities
Several commenters recommended
EPA consider EJ and fenceline
communities when developing
information availability provisions,
including, by championing community
information as a fundamental EJ goal.
One commenter suggested that EPA
inform fenceline communities that they
live near an RMP facility because,
oftentimes, people are unaware that
they live near RMP facilities.
EPA has considered impacts and risks
to local communities, including
communities with EJ concerns and
fenceline communities throughout the
rulemaking process. EPA believes that
the final information availability
provision makes significant
improvements to provide more
information to the public, including
communities with EJ concerns and
fenceline communities.
2. 6-Mile Radius
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a. Comments
A few commenters supported EPA’s
proposed approach of the 6-mile radius
for requesting information.
Several commenters recommended
EPA abandon any geographic limitation
and instead make basic emergency
preparedness information commonly
available to the public. One commenter
emphasized that the proposed rule
violates FOIA as non-OCA RMP data are
public information. The commenter
noted that EPA cannot deny public
access to this information. The
commenter also noted that this
restriction would violate 42 U.S.C.
7412(r)(7)(B), which requires EPA to
provide prevention, incident detection,
and response ‘‘to the greatest extent
practicable.’’ One commenter stated that
the proposal’s within 6-mile residency
requirement creates an unnecessary
obstacle to accessing information that
could undermine EPA’s goals to address
EJ, especially as people in fenceline
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communities may not have a trusting
relationship with government
authorities, a home address, or
documented status to demonstrate their
residency. The commenter requested
EPA eliminate the requirement that
community members demonstrate they
live within six miles of a facility to
access information.
Several commenters suggested that
the 6-mile radius lacks justification and
is arbitrary. Some of the commenters
expressed concerns that residents could
use a P.O. Box within 6-miles of a
facility to obtain access to and share
information. Several commenters noted
there are no means to retain or prevent
information from being shared outside
of its intended use.
Many of the commenters referenced
social media and other web-based
networks as means of quickly spreading
sensitive information. Some
commenters added that terrorists and
criminals would be able to readily
obtain sensitive information and could
easily falsify their identity or location.
Several commenters requested EPA to
clarify what is meant by the requirement
of a person to ‘‘reside’’ within six miles
of a facility and how a facility will be
able to verify the information.
A couple of the commenters suggested
EPA build upon existing programs and
safeguards, such as LEPCs, to protect
sensitive chemical information instead
of choosing to impose an arbitrary 6mile threshold. One commenter added
that EPA did not explain how the 6-mile
radius requirement builds on existing
regulatory programs designed by
Department of Homeland Security
(DHS) and EPA to safeguard sensitive
information. One commenter
recommended that anyone requesting
information should be required to
complete a mandatory background
check before any information is shared.
Another commenter stated that EPA
should not put the responsibility of
vetting community members on
facilities.
b. EPA Responses
EPA believes the 6-mile radius
restriction to be reasonable, as 90
percent of all toxic worst-case distances
to endpoints are within six miles or less,
and almost all flammable worst-case
distances are less than 1 mile (87 FR
53601). The 6-mile radius for being able
to request information from facilities
allows people in most areas potentially
impacted by a worst-case scenario to
have access to information while also
providing a limit on widespread access
to nationwide assembly of data. EPA
agrees with commenters that allowing
only those individuals that reside
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within the 6-mile radius to access
information is too limited and has thus
expanded the provision in the final rule
to also allow members of the public
working or otherwise spending
significant time in the 6-mile radius to
request information from a facility.
The 6-mile radius limitation also
seeks to limit the potential security risk
of allowing anonymous confidential
access to this information to the entire
public that was of concern to EPA in the
2019 reconsideration rule. This
approach strikes a better balance
between those security concerns and the
interests of people spending significant
time near facilities who could benefit
from the information, including
personal preparedness in the event of an
accident, knowledge of potential risks
and safety conditions where one lives,
and more informed participation in
community emergency and safety
planning.
EPA is also clarifying in the final rule
that the 6-mile radius is from the
fenceline of the facility. EPA expects
that in most cases, six miles from the
fenceline is the appropriate definition,
as opposed to six miles from process
locations or any other location at the
facility, because this consistent
approach captures the wide variations
of facility size, process locations and
any process movement within the
facility. It is also simpler to verify for
the public and oversight agencies and
does not require revealing of the precise
location of the place in the process from
which a release could occur, which may
raise security concerns.
In response to comments requesting
clarification on what it means for a
person to ‘‘reside’’ within six miles of a
facility, the final rule specifies that
members of the public residing,
working, or spending significant time in
a 6-mile radius from the fenceline of the
facility are able to submit information
requests to a source. EPA interprets
residing as occupying a dwelling
(owning or renting), working as having
paid employment, and spending
significant time as frequently using
services, volunteering, visiting with
family or friends, etc.
Regarding concerns about the
verification of the identity of members
of the public requesting information,
EPA is requiring sources to provide
instructions for how to request the
information, which should include the
necessary verification components for
the public within a 6-mile radius of the
facility. Nothing in the rule requires a
facility to accept a mere P.O. Box
address as evidence of residence,
employment, or presence within the 6mile radius. For this final rule, EPA is
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also requiring owners and operators to
maintain a record of the requestors. The
final rule leaves substantial flexibility
for facilities to design a process for
obtaining verification and keeping
records of requestors that allows for
facilities to have a suitable, minimally
burdensome process for themselves and
the community. The final rule allows for
a straightforward process that does not
hinder the right of the public to access
this information, allows facilities to be
aware who has their information, and
permits oversight by implementing
agencies. However, as this is a
performance-based provision, just as
most components of the rule, EPA
recognizes that there is not a one-size
fits all approach that works best for
notifying the public that this
information is available and verifying
presence within a 6-mile radius. EPA
expects facility owners and operators to
notify the public that information is
available in a variety of ways, such as
using free or low-cost internet
platforms, and social media tools that
are designed for sharing information
with the public. EPA also expects
verification of the population within the
6-mile radius to be carried out through
many methods, such as asking a
member of the public to provide a
utility bill for verification of residence,
pay stub for verification of employment,
or specific documentation to verify
significant time spent within the 6-mile
radius. EPA encourages the facility
owner or operator to coordinate
information distribution and
verification requirements with the LEPC
or local emergency response officials to
determine the best way to reach public
stakeholders. EPA notes that the owner
or operator shall document the method
and the location of the notification in
the RMP pursuant to 40 CFR
68.160(b)(22).
The 6-mile radius provision
reasonably and practicably balances
enhancing means of access for affected
communities while also limiting
security concerns about widespread,
anonymous access that raised concerns
in EPA’s 2019 reconsideration rule.
Further, the final provisions do not limit
or violate FOIA rights of the public to
obtain Government-held records.
3. Data Elements To Be Released to the
Public
a. Comments
In the preamble of the proposed rule,
EPA solicited comment on its
announcement of its policy decision
that, at some future date, EPA would
post online portions of the RMP
database that do not contain legally
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restricted information or information
that raises significant security concerns.
The Agency solicited comments to help
identify such information. The comment
solicitation did not propose regulatory
changes, but instead sought public input
on a policy position. Nevertheless,
because some of the data elements EPA
is considering releasing through policy
change are the same data elements
facilities will be required to disclose
under the information availability
regulatory provision in this final rule,
discussion of the comments and the
Agency’s rationale of releasing those
data elements, through a future policy
change and in this final rulemaking, is
provided here.
In response to this comment
solicitation, many commenters
discussed data elements that should not
be publicly released in order to avoid
security threats. One commenter stated
that security sensitive information, such
as OCA data, should only be publicly
accessible through Federal Reading
Rooms. A few commenters listed
specific elements that should not be
publicly available, citing a potential
increased vulnerability to terrorist
attacks.
Data elements noted by commenters
as posing security threats if released to
the public, which the commenters
argued should therefore not be
disclosed, include:
• Chemical hazard information.
• Specific substance names and
hazard characteristics.
• Names of regulated substances held
in a process, SDSs, and any site-specific
information.
• Information regarding hazardous
substances on site.
• Storage location and transportation
information.
• Emergency response details.
• Audit reports and exercise
schedules and summaries.
• Accident history.
One commenter stated that sensitive
information, such as audit reports,
exercise schedules and summaries, and
emergency response details, does not
prevent accidents or reduce potential
harm, but does increase the
vulnerability of a facility to attacks by
terrorists or other criminals. One
commenter stated that specific
information regarding security threats is
held by DHS, and providing
documented security threats, or security
risks from prior incidents or near
misses, provides a road map for bad
actors and propagates future security
threats.
A couple of commenters noted that
some information, including CBI and
trade secrets, should not be shared with
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the public. Another commenter stated
that proprietary information about
processes and chemicals should be in
the safety plan without disclosing
details that would allow the methods,
procedures, or other intellectual
property to be stolen. One commenter
noted that EPA should reinstate
previous language that enabled facilities
to assert a claim of business
confidentiality regarding any
information they are required to make
public under the RMP rule.
b. EPA Responses
The responses below address
comments concerning the data elements
required to be released by the source
upon request. Additionally, EPA will
consider the input from the commenters
when the Agency proceeds with a
policy decision on whether to put some
portions of the RMP database online
again in the future. As such, the
responses that immediately follow are
also provided to facilitate public
dialogue about implementing EPA’s
potential policy change.
EPA agrees with commenters that
suggested only information that could
improve community awareness of risks
should be made available to the public.
Having the source provide the
information set out in 40 CFR 68.210
directly to the public promotes accident
prevention by facilitating public
participation at the local level. It should
be noted that EPA has been selective in
identifying what information a source
must make available; for example, the
Agency will not require the facility to
provide an entire RMP to the public.
EPA believes the public has a
substantial interest in knowing what
chemicals are present in the community
and what it should do in the event of
an accidental release involving facilities
handling those chemicals. The public
also has a substantial interest in having
the opportunity to participate in an
informed manner regarding emergency
planning in its community. Facilitating
access to information before an incident
promotes more effective communication
of information during responses to
incidents, and thus promotes more
effective response programs. (See the
requirement in CAA section
112(r)(7)(B)(ii)(III) for response
programs to address informing the
public.) The public’s ability to
participate in emergency planning and
readiness is materially advanced by
being better informed about accident
history, types of chemicals present, and
how to interact with the stationary
source. Nevertheless, of the information
options proposed, EPA acknowledges
some security concerns with releasing
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information identifying actual
upcoming dates of tabletop or field
exercises. EPA is therefore requiring
facilities to provide a list of exercises
that will occur within the year,
indicating that they will occur, rather
than identifying the specific date they
will occur.
Although commenters did not
explicitly request that the list of
information required to be available
upon request should include declined
recommendations from new provisions,
EPA is including this within the final
rule. EPA intended this information to
be available as the Agency indicated in
the proposal that including this
information in the RMP would
ultimately enable the public to ensure
facilities have conducted appropriate
evaluations to address potential hazards
that can affect communities near facility
fencelines. When local citizens have
adequate information and knowledge
about facility hazards, EPA believes that
facility owners and operators may be
motivated to further improve their
safety in response to community
pressure and oversight.
At this time, EPA will not require the
owner or operator to make additional
information available to the public, such
as STAA reports, incident investigation
reports (with root cause analyses), and
third-party audit reports. EPA
acknowledges there is public interest in
having these reports available to them,
but these documents, which can be
lengthy (e.g., the sectors subject to
STAA requirements have multiple
processes and some PHAs are hundreds
of pages), technically complex, and
could contain not only CBI, but
sensitive security information involving
process or equipment vulnerabilities.
Even sanitizing submitted documents
and providing upfront justification of
CBI claims would entail a significant
level of burden upon industry and EPA.
It would not be practical or a good use
of resources to have thousands of
documents submitted to EPA, to any
other body, or with the RMP
submission. However, EPA may explore
opportunities to simplify this
information for public access in a future
rulemaking.
EPA is committed to safeguarding
OCA information in accordance with
requirements specified in the
CSISSFRRA, which allows for any
member of the public to access paper
copies of OCA information for a limited
number of facilities. This OCA
information remains accessible to the
public only in Federal Reading
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Rooms 107 or upon voluntary disclosure
by the source itself. CAA
section112(r)(7)(H)(v)(III).
EPA has received comments in the
past with concerns regarding CBI and
directs these commenters to the
requirements in 40 CFR 68.152 for
substantive criteria set forth in 40 CFR
2.301. EPA acknowledges and shares
industry’s concerns pertaining to
protection of CBI information, but EPA
believes that the Agency has addressed
these concerns by providing the same
CBI protections for the public
information availability provisions that
exist for the RMP under 40 CFR 68.151
and 68.152 as for information contained
in the RMP required under subpart G.
As provided under 40 CFR 68.151(b)(3),
an owner or operator of a stationary
source may not claim five-year accident
history information as CBI. As provided
in 40 CFR 68.151(c)(2), an owner or
operator of a stationary source asserting
that a chemical name is CBI shall
provide a generic category or class name
as a substitute. CBI disclosure under
EPCRA is controlled by that statute and
rules implementing the information
access provisions of EPCRA.
Furthermore, EPA is not requiring
STAA reports to be submitted to LEPCs
or the public in the final rule, and,
therefore, no CBI concerns exist for
these reports. If an owner or operator
has already claimed CBI for a portion of
the RMP, then that claim still applies for
the disclosure elements in the
information availability provisions of
the rule. The owner or operator should
provide a sanitized version as described
in the RMP*eSubmit User’s Manual.
This policy is consistent with existing
RMP guidance and practices.
4. Security Concerns
a. Comments
A few commenters stated that there is
no evidence that increasing information
availability leads to security issues.
Another commenter noted that there is
no evidence that community members
have caused a chemical disaster or that
they pose any security risk. The
commenter stated that a valuable way to
address any security risks is to provide
full public transparency and give
facilities more incentive to prevent
disasters by reducing or minimizing
hazards up front. One commenter noted
that eliminating chemical hazards and
reducing risks present at industrial
chemical facilities will not only prevent
disasters in the event of an accident but
will also prevent and reduce harm in
107 https://www.epa.gov/rmp/federal-readingrooms-risk-management-plans-rmp.
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the event of an intentional act, such as
a cyberattack.
Several commenters emphasized
security risks of the proposed rule,
including risks of terrorist attacks or
criminal activity. One commenter stated
that the proposed information
disclosure requirements raise security
risks and impose significant burdens
with no added benefit. Another
commenter noted that providing
additional sensitive accident
investigation and chemical information
to the public could result in a national
homeland security concern.
Several commenters noted the
additional risks of cybersecurity attacks.
A commenter added that other Federal
agencies opposed these requirements,
citing security concerns detailed in a
2000 report issued by the Department of
Justice (DOJ). A couple of commenters
noted that other Federal agencies raised
security concerns with the proposed
disclosure requirements during
interagency review.
Several commenters recommended
that EPA withdraw its proposed
information sharing provisions due to
conflicts with information security
protocols under DHS Chemical Facility
Anti-Terrorism Standards (CFATS)
regulations. One commenter noted that
the availability of information
requirements included in the proposed
rule are in conflict with CSISSFRRA,
U.S. Department of Transportation
(DOT) Regulations, and DHS
Regulations. A few commenters noted
that the proposed public disclosure
requirement is contrary to the Critical
Infrastructure Information Act of 2002,
and one commenter noted it is also in
conflict with the Maritime
Transportation Security Act. One
commenter noted that EPA’s proposed
information disclosure requirements
may conflict with existing DHS
regulations restricting the disclosure of
Chemical-terrorism Vulnerability
Information (CVI).
b. EPA Responses
EPA acknowledges the security
concerns raised by commenters and is
committed to ensuring a balance
between making information available
to the public while also safeguarding
that information. EPA worked closely
with Federal partners, including the
DHS and the Federal Bureau of
Investigation (FBI), to develop
information availability requirements
that strike a balance between security
concerns and the need for sharing
chemical hazard information with the
public. EPA believes that the finalized
approach is consistent with existing
requirements to secure sensitive
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information. EPA also believes the
current approach to notify the public
that information is available upon
request strikes an appropriate balance
between various concerns, including
information availability, community
right-to-know, minimizing facility
disclosure burden, and minimizing
information security risks.
EPA believes the information
disclosures required by the final rule are
fully consistent with the statutes and
regulatory programs identified by the
commenters as enacted after the 1990
CAA Amendments. For example,
CSISSFRRA specified that portions of
RMPs containing ‘‘offsite consequence
analysis information’’ (OCA
Information), any electronic data base
created from those portions, and any
statewide or national ranking derived
from such information is subject to
restrictions on disclosure under CAA
sections 112(r)(7)(H)(i)(III) and
112(r)(7)(H)(v). Regulations jointly
promulgated by EPA and the DOJ
further define OCA Information in 40
CFR 1400.2(j). The final rule will not
require disclosure of release scenarios or
rankings based on such scenarios, nor
will it make available any information
based on such scenarios. First, the
Critical Infrastructure Information Act
restricts information ‘‘not customarily in
the public domain.’’ Further, CFATS
creates a category of information, CVI,
which protects certain information
submitted to DHS and necessary to
implement CFATS (see 6 CFR 27.400).
In promulgating CFATS, DHS
announced its intent to preserve Federal
release disclosure, emergency planning,
and accident prevention statutes,
including EPCRA and CAA section
112(r) (see 72 FR 17714, April 9, 2007).
In this final rule, EPA creates no tension
between after-enacted programs and
enhancement of the RMP. The
information that the final rule requires
facilities to disclose largely draws on
information otherwise in the public
domain and simplifies the public’s
access to it. EPA has acknowledged that
there would be some value to
assembling a centralized, anonymously
accessible government database of
already-public information relevant to
identifying and prioritizing facilities for
potential impacts. However, this final
rule does not create a central database
of the information required to be
disclosed, nor does it permit
anonymous access. The limits on
disclosure and access are important
steps to minimize security risks. EPA
has therefore coordinated with both the
DHS Cybersecurity & Infrastructure
Security Agency (CISA) which manages
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the CFATS program and the FBI in
order to take steps that will balance
accident prevention and security
interests.
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.108 109 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.110 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 section 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,111
108 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.
109 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.
110 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.
111 Holly Carter, John Drury, and Richard Amlo
ˆ t,
‘‘Recommendations for Improving Public
Engagement with Pre-incident Information
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17675
which DOJ also recognized in its 2000
risk assessment.112 With over 20 years
of data now, EPA has based many of the
finalized 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.
Commenters have referred to certain
comments from other agencies in
connection with drafts of prior RMP
rulemakings. The cited material
appeared in the docket as required by
CAA section 307(d)(4)(B)(ii). Such
material is explicitly excluded from the
record for judicial review under CAA
section 307(d)(7)(A). The introduction
of this material into the record by these
commenters is an attempt to avoid the
exclusion under CAA section
307(d)(7)(A). Moreover, the comments
addressed early stages of the rules that
prior Administrators signed, and not the
versions of prior proposed and final
rules that were published, and do not
reflect the ultimate positions of sister
agencies with respect to what was
published.
Regarding concerns that the 2000 DOJ
report is in conflict with the information
availability requirements, EPA believes
the 6-mile radius provision ensures that,
even if community members obtain
information related to OCA data, it
would require a difficult nationwidecoordinated effort among people within
six miles of each facility to create the
type of online database described in
DOJ’s report. The 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 4
years.
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.
112 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.
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VIII. Other Areas of Technical
Clarification/Enforcement Issues
A. Summary of Proposed Rulemaking
1. Process Safety Information, 40 CFR
68.65
EPA proposed to refine the language
of 40 CFR 68.65 to clarify that the
requirement to keep PSI up to date
explicitly applies to Program 3
processes.
2. Program 2 and 3 Requirements for
Compliance With RAGAGEP, 40 CFR
68.48 and 68.65
EPA proposed to harmonize 40 CFR
68.48(b) and 68.65(d)(2) so that the
requirements for compliance with
RAGAGEP for Program 2 and Program 3
processes are identical. Specifically,
EPA proposed to require that Program 2
processes and Program 3 processes
document compliance rather than
merely ‘‘ensure’’ compliance. EPA also
proposed to remove the sentence
‘‘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.’’
3. Retention of Hot Work Permits, 40
CFR 68.85
EPA proposed to require retention of
hot work permits for five years, in
accordance with the recordkeeping
requirements in 40 CFR 68.200.113
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4. Storage Incident to Transportation, 40
CFR 68.3
EPA proposed 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 proposed to
apply a 48-hour time frame to this term.
EPA also proposed 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 clarify that for RMP
purposes, railyards and other stationary
sources actively engaged in transloading
activities may store regulated substances
113 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.’’
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up to 48 hours total in a disconnected
transportation container without
counting the regulated substances
contained in that transportation
container toward the regulatory
threshold.
In addition to the proposed approach,
EPA requested comment on 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.
5. Retail Facility Exemption, 40 CFR
68.3
EPA proposed 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.
6. RAGAGEP Gap Analysis, 40 CFR
68.69 and 68.175
EPA proposed that the RMP
regulations clarify that PHAs must
include an analysis of the most recently
promulgated RAGAGEP in order to
identify any gap between practices
related to the facility’s design,
maintenance, and operation, and the
most current version of RAGAGEP.
EPA also proposed 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 were not
implemented. EPA proposed to allow
facilities to choose from pre-selected
categories to provide justification for not
implementing recommendations.
B. Summary of Final Rule
EPA is not finalizing the proposed
supplementary storage incident to
transportation language at 40 CFR 68.3.
EPA is finalizing the provisions for
PSI, Program 2 and 3 requirements for
compliance with RAGAGEP, and the
RAGAGEP gap analysis as proposed.
EPA is finalizing the retention of hot
work permits and retail facility
exemption proposed changes with the
following modifications:
• Revising 40 CFR 68.85(b) to require
retention of hot work permits for three
years rather than five.
• Revising 40 CFR 68.3 to clarify that
‘‘year,’’ in the context of the definition
of ‘‘retail facility,’’ can be calendar or
fiscal year.
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C. Discussion of Comments and Basis
for Final Rule Provisions
1. Process Safety Information
a. Comments
A couple of commenters expressed
support for EPA’s proposal to clarify
that the requirement to keep PSI up to
date explicitly applies to Program 3
processes. Several commenters stated
that the proposal to update the PSI
requirements is unnecessary, redundant
with OSHA PSM requirements, and
burdensome. Another commenter
asserted that EPA should not amend 40
CFR 68.65(a) as proposed and should
instead adhere to the existing regulatory
language for Program 3 sources to
ensure that the long-standing
consistency between the RMP and PSM
standard remain. Some of the
commenters also stated that
implementation would result in
unnecessary costs on facilities. One
commenter noted that, as currently
written, the regulation does not impose
a continuing obligation to maintain PSI.
The commenter noted that as PHAs are
conducted on five-year cycles, the
applicable PSI need only be compiled
on a corresponding five-year cycle and
requiring that PSI be kept up to date
will have associated costs that need to
be accounted for in the RIA.
b. EPA Responses
EPA appreciates the support for the
Agency’s clarifications to the PSI
requirements and is finalizing the
provision as proposed. EPA believes
that refining the language of 40 CFR
68.65 to reflect existing requirements
clarifies that such PSI is required to be
up to date for Program 3 processes—just
as it is for Program 2 processes—
without the need for evaluating
compliance with management of
change, conducting a pre-startup safety
review, or meeting PHA requirements.
EPA disagrees that clarifying the PSI
requirements is unnecessary. For
processes subject to Program 3
requirements, the PSI requirements
under 40 CFR 68.65 do not explicitly
address updating PSI. 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 prestartup review requirements in 40 CFR
68.77, and the requirement to document
that equipment complies with
RAGAGEP in 40 CFR 68.65(d)(2). EPA is
simply clarifying the PSI requirements
in order to make the regulation more
consistent throughout.
Additionally, EPA disagrees that the
regulation, as currently written, does
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not impose a continuing obligation to
maintain PSI. The requirement in 40
CFR 68.75(d) that PSI must be updated
to reflect changes implies that PSI must
be maintained. Further, the requirement
to ‘‘document compliance with
RAGAGEP’’ additionally supports that
current PSI shall be maintained, since
compliance cannot be documented
without the maintaining of current PSI
documents.
In response to comments that the
updated PSI requirements would be
inconsistent or redundant with OSHA’s
PSM requirements, EPA disagrees. EPA
has coordinated with OSHA throughout
the rulemaking process to ensure the
intent of adding specificity and
clarification to the RMP regulations
does not create conflicting requirements
with OSHA’s PSM standard.
EPA disagrees that this modification
will result in unnecessary costs on
facilities. The intent of the changes to
the regulatory text is to simplify
implementation for facilities, as well as
oversight, thereby improving chemical
safety. The amendments do not change
the meaning of the RMP rule. Therefore,
EPA does not expect the changes to
result in any additional costs for
facilities.
2. Program 2 and 3 Requirements for
Compliance With RAGAGEP
ddrumheller on DSK120RN23PROD with RULES3
a. Comments
A couple of commenters supported
EPA’s proposal to clarify RAGAGEP
requirements for Program 2 and Program
3 processes. One commenter stated that
it is important to clarify the RAGAGEP
requirements because codes, standards,
and practices change over time. The
commenter also urged EPA to
strengthen the proposed changes by
expanding the scope of applicability of
the RAGAGEP requirement to cover all
facilities. The commenter noted that the
CAA directs EPA to ensure RAGAGEP is
fully included in the assessment and
process safety requirements, and
mandates implementation ‘‘to the
maximum extent practicable.’’ Another
commenter stated that the industrywide understanding of the RAGAGEP’s
meaning varies widely, and the
proposed clarification may help
alleviate this problem and address the
concern that Federal and State
regulations may lag behind recognized
industry standards for safety.
A couple of commenters stated that
the requirement that owners ensure and
document that processes are designed in
compliance with RAGAGEP is an
already-existing PSM requirement, and
revisions to the text are therefore not
necessary. A couple of commenters
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opposed removing the sentence,
‘‘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.’’ One commenter stated
that if EPA feels that Federal or State
regulations lag behind current
RAGAGEP, then the Agency should
advocate for those specific Federal or
State regulations to be updated. The
other commenter stated that the CAA
does not grant EPA the authority to
substitute compliance with current
RAGAGEP for compliance with
promulgated OSHA regulations.
b. EPA Responses
EPA is finalizing the proposed
changes to the regulatory language. EPA
agrees that doing so will clarify the
requirements and address the concern
that Federal or State regulations may lag
behind current RAGAGEP. At this time,
EPA is not expanding the scope of RMP
applicability of RAGAGEP beyond
Program 2 and 3 processes. EPA does,
however, encourage all facilities to use
RAGAGEP as it reflects well known
industry practices and lessons learned
shown to improve process safety and
prevent accidents.
EPA disagrees that the changes to the
regulatory language are unnecessary.
EPA has found that the distinction
between ‘‘ensure’’ for Program 2
processes and ‘‘document’’ for Program
3 processes creates confusion, and
requiring facilities to ‘‘document’’
compliance, rather than merely
‘‘ensure’’ compliance, removes this
ambiguity. With regards to Federal or
State regulations that lag behind current
RAGAGEP, EPA notes there is a
difference when updated codes augment
existing regulations versus when they
conflict. To the extent they conflict,
existing regulations reign over new
RAGAGEP. However, if a facility can
comply with existing regulations and
new RAGAGEP, then there is an
obligation to comply with both. EPA
believes this provision will help resolve
confusion when more current
RAGAGEP identify potential
shortcomings in a facility’s process.
EPA has coordinated with OSHA
throughout the rulemaking process to
ensure the intent of adding specificity
and clarification to the RMP regulations
does not create conflicts with the
requirements of the OSHA PSM
standard.
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3. Retention of Hot Work Permits
a. Comments
A few commenters expressed support
for the proposed five-year retention
period for hot work permits. One of the
commenters stated that the provision
advances the rule’s directive to ensure
prevention and compliance to the
greatest extent practicable and assures
compliance as expeditiously as
practicable. Another commenter stated
that these simple recordkeeping
requirements are not burdensome,
contribute to further safety, and can
help demonstrate compliance in the
event of an audit.
Several commenters stated that the
retention of hundreds of expired hot
work permits for five years is
unnecessary and creates a substantial
recordkeeping and administrative
burden for facilities. A few commenters
noted that retaining the hot work
permits for five years provides no added
safety benefits to the facility or
surrounding community. A commenter
pointed out that facilities are already
required to conduct compliance audits
on three-year intervals and to retain the
two most recent compliance audit
reports, meaning that compliance audit
documentation will be retained for at
least six years. The commenter stated
that these audits will review hot work
compliance and are available to
implementing agency personnel;
therefore, the proposed hot work permit
retention requirement is excessive in
proportion to the marginal benefit to
implementing agencies.
A couple of commenters noted that
OSHA does not require that permits be
retained beyond the completion of the
hot work task. Similarly, another
commenter pointed out that EPA failed
to acknowledge that a five-year record
retention period for hot work permits
would break from the existing PSM rule,
where OSHA requires hot work permits
to be maintained only during the hot
work. The commenter recommended
that EPA maintain consistency with the
PSM rule. Another commenter agreed
that there should be no requirement to
retain hot work permits beyond the
completion of the hot work authorized
by each permit.
Some commenters suggested retaining
hot work permits for periods of time
other than five years. A few commenters
specified that a one-year retention
requirement would be more appropriate.
One commenter recommended reducing
the retention period from five years to
three years, since the three-year period
is consistent with the three-year audit
period under 40 CFR 68.58 and 68.79
for Program 2 and 3 facilities.
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b. EPA Responses
EPA agrees that adding a requirement
to retain hot work permits after the
completion of operations would help
ensure prevention and compliance to
the greatest extent practicable and
contribute to further safety. However,
based on comments on the proposed
timeframe, EPA is finalizing a three-year
retention period of hot work permits as
opposed to the five years that were
proposed.
EPA does not agree that retention of
hot work permits after the completion of
operations is unnecessary. Under the
existing RMP regulations, it can be
difficult for implementing agencies, and
the owner or operator, through the
compliance audit provision (40 CFR
68.58 and 68.79), 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 or audit and has hot work
permits on file. Adding a requirement to
retain hot work permits after the
completion of operations will address
this issue. EPA is finalizing a three-year
retention period of hot work permits in
order to make the requirement less
burdensome for facilities conducting hot
work often and to align the requirement
with the three-year audit period under
40 CFR 68.58 and 68.79.
In response to comments that the
proposed retention period would be
inconsistent with OSHA’s PSM rule,
EPA has coordinated with OSHA
throughout the rulemaking process to
ensure the intent of adding specificity
and clarification to the RMP regulations
does not create conflicts with the
requirements of the OSHA PSM
standard.
4. Storage Incident to Transportation
ddrumheller on DSK120RN23PROD with RULES3
EPA’s Proposed Approach
a. Comments
One commenter expressed support for
the proposed additional regulatory
language and the proposed 48-hour time
frame. Other commenters supported
EPA’s proposal to continue to exclude
facilities and equipment used in
transportation and storage incident to
transportation from the term ‘‘stationary
source.’’ One commenter stated that
doing so avoids duplication of the
existing DOT regulations and continues
the regulatory division of labor between
EPA and DOT’s Pipeline and Hazardous
Safety Administration (PHMSA).
One commenter stated that
transloading can take up to two months
due to a variety of safety and logistics
reasons, and requiring transloaders to
move more quickly might increase the
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risks of release that the proposed rule
seeks to minimize. A couple of
commenters stated that the proposed
definition of ‘‘stationary source’’ would
conflict with DOT requirements and
could create confusion.
One commenter requested that
facilities be given a minimum of 72
hours before a disconnected
transportation container is considered
part of the stationary source. Similarly,
another commenter stated that a time
frame of 48 hours is too short with
respect to rail transportation. The
commenter asked EPA to consider
eliminating the 48-hour requirement
altogether, or at a minimum, extend it
further for purposes of the RMP rule.
The commenter noted that concerns
over safety to the surrounding
environment due to an extended
timeframe should be mitigated by the
fact that railcars designed to transport
hazardous materials must meet rigorous
design specifications as specified by
PHMSA in 49 CFR part 179.
A couple of commenters expressed
safety concerns that arise from
transportation containers being exempt
from the RMP rule when disconnected
for less than 48 hours. One commenter
requested that EPA strengthen the
proposed rule to immediately trigger
threshold determination for the duration
that a transportation container is on-site,
regardless of whether it is attached to a
source of power or in motion. The
commenter added that the presence of
chemical railcars multiplies the risk for
communities by blocking emergency
evacuation routes and increasing air
pollution. Another commenter stated
that there are cumulative impacts and
risks regardless of the length of time at
a location and asked EPA to work with
local community groups to best resolve
the safety concern.
b. EPA Responses
EPA is not finalizing the proposed
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.
As explained in the proposed rule, the
term ‘‘storage not incident to
transportation’’ is currently not defined
in the RMP regulations. The proposed
modification sought only to apply a
specific timeframe to universally
establish a structure to interpret the
term. EPA hoped a specified timeframe
would assist regulated entities and
implementing agencies to more clearly
determine when a transportation
container used for onsite storage must
be incorporated into a facility’s risk
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management plan. Nevertheless, after
review of comments, EPA acknowledges
some of the concerns with establishing
a timeframe and chooses to further
consider the feedback received on the
proposed modification before pursuing
the effort. EPA encourages regulated
entities and implementing agencies to
continue to rely on guidance EPA has
provided to determine if a
transportation container is considered a
part of a stationary source.
EPA has demonstrated its intent and
application of when transportation
containers are and are not part of the
stationary source in guidance and
through court decisions. In the January
1998 amendments to the RMP rule (63
FR 640),114 the Agency explained that
EPA considers a container to be in
transportation as long as it is attached
to the motive power that delivered it to
the site (e.g., a truck or locomotive). If
a container remains attached to the
motive power that delivered it to the
site, even after a facility accepts
delivery, it would be considered as still
in transportation, and the contents
would not be subject to threshold
determination. Additionally, EPA’s
guidance indicates that transportation
containers used for storage which are
not incident to transportation and
transportation containers connected to
equipment at a stationary source are
considered part of the stationary source.
Transportation containers that have
been unhooked from the motive power
that delivered them to the site (e.g.,
truck or locomotive) and left on a
stationary source’s site for short-term or
long-term storage are part of the
stationary source.115
Since EPA’s proposal, courts have
also spoken to this issue. In February
2023, the U.S. Eastern District Court of
Washington ruled in favor of the U.S.
against Multistar Industries regarding
RMP applicability to railcars used for
stationary storage. The Court
determined that railcars containing
trimethylamine (TMA) in 2017 in
Othello, WA, were used as storage
outside the scope of transportation.116
The TMA-containing railcars sat for
days or weeks before the TMA was
eventually transloaded into trucks for
transfer to the customer. Additionally,
in 2017, the NC Department of Air
Quality succeeded against Aberdeen
Carolina & Western Railway in
demonstrating that EPA’s longstanding
114 https://www.govinfo.gov/content/pkg/FR1998-01-06/pdf/98-267.pdf.
115 https://www.epa.gov/sites/default/files/201310/documents/chap-01-final.pdf (page 1–5).
116 United States v. Multistar Indus. Inc., No.
2:21–cv–00262–TOR, 2023 WL 1802387 (E.D. Wash.
Feb. 7, 2023).
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interpretation of the term ‘‘stationary
source’’ includes railcars disconnected
from locomotive power and stored for
extended periods of time. In that case,
between 2012 and 2016, in Star, NC,
railcars containing butane were stored
on tracks awaiting placement at a
nearby terminal for up to 360 days.117
5. Retail Facility Exemption
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a. Comments
Several commenters opposed EPA’s
proposed changes to the definition of
‘‘retail facility.’’ A couple of
commenters contended that the
proposed changes to the definition lack
justification. One of the commenters
said that EPA failed to: (1) Provide any
support for its assertion that owners and
operators of facilities storing propane or
other flammable substances are unclear
how to determine whether they qualify
as retail facilities, (2) provide any
information to suggest that the current
definition creates safety concerns, and
(3) cite enforcement concerns at
facilities claiming to be retail facilities.
One commenter urged EPA to use the
retail facility definition used for the
RMP and OSHA PSM standard, which
has been in place for a long time and is
well understood by the industry and
enforceable by the agencies. A couple of
commenters urged EPA to maintain its
existing definition of a retail facility,
which is consistent with the definition
set forth in the Fuels Regulatory Relief
Act and OSHA PSM standard
enforcement guidance and
interpretations.
A couple of commenters
recommended that, if EPA moves
forward to adjust the definition of retail
facility, the Agency should provide
businesses and/or facilities with the
option of selecting either fiscal year or
calendar year when determining annual
income from direct sales to end users.
Similarly, another commenter
recommended changing ‘‘calendar year’’
to ‘‘fiscal year’’ to facilitate the income
calculation for those companies whose
fiscal year may not coincide with the
calendar year.
b. EPA Responses
EPA disagrees that the proposed
changes to the definition of ‘‘retail
facility’’ lack justification. With the
current definition, 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.
117 Aberdeen Carolina & Western Railway v. NC
Dept of Air Quality, Final Decision on Summary
Judgment, State of North Carolina, County of
Montgomery, 16 EHR 07190, May 22, 2017.
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Specifying a definite period of time
eliminates this uncertainty and allows
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 finalizing the ‘‘one
year of sales activity’’ amendment
because the Agency believes it captures
the seasonality of propane sales at
propane distribution facilities.
EPA disagrees with comments arguing
that EPA’s proposed definition would
be inconsistent with OSHA’s PSM
regulations. EPA has coordinated with
OSHA throughout the rulemaking
process to ensure the intent of adding
specificity and clarification to the RMP
regulations does not create conflicts
with the requirements of the OSHA
PSM. EPA believes that the provisions
it proposed and is finalizing are
compatible and do not conflict with the
prevention provisions of OSHA’s PSM
regulations.
In response to comments
recommending that EPA adjust the
definition to provide facilities the
option of selecting either fiscal year or
calendar year, EPA agrees with this
suggestion and is adopting it in the final
rule. The Agency believes this option
provides flexibility in using records in
the configuration that may already exist
at facilities.
6. RAGAGEP Gap Analysis
a. Comments
Many commenters expressed
opposition to EPA’s proposed
RAGAGEP gap analysis provisions. One
commenter stated that the existing RMP
regulations already address gaps in
RAGAGEP through the PSI requirement
in 40 CFR 68.65(d)(3). Some
commenters stated that conducting a
gap analysis of RAGAGEP has no safety
benefits. Another commenter contended
that the proposal is an unnecessary
intrusion into internal practices of a
facility. The commenter added that,
because EPA should not require
disclosure of decisions not to
implement RAGAGEP
recommendations, there is no need to
provide specific categories for reporting
that information publicly.
Several commenters stated that
requiring facilities to include this
information in their risk management
plans would result in unnecessary costs
on facilities. A few commenters noted
that EPA’s failure to consider costs in
the RIA deprives the public of an
opportunity to assess the full costs and
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benefits of the proposal. One commenter
stated that EPA provided no reasonable
explanation for its proposed RAGAGEP
requirements, nor did it consider the
cost, including resources that may be
diverted because of this paperwork
exercise, or benefits of the requirement
in the RIA.
One commenter noted that the
proposed gap analysis provision ignores
several practical difficulties in
implementation, such as how facilities
are to identify the most current version
of applicable RAGAGEP, how they are
to account for non-mandatory
RAGAGEP provisions in the analysis,
and how this analysis can be completed
in a timely manner. The commenter
added that the proposed requirement
ignores existing obligations to determine
and document that equipment designed
and constructed is in accordance with
RAGAGEP.
Some commenters said that the
RAGAGEP analysis is ill-suited for the
PHA team to perform. One commenter
pointed out that industry standards are
locked into place once a facility is
constructed and each facility is
designed, engineered, and built
according to the standards of that time.
The commenter added that in some
cases it would be impossible to
document that equipment, which may
be 20 or 30 years old, complies with
RAGAGEP when RAGAGEP continually
changes.
A couple of commenters stated that
the proposed gap analysis provision
encroaches on OSHA’s PSM regulation.
Some commenters pointed out that EPA
adopted their regulation verbatim from
OSHA’s PSM regulation, and OSHA has
made clear that its regulations require
the verification of safe equipment, not a
continual review of RAGAGEP. Several
commenters said that EPA did not
explain how the proposed gap analysis
provision would work in tandem with
OSHA regulation, which the proposal
fails to repeal or revise. One of the
commenters added that ignoring
existing regulations is arbitrary
government action.
b. EPA Responses
In response to comments that EPA
provided no reasonable explanation for
the requirement, there would be
difficulty in implementing the
provision, and costs for the requirement
were not considered, EPA notes that this
RAGAGEP gap analysis is already
expected under 40 CFR 68.65(d)(2) and
(3) for Program 3 processes. EPA notes
this PHA modification merely clarifies
when facilities must, at minimum,
conduct or review previous analyses
when determining their compliance
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with 40 CFR 68.65(d)(2) and (3).
Therefore, EPA does not believe that the
Agency must consider and assess the
costs of this provision in the RIA.
As indicated in a Frequently Asked
Question,118 EPA expects owners and
operators to regularly review new and
updated RAGAGEP applicable to their
industry to determine where safety gaps
exist within their current process. If the
updated document explicitly provides
that new clauses or requirements are
retroactive, those updates are relevant to
determining whether the owner or
operator’s practice continues to conform
to RAGAGEP per 40 CFR 68.65(d)(2).
Where RAGAGEP are updated to be
more protective, but are not explicitly
retroactive, per 40 CFR 68.65(d)(3), the
owner or operator should thoroughly
evaluate how their process could still be
considered safe amid new industry
knowledge. Simply indicating that a
process incident has yet to occur is an
inappropriate evaluation for choosing
not to adhere to updated RAGAGEP,
especially considering changes to
RAGAGEP may result from industry
accidents, industry operating
experience, and improved
understanding of existing and newly
recognized hazards. Oftentimes it will
be difficult for the owner or operator to
document equipment is designed,
maintained, inspected, testing, and
operating in a safe manner when there
is extensive industry knowledge that
indicates aspects of older process
operations are no longer safe.
Evaluation of updated RAGAGEP
already is an RMP requirement, as
shown in enforcement actions against
facilities not complying with this
provision. For example, in 2022, EPA
took an enforcement action against a
refinery in Hawaii that failed to comply
with the latest versions of applicable
refining industry standards, API
Recommended Practice 941, ‘‘Steels for
Hydrogen Service at Elevated
Temperatures’’ (8th edition, February
2016), and 581, ‘‘Risk Based Inspection’’
(3rd edition, April 2016).119 In February
2021, EPA also took an enforcement
action against a seafood processing
facility in Massachusetts that failed to
comply with the latest version (at that
time) of an applicable ammonia
refrigeration industry standard,
International Institute of Ammonia
Refrigeration (IIAR) 2–2014, ‘‘Safe
Design of Closed-Circuit Ammonia
Refrigeration Systems.’’ 120 In both
cases, the processes at these facilities
were built prior to the updated
RAGAGEP cited.
EPA disagrees that the RAGAGEP
analysis is ill-suited for the PHA team
to perform. PHA teams should include
staff who are aware of industry design
standards. The PHA team requirement
under 40 CFR 68.67(d) specifies that the
PHA shall be performed by a team with
expertise in engineering and process
operations, and EPA expects an expert
to be one that has knowledge of current
industry standards. Additionally,
industry trade associations are likely to
ease the burden on facilities by
identifying which of their current
RAGAGEP should be broadly applied to
the industry, regardless of when the
process was designed. For example, the
ammonia refrigeration industry has
already done so, specifically in the
ANSI/IIAR Standard 9–2020, ‘‘American
National Standard for Minimum System
Safety Requirements for Existing
Closed-Circuit Ammonia Refrigeration
Systems.’’
In response to comments that the
provisions encroach on OSHA’s PSM
regulations, EPA disagrees. This new
PHA requirement is meant to
complement OSHA’s equivalent
requirement in 29 CFR
1910.119(d)(3)(iii) and provide a
framework for undertaking the analysis.
While EPA favors consistency with
OSHA’s PSM standard, EPA must also
ensure compliance with the CAA. CAA
section 112(r)(1), 42 U.S.C. 7412(r)(1),
Purpose and general duty, states that, ‘‘It
shall be the objective of the regulations
and programs authorized under this
subsection to prevent the accidental
release and to minimize the
consequences of any such release of any
substance listed pursuant to paragraph
(3) or any other extremely hazardous
substance.’’ Congress further clarified in
legislative history that it intended
facility owners and operators to
implement all feasible means to reduce
the threat of death, serious injury, or
substantial property damage to satisfy
the requirements of the GDC.121
Obligations under the regulatory
program authorized by CAA section
112(r)(7) build upon those under the
general duty rather than undercut it.
Accordingly, using the RMP regulations
to permanently lock into place obsolete
or out-of-date RAGAGEP is inconsistent
with the purpose and intent of the CAA.
118 https://www.epa.gov/rmp/complying-processsafety-information-psi-resulting-new-and-updatedrecognized-and-generally.
119 https://yosemite.epa.gov/oa/rhc/
epaadmin.nsf/Filings/F8CDEF8A6F3440438525
88A90070FA45/$File/Par%20Hawaii
%20Refining%20(CAA112R-09-2022-0008)%20%20Served.pdf.
120 https://yosemite.epa.gov/oa/rhc/
epaadmin.nsf/Filings/0D26DA8B081A54008525867
F00634AB2/$File/EPCRA-01-2021-0037%20and
%20CAA%20-01-2021-0038
%20ORPEL%20CAFO%20Respondent%20SignedRJO-Signed02-17-21%20(002).pdf.
121 S. Rep. 101–228 at 209, 1990 U.S.C.C.A.N.
3385, 3595 (1989).
1. General Comments
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IX. Compliance Dates
The initial RMP rule applied three
years after promulgation of the rule on
June 20, 1996, which is consistent with
the last sentence of CAA section
112(r)(7)(B)(i). The statute does not
directly address when amendments
should become applicable. The
provisions of this action modify terms of
the existing rule, and, in some cases,
clarify existing requirements.
A. Summary of Proposed Rulemaking
EPA proposed modifications to 40
CFR 68.10 to establish compliance dates
for an owner or operator to comply with
the revised rule provisions as follows:
• 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, three years after the effective
date of the final rule (i.e., three years
after the FR effective 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 one
additional year (i.e., four years after the
effective date of the final rule) to update
and resubmit risk management plans to
reflect new and revised data elements.
B. Summary of Final Rule
EPA is finalizing the compliance
dates as proposed with the following
modification:
• Adding a compliance date to 40
CFR 68.10 to require standby or backup
power for air monitoring and control
equipment by three years after the
effective date of the final rule (i.e., three
years after the effective date of this
action as provided in the Federal
Register).
C. Discussion of Comments and Basis
for Final Rule Provisions
a. Comments
One commenter expressed support for
the compliance dates proposed by EPA.
Another commenter recommended that
the compliance period under the
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proposed rule be shortened to two years,
at least for the emergency response
public notification and exercise
evaluation reports, employee
participation, and information
availability provisions. The commenter
added that statutory language reflects
Congress’s intent that EPA ensure
adequate safeguards are promptly put in
place to protect workers and
surrounding communities from releases
of dangerous chemicals. The commenter
further stated that EPA’s proposal
should contain shorter compliance
deadlines as compared to the 1996 RMP
rule because the proposed rule is not as
extensive as developing a full RMP
program. Another commenter opposed
allowing companies three years after the
effective date of the proposed rule to
comply. The commenter stated that this
period is too long, given that most
companies are already complying with
an existing version of the RMP rule. The
commenter suggested a one-year
timeline is most appropriate.
Several commenters stated that there
are too many proposed changes to
accomplish in three years and asked
EPA to extend the compliance deadlines
to five years after the effective date of
the proposed rule. The commenter
stated that to the extent that EPA
intends to rely on forthcoming guidance
in interpreting and enforcing the new
RMP provisions, it is imperative that
these new requirements not take effect
until at least three years after the
relevant guidance is issued, instead of
three years after the effective date of the
final rule, as EPA has proposed. One
commenter, who objected to the
effective dates in the proposed rule and
said they are too restrictive, said EPA
failed to meet its CAA obligation to set
RMP effective dates in a manner that
assures compliance as ‘‘expeditiously as
practicable.’’
b. EPA Responses
EPA disagrees that the compliance
dates for some or all provisions should
be shortened to one or two years or
should be lengthened to five years or
three years after guidance is issued. The
Agency believes there is a good balance
with three years as the compliance date
for most new provisions while also
assuring compliance as expeditiously as
practicable. Moreover, the initial 1996
RMP rule required compliance per the
statute within three years. EPA believes
the provisions finalized in this rule are
not as extensive as developing a full
RMP program. Nevertheless, time is
needed for facility owners and operators
to understand the revised rule; train
facility personnel on the revised
provisions; learn new investigation
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techniques, as appropriate; research
safer technologies; arrange for
emergency response resources;
incorporate changes into their RMPs;
and establish a strategy to notify the
public that certain information is
available upon request. This time is
necessary to achieve compliance with
the new provisions because as a
performance-based rule, EPA has not
specified how facilities apply these
provisions to manage and improve
process safety at their facility, whether
it involves conforming to minimum
standards, such as codes, or trying to
reduce risk to as low as reasonably
practical, or whether it uses qualitative
or quantitative assessments.
Furthermore, EPA intends to publish
guidance for certain provisions, such as
STAA, root cause analysis, third-party
audits, and employee participation, etc.
Once these materials are complete,
owners and operators can have time to
familiarize themselves with the new
materials if needing assistance in
applying the provisions to improve
process safety. EPA expects to develop
and release this information
approximately one year after this final
rule. However, most provisions for a
source are a site-specific determination,
so EPA expects all regulated RMP
facilities to be successful in beginning to
address the provisions immediately.
2. Safer Technologies and Alternatives
Analysis
One commenter pointed out that the
effective date for the STAA requirement
would disrupt PHA cycles. The
commenter stated that the proposed
STAA deadline is impracticable for
facilities scheduled to complete their
PHA update and re-validation any time
after August 1, 2021. The commenter
requested that EPA modify the effective
date to perform a STAA as part of the
next-scheduled PHA update and revalidation that occurs any time after
three years from EPA’s issuance of the
intended STAA guidance or the final
rule’s effective date, whichever is later.
EPA disagrees with commenters and
is finalizing a three-year compliance
date for the STAA evaluation and IST/
ISD practicability assessment. Sources
subject to this provision are among the
largest and most complex sources
regulated under 40 CFR part 68, and
therefore PHAs and PHA updates and
revalidations at these sources typically
require a significant level of planning.
While PHA updates are normally done
at five-year intervals, the Agency
recognizes that some sources may be far
enough along with their PHAs that they
will not be able to schedule their STAAs
as part of their PHAs. Such sources have
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the option of not performing STAA as
part of their PHA so long as they
perform a STAA within 3 years of the
effective date of the final rule.
Considering updates or revalidations to
the initial STAA activities will likely
require less effort, the Agency expects
many of these sources will later
incorporate further STAA updates on
their normal PHA update schedule.
Regarding the STAA safeguard
implementation provision, since
implementation (of at least one passive
measure, or an inherently safer
technology or design, or a combination
of active and procedural measures
equivalent to or greater than the risk
reduction of a passive measure) is
required each PHA cycle, EPA expects
implementation to be commenced
within that cycle and scheduled for
completion as soon as practicable.
3. Incident Investigation Root Cause
Analysis
EPA did not receive any comments
specific to the three-year compliance
date for incident investigation root
cause analysis. Therefore, EPA is
finalizing the date for this provision, as
proposed. The Agency continues to rely
on the rationale expressed in the
proposed rulemaking (87 FR 53606).
4. Third-Party Compliance Audits
EPA did not receive any comments
specific to the three-year compliance
date for third-party compliance audits.
Therefore, EPA is finalizing the date for
this provision, as proposed. The Agency
continues to rely on the rationale
expressed in the proposed rulemaking
(87 FR 53606).
5. Employee Participation
EPA did not receive any distinct
comments specific to this issue other
than as a general comment. Therefore,
EPA is finalizing a three-year
compliance date for this provision, as
proposed. The Agency continues to rely
on the rationale expressed in the
proposed rulemaking (87 FR 53606).
6. Emergency Response
Public Notification. Regarding the
community public notification system
requirements, a commenter said they
will take more than three years to
implement because it will be a
significant undertaking requiring
involvement of and coordination with
several different parties.
EPA disagrees with commenters that
this provision will take longer than
three years to implement. This
provision is for facility owners and
operators to work with the local
responders to ensure that, during a
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release, a notification system is in place
that will notify the public of the
impending situation. EPA expects the
partnership to occur at least during
annual coordination discussions under
40 CFR 68.93. Under 40 CFR 68.93,
owners and operators are required to
annually coordinate response needs
with local emergency planning and
response organizations to determine
how the facility is addressed in the
community emergency response plan,
among other things. A component of the
community emergency response plan is
public notification of chemical releases;
therefore, it is expected that this
component will be discussed and
documented by the facility owner or
operator as part of the annual
coordination obligations. Therefore,
EPA is finalizing the 3-year compliance
date as proposed.
Field Exercises. A couple of the
commenters suggested that EPA speed
up compliance because 10 years is too
long to wait for essential emergency
planning, especially in communities
with multiple RMP facilities. One
commenter noted that five- to ten-year
deadlines allow more time than
necessary to comply and would allow
another generation of children to grow
up without even the protection of a
basic emergency response exercise at
the facility near them.
EPA disagrees that field exercises
should be required on an annual,
biennial, or triennial basis. Requiring
field exercises to be held at shorter
minimum frequencies, such as these
would significantly increase compliance
costs to both regulated facilities and
local responder agencies. Such an
approach would discourage the
participation of local emergency
responders in field exercises, which is
voluntary under the RMP rule.
Additionally, table-top exercises of the
emergency plan have value for
protecting the nearby community, and
these occur every three years. The
community would not be without a type
of ‘‘basic emergency response exercise.’’
Therefore, EPA is finalizing the
compliance date for owners or operators
of sources to have planned, scheduled,
and conducted their first field exercise
by March 15, 2027.
Exercise Evaluation Reports. EPA did
not receive any comments specific to
the three-year compliance date for
exercise evaluation reports other than as
a general comment. Therefore, EPA is
finalizing the date for this provision, as
proposed. The Agency continues to rely
on the rationale expressed in the
proposed rulemaking (87 FR 53606).
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7. Information Availability
A couple of commenters stated EPA’s
proposal to delay information access for
45 days after a request, and to require
compliance after three years, is
unlawful and arbitrary. These
commenters stated that community
members need information now—not
three years from now—and that 45 days
is far too long for a community member
to have to wait for basic hazard
information. The commenters also
stated that EPA has failed to justify
these delays when the provision would
simply require a facility to provide only
a portion of the information it already
regularly reports to EPA itself, and that
EPA has failed to show three years is the
most expeditious compliance date
practicable, or that three years is
required to implement this provision.
EPA disagrees with these commenters
and is finalizing a three-year
compliance date for the information
availability provision. This means that
three years after the effective date of the
rule, the facility owner or operator must
have notifications in place to inform the
public that information specified in 40
CFR 68.210(b) is available upon request.
EPA believes that this timeframe is
needed to allow facility staff an
opportunity to determine the best
method for providing notifications to
the public, to assemble and format
information, including securing
appropriate language translation
services, and to prepare to respond to
information requests. EPA is therefore
finalizing the three-year compliance
date for the information availability
provision.
8. RMP Update
A couple of commenters urged EPA to
shorten the 4-year timeline for facilities
to submit updated RMPs.
EPA disagrees with commenters and
is finalizing the four-year compliance
date for this provision, as proposed.
This timeframe will allow owners and
operators an opportunity to begin to
comply with revised rule provisions
prior to certifying compliance in the
RMP. Additionally, the Agency will
revise its online RMP submission
system, RMP*eSubmit, to include the
additional data elements, and sources
will not be able to update RMPs with
new or revised data elements until the
submission system is ready. Also, once
it is ready, allowing an additional year
for sources to update RMPs will prevent
potential problems with thousands of
sources submitting updated RMPs on
the same day.
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9. Hazard Review Amplifications and
Other Areas of Technical Clarification
a. Comments
One commenter asked EPA to clarify
the required date for compliance with
the natural hazard assessment and the
power loss evaluations. The commenter
asserted that this should occur as
expeditiously as practicable, within one
year after the effective date of the final
rule, and facilities should be directed to
report that they have completed these
assessments soon after completion.
Another commenter supported requiring
backup power for air pollution control
and monitoring equipment associated
with the prevention and detection of
accidental releases and suggested that
EPA specify an appropriate compliance
deadline, specifically no later than three
years from the date of promulgation.
One commenter pointed out that
EPA’s proposal would require facilities
to comply with the proposed revisions
in the PHAs upon the effective date of
the rule. The commenter said that the
deadline is infeasible because it would
take years to address the host of
expansive new PHA requirements that
require analysis of a wide range of
issues. Accordingly, the commenter
asked EPA to clarify that the deadline
for any new requirements is when the
PHA becomes due as part of its five-year
cycle, or three years after the effective
date of the final rule, whichever comes
later. Referring to the natural hazards
assessment, another commenter
requested an implementation date of no
sooner than five years after the effective
date of the final rule.
b. EPA Responses
EPA notes that components of the
hazards evaluation amplifications and
the other areas of technical clarification
in sections V.A. and VIII of this
preamble impose no new requirements
on facilities because they codify existing
industry practice and re-emphasize
current RMP requirements and do not
change the meaning of the RMP rule.
Compliance for these provisions is
therefore already required and should
be updated on their normal schedule.
For example, an evaluation of natural
hazards on a process should already be
occurring as part of the hazard review
(40 CFR 68.50) or PHA (40 CFR 68.67)
and should be updated at least once
every 5 years. Additionally, any update
to the RMP required by 40 CFR 68.190
should continue to occur as normal and
should include updating the RMP with
current information required by Subpart
G. The intent of the amplifications and
clarifications discussed in this final rule
are to simplify implementation for
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facilities, thereby improving chemical
safety.
In response to comments asking EPA
to clarify the compliance date for
requiring standby or backup power for
continuous operation of air monitoring
equipment associated with prevention
and detection of accidental releases
from covered processes, EPA has
adopted the three-year compliance date
and has amended the regulatory
language. EPA believes three years will
allow time to evaluate and secure
standby or backup power needs for air
monitoring equipment and assure their
safe operation.
X. 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.
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A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 14094: Modernizing Regulatory
Review
This action is a ‘‘significant regulatory
action’’, as defined under section 3(f)(1)
of Executive Order 12866, as amended
by Executive Order 14094. Accordingly,
EPA, submitted this action to the Office
of Management and Budget (OMB) for
Executive Order 12866 review.
Documentation of any changes made in
response to the Executive Order 12866
review is available in the docket. The
EPA prepared an analysis of the
potential costs and benefits associated
with this action. This analysis,
‘‘Regulatory Impact Analysis: Safer
Communities by Chemical Accident
Prevention Final Rule’’ (Docket ID
Number EPA–HQ–OLEM–2022–0174),
is also available in the docket.
B. Paperwork Reduction Act (PRA)
The information collection activities
in this rule will be submitted for
approval to OMB under the PRA. The
Information Collection Request (ICR)
document that EPA prepared has been
assigned EPA ICR number 2725.02. You
can find a copy of the ICR in the docket
for this rule, and it is briefly
summarized here. The information
collection requirements are not
enforceable until OMB approves them.
EPA believes that the RMP
regulations, originally promulgated on
June 20, 1996, codified as 40 CFR part
68, and later amended, have been
effective in preventing and mitigating
chemical accidents in the United States.
However, EPA believes that revisions
will likely further protect human health
and the environment from chemical
hazards through advancement of
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process safety based on lessons learned.
The revisions in this final rule are a
result of reviewing the existing RMP
regulations 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 use RMPs to evaluate
compliance with 40 CFR 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 made
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 regulation
fall into numerous NAICS codes. The
types of stationary sources affected by
the 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 RMPregulated substances. Among the
stationary sources potentially affected,
the Agency has determined that 2,636
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 sections
112(r)(7)(B)(iii), 114(c), CAA 114(a)(1))).
Estimated number of respondents:
11,740.
Frequency of response: Occasional.
Total estimated burden: 1,190,991
hours (per year). Burden is defined at 5
CFR 1320.3(b).
Total estimated cost: $126,796,471
(per year); includes $12,413,710 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 EPA’s regulations in 40
CFR are listed in 40 CFR part 9. When
OMB approves this ICR, the Agency will
announce that approval in the Federal
Register and publish a technical
amendment to 40 CFR part 9 to display
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the OMB control number for the
approved information collection
activities contained in this final rule.
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 are small businesses and small
governmental entities. The Agency has
determined that among the 2,636
potentially regulated private sector
small entities so impacted, 2,393, or
90.8 percent, may experience an impact
of less than one percent with an average
small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of
between 1 and 3 percent of revenues
with an average small cost entity of
$629,271; and 75, or 2.8 percent, may
experience an impact of greater than 3
percent with an average small entity
cost of $1,083,823. The industry sectors
of Farm Supplies Merchant Wholesalers
and Farm Product Warehousing and
Storage had the most entities potentially
affected, with 146 and 96 entities,
respectively. Within the Farm Supplies
Merchant Wholesalers sector, the
Agency determined that only 8 of the
146 small entities (6 percent of small
entities) will experience impacts of
between 1 and 3 percent of revenues
and only 2 small entities (1 percent of
small entities) will experience impacts
of more than 3 percent of revenue.
Within the Farm Product Warehousing
and Storage sector, the Agency
determined that only 5 of the 96 small
entities (5 percent of small entities) will
experience impacts of between 1 and 3
percent of revenues and no small
entities will experience impacts of more
than 3 percent of revenue.
Among the 630 small government
entities potentially affected, the
minimum cost any entity will incur is
$2,000; 365, or 58 percent, would incur
costs ranging from $2,000 to $3,000;
248, or 39 percent, will incur costs
ranging from $3,000 to $10,000; and 17,
or 3 percent, will incur costs greater
than $10,000. EPA estimated that for the
rule to have a larger than 1 percent
impact on the government entity with
the largest cost impact, the entity would
need to have revenue of less than $120
per resident. For the rule to have a
larger than 1 percent impact on the
smallest government entity identified in
the data, the entity would need to have
revenue of less than $650 per resident.
Details of these analyses are presented
in Chapter 8 of the RIA, which is
available in the docket.
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D. Unfunded Mandates Reform Act
(UMRA)
This action contains a Federal
mandate under UMRA, 2 U.S.C. 1531–
1538, that may result in expenditures of
$100 million or more for State, local,
and Tribal governments, in the
aggregate, or the private sector in any
one year. Accordingly, EPA has
prepared a written statement required
under section 202 of UMRA that is
included in the RIA and briefly
summarized here.
Over the 23 years of implementing the
RMP program and, most recently
through E.O. 13990 listening sessions,
meetings, and public hearings, EPA has
engaged States and local communities to
discuss chemical safety issues. In the
two E.O. 13990 listening sessions and
three proposal hearings, held between
July 2021 and September 2022, States
and local communities identified lack of
facility coordination with local
responders and the community as a key
barrier to successful local community
preparedness. Additionally, EPA has
held consultations with States and local
communities through participation in
the National Association of SARA Title
III Program Officials (NASTTPO) annual
meetings to discuss key issues related to
chemical facility and local community
coordination and the areas of the RMP
regulations which need to be
modernized to facilitate this
coordination and improve local
emergency preparedness and
prevention. Key priority options
discussed with NASTTPO States and
local communities included improving
emergency response coordination
between RMP facilities and LEPCs/first
responders.
This action is not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. On
April 7, 2022, September 1, 2022, and
September 5, 2023, EPA met with small
governments concerning the regulatory
requirements that might affect them.
Also, through the May 28, 2021, notice
of virtual public listening sessions;
request for public comment (86 FR
28828) and August 31, 2022, NPRM (87
FR 53556), EPA sought feedback from
governmental entities while formulating
the revisions in this action.
With regard to section 205 of UMRA,
the Agency considered finalizing the
regulatory requirements as proposed as
well as the regulatory alternatives
considered in Chapter 7 of the RIA.
However, none of the alternative
options successfully fulfilled the
objectives of the rule, which seek to
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prevent or reduce the impacts of RMP
accidents on communities near
facilities. These objectives are
accomplished by promoting prevention
generally and through targeted
enhanced measures at the most
accident-prone facilities, which
historically have had a disproportionate
share of accidents and the costliest
accidents. Some of these same facilities
have widely known safer alternatives
available. The objectives are also
accomplished by enhancing emergency
response training and planning through
better information access and exchange
among the facility, emergency
responders, and the community
potentially exposed to accidents. A
market failure results when RMP
accidents impose burdens on nearby
communities. Firms do not have an
appropriate level of incentive to prevent
and/or mitigate these external costs. The
Agency believes that the rule objectives
to prevent or reduce the impacts of
accidents on communities near facilities
are best achieved by the selected
provisions for this final rule,
particularly, implementation of process
safeguards or IST/ISD to prevent
accidents and allowing a wider segment
of the public potentially affected by
accidents to access emergency
preparedness information.
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
early in the process of developing this
regulation to permit them to have
meaningful and timely input into its
development. On August 31, 2022, EPA
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sent a notification letter via email to
Tribal leaders of all 574 federally
recognized Tribes to inform them of the
proposed rulemaking and to provide an
opportunity to comment on the action
through a Tribal consultation meeting
on September 21, 2022. Approximately
4 Tribal attendees participated in the
meeting. During the consultation
meeting, EPA presented information on
the proposed action. A few Tribes
provided comments during the webinar.
No Tribes requested government to
government consultation with EPA
following the meeting. Additionally,
EPA had an open docket for public
comment on the proposal from August
31–October 31, 2022. The Agency did
not receive any comments from
federally recognized Tribes. The
notification letter and a list of attendees
at the meeting is provided in the docket
for this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 directs Federal
agencies to include an evaluation of the
health and safety effects of the planned
regulation on children in Federal health
and safety standards and explain why
the regulation is preferable to
potentially effective and reasonably
feasible alternatives. This action is not
subject to Executive Order 13045
because the EPA does not believe the
environmental health risks or safety
risks addressed by this action present a
disproportionate risk to children. EPA
believes that the revisions to the RMP
regulations made by this final rule will
further protect human health, including
the health of children, through
advancement of process safety.
However, EPA’s Policy on Children’s
Health applies to this action.
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.
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J. Executive Order 14096: Revitalizing
Our Nation’s Commitment to
Environmental Justice for All Executive
Order 12898: Federal Actions To
Address Environmental Justice in
Minority Populations and Low-Income
Populations
EPA believes that the human health or
environmental conditions that exist
prior to this action result in or have the
potential to result in disproportionate
and adverse human health or
environmental effects on communities
with environmental justice concerns.
EPA conducted an EJ analysis using
the Agency’s EJ screening tool,
EJSCREEN and the U.S. Census Bureau’s
American Community Survey (ACS).
The EJ analysis shows that historically
underserved and overburdened
populations live within proximity to
RMP-regulated facilities and thus are at
greater risk than other populations. The
analysis also found evidence that
regulated 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 will likely pose
disproportionate risks to historically
marginalized communities. However,
EPA has concluded that the regulatory
requirements will advance just
treatment of those populations by
reducing the disproportionate damages
from accidental releases that RMPregulated facilities might otherwise
inflict on those populations. EPA’s full
EJ analysis is documented in
‘‘Regulatory Impact Analysis: Safer
Communities by Chemical Accident
Prevention Final Rule,’’ which is
available in the docket.
EPA believes that this action is likely
to reduce existing disproportionate and
adverse effects on communities with EJ
concerns. Because 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 communities.
Therefore, the benefits of this regulation
will include reduced risk for historically
underserved and overburdened
populations.
EPA additionally identified and
addressed EJ concerns by holding
virtual public listening sessions on June
16 and July 8, 2021, and had an open
docket for public comment (86 FR
28828). 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
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and impacts into the regulations, and
expanding the application of EJ in the
RMP. Following publication of the
proposed rule, EPA held three public
hearings (September 26, 27, and 28,
2022) and had a 60-day open public
comment period. Participants in the
virtual public listening sessions and
hearings included a wide range of
stakeholders including environmental
and community groups, individual
regulated facilities, industry groups,
local and State governments, Federal
agencies, and private citizens.
Information collected through oral
testimonies and written comments from
the listening sessions and hearings
respectively informed the proposed and
final rule.
The information supporting this E.O.
review is contained in Chapter 9 of the
RIA, which is available in the docket for
this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action meets the criteria set
forth in defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 68
Environmental protection,
Administrative practice and procedure,
Air pollution control, Chemicals,
Hazardous substances,
Intergovernmental relations, Reporting
and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I, part 68, of
the Code of Federal Regulations is
amended as follows:
PART 68—CHEMICAL ACCIDENT
PREVENTION PROVISIONS
1. The authority citation for part 68
continues to read as follows:
■
Authority: 42 U.S.C. 7412(r), 7601(a)(1),
7661–7661f.
Subpart A—General
2. Amend § 68.3 by:
a. Adding in alphabetical order the
definitions for ‘‘Active measures,’’
‘‘Inherently safer technology or design,’’
‘‘Natural hazard,’’ ‘‘Passive measures,’’
‘‘Practicability,’’ and ‘‘Procedural
measures’’;
■ b. Revising the definition of ‘‘Retail
facility’’; and
■ c. Adding in alphabetical order the
definitions for ‘‘Root cause’’ and ‘‘Thirdparty audit’’.
■
■
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The additions and revisions read as
follows:
§ 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 meteorological,
climatological, environmental or
geological phenomena that have the
potential for negative impact,
accounting for impacts due to climate
change. Examples of such hazards
include, but are not limited to,
avalanche, coastal flooding, cold wave,
drought, earthquake, hail, heat wave,
hurricane, ice storm, landslide,
lightning, riverine flooding, strong
wind, tornado, tsunami, volcanic
activity, wildfire, and winter weather.
*
*
*
*
*
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 or fiscal year) is obtained from
direct sales to end users or at which
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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 that identifies a
correctable failure(s) in management
systems, and if applicable, in process
design.
*
*
*
*
*
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) introductory
text;
■ b. Redesignating paragraphs (g)
through (k) as paragraphs (j) through (n);
■ c. Adding new paragraphs (g) through
(i); and
■ d. In newly redesignated paragraphs
(j) through (l), removing the paragraph
heading.
The revisions and additions read as
follows:
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§ 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:
*
*
*
*
*
(g) By May 10, 2027, the owner or
operator shall comply with the
following provisions promulgated on
May 10, 2024:
(1) Standby or backup power for
continuous operation of monitoring
equipment associated with prevention
and detection of accidental releases
from covered processes in §§ 68.50(a)(3)
and 68.67(c)(3);
(2) Third-party audit provisions in
§§ 68.58(f) through (h), 68.59, 68.79(f)
through (h), and 68.80;
(3) Incident investigation root cause
analysis provisions in §§ 68.60(h) and
68.81(h);
(4) Safer technology and alternatives
analysis provisions in § 68.67(c)(9) and
(h);
(5) Employee participation provisions
in §§ 68.62 and 68.83;
(6) Emergency response provisions in
§§ 68.90(b) and 68.95(a); and
(7) Availability of information
provisions in § 68.210(d) through (h).
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(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 May 10, 2028, the owner or
operator shall comply with the risk
management plan provisions of subpart
G of this part promulgated on May 10,
2024.
*
*
*
*
*
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:
■ a. Revising paragraph (a)(3);
■ b. Removing the period at the end of
paragraph (a)(4) and adding a semicolon
in its place; and
■ c. Adding paragraphs (a)(5) and (6).
The revision and addition read as
follows:
§ 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; the owner or operator shall
ensure monitoring equipment associated
with prevention and detection of
accidental releases from covered
processes has standby or backup power
to provide continuous operation;
*
*
*
*
*
(5) Natural hazards that could cause
or exacerbate an accidental release; and
(6) Stationary source siting, including
the placement of processes, equipment,
and buildings within the facility, and
hazards posed by proximate stationary
sources, and accidental release
consequences posed by proximity to the
public and public receptors.
*
*
*
*
*
■ 6. Amend § 68.52 by:
■ a. Removing the word ‘‘and’’ at the
end of paragraph (b)(7);
■ b. Removing the period at the end of
paragraph (b)(8) and adding ‘‘; and’’ in
its place; and
■ c. Adding paragraph (b)(9).
The addition reads as follows:
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§ 68.52
Operating procedures.
*
*
*
*
*
(b) * * *
(9) Documentation when monitoring
equipment associated with prevention
and detection of accidental releases
from covered processes is removed due
to safety concerns from imminent
natural hazards.
*
*
*
*
*
■ 7. 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, 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) The next required compliance
audit shall be a third-party audit when
one or more of the following conditions
applies:
(1) An accidental release meeting the
criteria in § 68.42(a) from a covered
process at a stationary source has
occurred; or
(2) An implementing agency requires
a third-party audit due to conditions at
the stationary source that could lead to
an accidental release of a regulated
substance, or when a previous thirdparty audit failed to meet the
competency or independence criteria of
§ 68.59(c).
(g)(1) If an implementing agency
makes a preliminary determination that
a third-party audit is necessary pursuant
to paragraph (f)(2) of this section, the
implementing agency will provide
written notice to the owner or operator
that describes the basis for this
determination.
(2) Within 30 days of receipt of such
written notice, the owner or operator
may provide information and data to,
and may consult with, the
implementing agency on the
determination. Thereafter, the
implementing agency will provide a
final determination to the owner or
operator.
(3) If the final determination requires
a third-party audit, the owner or
operator shall comply with the
requirements of § 68.59, pursuant to the
schedule in paragraph (h) of this
section.
(4) The owner or operator may appeal
a final determination made by an
implementing agency under paragraph
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(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) The audit and audit report shall be
completed as in paragraph (a) of this
section, unless a different timeframe is
specified by the implementing agency.
■ 8. Section 68.59 is added to subpart C
to read as follows:
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§ 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
(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) 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) The third-party auditor(s) shall:
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(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 (c)(2)(ii),
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 the requirement
in this paragraph (c)(2)(iv), employment
does not include performing or
participating in third-party audits
pursuant to § 68.80 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 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;
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(3) Document the auditor’s evaluation
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 subpart 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
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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. The requirement in
this paragraph (g) does not apply to any
document that is more than five years
old.
■ 9. Amend § 68.60 by adding paragraph
(h) to read as follows:
§ 68.60
Incident investigation.
*
*
*
*
*
(h) The owner or operator shall ensure
the following are addressed when the
incident in paragraph (a) of this section
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; and
(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.
■ 10. Section 68.62 is added to subpart
C to read as follows:
ddrumheller on DSK120RN23PROD with RULES3
§ 68.62
Employee participation.
(a) The owner or operator shall
develop a written plan of action
regarding the implementation of the
employee participation requirements
required by this section.
(1) An annual written or electronic
notice shall be distributed to employees
and their representatives indicating that
the plan is readily available to view, and
how to access the information.
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(2) Training shall be provided as often
as necessary to ensure employees and
their representatives, and management
involved in the process, are informed of
the details of the plan.
(b)(1) The owner or operator shall
develop and implement a process to
allow employees and their
representatives to report to either or
both the owner or operator and EPA
unaddressed hazards that could lead to
a catastrophic release, accidents covered
by § 68.42(a) but not reported under
§ 68.195(a), and any other
noncompliance with this part.
(2) The employee and their
representatives may choose to report
either anonymously or with attribution.
(3) When a report is made to the
owner or operator, a record of the report
shall be maintained for three years.
(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 subpart.
Subpart D—Program 3 Prevention
Program
11. Amend § 68.65 by revising
paragraphs (a) and (d)(2) to read as
follows:
■
§ 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 this part 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.
*
*
*
*
*
■ 12. Amend § 68.67 by:
■ a. Revising paragraphs (c)(3) and (5);
■ b. Removing the word ‘‘and’’ at the
end of paragraph (c)(6);
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c. Removing the period at the end of
paragraph (c)(7) and adding a semicolon
in its place; and
■ d. Adding paragraphs (c)(8) through
(10) and (h).
The revisions and additions 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. (Acceptable detection
methods might include process
monitoring and control instrumentation
with alarms, and detection hardware
such as hydrocarbon sensors.) The
owner or operator shall ensure
monitoring equipment associated with
prevention and detection of accidental
releases from covered processes has
standby or backup power to provide
continuous operation;
*
*
*
*
*
(5) Stationary source siting, including
the placement of processes, equipment,
and buildings within the facility, and
hazards posed by proximate stationary
sources, and accidental release
consequences posed by proximity to the
public and public receptors;
*
*
*
*
*
(8) Natural hazards that could cause
or exacerbate an accidental release;
(9) Safer technology and alternative
risk management measures applicable to
eliminating or reducing risk from
process hazards for the following
covered processes and shall meet all of
the following requirements:
(i) For covered processes in NAICS
codes 324 and 325, 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) For covered processes in
paragraphs (c)(9)(ii)(A) through (C) of
this section, 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.
The owner or operator shall also
determine and document the
practicability of the inherently safer
technologies and designs considered.
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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.
(A) In NAICS codes 324 and 325,
located within 1 mile of another
stationary source having a covered
process in NAICS code 324 or 325;
(B) In NAICS code 324 with
hydrofluoric acid alkylation covered
processes; and
(C) In NAICS codes 324 and 325 that
have had one accident that meets the
accident history reporting requirements
under § 68.42 since the most recent
process hazard analysis under this
section.
(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; and
(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.
*
*
*
*
*
(h)(1) Of the covered processes listed
under paragraphs (h)(1)(i) through (iii)
of this section, the owner or operator
shall implement at least one passive
measure at the stationary source, or an
inherently safer technology or design, or
a combination of active and procedural
measures equivalent to or greater than
the risk reduction of a passive measure,
resulting from paragraph (c)(9)(i) of this
section:
(i) In NAICS codes 324 and 325,
located within 1 mile of another
stationary source having a covered
process in NAICS code 324 or 325;
(ii) In NAICS code 324 with
hydrofluoric acid alkylation covered
processes; and
(iii) In NAICS codes 324 and 325 that
have had one accident that meets the
accident history reporting requirements
under § 68.42 since the most recent
process hazard analysis under this
section.
(2) If no passive measures are
identified or all are not practicable, and
no inherently safer technology or design
is implemented, then the owner or
operator shall implement at least one
active measure. If no active measures
are identified or all are not practicable,
the owner or operator shall implement
at least one procedural measure.
(3) For passive and active measures
not implemented, the owner or operator
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shall document sufficient evidence to
demonstrate to the implementing
agency’s satisfaction that implementing
the measures is not practicable and the
reasons for this conclusion. A claim that
implementation is not practicable shall
not be based solely on evidence of
reduced profits or increased costs.
■ 13. Amend § 68.69 by revising
paragraph (a)(4) to read as follows:
§ 68.69
Operating procedures.
(a) * * *
(4) Safety systems and their functions,
including documentation when
monitoring equipment associated with
prevention and detection of accidental
releases from covered processes is
removed due to safety concerns from
imminent natural hazards.
*
*
*
*
*
■ 14. 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, 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) The next required compliance
audit shall be a third-party audit when
one or more of the following conditions
applies:
(1) An accidental release meeting the
criteria in § 68.42(a) from a covered
process at a stationary source has
occurred; or
(2) An implementing agency requires
a third-party audit due to conditions at
the stationary source that could lead to
an accidental release of a regulated
substance, or when a previous thirdparty audit failed to meet the
competency or independence criteria of
§ 68.80(c).
(g)(1) If an implementing agency
makes a preliminary determination that
a third-party audit is necessary pursuant
to paragraph (f)(2) of this section, the
implementing agency will provide
written notice to the owner or operator
that describes the basis for this
determination.
(2) Within 30 days of receipt of such
written notice, the owner or operator
may provide information and data to,
and may consult with, the
implementing agency on the
determination. Thereafter, the
implementing agency will provide a
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17689
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 § 68.80, pursuant to the
schedule in paragraph (h) of this
section.
(4) 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) The audit and audit report shall be
completed as in paragraph (a) of this
section, unless a different timeframe is
specified by the implementing agency.
■ 15. Section 68.80 is added to subpart
D to read as follows:
§ 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
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) The third-party auditor(s) shall be:
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(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) 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 (c)(2)(ii),
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 the requirement
in this paragraph (c)(2)(iv), employment
does not include performing or
participating in third-party 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:
(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,
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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
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 part 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
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
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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.
■ 16. 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 paragraph (a) of this section
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, an extension of time; and
(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.
■ 17. 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 requirements
required by this section.
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(1) An annual written or electronic
notice shall be distributed to employees
and their representatives indicating that
the plan is readily available to view and
how to access the information.
(2) Training shall be provided as often
as necessary to ensure employees and
their representatives, and management
involved in the process, are informed of
the details of the plan.
(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 part.
(c) The owner or operator shall
consult with employees knowledgeable
in the process 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 knowledgeable in the
process and their representatives:
(1) 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; and
(2) 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)(1) The owner or operator shall
develop and implement a process to
allow employees and their
representatives to report to either or
both the owner or operator and EPA
unaddressed hazards that could lead to
a catastrophic release, accidents covered
by § 68.42(a) but not reported under
§ 68.195(a), and any other
noncompliance with this part.
(2) The employee and their
representatives may choose to report
either anonymously or with attribution.
(3) When a report is made to the
owner or operator, a record of the report
shall be maintained for three years.
(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
part.
■ 18. Amend § 68.85 by revising
paragraph (b) and adding paragraph (c)
to read as follows:
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§ 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
three years after the completion of the
hot work operations.
Subpart E—Emergency Response
19. Amend § 68.90 by:
a. Revising paragraph (b)(3);
b. Removing the word ‘‘and’’ at the
end of paragraph (b)(4);
■ c. Removing the period at the end of
paragraph (b)(5) and adding ‘‘; and’’ in
its place; and
■ d. Adding paragraph (b)(6).
The revision and addition read as
follows:
■
■
■
§ 68.90
Applicability.
*
*
*
*
*
(b) * * *
(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 accidental release. The
owner or operator may satisfy the
requirement in this paragraph (b)(3)
through notification mechanisms
designed to meet other Federal, State, or
local notification requirements,
provided the notification meets the
requirements of this paragraph (b)(3), as
appropriate;
*
*
*
*
*
(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 and partnering with
these response agencies to ensure that a
community notification system is in
place to warn the public within the area
potentially threatened by the accidental
release. Documentation of the
partnership shall be maintained in
accordance with § 68.93(c).
■ 20. Amend § 68.95 by revising
paragraphs (a)(1)(i) and (c) to read as
follows:
§ 68.95
Emergency response program.
(a) * * *
(1) * * *
(i) Procedures for informing the
public and the appropriate Federal,
State, and local emergency response
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17691
agencies about accidental releases,
including partnering with these
response agencies to ensure that a
community notification system is in
place to warn the public within the area
potentially threatened by the accidental
release. Documentation of the
partnership shall be maintained in
accordance with § 68.93(c);
*
*
*
*
*
(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 an accidental release occurs and
be coordinated with the community
emergency response plan developed
under 42 U.S.C. 11003. The owner or
operator may satisfy the requirement of
this paragraph (c) through notification
mechanisms designed to meet other
Federal, State, or local notification
requirements, provided the notification
meets the requirements of this
paragraph (c), as appropriate. 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.
■ 21. Amend § 68.96 by revising
paragraphs (b)(1)(i) and (b)(3) to read as
follows:
§ 68.96
Emergency response exercises.
*
*
*
*
*
(b) * * *
(1) * * *
(i) Frequency. As part of coordination
with local emergency response officials
required by § 68.93, the owner or
operator shall consult with these
officials to establish an appropriate
frequency for field exercises, and shall
conduct a field exercise before March
15, 2027, and at a minimum at least
once every ten years thereafter, unless
the appropriate local emergency
response agencies agree in writing that
such frequency is impractical. If local
emergency response agencies so agree,
the owner or operator shall consult with
local 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
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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations
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
22. Amend § 68.160 by:
a. Removing the semicolons at the
ends of paragraphs (b)(1) through (11)
and adding periods in their place;
■ b. Removing ‘‘; and’’ at the end of
paragraph (b)(12) and adding a period in
its place;
■ c. Removing the semicolons at the
ends of paragraphs (b)(13) through (19)
and adding periods in their place; and
■ d. Adding paragraph (b)(22).
The addition reads 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,
working, or spending significant time
within 6 miles of the stationary source,
pursuant to § 68.210(d).
■ 23. Amend § 68.170 by:
■ a. Removing the word ‘‘and’’ at the
end of paragraph (e)(5);
■ b. Removing the period at the end of
paragraph (e)(6) and adding ‘‘; and’’ in
its place;
■ c. Adding paragraph (e)(7); and
■ d. Revising paragraph (i).
The addition and revision read as
follows:
§ 68.170
Prevention program/Program 2.
ddrumheller on DSK120RN23PROD with RULES3
*
*
*
*
*
(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.
*
*
*
*
*
■ 24. Amend § 68.175 by:
■ a. Removing the word ‘‘and’’ at the
end of paragraph (e)(5);
■ b. Removing the period at the end of
paragraph (e)(6) and adding a semicolon
in its place;
VerDate Sep<11>2014
18:53 Mar 08, 2024
Jkt 262001
c. Adding paragraphs (e)(7) through
(9); and
■ d. Revising paragraph (k).
The addition and revision 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;
and
(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 thirdparty audit, pursuant to §§ 68.79 and
68.80; and findings declined from thirdparty compliance audits and
justifications.
*
*
*
*
*
Subpart H—Other Requirements
25. Amend § 68.210 by adding
paragraphs (d) through (h) 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, working,
or spending significant time within 6
miles of the fenceline of a stationary
source, the following chemical hazard
information for all regulated processes:
(1) Regulated substances information.
Names of regulated substances held in
a process;
(2) Safety Data Sheets. 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 § 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 of this part as applicable:
PO 00000
Frm 00072
Fmt 4701
Sfmt 9990
(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, excluding dates, required
under § 68.96 occurring within one year
from the date of request;
(6) LEPC contact information. Include
LEPC name, phone number, and web
address as available; and
(7) Declined recommendations and
justifications. Include declined
recommendations and justifications
required under §§ 68.170(e)(7) and
68.175(e)(7) through (9).
(e) Languages. The information shall
be made available in English or in at
least any two other commonly spoken
languages by the population potentially
affected, as requested.
(f) 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, working, or spending
significant time within 6 miles of the
stationary source upon request. The
notification shall:
(i) Specify the information elements,
identified in paragraph (d) of this
section, that can be requested; and
(ii) Provide instructions for how to
request the information including
verification of presence within 6-miles
(e.g., email, mailing address, and/or
telephone or website request); and
(2) Identify where to access
information on community
preparedness, if available, including
shelter-in-place and evacuation
procedures.
(g) 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.
(h) Recordkeeping. The owner or
operator shall maintain a record of the
members of the public requesting
chemical hazard information for five
years.
[FR Doc. 2024–04458 Filed 3–8–24; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\11MRR3.SGM
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Agencies
[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Rules and Regulations]
[Pages 17622-17692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04458]
[[Page 17621]]
Vol. 89
Monday,
No. 48
March 11, 2024
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 68
Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act; Safer Communities by Chemical Accident
Prevention; Final Rule
Federal Register / Vol. 89 , No. 48 / Monday, March 11, 2024 / Rules
and Regulations
[[Page 17622]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[EPA-HQ-OLEM-2022-0174; FRL-5766.6-02-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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is amending its Risk
Management Program (RMP) regulations as a result of Agency review. The
revisions include several changes and amplifications to the accident
prevention program requirements, enhancements to the emergency
preparedness requirements, improvements to the public availability of
chemical hazard information, and several other changes to certain
regulatory definitions or points of clarification. As major and other
serious and concerning RMP accidents continue to occur, the record
shows and EPA believes that this final rule will help further protect
human health and the environment from chemical hazards through
advancement of process safety based on lessons learned. These
amendments seek to improve chemical process safety; assist in planning,
preparedness, and response to Risk Management Program-reportable
accidents; and improve public awareness of chemical hazards at
regulated sources. While many of the provisions of this final rule
reinforce each other, it is EPA's intent that each one is merited on
its own, and thus severable.
DATES: This final rule is effective on May 10, 2024.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2022-0174. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov.
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].
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, EPA defines
the following terms and acronyms here:
List of Abbreviations and Acronyms
ANSI American National Standards Institute
API American Petroleum Institute
CAA Clean Air Act
CAAA Clean Air Act Amendments
CBI Confidential Business Information
CCPS Center for Chemical Process Safety
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CISA Cybersecurity & Infrastructure Security Agency
CSB Chemical Safety and Hazard Investigation Board
CSISSFRRA Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act
CVI Chemical-terrorism Vulnerability Information
DHS Department of Homeland Security
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
FBI Federal Bureau of Investigation
FOIA Freedom of Information Act
FR Federal Register
GDC General Duty Clause
HF hydrofluoric acid
HHC highly hazardous chemical
ICR Information Collection Request
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
LOPA Layers of Protection Analysis
NAICS North American Industry Classification System
NASTTPO National Association of SARA Title III Program Officials
NECI National Enforcement and Compliance Initiative
NJDEP New Jersey Department of Environmental Protection
NRC National Response Center
NRI National Risk Index
NTTAA National Technology and Transfer Advancement Act
OCA offsite consequence analysis
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PES Philadelphia Energy Solutions
PHA process hazard analysis
PHMSA Pipeline and Hazardous Materials Safety Administration
PRA Paperwork Reduction Act
PSI process safety information
PSM process safety management
RAGAGEP recognized and generally accepted good engineering practices
RCA root cause analysis incident investigation
RFA Regulatory Flexibility Act
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
SDS Safety Data Sheet
SERC State Emergency Response Commission
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TMA trimethylamine
TQ threshold quantity
UMRA Unfunded Mandates Reform Act
The contents of this preamble are:
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Costs and Benefits
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 incremental costs and benefits of this action?
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. Discussion of General Comments
A. General Comments
B. EPA Responses
V. Prevention Program Requirements
A. Hazard Evaluation Amplifications
B. Safer Technology and Alternatives Analysis (STAA)
C. Root Cause Analysis
D. Third-Party Compliance Audits
E. Employee Participation
VI. Emergency Response
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments
VII. Information Availability
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
VIII. Other Areas of Technical Clarification/Enforcement Issues
A. Summary of Proposed Rulemaking
[[Page 17623]]
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
IX. Compliance Dates
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing 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
K. Congressional Review Act (CRA)
I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this action is to make changes to the Risk
Management Program (RMP) rule in order to improve safety at facilities
that use and distribute hazardous chemicals. Because major and other
serious and concerning RMP accidents continue to occur, this final rule
aims to better identify and further regulate risky facilities to
prevent accidental releases before they can occur. As explained in
further detail in following sections of this preamble, EPA maintains
that by taking a rule-based, prevention-focused approach in this action
rather than the so-called ``compliance-driven,'' mostly post-incident,
approach in the 2019 reconsideration rule (84 FR 69834, December 19,
2019), this rule will further protect human health and the environment
from chemical hazards through process safety advancement without undue
burden.
EPA proposed changes to its RMP regulations (40 Code of Federal
Regulations (CFR) part 68) on August 31, 2022 (87 Federal Register (FR)
53556), after publishing a ``Notice of virtual public listening
sessions; request for public comment'' (86 FR 28828) that solicited
comments and information from the public regarding potential changes to
the RMP regulations. EPA also hosted a series of virtual public
hearings on September 26-28, 2022, to provide interested parties the
opportunity to present data, views, or arguments concerning the
proposed action.
B. Summary of the Major Provisions of the Regulatory Action
This action amends EPA's RMP regulations at 40 CFR part 68. These
regulations apply to stationary sources (also referred to as
``facilities'') that hold specific ``regulated substances'' in excess
of threshold quantities. These facilities are required to assess their
potential release impacts, undertake steps to prevent releases, plan
for emergency response to releases, and summarize this information in a
risk management plan (RMP) submitted to EPA. The release prevention
steps vary depending on the type of process, but progressively gain
granularity and rigor over three program levels (i.e., Program 1,
Program 2, and Program 3).
The major provisions of this rule include several changes to the
accident prevention program requirements, as well as enhancements to
the emergency response requirements, and improvements to the public
availability of chemical hazard information. Each of these provisions
is introduced in the following paragraphs of this section and described
in greater detail in sections V through VIII of this preamble.
Additionally, certain revised provisions apply to a subset of the
processes based on program levels described in 40 CFR part 68 (or in
one case, to a subset of processes within a program level). A full
description of these program levels is provided in section III.A. of
this preamble. Additional provisions are targeted at subgroups of
processes that pose an elevated likelihood of impacting nearby
communities. Factors elevating the likelihood of impacting nearby
communities include source-specific accident history, industry accident
history, and co-location with multiple facilities. Furthermore, some
sectors are targeted for additional provisions due to recent accidents
and widely known safer alternative technologies.
C. Costs and Benefits
Approximately 11,740 facilities have filed current RMPs with EPA
and are potentially affected by the rule. These facilities include
petroleum refineries and large chemical manufacturers; 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.
In total, EPA estimates annualized final rule costs of $256.9
million at a 3% discount rate and $296.9 million at a 7% discount rate
over a 10-year period. The largest annualized cost of the final rule is
the Safer Technologies and Alternatives Analysis (STAA) implementation
cost ($168.7 million at a 3% discount rate and $204.9 million at a 7%
discount rate), followed by the practicability study ($27.0 million at
a 3% discount rate and $28.6 million at a 7% discount rate), the STAA
initial evaluation ($18.5 million at a 3% discount rate and $19.7
million at a 7% discount rate), information availability ($12.8 million
at both 3% and 7% discount rates), employee participation plans ($11.5
million at both 3% and 7% discount rates), third-party audits ($7.5
million at both 3% and 7% discount rates), rule familiarization ($5.8
million at a 3% discount rate and $6.8 million at a 7% discount rate),
and community notification systems ($4.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including root cause analysis ($0.7 million at both 3% and
7% discount rates), emergency backup power for perimeter monitors ($0.3
million at both 3% and 7% discount rates), and RMP justifications for
natural hazards, facility siting, recognized and generally accepted
good engineering practices (RAGAGEP), and no backup power, each have
annualized costs below $0.1 million (at both 3% and 7% discount rates).
The Agency has determined that among the 2,636 potentially
regulated private sector small entities impacted, 2,393, or 90.8
percent, may experience a cost of revenue impact of less than one
percent, with an average small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of between 1 and 3 percent of
revenues with an average small entity cost of $629,271; and 75, or 2.8
percent, may experience an impact of greater than 3 percent with an
average small entity cost of $1,083,823. The industry sectors of Farm
Supplies Merchant Wholesalers and Farm Product Warehousing and Storage
had the most entities potentially affected, with 146 and 96 entities,
respectively. Within the Farm Supplies Merchant Wholesalers sector, the
Agency determined that only 8 of the 146 small entities (6 percent of
small entities) will experience impacts of between 1 and 3 percent of
revenues and only 2 small entities (1 percent of small entities) will
[[Page 17624]]
experience impacts of more than 3 percent of revenue. Within the Farm
Product Warehousing and Storage sector, the Agency determined that only
5 of the 96 small entities (5 percent of small entities) will
experience impacts of between 1 and 3 percent of revenues and no small
entities will experience impacts of more than 3 percent of revenue.
Among the 630 small government entities potentially affected, the
minimum cost any entity will incur is $2,000; 365, or 58 percent, would
incur costs ranging from $2,000 to $3,000; 248, or 39 percent, will
incur costs ranging from $3,000 to $10,000; and 17, or 3 percent, will
incur costs greater than $10,000. EPA estimated that for the rule to
have a larger than 1 percent impact on the government entity with the
largest cost impact, the entity would need to have revenue of less than
$120 per resident. For the rule to have a larger than 1 percent impact
on the smallest government entity identified in the data, the entity
would need to have revenue of less than $650 per resident. Details of
these analyses are presented in Chapter 8 of the RIA, which is
available in the docket.
Major and other serious and concerning RMP accidents have continued
to occur. EPA anticipates that promulgation and implementation of this
final rule will reduce the risk of such accidents and the severity of
the impacts when they occur. RMP accident data show past accidents have
generated highly variable impacts, so the impacts of future accidents
are difficult to predict. Nevertheless, it is clear from RMP accident
data \1\ and other relevant data from RMP regulated industry
sectors,\2\ that chemical accidents can impose substantial costs on
firms, employees, emergency responders, the community, and the broader
economy.
---------------------------------------------------------------------------
\1\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\2\ Marsh JLT Specialty, ``100 Largest Losses in the Hydrocarbon
Industry,'' 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage
losses in the hydrocarbon industry from 1974 to 2021 in current and
2021 dollars and in a few cases, business loss costs.
---------------------------------------------------------------------------
Specifically, the EPA expects the final rule provisions to result
in a reduced frequency and magnitude of damages from releases,
including damages that are quantified for the baseline period such as
fatalities, injuries, property damage, hospitalizations, medical
treatment, sheltering in place, and evacuations. EPA also expects the
final rule provisions to reduce baseline damages that are not
quantified. These damages include potential health risks from toxic
chemical exposure, lost productivity at affected facilities, emergency
response costs, transaction costs from potential subsequent legal
battles, property value losses in nearby neighborhoods, environmental
damage and costs of evacuation and sheltering-in-place events, and
others. They have not been quantified because there is either limited
or no information in the RMP data that could allow for precise
quantification. However, in some cases, these damages could be even
more detrimental to the facility and community than those damages that
can be quantified. For example, regarding lost productivity, costs are
highly variable based on the type of release, the extent of the damage,
the location of the facility, and product being produced. Yet, Marsh
Specialty, a risk management and energy consultancy, has collected data
on 10,000 accidents in the petrochemical sector over 40 years and
published 27 editions of its ``100 Largest Losses'' reports.\3\ Their
data suggest that lost productivity is typically two or three times the
cost of property damage.\4\ Another example of unquantified impacts can
be examined with property value impacts. A recent hedonic property
value analysis has examined the impact of RMP facility accidents on
residential property values (Guignet et al. 2023a, b).\5\ The analysis
found that accidents with only onsite impacts reduced nearby property
values between zero and two percent. However, accidents with impacts
that occurred offsite, including fatalities, hospitalizations, people
in need of medical treatment, evacuations, sheltering in place events,
and/or property and environmental damage, reduced home values by two to
three percent. The lower values persisted for about 10 to 12 years on
average. The paper estimates an average loss of $5,350 per home in
2021-year values. Aggregating across the communities near the 661
facilities that experienced an offsite impact accident in their data,
they calculate a total $39.5 billion loss. These studies strongly
suggest that preventing or mitigating an accident at a chemical
facility may prevent or mitigate lost productivity at RMP facilities
and property value losses in nearby neighborhoods.
---------------------------------------------------------------------------
\3\ Marsh JLT Specialty, ``100 Largest Losses in the Hydrocarbon
Industry,'' 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage
losses in the hydrocarbon industry from 1974 to 2021 in current and
2021 dollars and in a few cases, business loss costs.
\4\ Marsh JLT Specialty, ``100 Largest Losses 1974-2015: Large
property damage losses in the hydrocarbon industry,'' 24th Edition,
March 2016. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides
estimates of large property damage losses in the hydrocarbon
industry and in a few cases, business loss costs.
\5\ Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and
James Belke. 2023a. The External Costs of Industrial Chemical
Accidents: A Nationwide Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
---------------------------------------------------------------------------
Further, in enacting section 112(r), Congress was focused on
catastrophic accidents such as the 1984 Union Carbide industrial
disaster in Bhopal, India,\6\ which are extremely rare, but very high
consequence events. While large chemical facility accidents that have
occurred in the U.S. and Europe have not approached this level of
damage, it is possible that could happen. For example, one of the most
consequential chemical accidents in the U.S.\7\ was the 1989 explosion
at the Phillips facility in Pasadena, TX, that killed 23 workers ($239
million in 2022 dollars), injured at least 150 more ($7.5 million), and
caused $1.8 billion in property damage.\8\
---------------------------------------------------------------------------
\6\ 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.; Lees,
Frank P. Loss Prevention in the Process Industries, Volume 3, 2nd
ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann, 1996).
\7\ As compared to consequences resulting from RMP accidents
2004-2020 listed in Appendix A of the 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).
\8\ EPA estimated the values of injuries and deaths that
occurred in Pasadena using the same values applied to injuries and
deaths at RMP facility-reported accidents. See Exhibit 3-15 in the
accompanying RIA for specific values and section 3.2.5.1
``Fatalities and Injuries'' in the RIA for detailed explanations of
how those values were estimated. The $1.8 billion in property damage
was estimated by Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th ed., March 2022. https://www.marsh.com/us/industries/energy-and-power/insights/100-largest-losses/100-largest-losses-report-download.html.
---------------------------------------------------------------------------
The five-year baseline period accident costs included in EPA's
analysis is $540 million per year. This cost was estimated using
impacts from accidents during 2016 through 2020 (the last year with
complete data) reported to the RMP plan reporting database by facility
owners and operators. EPA used this dataset due to a lack of
alternative data describing accident impacts more comprehensively. This
estimate does not include a major catastrophe on the scale of Union
Carbide-Bhopal, or even Phillips-Pasadena. If the final rule provisions
were to prevent or substantially mitigate even one accident of this
magnitude, the benefits generated, quantified and unquantified, will be
dramatic. Further, some
[[Page 17625]]
accidents that occurred at RMP facilities during the five-year period
were not reported to EPA because the facility either closed after the
accident, decommissioned the process, or removed the regulated
substance from the process involved in the accident before it was
required to submit a report to the RMP Database.\9\ Additionally, the
many baseline accident impacts that are not reflected in the $540
million baseline accident cost estimate because EPA was unable to
monetize them,\10\ yet are expected to be avoided as a benefit of the
final provisions, include responder costs, transaction costs, property
value reductions, unmonetized costs of evacuations and sheltering-in-
place, the costs of potential health effects from exposure to toxic
chemicals, and productivity losses, among others. The $540 million
estimate also does not reflect the full set of baseline inefficiencies
that may be mitigated due to the improved information offered by
several of the final provisions such as the community notification
requirements and the back-up power for monitors. As the range of
monetized accident impacts suggests (from $100 to $700 million for 2016
to 2020 \11\), the variation in monetized damages is substantial.
Preventing a single high-cost accident annually would offset annual
rule costs.
---------------------------------------------------------------------------
\9\ For example, the Philadelphia Energy Solutions Refining and
Marketing LLC facility in Philadelphia, PA, had a fire and
explosions in the PES Girard Point refinery HF alkylation unit on
June 21, 2019, which resulted in the release of HF. This facility
deregistered the affected process before the deadline for their
subsequent RMP report. For a description of damages from this
accident see section 3.2.1 of the RIA and the CSB Report, Fire and
Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric
Acid Alkylation Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf.
\10\ For descriptions on why EPA was unable to monetize each of
these impacts, see Regulatory Impact Analysis: Safer Communities by
Chemical Accident Prevention: Final Rule. This document is available
in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). Chapter
6, Section 6.2.
\11\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
---------------------------------------------------------------------------
When considering this final rule's likely benefits of avoiding some
portion of the monetized accident impacts, as well as the additional
nonmonetized benefits, EPA believes the costs of the rule are
reasonable in comparison to its expected benefits. When assessing the
reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. The Agency's judgment as to what regulations are ``reasonable''
is informed by both quantifiable and unquantifiable burdens and
benefits as discussed more fully in section III.C of this preamble.
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 (42 U.S.C. 7412(r))) 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 impacts the scope and applicability of the General Duty Clause
(GDC) in CAA section 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 Final Rule
----------------------------------------------------------------------------------------------------------------
Number of
Sector NAICS codes facilities Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental 92, 2213 (government-owned).......... 1,449 Use chlorine and other
quality programs (i.e., chemicals for water
governments, government-owned 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.
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, 491, 246 Use chemicals for
54, 55, 56, 61, 62, 71, 72, 81, 99. wastewater 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 ......................
----------------------------------------------------------------------------------------------------------------
[[Page 17626]]
B. What action is the Agency taking?
EPA is amending its RMP regulations as a result of Agency review.
The revisions include several changes and amplifications to the
accident prevention program requirements, enhancements to the emergency
preparedness requirements, improvements to the public availability of
chemical hazard information, and several other changes to certain
regulatory definitions or points of clarification. Because major and
other serious and concerning RMP accidents continue to occur, EPA
believes that this final rule will help further protect human health
and the environment from chemical hazards through advancement of
process safety based on lessons learned. These amendments seek to
improve chemical process safety; assist in planning, preparedness, and
response to RMP-reportable accidents; and improve public awareness of
chemical hazards at regulated sources.
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 finalizes 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 incremental costs and benefits of this action?
1. Summary of Estimated Costs
Table 2 presents a summary of the annualized final rule costs
estimated in the Regulatory Impact Analysis (RIA).\12\ In total, EPA
estimates annualized costs of $256.9 million at a 3% discount rate and
$296.9 million at a 7% discount rate.
---------------------------------------------------------------------------
\12\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
Table 2--Summary of Estimated Annualized Costs [Millions, 2022 Dollars] Over a 10-Year Period
----------------------------------------------------------------------------------------------------------------
Total Total
Cost elements Total discounted discounted Annualized Annualized
undiscounted (3%) (7%) (3%) (7%)
----------------------------------------------------------------------------------------------------------------
Third-party Audits.............. $75.2 $64.2 $52.8 $7.5 $7.5
Root Cause Analysis............. 7.3 6.2 5.1 0.7 0.7
Safer Technology and
Alternatives Analysis (STAA):
Initial Evaluation.......... 176.4 158.2 138.3 18.5 19.7
Practicability Study........ 256.9 230.2 201.0 27.0 28.6
Implementation.............. 1,700.4 1,438.9 1,172.6 168.7 204.9
Backup Power for Perimeter 3.3 2.8 2.3 0.3 0.3
Monitors.......................
Employee Participation Plan..... 114.7 97.9 80.6 11.5 11.5
RMP Justifications:
No Backup Power............. .2 0.1 0.1 ** 0.0 ** 0.0
Natural Hazards............. .4 0.4 0.3 ** 0.0 ** 0.0
Facility Siting............. .4 0.4 0.3 ** 0.0 ** 0.0
RAGAGEP..................... .3 0.2 0.2 ** 0.0 ** 0.0
Community Notification System... 39.7 33.9 27.9 4.0 4.0
Information Availability........ 127.6 108.8 89.6 12.8 12.8
Rule Familiarization............ 50.9 49.5 47.6 5.8 6.8
-------------------------------------------------------------------------------
Total Cost *................ 2,554.0 2,191.7 1,818.9 256.9 296.9
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Costs are zero due to rounding, Unrounded costs are $42,307 for Natural Hazards and Facility Siting, $27,582
for RAGAGEP, and $15,798 for No Backup Power.
The largest annualized cost of the final rule is the STAA
implementation cost ($168.7 million at a 3% discount rate and $204.9
million at a 7% discount rate), followed by practicability study ($27.0
million at a 3% discount rate and $28.6 million at a 7% discount rate),
STAA initial evaluation ($18.5 million at a 3% discount rate and $19.7
million at a 7% discount rate), information availability ($12.8 million
at both 3% and 7% discount rates), employee participation plans ($11.5
million at both 3% and 7% discount rates), third-party audits ($7.5
million at both 3% and 7% discount rates), rule familiarization ($5.8
million at a 3% discount rate and $6.8 million at a 7% discount rate),
and community notification systems ($4.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including root cause analysis ($0.7 million at both 3% and
7% discount rates), emergency backup power for perimeter monitors ($0.3
million at both 3% and 7% discount rates), and RMP justifications for
natural hazards, facility siting, RAGAGEP, and no backup power, that
each have annualized costs below $0.1 million (at both 3% and 7%
discount rates).
The Agency has determined that among the 2,636 potentially
regulated private sector small entities impacted by this rule, 2,393,
or 90.8 percent, may experience an impact of less than 1 percent of
revenue with an average small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of between 1 and 3 percent of
revenues with an average small entity cost of $629,271; and 75, or 2.8
percent, may experience an impact of greater than 3 percent with an
average small entity cost of $1,083,823. Among the 630 small government
entities potentially affected, none would incur costs of less than
$2,000; 365, or 58 percent, would incur costs ranging from $2,000 to
$3,000; 248, or 39 percent, would incur costs ranging from $3,000 to
$10,000; and 17, or 3 percent, would incur costs greater
[[Page 17627]]
than $10,000. EPA estimated that for the rule to have a larger than 1
percent impact on the government entity with the largest cost impact,
it would need to have revenue of less than $120 per resident. For the
rule to have a larger than 1 percent impact on the smallest government
entity identified in the data, it would need to have revenue of less
than $650 per resident.\13\
---------------------------------------------------------------------------
\13\ The Regulatory Flexibility Act defines small governments as
governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000. Most governmental RMP facilities are water and wastewater
treatment systems and listed a city or county as the owner entity.
---------------------------------------------------------------------------
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 serious injuries and fatalities. EPA is able to present
data on the total damages that currently occur at RMP facilities each
year. In this final rule, EPA presents the data based on a 5-year
baseline period (2016-2020), summarizes RMP accident impacts and, when
possible, monetizes them. Due to a lack of alternative data describing
RMP accident impacts more comprehensively, EPA chose this five-year
dataset to reflect the most recent trends regarding RMP accidents.\14\
It is important to note, however, that many accident costs are not
required to be reported under the RMP accident reporting provisions (40
CFR 68.42(b)) and thus are not reflected in the data. These include
responder costs, transaction costs, property value reductions,
unmonetized costs of evacuations and sheltering-in-place, the costs of
potential health effects, and productivity losses, among others.\15\ In
addition, some accidents that occurred at RMP facilities during the
five-year period were not reported to EPA because the facility either
closed after the accident, decommissioned the process, or removed the
regulated substance from the process involved in the accident before it
was required to submit a report to the RMP Database. For example, the
Philadelphia Energy Solutions (PES) Refining and Marketing LLC facility
in Philadelphia, PA, had a fire and explosions in the PES Girard Point
refinery hydrofluoric acid (HF) alkylation unit on June 21, 2019, which
resulted in the release of HF.\16\ This facility deregistered the
affected process before the deadline for their subsequent RMP report.
Due to the omission of such accidents and the omission of the cost
categories listed in the beginning of this paragraph, the monetized
costs of RMP accidents to society underestimate the number and
magnitude of RMP chemical accidents. Nonetheless, EPA expects that some
portion of future damages will be prevented through implementation of
the final rule. Table 3 presents a summary of the quantified damages
identified in the analysis.
---------------------------------------------------------------------------
\14\ EPA used the August 1, 2021, version of the RMP database to
complete its analysis because under 40 CFR 68.195(a), facilities are
required to report RMP accidents and specific associated information
within six months to the RMP database. Therefore, the RMP database
as of August 1, 2021, is expected to include RMP accidents and their
specific associated information as of December 31, 2020. However,
because accident data are reported to the RMP database by facility
owners and operators, EPA acknowledges the likelihood of late-
reported accidents affecting these last few years of data because
some facilities may have not reported their RMP accidents as they
are required to do. See sections 3.2 and 3.3 of the RIA for more on
this and other limitations on the number and costs of baseline
accidents.
\15\ Further discussed in detail in Chapter 6 of the RIA.
\16\ For a description of damages from this case see section
3.2.1 of the RIA and the CSB Report, Fire and Explosions at
Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation
Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf.
Table 3--Summary of Quantified Damages
[Millions, 2022 dollars]
----------------------------------------------------------------------------------------------------------------
Average/
Unit value 5-Year total Average/ year accident
----------------------------------------------------------------------------------------------------------------
On site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... $10.4 $187.9 $37.57 $0.38
Injuries........................................ 0.05 28.75 5.75 0.06
Property Damage................................. .............. 2,273 454.58 4.66
---------------------------------------------------------------
Onsite Total................................ .............. 2,489.49 497.90 5.10
----------------------------------------------------------------------------------------------------------------
Off site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... 10.4 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 18.99 3.80 0.039
Sheltering in Place *........................... 0.00 12.58 2.52 0.026
Property Damage................................. .............. 178.55 35.71 0.37
---------------------------------------------------------------
Offsite Total............................... .............. 211.66 42.33 0.43
---------------------------------------------------------------
Total................................... .............. 2,701.14 540.23 5.54
----------------------------------------------------------------------------------------------------------------
* The unit value is $293 for evacuations and $147 for sheltering in place, so when expressed in rounded millions
the value represented in the table is zero.
In total, EPA estimated monetized damages from RMP facility
accidents of $540.23 million per year, which are divided into onsite
and offsite categories where possible. EPA estimated total, average
annual onsite damages from chemical releases at RMP facilities of
$497.90 million. The largest monetized category was onsite property
damage, valued at $454.58 million. The next largest impacts were onsite
fatalities ($37.57 million) and injuries ($5.75 million).
EPA estimated total, average annual offsite damages of $42.33
million. Property damage again was the highest value category,
estimated at
[[Page 17628]]
approximately $35.71 million. In decreasing order, the next largest
average annual offsite impact was from evacuations ($3.80 million),
then sheltering in place ($2.52 million), hospitalizations ($0.28
million), and medical treatment ($0.03 million).
Regarding small entities, there were 86 accidents at facilities
owned by small entities in the 2016-2020 period, or about 18 percent of
all accidents.\17\ These accidents cost $141.14 million in total over
the 5-years, with an average cost of $28.23 million per year, and
average per accident cost of $0.29 million. These accidents costs
represent about 5% of the costs of all accidents.
---------------------------------------------------------------------------
\17\ There are accidents at 97 facilities that were not matched
in the small entity analysis, so it is not possible to determine if
they are owned by small or large entities with the data EPA has.
---------------------------------------------------------------------------
EPA also evaluated the range of significant baseline damages in
Table 3 that could not be quantified. These damages include major
catastrophic releases, potential health risks from toxic chemical
exposure, lost productivity at affected facilities, emergency response
costs, transaction costs from potential subsequent legal battles,
property value losses in nearby neighborhoods, environmental damage,
unquantified costs of evacuation and sheltering-in-place events, and
others. They have not been quantified because there is either limited
or no information in the RMP data. However, in some cases, these
damages could be even more detrimental to the facility and community
than those damages that can be quantified. For example, regarding lost
productivity, costs are highly variable based on the type of release,
the extent of the damage, the location of the facility, and product
being produced. Yet, Marsh Specialty, a risk management and energy
consultancy, has collected data on 10,000 accidents in the
petrochemical sector over 40 years and published 27 editions of its
``100 Largest Losses'' reports.\18\ The data suggest that lost
productivity may range from zero to four to five is typically two to
three times the cost of property damage.\19\ Another example of
unquantified impacts can be examined with property value impacts. A
recent hedonic property value analysis has examined the impact of RMP
facility accidents on residential property values (Guignet et al.
2023a, b).\20\ The analysis found that accidents with only onsite
impacts reduced nearby property values between zero and two percent.
However, accidents with impacts that occurred offsite, including
fatalities, hospitalizations, people in need of medical treatment,
evacuations, sheltering in place events, and/or property and
environmental damage, reduced home values by two to three percent. The
lower values persisted for about 10 to 12 years on average. The paper
estimates an average loss of $5,350 per home in 2021-year values.
Aggregating across the communities near the 661 facilities that
experienced an offsite impact accident in their data, they calculate a
total $39.5 billion loss.
---------------------------------------------------------------------------
\18\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
\19\ Marsh JLT Specialty, ``100 Largest Losses 1974-2015: Large
property damage losses in the hydrocarbon industry,'' 24th Edition,
March 2016. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides
estimates of large property damage losses in the hydrocarbon
industry and in a few cases, business loss costs.
\20\ Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and
James Belke. 2023a. The External Costs of Industrial Chemical
Accidents: A Nationwide Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
---------------------------------------------------------------------------
Further, the five-year baseline period included in this analysis
($540 million per year) does not include a major catastrophe. In
enacting section 112(r), Congress was focused on catastrophic accidents
such as Union Carbide-Bhopal, which are extremely rare, but very high
consequence events. The large chemical facility accidents that have
occurred in the U.S. and Europe have not approached this level of
damage, although it is possible that could happen. As mentioned
previously, one of the most consequential accidents in the U.S.,\21\
the explosion at the Phillips facility in Pasadena, TX, in 1989, killed
23 workers ($239 million in 2022 dollars), injured at least 150 more
($7.5 million), and caused $1.8 billion in property damage. These
baseline damages are discussed in greater detail in Chapter 6 of the
RIA.
---------------------------------------------------------------------------
\21\ As compared to consequences resulting from RMP accidents
2004-2020 listed in Appendix A of the 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).
---------------------------------------------------------------------------
3. Summary of Estimated Benefits
RMP accident data show past accidents have generated highly
variable impacts, so the impacts of future accidents are difficult to
predict. Nevertheless, it is clear from RMP accident data \22\ and
other relevant data from RMP regulated industry sectors,\23\ that
chemical accidents can impose substantial costs on firms, employees,
emergency responders, the community, and the broader economy.
Notwithstanding EPA's current rules, RMP accidents have continued to
occur. EPA anticipates that promulgation and implementation of this
final rule will improve the health and safety protection provided by
the RMP rule and 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
final rule provisions will reduce baseline damages that are not
quantified in Table 3 such as lost productivity, responder costs,
property value reductions, damages from catastrophes, transaction
costs, environmental impacts, and so on. Although EPA was unable to
quantify the reductions in damages that may occur as a result of the
final rule provisions, EPA expects that a portion of future damages
will be prevented by the final rule.\24\ Table 4 summarizes five 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 thirteen associated specific benefit categories,
ranging from avoided fatalities to avoided emergency response costs.
---------------------------------------------------------------------------
\22\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\23\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
\24\ For the discussion of how final rule provisions are
intended to lower the likelihood of future accidents of the same or
similar type, see section 6.1.1 of the RIA.
[[Page 17629]]
Table 4--Summary of Social Benefits of Final Rule Provisions
------------------------------------------------------------------------
Specific benefit
Broad benefit category Explanation categories
------------------------------------------------------------------------
Accident Prevention............. Prevention of Reduced
future RMP Fatalities.
facility Reduced
accidents. Injuries.
Reduced
Property Damage.
Fewer
People Sheltered-
in-Place.
Accident Mitigation............. Mitigation of Fewer
future RMP Evacuations.
facility Avoided
accidents. Health Risks from
Exposure to
Toxics.
Non-RMP Accident Prevention and Prevention and Avoided
Mitigation. mitigation of Lost
future non-RMP Productivity.
accidents at RMP Avoided
facilities. Emergency
Response Costs.
Avoided
Transaction
Costs.
Avoided
Property Value
Impacts.*
Avoided Catastrophes............ Prevention of rare Avoided
but extremely Environmental
high consequence Impacts.
events.
Information Availability........ Provision of Improved
information to Efficiency of
the public and Property Markets.
emergency Improved
responders. Resource
Allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories.
For details on how quantified benefits were estimated or discussion
on unquantified benefits, including the difficulty in their
quantification see Chapter 6 of the RIA.
When considering this final rule's likely benefits of this of
avoiding some portion of the monetized accident impacts, as well as the
additional nonmonetized benefits, EPA believes the costs of the rule
are reasonable in comparison to its expected benefits. When assessing
the reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. The Agency's judgment as to what regulations are ``reasonable''
is informed by both quantifiable and unquantifiable burdens and
benefits.
III. Background
A. Overview of EPA's Risk Management Program
EPA originally issued the RMP regulations in two stages. First, 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.'' \25\ The Agency then published the
RMP regulations, 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.'' 26 27 Subsequent modifications to the list rule and
the 1996 RMP rule were made as discussed in the 2017 amendments rule
(``Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act''; 82 FR 4594 at 4600, January 13, 2017,
hereinafter referred to as the ``2017 amendments rule''). 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).
---------------------------------------------------------------------------
\25\ 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.
\26\ Documents and information related to development of the
1996 RMP rule can be found in EPA docket number A-91-73.
\27\ The regulation at 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.
---------------------------------------------------------------------------
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 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.
EPA's RMP 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, 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 RMP 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 similar to the
OSHA PSM standard and designed to cover those processes in the
[[Page 17630]]
chemical industry. EPA notes that nothing in this final rule changes
the applicability determinations or designations of whether a process
at a stationary source is covered under one of the three different
prevention programs.
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,'' \28\ 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 (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).\29\ 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
amendments 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 March 1, 2024, 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.
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\28\ https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
\29\ https://www.epa.gov/petitions/petitions-office-land-and-emergency-management.
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On January 20, 2021, President Biden issued E.O. 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the ClimateCrisis.'' \30\ E.O. 13990 directed Federal agencies
to review existing regulations and take action to address priorities
established by the Biden Administration, which include bolstering
resilience to the impacts of climate change and prioritizing EJ. As a
result, EPA was tasked to review the current RMP regulations.
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\30\ 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/.
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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 included
27,720 received at regulations.gov,\31\ 35 provided during the
listening session on June 16, 2021,\32\ and 73 provided during the
listening session on July 8, 2021.\33\ 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 informed the proposal.
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\31\ EPA-HQ-OLEM-2021-0312.
\32\ EPA-HQ-OLEM-2021-0312-0011.
\33\ EPA-HQ-OLEM-2021-0312-0020.
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EPA published the ``RMP Safer Communities by Chemical Accident
Prevention,'' (SCCAP) proposed rulemaking on August 31, 2022 (87 FR
53556), hereinafter referred to as the ``2022 SCCAP proposed rule.''
The 2022 SCCAP proposed rule included several changes and
amplifications to the accident prevention program requirements,
enhancements to the emergency preparedness requirements, improvements
to the public availability of chemical hazard information, and several
other changes to certain regulatory definitions or points of
clarification. EPA hosted virtual public hearings on September 26, 27,
and 28, 2022 to provide interested parties the opportunity to present
data, views or arguments concerning the proposed action.
EPA received a total of 494 discrete public comments deemed as
substantive (i.e., the commenters presented both a position and a
reasoned argument in support of the position) on the proposed
rulemaking. Of the 494 comments, 370 were written submitted comments
and 124 were from members of the public that provided verbal comments
at the public hearings on September 26, 27, and 28, 2022. Of the 370,
142 were from 101 unique organizations, 6 were the result of various
mass mail campaigns and contained numerous copies of letters or
petition signatures (approximately 57,505 letters and signatures were
contained in these several comments), and 31 were from individual
citizens. Discussion of public comments can be found in topics included
in this final rule and in the Response to Comments document,\34\
available in the docket for this rulemaking.
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\34\ 2023. EPA Response to Comments on the 2022 SCCAP Proposed
Rule (August 31, 2022; 87 FR 53556). This document is available in
the docket for this rulemaking.
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The notice of proposed rulemaking (NPRM) discussed how the various
proposed provisions amendments to the RMP rule were not only
integrated, reinforcing, and complementary but also how each was
merited on its own and severable. 87 FR 53566 (August 31, 2022). For
example, EPA noted that new substantive prevention requirements like
STAA and third-party audits triggered by NAICS, location, and accident
history were reinforced by provisions like local information access and
enhanced employee participation. Nevertheless, in the body of the
preamble for the 2022 SCCAP proposed rule, the Agency explained how
each of these provisions would help prevent accidents and improve
release mitigation and emergency response on its own merits.
C. EPA's Authority To Revise the RMP Rule
The statutory authority for this action is provided by CAA section
112(r) (42 U.S.C. 7412(r)). Each of the portions of the RMP regulations
we are amending in this action are based on EPA's rulemaking authority
under 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 (``regulated
[[Page 17631]]
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. A more detailed discussion of the
underlying statutory authority for the current RMP regulations appears
in the initial 1993 action that proposed the RMP regulations (58 FR
54190-3, October 20, 1993).
Under CAA 112(r)(7)(B)(i), Congress authorized 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 paragraph 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 prevention program provisions discussed
in this action (hazard evaluations of natural hazards, power loss and
stationary source siting, safer technologies and alternatives analysis,
root cause analysis incident investigation, third party compliance
auditing, and employee participation) derive from EPA's authority to
promulgate reasonable regulations for the ``prevention and detection of
accidental releases'' (CAA section 112(r)(7)(B)(i)). Similarly, the
emergency coordination and exercises provisions in this rule derive
from EPA's authority to promulgate reasonable regulations to address
``response to such [accidental] releases by the owners or operators of
the source of such releases'' Id. Section 112(r)(7)(B)(i) calls for
EPA's regulations to recognize differences in ``size, operations,
processes, class and categories of sources.'' For that reason, this
action maintains distinctions in prevention program levels and in
response actions authorized by this provision. Finally, the information
availability provisions discussed in this action generally assist in
the development of ``procedures and measures for emergency response
after an accidental release of a regulated substance in order to
protect human health and the environment.'' Id. These information
availability provisions include requirements to disclose information to
the public within a 6-mile radius of sources, and are designed to
ensure that emergency plans for impacts on the community are based on
more relevant and accurate information than would otherwise be
available and ensures that the public can become an informed
participant in such emergency planning. Also, as noted in the 2022
SCCAP proposed rule, requiring that information be made available to
the public strengthens the prevention program by leveraging public
oversight of facilities--especially prevention provisions that are
triggered by source-specific accident history (87 FR 53566, August 31,
2022).
This rulemaking action finalizes substantive amendments to 40 CFR
part 68 and is authorized by CAA sections 112(r)(7)(A) and (B), as
explained in more detail in the proposed action (87 FR 53563-6), and as
explained herein. In considering whether it is legally permissible for
EPA to modify provisions of the RMP regulations 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 640, 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.\35\
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\35\ 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 in
quote original.\36\) As explained in detail above and throughout this
notice, the policy changes finalized in this action are permissible
under the statute.
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\36\ 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).
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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 $540 million yearly.\37\ EPA
monetized both onsite and offsite damages from RMP facility accidents
from 2016-2020,\38\ when possible, to determine this amount. It is
important to note, however, that many accident costs are not required
to be reported under the RMP accident reporting provisions (40 CFR
68.42(b)) and thus are not reflected in the data. These include
responder costs, transaction costs, property value reductions,
unmonetized costs of evacuations and sheltering-in-place, the costs of
potential health risks from exposure to toxic chemicals, and
productivity losses, among others.\39\ As mentioned previously, some
accidents that occurred at RMP facilities during the five-year period
were not reported to EPA because the facility either closed after the
accident, decommissioned the process, or removed the regulated
substance from the process involved in the accident before it was
required to submit a report to the RMP Database. For example, the
Philadelphia Energy
[[Page 17632]]
Solutions Refining and Marketing LLC facility in Philadelphia, PA, had
a fire and explosions in the PES Girard Point refinery HF alkylation
unit on June 21, 2019, which resulted in the release of HF.\40\ This
facility deregistered the affected process before the deadline for
their subsequent RMP report. Due to the omission of such accidents and
the omission of the cost categories listed in the beginning of this
paragraph, the monetized costs of RMP accidents to society
underestimate the number and magnitude of RMP chemical accidents.
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\37\ A full description of costs and benefits for this final
rule can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Final Rule. This
document is available in the docket for this rulemaking (EPA-HQ-
OLEM-2022-0174).
\38\ Due to a lack of alternative data describing RMP accident
impacts more comprehensively, EPA chose this five-year dataset to
reflect the most recent trends regarding RMP accidents. EPA used the
August 1, 2021, version of the RMP database to complete its analysis
because under 40 CFR 68.195(a), facilities are required to report
RMP accidents and specific associated information within six months
to the RMP database. Therefore, the RMP database as of August 1,
2021, is expected to include RMP accidents and their specific
associated information as of December 31, 2020. However, because
accident data are reported to the RMP database by facility owners
and operators, EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data because some
facilities may have not reported their RMP accidents as they are
required to do. See sections 3.2 and 3.3 of the RIA for more on this
and other limitations on the number and costs of baseline accidents.
\39\ Further discussed in detail in Chapter 6 of the RIA.
\40\ For a description of damages from this case see section
3.2.1 of the RIA and the CSB Report, Fire and Explosions at
Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation
Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf.
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EPA estimated total average annual onsite damages of $497.9
million. The largest monetized, average annual, onsite damage category
was property damage, which resulted in average annual damage of
approximately $454.58 million. The next largest impact was onsite
fatalities ($37.57 million) and injuries ($5.75 million). EPA estimated
total average annual offsite damages of $42.33 million. The largest
monetized, average annual, offsite damage category was property damage,
which resulted in average annual damage of approximately $35.71
million. The next largest impact was from evacuations ($3.80 million),
sheltering in place ($2.52 million), hospitalizations ($0.28 million),
and medical treatment ($0.03 million).
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.\41\ The 2022 SCCAP proposed rule not
only discussed data demonstrating this elevated risk, but also noted
that a higher frequency of accidental releases in such communities is
consistent with the common-sense notion that, while accidental releases
are low-probability, high consequence events, the more facilities near
a community, the higher the likelihood that the community will be faced
with such an event, or multiple events (all other factors being equal).
Lowering the probability and magnitude of accidents by putting more of
a focus on prevention reduces the risks posed by these RMP
facilities,\42\ which is one of the objectives of the present RMP
amendments.
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\41\ 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).
\42\ EPA notes that the two industrial sectors that are the
focus of more requirements under the SCCAP rule, petroleum
refineries (NAICS 324) and chemical manufacturers (NAICS 325) have
been responsible for 42% of the accidental releases in the RMP
database over the years 2016-2020. Approximately 83% of the costs of
RMP accidental releases during 2016-2020 are attributed to these
sectors. More details on the number and costs of baseline RMP
accidents can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Final Rule. This
document is available in the docket for this rulemaking (EPA-HQ-
OLEM-2022-0174).
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EPA received various comments indicating that EPA has appropriate
authority to revise RMP regulations. For the reasons stated directly
above and throughout the proposal where we outline EPA's statutory
authority under CAA section 112(r)(7), EPA agrees with these comments.
Conversely, EPA also received comments that EPA is exceeding its
statutory authority because it does not have jurisdiction over worker
safety issues. EPA disagrees that it has exceeded its statutory
authority in this way in this rulemaking. EPA acknowledges that both
EPA and OSHA have separate mandates under the Occupational Safety and
Health Act (29 U.S.C. 651), the CAA, and the requirements enacted in
the CAAA. In the 1990s, both Agencies fulfilled their mandatory duties
to promulgate and issue the rules required by CAA sections 112(r)(3)-
(5) and 112(r)(7)(B), as well as section 304 of the CAAA. The focus of
OSHA's regulations in the PSM standard is on workplace safety, while
EPA's focus in the RMP regulations has been primarily on minimizing the
public impacts of accidental releases through prevention and response.
This rule maintains EPA's focus on minimizing the public impacts of
accidental releases even as it also reduces impacts on facilities and
workers. As explained throughout the proposal and in this final action,
the OSHA PSM standard and EPA RMP regulations are closely aligned in
content, policy interpretations, and enforcement. This is not
surprising, as accident prevention steps that make a process safe for
workers often will be similar, or the same as, steps that would prevent
deleterious impacts on the public. Congress recognized this
relationship by requiring EPA to coordinate its requirements with those
of OSHA in developing accident prevention regulations and requiring
OSHA to coordinate with EPA when developing its PSM standard (see CAA
section 112(r)(7)(D) and CAAA section 304(a)). Therefore, since the
inception of these regulations, EPA and OSHA have coordinated closely
on their implementation in order to minimize regulatory burden and
avoid conflicting requirements for regulated facilities. This
coordination has continued throughout the development of this rule and
is explained further in the relevant sections below.
A couple of commenters called on EPA to exercise its ``full
statutory authority'' to issue measures that prevent disasters `` `to
the greatest extent practicable.' ''EPA disagrees with these comments.
As mentioned above, while EPA is authorized to promulgate regulations
that provide for the prevention and detection of accidental releases to
the greatest extent practicable, so too must these regulations be
reasonable. The relevant statutory phrase describing EPA's authority to
regulate under CAA section 112(r)(7)(B)(i), authorizes ``reasonable
regulations . . . to provide, to the greatest extent practicable,'' for
the prevention and detection of and response to accidental releases of
substances listed in 40 CFR 68.130. EPA interprets the term
``practicable'' in this context to include concepts such as cost-
effectiveness of the regulatory and implementation approach, as well as
the availability of relevant technical expertise and resources to the
implementing and enforcement agencies and the owners and operators who
must comply with the rule. Further, an interpretation of the statute
that does not give meaning to the qualifier ``reasonable'' to the
authority to regulate ``to the greatest extent practicable,'' as the
commenters suggest, would be inconsistent with the structure of the
statute. The terms ``reasonable'' and ``practicable'' operate both as
authorization for EPA's regulations and as limitations on the scope of
EPA's authority under CAA section 112(r)(7)(B)(i), while the phrase
``greatest extent practicable'' directs EPA to select the regulatory
option that ``provide[s] the greatest level of practicable protection''
from ``among those regulatory options that are reasonable.'' 84 FR
69849 (Dec. 19, 2019); see also 87 FR 53566 (Aug. 31, 2022). To the
extent both the 2019 compliance-driven and the 2022 rule-based,
prevention-focused approaches are reasonable, the approach of this
final rule would be more protective and therefore be `` `to the
greatest extent practicable' among the reasonable approaches.''
As recognized by the Supreme Court in Michigan v. EPA, 135 S. Ct.
2699, 2707 (2015), ``reasonable regulation'' generally involves some
sort of examination of the benefits and the burdens of a rule.
Nevertheless, the Court in Michigan v. EPA did not mandate a strict
analysis of quantified
[[Page 17633]]
cost and benefits and limit the Agency to adopting only those measures
that have quantified costs exceeding benefits. In assessing the types
of benefits EPA should consider in a rulemaking under CAA 112(r)(7),
EPA recognizes that a major purpose of the accidental release
provisions of the CAA is to help mitigate and prevent large scale
catastrophic incidents that are rare and therefore difficult to
quantify.\43\ Both the Senate and the House committee reports on the
CAAA specifically identify the Union Carbide-Bhopal incident as one
that demonstrated the need for the accidental release prevention
provision (House Report at 155-57; Senate Report at 134-35, 143-44).
The congressional reports and floor debates also cite an EPA study
identifying 17 events that, based only the volume and toxicity of the
chemicals involved (and not accounting for factors such as location,
climate, and operating conditions) had the potential for more damage
than the Union Carbide-Bhopal incident.\44\ Therefore, when assessing
the reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. Our judgment as to what regulations are ``reasonable'' is
informed by both quantifiable and unquantifiable burdens and benefits.
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\43\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
\44\ Senate Report at 135; House Report at 155; Representative
Richardson, 136 Congressional Record 35082 (1990) (statement of
Representative Richardson); 136 Congressional Record 36057 (1990)
(statement of Senator Durenberger).
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The fact that accidents continue to occur shows that we still have
reason to exercise statutory authority to promulgate reasonable
regulations to provide for the prevention and detection of those
accidents to the greatest extent practicable when the opportunity
exists to improve the performance of our regulatory program. In
determining what is ``reasonable'' when developing regulations under
CAA section 112(r)(7)(B), EPA acknowledges that some facilities are
less likely to have an accidental release than others and that the
statute gives the Agency the authority to distinguish among classes of
facilities. When developing this rulemaking, EPA therefore had the
authority to include multiple factors when determining what is
reasonable, such as frequency of RMP accidents or proximity to both
nearby communities and other RMP facilities that could, as a result,
make the communities and other facilities be more susceptible when it
comes to being exposed to a worst-case scenario. For example, as
mentioned in the proposed rulemaking, the per facility accident rate
between 2016 and 2020 \45\ 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). Also, 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 (87 FR 53578).\46\ Also
mentioned in the proposed rulemaking, these surrounding communities
would benefit from rule-based prevention prior to incidents, rather
than the case-by-case oversight approach of the 2019 reconsideration
rule (87 FR 53565). Therefore, EPA now believes the benefits of rule-
based prevention for certain high-risk classes of facilities could help
prevent high consequence accidents that affect communities and are
therefore reasonable and necessary to meet the statutory objective ``to
the greatest extent practicable.''
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\45\ Due to a lack of alternative data describing RMP accident
impacts more comprehensively, EPA chose this five-year dataset to
reflect the most recent trends regarding RMP accidents. EPA used the
August 1, 2021, version of the RMP database to complete its analysis
because under 40 CFR 68.195(a), facilities are required to report
RMP accidents and specific associated information within six months
to the RMP database. Therefore, the RMP database as of August 1,
2021, is expected to include RMP accidents and their specific
associated information as of December 31, 2020. However, because
accident data are reported to the RMP database by facility owners
and operators, EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data because some
facilities may have not reported their RMP accidents as they are
required to do. While some commenters have suggested that late
reporting may impact the count of total accidents in recent years,
neither the commenters nor EPA have identified any impacts of late
reporting on the distribution of accidents by sector. See sections
3.2 and 3.3 of the RIA for more on this and other limitations on the
number and costs of baseline accidents.
\46\ In the 2022 SCCAP proposed rule, EPA acknowledged the
likelihood of late-reported accidents affecting the last few years
of data. Based on its prior experience, EPA judged that there would
be a slight increase in the number of accidents in the last few
years of data.
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As mentioned in the proposed rulemaking, in contrast to the
approach in the 2019 reconsideration rule, the approach taken in this
action for the new prevention program provisions--STAA, root cause
analysis incident investigation (RCA), and third-party compliance
audits--refines the focused regulatory approach found in the 2017
amendments rule, and finalizes provisions 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 so-called ``compliance-driven''
approach in the 2019 reconsideration rule, this rule will further
protect human health and the environment from chemical hazards through
process safety advancement without undue burden. Similarly, other
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. By contrast with the prior approach, the approach of
this final rule is expected to be both reasonable and more protective,
and thus provide for release prevention, detection, and response to the
greatest extent practicable. EPA has determined, based on the updated
factual and scientific record now before the agency, including a
thorough evaluation of public comments, and in view of its statutory
responsibilty and legal authority, to be the approach it needs to take,
among the potentially available or reasonable approaches.
IV. Discussion of General Comments
This section of this preamble focuses on general comments on the
2022 SCCAP proposed rule in its entirety and EPA's response to those
comments. Comments and discussion on provision-specific topics can be
found under each individual provision heading. Comments received on
additional considerations posed in the 2022 SCCAP proposed rule but
outside the scope of this rulemaking are included the Response to
Comments document,\47\ available in the docket for this
[[Page 17634]]
rulemaking.\48\ In the proposal EPA acknowledged 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
continues to review the stakeholder input from this solicitation.
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\47\ 2023. EPA Response to Comments on the 2022 SCCAP Proposed
Rule (August 31, 2022; 87 FR 53556). This document is available in
the docket for this rulemaking.
\48\ For example, one such consideration posed outside the scope
of this rulemaking was the need for reviewing the list of RMP-
regulated substances. EPA still acknowledges the need for reviewing
the list and will consider received comments when determining
whether to take further action on this issue.
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A. General Comments
Many commenters provided general comments about the proposed
rulemaking. Several commenters supported EPA's proposed rule, including
some offering suggestions for improvement. Several commenters requested
EPA consider making the proposed rule stronger than it is currently
written. Several of these commenters provided detailed examples of
recent accidents and incidents, including health impacts to the
community, dating back to 2004 that they hope stronger RMP regulations
would prevent. A few commenters provided additional steps EPA should
take in tandem with the proposed rule. Another commenter stated that
the current process puts the onus on community members in close
proximity to facilities to protect themselves when it is EPA's
responsibility to regulate these facilities and ensure that the public
is safe. The commenter noted that there needs to be more enforcement by
the Federal Government to hold facilities accountable, especially in
States lacking enforcement. Several commenters stated that the proposed
rule relies too much on voluntary commitments from RMP facilities. One
commenter noted that the current process remains reactive rather than
proactive and corrective rather than preventative.
Several commenters opposed EPA's proposed rule, including some
recommending that EPA withdraw the proposed rule. A few commenters
opposed the proposed rule due to what the commenters asserted are vague
standards and definitions that could create uncertainties. Several
commenters stated that the new requirements under the 2022 SCCAP
proposed rule would impose unnecessary burdens to facilities, including
new training and analyses, higher costs, or lower effectiveness of the
program. Several commenters asserted that there is no basis or evidence
that the 2022 SCCAP proposed rule is necessary.
B. EPA Responses
EPA is finalizing several amendments to the RMP rule to further
protect human health and the environment from RMP accidents. The final
rule's emphasis is on protecting communities most at risk of having an
accidental release from a facility in their midst. Under the final
rule, facilities in these communities will be required to do more to
prevent chemical accidents, including conducting an STAA, more thorough
incident investigations, and third-party audits. The final rule also
includes new prevention provisions that have not been addressed in
prior RMP rules, including empowering workers to make safety decisions
and report non-compliance. The Agency is also increasing access to RMP
facility information for fenceline communities in commonly spoken
languages. EPA believes this final rule promotes transparency and gives
more opportunities for the public and workers to be involved in
accident prevention and emergency planning. EPA believes that in most
cases, facilities needing to adopt the finalized provisions from
scratch are most likely facilities that have not fully developed strong
programs to ensure their commitment to process safety; strengthening
prevention and response programs at such facilities will help to
prevent and minimize accidental releases of toxic and flammable
regulated substances.
EPA disagrees that that there is no basis or evidence that the
proposed rule is necessary. Congress charged EPA to promulgate
reasonable regulations to provide to the greatest extent practicable
for the prevention and detection of accidental releases. Even when EPA
has discharged its mandatory duty under CAA section 112(r)(7)(B), the
Agency retains the discretion to amend the regulations when they can be
improved to further the intent of the statute. Therefore, when major
concerning RMP accidents, including major accidents, continue to occur
as they have,\49\ it is EPA's responsibility to further protect human
health and the environment, if there are reasonable opportunities to do
so. Many of the amendments being finalized in this action, some
stronger than what was proposed, were informed by commenters, including
many that suffer the consequences of accidents occurring at RMP
facilities or work in RMP-covered processes. The amendments are also
informed by RMP accident data which indicate trends in accident
occurrence. For example, as discussed in the proposal, recent accidents
highlight that while the annual count of accidents decreased overall
between 2016 and 2020, in 2019, the TPC Group (TPC) explosion and fire
in Port Neches, Texas, reported the largest number of persons ever
evacuated (50,000 people) as the result of an RMP-reportable incident,
as well as $153 million in offsite property damage.\50\ EPA did not
conduct an inspection at TPC just prior to this accident because as
indicated in the 2019 reconsideration rule, EPA prioritizes inspections
at facilities that have had accidental releases. TPC had no recent
prior RMP accidental release and was not otherwise due for inspection
under EPA's routine oversight plan. Therefore, we believe our current
enforcement resources, and even prioritizing inspections, are not
capable of effectively addressing accident-prone facilities without
additional regulatory requirements mandates.
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\49\ As part of this rule, EPA analyzed accidents from 2016 to
2020. The impacts of high consequence RMP-reportable accident events
between 2016 and 2020 demonstrate the impact of low probability,
high consequence events on annual averages. For more information see
the Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule.
\50\ The U.S. Chemical Safety Board's TPC incident investigation
report outlines the safety issues contributing to the incident,
conclusions, recommendations, and key lessons for the industry.
https://www.csb.gov/tpc-port-neches-explosions-and-fire/.
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While large events are rare, CAA section 112(r) was intended as a
prevention program for large catastrophic releases as well as more
common accidental releases. Post-event compliance measures such as
outreach and enforcement are ``too little, too late'' for such large,
but rare, events. Therefore, this final rule provides additional
prevention program provisions reasonably calculated for stationary
sources handling dangerous chemicals to prevent potentially
catastrophic incidents. EPA therefore believes the provisions of this
final rule will be generally effective to help improve chemical process
safety by preventing accidents that result in harm and damage; assist
in planning, preparedness, and responding to RMP-reportable accidents;
and improve public awareness of chemical hazards at regulated sources.
Thus, these are necessary updates to the existing RMP rule to ensure
chemical accident prevention and mitigation. Further, while many of the
provisions of this final rule reinforce each other, it is EPA's intent
that each one is merited on its own, and they are thus severable.
[[Page 17635]]
EPA also believes that because of the performance-based nature of
the regulation, and the similar nature of these amendments, the
requirements provide facility owners with latitude in their methods of
implementing the requirements. This type of regulation does not create
uncertainties or unnecessary burdens, but rather offers reasonable
flexibilities in adopting the most effective measures to prevent and
mitigate accidents. For example, while EPA requires implementation of
at least one practicable passive measure, or its equivalent, the new
STAA requirements are not prescriptive in nature as to what a facility
can choose as its measure. The rule gives facilities flexibility and
allows facility owners and operators to exercise reasonable judgement
to determine what technology or risk reduction measures work best for
their particular chemical uses, processes, or facility. The final
rule's emergency exercise requirements also give owners and operators
significant flexibility in establishing exercise schedules and exercise
scenarios. Other provisions of the final rule afford similar
flexibilities.
EPA agrees assistance, outreach, and enforcement will help ensure
compliance with the rule. For example, enforcement of the RMP
regulation has and will continue to occur. Because of that fact, EPA
expects most facilities will proactively make the necessary prevention
improvements in order to comply with the rule and thus avoid
enforcement. Enforcement of RMP facilities remains an Agency priority,
as indicated by its adoption as a National Enforcement and Compliance
Initiative (NECI) since 2017. The goal of this NECI is to reduce the
risk to human health and the environment by decreasing the likelihood
of chemical accidents. Activities under the initiative include having
regulated facilities and industry associations work to improve safety;
increase compliance with RMP; and promote coordination and
communication with State and local responders and communities. The
capacity built by the NECI will continue to benefit oversight by EPA
and its partner implementing agencies even after the NECI. Furthermore,
EPA intends to publish guidance for certain provisions, such as STAA,
root cause analysis, third-party audits, and employee participation.
Once these materials are complete, owners and operators can familiarize
themselves with resources and best practices that EPA has gathered and
found to be useful in helping to develop and maintain strong prevention
programs. The Agency views these compliance activities as a complement
to strong accidental release prevention and response, but they are not
a substitute for the stronger prevention measures and response
provisions set forth in the final rule.
V. Prevention Program Requirements
A. Hazard Evaluation Amplifications
1. Summary of Proposed Rulemaking
a. Natural Hazards, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(5) and 68.67(c)(8) 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. EPA
proposed to define natural hazards as naturally occurring events with
the potential for negative impacts, including meteorological hazards
due to weather and climate, as well as geological hazards.
In addition to the proposed approach, EPA requested comment on
whether the Agency should 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. EPA further asked whether 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.
b. Power Loss, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(3) and 68.67(c)(3) explicitly address the risk of power
failure, as well as standby or emergency power systems. EPA also
proposed to require that air pollution control or monitoring equipment
associated with prevention and detection of accidental release from
RMP-regulated processes have standby or backup power to ensure
compliance with the intent of the rule. In addition to the proposed
approach for standby or backup power for air pollution control or
monitoring equipment, EPA requested comment on any potential safety
issues associated with the requirement.
c. Stationary Source Siting, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(6) and 68.67(c)(5) 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.
d. Hazard Evaluation Information Availability, 40 CFR 68.170 and 68.175
EPA proposed to require that risk management plans under 40 CFR
68.170(e)(7) and 68.175(e)(8) include declined natural hazard, power
loss, and siting hazard evaluation recommendations and their associated
justifications. In addition to the proposed approach, EPA requested
comment on whether the Agency should require declined natural hazard,
power loss, and siting hazard evaluation recommendations to be included
in narrative form and 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 submitted
RMP. Further, EPA requested comment on methods to provide justification
for declining relevant hazard evaluation recommendations.
2. Summary of Final Rule
Based on comments on both the proposed options and alternative
approaches presented, EPA is finalizing the proposed provisions with
the following modifications:
Revising the definition of ``natural hazards'' at 40 CFR
68.3 to mean meteorological, environmental, or geological phenomena
that have the potential for negative impact, accounting for impacts due
to climate change.
Revising the hazard evaluation regulatory text at 40 CFR
68.50(a)(5) and 68.67(c)(8) to focus amplifying language on natural
hazards rather than ``external hazards'' and include ``exacerbate'' as
an influence on an accidental release from natural hazards in addition
to ``cause.'' EPA is also removing the description of climate change in
this section of regulatory text because the definition of natural
hazards at 40 CFR 68.3 now includes accounting for climate change.
Revising 40 CFR 68.50(a)(3) and 68.67(c)(3) to require
monitoring equipment associated with prevention and detection of
accidental releases from covered processes to have standby or backup
power.
Revising 40 CFR 68.52(b)(9) and 68.69(a)(4) to require
documentation of
[[Page 17636]]
removal of monitoring equipment associated with prevention and
detection of accidental releases from covered processes during imminent
natural hazards.
Revising 40 CFR 68.50(a)(6) and 68.67(c)(5) to correct the
technical term of ``facilities'' to ``stationary sources.''
3. Discussion of Comments and Basis for Final Rule Provisions
The discussion and basis for each provision is below. The section
is organized by including comments and EPA's responses grouped by the
various aspects of each provision the Agency received comments on
(italicized headings). The same organization is used for the Discussion
of Comments and Basis for Final Rule Provisions sections throughout
this preamble.
a. Natural Hazards
EPA's Proposed Approach
i. Comments
Several commenters expressed support for EPA requiring facilities
to conduct natural hazard assessments since natural hazards have the
potential to initiate accidents at RMP facilities. A few commenters
provided examples of natural disasters that have resulted in chemical
accidents and stated that natural hazard assessments could better
protect workers and surrounding communities from these types of
incidents. One commenter suggested that EPA require that RMP facilities
act to address all natural hazard threats as they will only worsen in
the face of climate change. The commenter also suggested that the
requirement should apply to all RMP facilities.
One commenter noted that improving the resilience of facilities to
extreme weather events is warranted because of the direct, substantial,
and cumulative risk to EJ communities with EJ concerns that are more
likely to be located in areas susceptible to flooding. One commenter
noted that EPA's findings on risks to facilities from natural hazards
is consistent with States' and municipalities' analysis. The commenter
noted that several States have already taken steps to require
facilities to consider threats from extreme weather, including
Massachusetts and New York. A couple of commenters expressed support
for the inclusion of natural hazard analysis but recommended that EPA
clarify the language in the proposed rule to better define natural
hazards and climate-related hazards. One of the commenters suggested
that the definition of natural hazard assessments provided in the
Center for Chemical Process Safety's (CCPS), ``Guidelines for Hazard
Evaluation Procedures,'' 3rd edition (2008) is suitable.
Several commenters expressed opposition to the inclusion of natural
hazard assessments. For example, several commenters stated that EPA has
not provided sufficient justification for these new requirements. One
of the commenters stated that EPA has not indicated why the existing
regulations are inadequate. Similarly, several commenters noted that
facilities are managing natural hazards well, and therefore the
commenters suggested that additional requirements are not necessary.
Several commenters noted that the number of accidental releases
caused by natural hazards is small compared to other causes, and small
compared to how many natural hazards occur daily, and therefore does
not justify EPA adding additional requirements for assessing natural
hazards or other external events. One of the commenters noted that the
small number of accidents may be attributed to the effectiveness of
existing regulations and voluntary measures regarding emergency
planning.
Several commenters noted that the natural hazard assessment
provisions are already considered in the process hazard analysis (PHA)
or other current regulations and are, therefore, redundant. Several
commenters indicated that the natural hazard provisions in the proposed
rule overlap with or are redundant of existing OSHA regulations and
recommended that EPA not conflict or compete with OSHA standards, as
including them in EPA's rules would create duplicative work for
facilities and introduce uneven enforcement between the two agencies.
Several commenters stated that the proposed natural hazard
assessment provisions are overly burdensome to facilities. One of the
commenters stated that EPA does not have authorization from Congress to
transform the PHA program to include natural hazards ``caused by
climate change or other triggering events.'' One commenter suggested
that the determination of whether or not to implement additional layers
of protection from natural hazards should be left to the facility and
not subject to regulatory scrutiny.
One commenter stated that the reference to external events should
be removed because it is an undefined and vague term. The commenter
added that the proposed requirement that the PHA include natural
hazards ``caused by climate change or other triggering events'' is
overly broad in that it appears to include events that go well beyond
the proposed definition of natural hazards. The commenter stated that
these broadly defined and ambiguous terms in the regulatory text could
lead to an infinite list of external events and associated
recommendations from the PHA a facility must consider. The commenter
urged that EPA must provide much-needed clarity and explanation for the
proposed language.
ii. EPA Responses
EPA agrees that natural hazards are hazards for chemical facilities
because they have the potential to initiate accidents that threaten
human health and the environment and disagrees with comments that the
Agency did not provide sufficient justification for the new
requirements. In the proposal, the Agency provided data which indicate
that, while not all, some RMP accidents are being reported as having a
natural cause as the initiating event and include unusual weather
conditions as a contributing factor.\51\ EPA believes that adding
clarifying language to a provision is a simple way to promote awareness
of these potential accidents which should help prevent some.
Additionally, EPA agrees that climate change increases the threat of
extreme weather as a natural hazard and should be taken into account at
covered facilities when evaluating hazard frequency and severity. EPA
is finalizing the proposed provisions because the Agency believes that
making the requirement more explicit to evaluate natural hazards, which
includes taking into account climate change, in hazard evaluations for
Program 2 and Program 3 RMP-regulated processes will ensure that the
threats of natural hazards are properly evaluated and managed to
prevent or mitigate releases of RMP-regulated substances at covered
facilities. EPA agrees that doing so will better protect surrounding
communities from these types of incidents.
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\51\ 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 response to the comment that improving the resilience of
facilities to extreme weather events is warranted due to the risk posed
to communities with EJ concerns, EPA agrees that accidental releases of
regulated chemicals from RMP-regulated facilities likely pose
disproportionate risks to historically marginalized communities. EPA
expects that the benefits of this clarified provision may lower
potential exposure for fenceline communities with historically
underserved and
[[Page 17637]]
overburdened populations by reducing disproportionate damages that RMP-
reportable accidents might otherwise inflict on those populations.
EPA agrees with the comment that the Agency's findings on risks to
facilities from natural hazards are consistent with those of States
that already require facilities to consider threats from extreme
weather. However, because not all States require facilities to consider
natural hazards, and because EPA continues to see natural hazards as a
factor in RMP accidents, the Agency believes the requirement to
evaluate and control natural hazards should be explicitly stated in the
RMP regulation. Moreover, EPA notes that doing so is consistent with
other countries that are also expanding efforts to address natural
hazards at chemical facilities, as discussed in the 2022 SCCAP proposed
rule (87 FR 53568).
In response to the comments requesting that EPA better define
natural hazards and climate-related hazards, EPA notes that it has
revised its definition to be more closely align with language used in
the Federal Emergency Management Agency's (FEMA) National Risk Index
(NRI) \52\ and Climate Essentials for Emergency Managers \53\
resources. For this final rule, EPA is defining natural hazards to mean
meteorological, climatological, environmental, or geological phenomena
that have the potential for negative impact, accounting for impacts due
to climate change. Examples of such hazards include, but are not
limited to, avalanche, coastal flooding, cold wave, drought,
earthquake, hail, heat wave, hurricane, ice storm, landslide,
lightning, riverine flooding, strong wind, tornado, tsunami, volcanic
activity, wildfire, and winter weather. EPA believes CCPS' definition
and guidance \54\ presented in the 2022 SCCAP proposed rule, is still
useful for facilities' evaluation of natural hazards for process
safety, however, the Agency believes these FEMA resources reflect a
more comprehensive base to identify, evaluate and understand relative
natural hazard risk, particularly how natural hazards must account for
a changing climate. For example, the NRI identifies 18 specific natural
hazards, which EPA has identified in its definition, that are further
supported as their designation as natural hazards and are able to be
represented in terms of expected annual loss, which incorporate data
for exposure, annualized frequency, and historic loss ratio.\55\
Additionally, the Climate Essentials for Emergency Managers points to
many climate change resources including the Climate Risk & Resilience
Portal \56\ and the Climate Mapping for Adaption and Resilience Tool
\57\ that allows users to examine simulated future climate conditions
associated with the natural hazards identified in the NRI.
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\52\ https://hazards.fema.gov/nri/natural-hazards.
\53\ https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf.
\54\ 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.
\55\ https://hazards.fema.gov/nri/natural-hazards.
\56\ https://disgeoportal.egs.anl.gov/ClimRR/.
\57\ https://resilience.climate.gov/.
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EPA disagrees that the natural hazard assessment provisions are
redundant and will result in uneven enforcement due to them already
being considered in both the PHA requirements and current OSHA
regulations. EPA's goal of this provision is to better reflect the
Agency's longstanding regulatory requirement, rather than to impose
additional regulatory requirements (and thus potential additional
costs) that conflict with the OSHA PSM regulatory requirements. In
fact, EPA has coordinated with OSHA throughout the rulemaking process
to ensure the intent of adding explicit natural hazard regulatory text
does not create conflicting requirements between the two regulatory
programs.
In response to comments that the natural hazard assessment
provisions are overly burdensome to facilities, and that the Agency
does not have authorization from Congress to transform the PHA program
to include natural hazards ``caused by climate change or other
triggering events'', EPA disagrees. EPA has stated this provision makes
more explicit what is already required in the RMP regulations. As noted
in the proposed rule, since the 1996 RMP rule, EPA has said events such
as floods and high winds should be considered as potential release-
initiating events when conducting a PHA, and the RMP guidance further
expands on this point.\58\ Furthermore, the hazard evaluation
amplifications reflect existing industry practice, and therefore, EPA
assumes that these hazard evaluation amplifications impose no new
requirements or costs on facilities that are in compliance with the RMP
rule and common industry practice. By amplifying and making more
explicit the need to evaluate natural hazards as potential causes of
releases, EPA expects those facilities that are currently not
performing such evaluations will better understand what the rule
requires. Additionally, each modification of the RMP rule that EPA
proposed and is finalizing is based on EPA's rulemaking authority under
CAA section 112(r)(7). EPA has outlined its authority for all the
changes to the regulation in section III.C of this preamble.
---------------------------------------------------------------------------
\58\ 87 FR 53567, August 31, 2022.
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In response to comments that the determination of whether to
implement additional layers of protection from natural hazards should
be left to the facility and not subject to regulatory scrutiny, EPA
notes that it is not requiring implementation of protective measures.
At this time, EPA is simply emphasizing the already-existing
requirement that the evaluation of natural hazards be explicitly
included in hazard reviews and PHAs for Program 2 and Program 3 RMP-
regulated processes. The Agency expects stationary source management to
make reasonable decisions based on the information collected through
this provision, like other provisions in the PHA. EPA acknowledges that
natural hazards and process operations vary throughout the United
States, and implementation of protective measures will therefore also
vary among RMP processes. However, because the RMP rule is performance-
based, EPA believes that all regulated RMP facilities can ultimately be
successful in addressing natural hazards for their locations within
their risk management programs.
In response to the comment that the reference to external events
should be removed because it is vague and overly broad, EPA
acknowledges that analysis of external events may be broader than
expected. EPA is therefore revising the regulatory language in the
final rule to focus on natural hazards rather than external hazards.
Additionally, EPA is including ``exacerbate'' as an influence of an
accident from natural hazards in addition to ``cause'' to further
clarify the regulatory language. As a few commenters discussed, and EPA
agrees, in some cases natural hazards can be a contributing factor for
accidental releases, making them more extreme or likely, rather than
causing them independently. Finally, EPA is removing the description of
climate change in the hazard evaluation regulatory language to
eliminate redundancy, as EPA is defining natural hazard as taking into
account climate change impacts.
[[Page 17638]]
Alternative Approaches for Specifying Areas Most at Risk and
Identifying Sources With Heightened Risk of Climate Events or
Earthquakes
i. Comments
Several commenters expressed support for EPA specifying areas most
at risk from climate or other natural events. One of the commenters
indicated that adopting the list of areas exposed to heightened risk of
wildfire, flooding, storm surge, or coastal flooding is necessary
because facilities would face difficulties in assessing future climate
risks without this additional guidance from EPA. A couple of commenters
recommended that EPA use the list in the U.S. Government Accountability
Office's 2022 report, ``Chemical Accident Prevention: EPA Should Ensure
Regulated Facilities Consider Risks from Climate Change.'' \59\ One of
the commenters also recommended using the list in the 2021 report,
``Preventing Double Disasters,'' from David Flores et al.\60\ A couple
of commenters suggested that the list of at-risk facilities or
geographic areas should be regularly updated using the latest available
data. A couple of commenters clarified that such a list of at-risk
areas should not be used to limit the number of facilities that are
required to conduct a natural hazard or climate change hazard analysis.
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\59\ https://www.gao.gov/assets/gao-22-104494.pdf.
\60\ https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf.
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A couple of commenters expressed opposition to the development of a
list of geographic areas most at risk from natural hazards or climate-
related hazards. One of the commenters indicated that such a list is
not necessary because facilities in these areas are generally aware of
the potential for those hazards. The commenter stated that EPA has not
demonstrated sufficient need to apply geographic distinctions as a part
of the regulatory approach. One commenter stated that according to the
Intergovernmental Panel on Climate Change's reporting, there are
challenges with attributing events to climate change; therefore, the
commenter stated that they oppose EPA specifying geographic areas most
at risk from climate impacts.
One commenter expressed support for EPA requiring sources in areas
exposed to heightened risk of natural disasters to conduct hazard
evaluations associated with climate or earthquakes as a minimum, while
also requiring all sources to consider the potential for natural
hazards unrelated to climate or earthquakes in their specific
locations. Similarly, another commenter urged that it is EPA's
responsibility to regulate chemical facilities appropriately. The
commenter noted that the co-location of multiple polluting sites in
climate vulnerable areas is common, with roughly a third of the
nation's RMP facilities at increased risk from climate impacts;
however, despite known risks, RMP facilities are not currently required
to plan for scenarios such as inland flooding, coastal flooding, storm
surge, and wildfires.
Conversely, one commenter stated that EPA does not need to apply
different regulatory requirements based on geography, since EPA has not
demonstrated sufficient need to apply such geographic distinctions as
part of any regulatory approach. Instead, the commenter stated that a
general provision to require hazard reviews and PHAs to evaluate the
potential for natural hazards, such as (but not necessarily limited to)
specific examples, would be more practical.
ii. EPA Response
While EPA agrees it could be useful to specify areas most at risk
from natural events and identify sources with heightened risk of
climate events, EPA is not finalizing a regulatory provision that will
adopt these approaches at this time. Rather, EPA will use these
comments, as well as those received on guidance development, to update
the current hazard evaluation guidance and initiate ways to share
natural hazard resources with facility owners and operators to help
them identify and evaluate potential natural hazard risks. EPA expects
to develop and release this guidance approximately one year after this
final rule. The 2022 SCCAP proposed rule identified relevant new
studies for RMP facilities and the threat of natural hazards to them.
Those studies included the Center for Progressive Reform, Earthjustice,
and the Union of Concerned Scientists' report ``Preventing Double
Disasters'' \61\ and the Government Accountability Office's report
``Chemical Accident Prevention: EPA Should Ensure Regulated Facilities
Consider Risks from Climate Change.'' \62\ EPA also believes CCPS'
guidance presented in the 2022 SCCAP proposed rule, is still useful for
facilities' evaluation of natural hazards for process safety. Lastly,
EPA now also recognizes the identification of hazards in FEMA's NRI
\63\ and Climate Essentials for Emergency Managers \64\ as the most
comprehensive foundation to identify, evaluate and understand relative
natural hazard risk, particularly how natural hazards must account for
a changing climate. EPA intends to incorporate and further evaluate
other resources as a minimum in its guidance and expects that
information available in these resources can be helpful to be consulted
to complement a facility's more localized information available from
the State and local government.
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\61\ David Flores, et al., Preventing ``Double Disasters''
(2021), https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf.
\62\ 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.
\63\ https://hazards.fema.gov/nri/.
\64\ https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf.
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b. Power Loss
EPA's Proposed Approach
i. Comments
One commenter agreed with EPA's approach to add regulatory text to
emphasize that loss of power is among the hazards that must be
addressed within hazard review. A few commenters expressed support for
facilities having contingency plans to handle potential power loss. A
few commenters noted that power loss has been identified as the cause
of hazardous chemical releases, such as the Shell East Site and Arkema
incidents, and stated it is clear that more stringent requirements are
needed. One commenter stated that they did not oppose requiring hazard
reviews and PHAs to address power loss, but noted that in many cases, a
company's RMP already considers both natural hazards and power loss.
One commenter stated that facilities should provide information to
local responders about their backup power capabilities during a hazard
event, including the backup generation source, fuel type, capacity
(operational hours), and process consequences for extended power loss.
The commenter stated that the information provided should address how
long a facility can maintain the RMP process(es) safely with backup
power. Several commenters urged EPA to require facilities to have
backup power systems. A few commenters noted that EPA should require
facilities to have enough backup power to safely run or shut down the
entire facility in the event of power loss.
Several commenters noted that EPA has not provided data showing
that power loss is a significant cause of accidents, and therefore the
proposed
[[Page 17639]]
rule is unwarranted. A few commenters stated that from 2016-2020, only
7 out of 448 reported accidents were linked to power loss. A few
commenters stated that EPA did not adequately consider the costs and
benefits of the proposed power loss provisions.
A couple commenters noted that EPA's proposal to explicitly require
evaluation of standby and emergency power systems diverges with OSHA's
PSM requirements in the PHA. The commenter stated that this proposal
would inappropriately create an inconsistency between the two
regulatory programs, injecting ambiguity and uncertainty into the PHA
process. Another commenter urged EPA to not include these additional
provisions in RMP regulations and instead allow OSHA to continue its
oversight of these hazards.
One commenter strongly supported requiring air pollution control or
monitoring equipment associated with prevention and detection of
accidental releases from RMP-regulated facilities to have standby or
backup power. The commenter claimed, however, that the proposed
amendments to 40 CFR 68.50 and 68.67 are extremely vague regarding this
requirement.
Another commenter noted that, while fenceline monitors could detect
an accidental release in some circumstances, high wind events such as
hurricanes can render them useless such that a loss of power to
monitors would have no adverse effect on the source or the surrounding
community. A couple of commenters stated that a focus on maintaining
air pollution control or monitoring equipment during a power loss,
while important, may detract from the fundamental purpose of the RMP.
One commenter requested that the final rule require all facilities
to have real-time fenceline air monitors with enforcement mechanisms
and robust penalties for intentionally removing air monitors from
service. The commenter stated that there are currently no penalties for
facilities that shut down their monitoring during an incident. The
commenter requested that EPA strengthen the proposed rule to require
expanded fenceline monitoring and adequate backup power for air
monitors to operate continuously and that this be documented in a
written plan that includes the location of the monitors. Conversely, a
couple of commenters claimed that EPA made an unjustified assumption in
the preamble of the proposed rule that facilities will remove air
monitoring and control equipment from service prior to a natural
disaster to evade monitoring requirements. The commenters stated that
the suggestion that facilities attempt to evade regulatory agency
requirements in the event of a natural disaster is improper and
inappropriate.
A few commenters stated that EPA's proposal to explicitly require
backup and emergency power systems exceeds the scope of RMP without
proper justification. One commenter expressed concern that the proposed
backup power requirements exceed EPA's statutory authority and lack a
reasoned basis. A couple of commenters also questioned whether EPA's
statutory authority allows it to require such actions. The commenters
contended that air emission monitoring equipment is typically regulated
under other EPA CAA regulatory programs (New Source Performance
Standards, National Emission Standards for Hazardous Air Pollutants,
and Title V permitting program).
ii. EPA Responses
EPA agrees that power loss can threaten RMP-regulated processes and
cause accidental releases if not properly managed, and therefore
disagrees that the provisions are unwarranted. In the proposed rule,
EPA provided data showing that power loss has resulted in serious
accidental release incidents at RMP-regulated facilities (87 FR 53569),
and EPA believes making more explicit this already-existing accident
prevention program requirement to evaluate hazards of the process \65\
will ensure that threats of power loss are properly evaluated and
managed to prevent or mitigate releases of RMP-regulated substances at
covered facilities. Therefore, EPA is finalizing the proposed
revisions.
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\65\ 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) through (c) for Program 3
processes.
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In response to the comment that facilities should provide local
responders with their backup power capabilities during a hazard event,
EPA maintains that it is very important to ensure that Local Emergency
Planning Committees (LEPCs) or local emergency response officials have
the information necessary for developing local emergency response
plans; however, EPA believes it is not necessary to specify in the RMP
rule the types or format of information that LEPCs or emergency
response officials may request. Section 303(d)(3) of the Emergency
Planning and Community Right to Know Act already provides the necessary
authority to allow LEPCs to request information needed to develop the
local emergency response plan. Furthermore, as part of the annual
coordination between facilities and local emergency responders,
responders may obtain information on backup power as appropriate.
In response to the comments requesting that EPA require facilities
to have enough backup power to safely run in the event of power loss,
EPA is not requiring implementation of standby or emergency power for
the entirety of an RMP process at this time. However, the Agency is
requiring the source to consider the appropriateness of backup power
for their process and to explain decisions not to implement backup
power. There may be situations where backup power is not critical to
chemical release prevention, so the rule provides sources the
opportunity to explain their decision-making. Such an approach is
consistent with the performance-based structure of the rule that relies
on examination of process safety issues by the source, rational
decision-making on the part of owners and operators, and oversight by
implementing agencies through compliance assistance and enforcement and
the public through disclosure. EPA takes a slightly different approach
with respect to backup power for monitors. EPA is requiring standby or
backup power for air pollution control or monitoring equipment
associated with prevention and detection of accidental releases from
RMP-regulated processes and has amended regulatory language to reflect
the requirement. EPA believes that doing so will help ensure compliance
with the intent of the rule and ensure that the 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. While the Agency acknowledges that there
may be processes that do not require backup power, the Agency believes
that once a facility has made and documented the determination that it
is appropriate to have monitors for accidental releases, then ensuring
their operation through requiring backup power is an appropriate
operational requirement.
In response to comments that the requirements would create
inconsistency between EPA and OSHA regulatory programs, EPA seeks only
to better reflect its longstanding regulatory requirement that loss of
power is among the hazards that must be addressed within hazard
evaluations, rather than impose additional regulatory requirements (and
thus potential additional costs) that conflict with the OSHA PSM
regulatory requirements.
[[Page 17640]]
In response to the comment that the amendments to 40 CFR 68.50 and
68.67 are vague, EPA again notes these amplifications are already
preexisting requirements. Also, EPA's general approach in 40 CFR part
68 has been to recognize that process safety requires owners and
operators to exercise reasonable judgement in making their facility
safer. Therefore, EPA has, and continues to, allow substantial
flexibility for sources on how to comply with the RMP rule. As noted in
the proposal, EPA believes many facilities are already managing the
hazard of power loss well and thus does not believe the amplification
of power loss in the hazard evaluation regulatory text will negatively
affect evaluation of this hazard.
In response to comments regarding facilities' removal of air
monitoring equipment,\66\ EPA notes that the final rule is revising 40
CFR 68.52(b)(9) and 68.69(a)(4) to require documentation of the removal
of monitoring equipment for accidental releases during disasters in
facility operating procedures. In doing so, the Agency addresses the
concern that the threat of extreme weather events has, and will
continue to 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 (87 FR 53571). To prevent
accidental releases, RMP owners or operators are required to develop a
program that includes monitoring for such releases. EPA does not
believe all natural disasters should be treated as an exception to this
requirement. However, EPA understands that, in some situations, such as
hurricane winds, there is a potential for damage to, or by, monitoring
equipment if not secured and allows a source to shut down monitoring
equipment in such cases provided that an explanation is included in its
RMP.
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\66\ The backup power requirement of this rule only addresses
monitors for accidental releases of regulated substances under 40
CFR 68.130. This rule does not create any obligation to provide
backup power to monitors that may be required by other CAA programs.
---------------------------------------------------------------------------
EPA disagrees that the backup and emergency power system
requirements exceed the scope of the RMP rule and EPA's statutory
authority and also disagrees that the monitoring requirements may
detract from the fundamental purpose of the RMP rule. Each modification
of the RMP rule that EPA proposed and is finalizing is based on EPA's
rulemaking authority under CAA section 112(r)(7). Both paragraph (A)
and subparagraph (B)(i) of section 112(r)(7) explicitly grant EPA the
authority to require monitoring for accidental releases. See CAA
section 112(r)(7)(A)) (EPA ``authorized to promulgate release
prevention, detection, and correction requirements which may include
monitoring''); CAA section 112(r)(7)(B)(I) (as appropriate, the
accidental release regulations shall cover the use, operation, and
upkeep of equipment to monitor accidental releases). The original rule
established, through its statutory authority, the requirement to
monitor for accidental releases to help prevent and mitigate releases.
Therefore, backup and emergency power system requirements being
finalized in this rule simply ensure proper operation of monitors and
continuous compliance with the existing requirement.
In response to comments that EPA did not adequately consider the
costs and benefits of the power loss provisions, EPA notes that it is
not finalizing additional regulatory requirements from what already
exists in the RMP regulations. The current RMP rule's PHA requirements
include determining and evaluating ``the hazards of the process'' as
well as ``engineering . . . controls applicable to the hazards and
their interrelationships such as appropriate application of detection
methodologies.'' (40 CFR 68.67(c)(1) and (3)) Loss of power is one such
hazard, and backup power is an engineering control applicable to the
hazard and detection methodologies. Similar but less detailed
requirements apply to Program 2 processes (40 CFR 68.50(a)). The hazard
evaluation requirements reflect not only the OSHA and EPA rules but
also existing industry recommended practices, and therefore, EPA
assumes that these hazard evaluation amplifications impose no new
requirements or costs on facilities. As EPA has discussed in prior RMP
rulemaking RIAs, it is not possible to estimate quantitative benefits
for proposed rule provisions as EPA has no data to project the specific
contribution of each to an accident's impacts. As shown by accident
trends, accident frequency and severity are difficult to predict.
However, the 2022 SCCAP proposed rule and the accompanying Technical
Background Document show that past accidents have been caused by power
failure, and the backup power provisions target these events. Based on
RMP-reportable accident and other data from RMP regulated industry
sectors,\67\ chemical accidents can impose substantial costs on firms,
employees, emergency responders, the community, and the broader
economy. Reducing the risk of such accidents, the severity of the
impacts when accidents occur, and improving information availability,
as the provisions of this final rule intend, will provide benefits to
the potentially affected members of society.
---------------------------------------------------------------------------
\67\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
---------------------------------------------------------------------------
c. Stationary Source Siting
EPA's Proposed Approach
i. Comments
A few commenters expressed support for EPA's proposal to amend
regulatory text for Program 2 and 3 processes to define stationary
source siting evaluations as including placement of processes,
equipment, buildings, and hazards posed by proximate facilities and
accident release consequences posed by proximity to the public. One
commenter stated that doing so would ensure the protection of human
health and the environment. Another commenter stated that EPA should
require implementation of stationary source siting recommendations
found in the analysis to the greatest extent practicable to assure
protection for fenceline communities. Similarly, another commenter
suggested that if it is practicable for a facility to take an action to
eliminate or lessen hazards associated with RMP processes through
different siting, it should be required to do so.
Several commenters expressed concerns about the proposed
requirements related to siting evaluations. Several commenters noted
that implementing the facility siting requirements are unnecessary and
duplicative because facilities covered by OSHA's PSM regulations
already undergo similar requirements. The commenters stated that this
creates the opportunity for inconsistent enforcement between EPA and
OSHA.
Several commenters expressed concern that EPA did not define the
term ``proximate facilities.'' Many commenters were also concerned that
when these facilities are identified, it is not practical to expect
them to share information with each other due to confidential business
information (CBI) and security concerns. One of the commenters
suggested that EPA update the regulatory text to make an allowance for
instances where neighboring facilities do not cooperate in the siting
evaluation.
[[Page 17641]]
A couple of commenters stated that it is impracticable for EPA to
require existing facilities to move processes to comply with any new
siting requirements. The commenters suggested that EPA clarify that
these requirements do not apply to existing facilities. One commenter
stated that imposing new siting requirements after a facility that has
been established would raise fundamental fairness issues, as well as
possible regulatory ``takings'' issues, potentially requiring
compensation to the affected sources. One commenter noted that
conducting a siting analysis is a significant undertaking for existing
sources who do not have potential to cause offsite consequences. The
commenter stated that it would be a costly and arduous undertaking to
determine exactly what facilities are proximate and understand their
internal operations.
One of the commenters noted that the proposed requirements should
be narrowly interpreted to preserve local zoning authority. Another
commenter mentioned that neither the facility nor EPA have any
authority or control over local zoning ordinances that may have allowed
development within an area that EPA's new criteria may deem to have
inappropriate buffers or setbacks. Another commenter stated that the
facility siting provision could negatively affect where facilities
could be built, depending on the distance between a facility process
and offsite populations. The commenter encouraged EPA to consider a
policy restricting outside populations from building close to a
facility which could interfere with real estate plans and impact local
building regulations.
ii. EPA Responses
EPA agrees that amending the regulatory text to make more explicit
the requirement that process hazard evaluations for both Program 2
(hazard review) and Program 3 (PHA) include in the siting evaluation
the placement of processes, equipment, buildings, and hazards posed by
proximate facilities, and accident release consequences posed by
proximity to the public, will help ensure the protection of human
health and the environment. As discussed in the proposal, 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. The proposal offered several examples of
accidental releases which illustrate the significant effects of the
lack of sufficient distance between the source boundary and neighboring
residential areas.
In response to comments that EPA should require implementation of
stationary source recommendations, EPA notes that, at this time, the
Agency 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 instead 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. EPA continues to believe the performance-based nature of
both this provision and the overall rule allow facility owners and
operators the discretion to determine what risk reduction measures work
best for their particular chemical use, process, or facility.
Furthermore, EPA disagrees with comments that implementing the facility
siting requirements would create the opportunity for inconsistent
enforcement between EPA and OSHA. 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.\68\ 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.\69\
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\68\ OSHA, Final Rule on Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part
1910 (1992), 57 FR 6356 (February 24, 1991), https://www.osha.gov/laws-regs/federalregister/1992-02-24.
\69\ 61 FR 31687, June 20, 1996.
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In response to the comments regarding the definition of ``proximate
facilities'' and CBI, EPA notes that the provision is for facility
owners and operators to be aware of and consider the apparent presence
of facilities within release impact zones that could occur from their
facility, and how those releases would be affected because of the
presence of nearby facilities. While EPA encourages sharing of chemical
and process information between facilities, particularly for emergency
response purposes, EPA does not believe this is required in order to
comply with the provision. Nevertheless, when conducting siting
evaluations, EPA would reasonably expect sources to consult publicly
accessible information on nearby sources, such as RMPs and information
available through LEPCs. This type of information is not CBI.
EPA disagrees that it is impracticable to require existing
facilities to comply with siting requirements. EPA notes that there is
a breadth of guidance on siting, and the Agency therefore believes
there is adequate information available for facilities to comply with
the text in this final rule. EPA expects facilities to continue to use
available resources and any additional industry-specific guidance to
properly evaluate siting hazards. The rule does not mandate that
existing sources modify their footprint as a result of a siting
analysis. The approach taken in this rule is similar to how hazard
evaluations have proceeded in the past: require the analysis of hazards
and rely upon owners and operators to use the information reasonably
when determining what measures should be undertaken. The Agency also
notes that Program 1 processes are not covered by this requirement;
Program 2 and 3 sources subject to this requirement will have
undertaken offsite consequence analyses and determined that they may
have offsite impacts that disqualify them from Program 1. Finally,
while EPA has in the past discussed the potential for requiring minimal
setbacks and other specific location restrictions, notwithstanding
local zoning, the siting requirement in this rule does not contain such
a restrictions on location.
d. Hazard Evaluation Information Availability
EPA's Proposed Approach
i. Comments
Several commenters expressed support for EPA's proposed hazard
evaluation information availability requirements. One commenter stated
that failing to finalize the proposal would be arbitrary and capricious
because owners and operators can continue to ignore recommendations
from hazard evaluations with no justification, even if the
recommendations are feasible and effective. One commenter strongly
supported EPA's decision to require RMP facilities to report declined
recommendations in hazard evaluations but also suggested there should
be a baseline checklist of natural hazard mitigation measures. A couple
of the commenters noted that facilities should
[[Page 17642]]
be required to implement practicable recommendations.
Several commenters expressed concern that there is no reasonable
explanation for requiring the reporting of rejected recommendations. A
few commenters mentioned that the proposed requirements are unnecessary
because this information is already documented as part of the PHA or
Layers of Protection Analysis (LOPA) and adding it to the RMP only
produces double documentation without added benefit. Some commenters
mentioned that EPA did not consider the labor costs and time that would
be devoted to preparing a written justification for rejected
recommendations. One of the commenters stated that the time and
resources could be better spent on implementing accepted
recommendations. A few commenters suggested that there is no evidence
that requiring individual facilities to provide such documentation will
reduce accident rates and may lead some to believe that it is possible
to eliminate all risks, including potential risks, which could lead to
a release.
Some commenters noted that the requirement will likely cause
facilities to consider a narrower scope of recommendations to avoid
making this exercise more burdensome. Similarly, one commenter
expressed concern that the proposed requirement will discourage
facility leaders from pushing their PHA/LOPA teams from identifying
unmitigated hazards to limit the amount of information they are
required to report to EPA. Another commenter recommended that EPA make
clear that an appropriately justified denial during initial review of a
facility's RMP plan should not have to be re-justified in subsequent
reviews of the plan.
ii. EPA Responses
EPA believes that finalizing the hazard evaluation recommendation
information availability provisions will enable the public to ensure
facilities have conducted appropriate evaluations to address potential
hazards that can affect communities near the fenceline of facilities.
At this time, EPA is not requiring facilities to implement practicable
recommendations from natural hazard, power loss, and siting hazard
evaluations, as long as facilities list in their risk management plans
the recommendations that were not implemented and the justification for
those decisions. EPA disagrees that the requirements are unnecessary
and provide no benefits. EPA believes the requirements are important to
help the public understand how facilities address the hazards that may
affect their community to keep the risk at or below an ``acceptable
level,'' which include adherence to RAGAGEP, and the reasonable
judgments and efforts of compliance programs aimed at preventing or
mitigating accidental releases. In response to comments that requiring
such documentation will not reduce accident rates, EPA believes that
when local citizens have adequate information and knowledge about the
risks associated with facility hazards, facility owners and operators
may be motivated to further improve their safety performance in
response to community oversight. At a minimum, better community
understanding of identified hazards and remedies not implemented will
promote better community emergency planning.
In response to comments that EPA did not consider the costs of
preparing written justifications for rejected recommendations, EPA
notes that the RIA for the final rule estimates anticipated costs for
preparing written justifications.
In response to the comments that the requirement will discourage
facilities from considering recommendations and identifying unmitigated
hazards, EPA notes that the hazard evaluation requirements for Program
2 (40 CFR 68.50) and Program 3 (40 CFR 68.67) processes remain
unchanged--to identify, evaluate, and control hazards involved in the
process, assuring the recommendations are resolved in a timely manner.
When facilities fail to conduct these activities, they will not be in
compliance with the hazard evaluation provisions. EPA believes the
flexibility permitted in hazards evaluations, that is, allowing
facility owners and operators to choose which recommendations will be
implemented, is the best approach for exercising reasonable judgement
to determine what risk reduction measures work best for their
particular chemical use, process, or facility. However, EPA views
choosing to leave hazards unaddressed out of fear of public scrutiny as
not exercising reasonable judgement, particularly when it may leave the
process more vulnerable to accidental releases.
Methods To Provide Justification
i. Comments
A few commenters expressed support for using categories, such as
those in OSHA's 1994 Compliance Directive,\70\ for declining to adopt a
PHA recommendation. One of the commenters noted that requiring owners
and operators to choose one of four pre-selected categories makes it
easier for owners and operators to understand and comply with their
duties. The commenter suggested that EPA should not include alternative
categories or a catch-all ``other'' category because doing so would
dilute the purpose of the amendment by allowing facilities to decline
recommendations for potentially insufficient reasons. Another commenter
expressed concern that the list of possible natural hazards, loss of
power, and siting evaluation recommendations that might not be adopted
could be expansive; therefore, the commenter suggests EPA should
provide specific categories of recommendations for facilities to choose
from when reporting.
---------------------------------------------------------------------------
\70\ https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf.
---------------------------------------------------------------------------
One commenter recommended that the information be presented in a
public and easily accessible space across many different sites and
locations. Similarly, another commenter suggested that owners of RMP
facilities should be obligated to post hazard-related information
online and provide a link in risk management plans so responders and
local communities can access this information.
A commenter recommended that EPA require owners and operators to
include not only documentation that one of the four justifications is
met, but also a narrative explaining how the documentation shows that
the justification has been met. Conversely, another commenter noted
that requiring covered facilities to provide declined hazard evaluation
recommendations in narrative form is an unnecessary intrusion into
internal practices at a facility that does not improve that facility's
safety.
One commenter noted that the proposed requirement for selection of
``preselected categories'' does not appear in the proposed regulatory
text and recommended that if EPA intends to make the use of these
categories mandatory, it must put them into the regulatory text. The
commenter also noted that these categories are good conclusions for
internal facility evaluations that assess complex considerations, but
they provide little to no useful information to LEPCs and local
communities.
ii. EPA Responses
EPA agrees that requiring owners and operators to choose one of
four pre-selected categories makes it easier for owners and operators
to understand and comply with their duties and is thus finalizing this
component in the rule. EPA is not requiring narrative
[[Page 17643]]
explanations to be reported as there is concern that such explanations
may be greatly inconsistent as they would require large amounts of
technically challenging and varying information to be comparably
condensed. The Agency believes the four pre-selected categories ensures
a balanced approach to providing beneficial data to the public as well
as a straightforward method of reporting for facility owners/operators.
While EPA is not adding the categories to the regulatory text, EPA will
plan to revise its online RMP submission system, RMP*eSubmit,\71\ to
include the categories,\72\ similar to the those in OSHA's 1994
Compliance Directive, which will mimic the approach for other data
components required by 40 CFR 68.170 and 68.175. Sources will therefore
be able to update their RMPs with the information once the additional
data field is incorporated into the system, and in accordance with
applicable compliance dates. EPA also plans to update the RMP*eSubmit
User's Manual \73\ to provide guidance for entering declined
recommendations and applying these categories to them.
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\71\ https://www.epa.gov/rmp/rmpesubmit.
\72\ These changes will be made to the submission system prior
to the 4-year compliance date as described further in section
IX.C.8. of this preamble.
\73\ https://www.epa.gov/rmp/rmpesubmit-users-manual.
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B. Safer Technology and Alternatives Analysis (STAA)
1. Summary of Proposed Rulemaking
a. Definitions, 40 CFR 68.3
EPA proposed to define ``inherently safer technology or design''
(IST/ISD) to mean 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.
EPA also proposed definitions for ``passive,'' ``active,'' and
``procedural'' measures. EPA proposed to define ``passive measures'' as
risk management measures that use design features that reduce either
the frequency or consequence of the hazard without human, mechanical,
or other energy input. EPA proposed to define ``active measures'' as
risk management measures or engineering controls that rely on
mechanical, or other energy input to detect and respond to process
deviations. Lastly, EPA proposed a definition for ``procedural
measures'' as risk management measures such as policies, operating
procedures, training, administrative controls, and emergency response
actions to prevent or minimize incidents.
Finally, EPA proposed to define ``practicability'' as the
capability of being successfully accomplished within a reasonable time,
accounting for technological, environmental, legal, social, and
economic factors.
b. Process Hazard Analysis, 40 CFR 68.67
EPA proposed to modify the PHA provisions by adding an additional
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 process
address safer technology and alternative risk management measures
applicable to eliminating or reducing risk from process hazards. EPA
proposed that ``1 mile'' be interpreted to mean ``1 mile to the nearest
fenceline'' for a facility with a NAICS 324 or 325 process. EPA
proposed 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. EPA also proposed that all
facilities with 324 processes using hydrofluoric acid (HF) in an
alkylation unit conduct an STAA for the use of safer alternatives
compared to HF alkylation, regardless of proximity to another NAICS
324- or 325-regulated facility process.
EPA proposed to require owners and operators subject to the STAA
provision to include an evaluation, including the results of the STAA
analysis, as part of the PHA requirements in 40 CFR 68.67(e). In
addition, EPA proposed to add paragraph (c)(9)(ii) to require that the
owner or operator determine and document the practicability of the IST
or ISD considered. This process would be separate and additional to the
PHA requirements in 40 CFR 68.67(e). 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. Lastly, EPA proposed to add paragraph (c)(9)(iii) to
require 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.
In addition to the proposed approach to STAA, EPA sought feedback
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. EPA solicited comment on
whether the Agency should only require the STAA as part of the PHA,
without the additional practicability assessment. EPA also sought
comment on other alternative approaches considered. One approach was
applying STAA requirements to facility processes in NAICS codes 324 and
325 with a reportable accident within the last 5 years. Another
approach was applying these provisions to all NAICS codes 324 and 325
facility processes. Lastly, EPA sought comment on whether the Agency
should require implementation of technically practicable IST/ISD and
STAAs.
c. STAA Technology Transfer, 40 CFR 68.175(e)(7)
EPA proposed to add 40 CFR 68.175(e)(7) to require owners or
operators to report whether their 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.
2. Summary of Final Rule
As discussed below, the final rule adopts three measures related to
STAA: a broad requirement to conduct a STAA applicable to two sectors,
petroleum refining (NAICS 324) and chemical manufacturing (NAICS 325);
a requirement to conduct a practicability assessment for IST/ISD for a
subset of facilities with processes in these sectors (co-located
sources within 1 mile, refinery HF alkylation processes, and those that
have had a reportable accident within the 5 preceding years); and a
requirement for the same subset of facilities to implement at least one
practicable passive measure or similarly protective active or
procedural measure(s) after each STAA. These measures also are
severable from each other. Even without a mandate to implement any
measures resulting from an STAA or to conduct a formal, documented
practicability assessment, an owner or operator of a facility may
identify and decide to implement new prevention measures resulting from
the STAA. Similarly, even without a requirement to implement
practicable IST/ISD measures or conduct a broader STAA review, a
practicability assessment may lead to the adoption of an IST or ISD at
the subset of sources required to conduct such an assessment. Finally,
the requirement for a subset of sources to implement a passive measure
or an equally protective active
[[Page 17644]]
measure(s) or procedural control(s) does not depend on whether an IST/
ISD practicability assessment was performed or whether the broader
industry is performing a STAA. While each of these measures relate to
STAA generally, they are distinct regulatory requirements of value
independent of each other.
The Agency acknowledges that, prior to this final rule, EPA has not
made implementation of any IST/ISD or any measure identified in a STAA
either a preferred option at proposal or an adopted requirement in a
final rule. Our prior rulemakings have discussed our policy view of the
merits of requiring implementation. Our prior decisions have not
questioned what we view to be clear on the face of the statute: that
the CAA authorizes EPA to require implementation of IST/ISD and other
STAA measures. As discussed below (section V.B.3--Hydrogen fluoride),
both subparagraphs (A) and (B) of CAA section 112(r)(7) authorize
requiring implementation of safer technologies, and as discussed in the
``safeguard implementation'' section, EPA has appropriately justified
our change in our view of the policy merits of the requirement
promulgated in this final rule. The 2017 amendments rule, the 2019
reconsideration rule, and the 2022 SCCAP proposed rule all had vigorous
discussion of the merits of implementing STAA throughout the rulemaking
process, and the 2022 SCCAP proposed rule solicited comment on whether
implementation should be required. Therefore, sources were on notice
that the decision was an open matter and any reliance that we would not
adopt an implementation requirement in response to comments and data
was not reasonable. Moreover, to the extent sources relied on our
preferred option regarding implementation at proposal, EPA believes the
compliance period is adequate to allows sources to meet the rule
requirements.
Based on comments on both the proposed options and the alternative
approaches presented, EPA is finalizing the proposed provisions for
STAA with the following modifications:
Revising 40 CFR 68.67(c)(9) to expand the STAA evaluation
to all regulated facilities with Program 3 processes in NAICS codes 324
and 325.
Revising 40 CFR 68.67(c)(9)(ii) to expand the IST/ISD
practicability assessment to regulated facilities with Program 3
processes in NAICS codes 324 and 325 that also have had at least one
RMP-reportable accident under 40 CFR 68.42 since the facility's most
recent PHA.
Adding 40 CFR 68.67(h) to require implementation of at
least one passive measure at an applicable facility, or an inherently
safer technology or design, or a combination of active and procedural
measures equivalent to or greater than the risk reduction of a passive
measure.
3. Discussion of Comments and Basis for Final Rule Provisions
a. General STAA Provision Comments
STAA as Part of PHA
i. Comments
A couple of commenters stated that they support EPA's proposal that
owners and operators of RMP-covered facilities be required to include
consideration and documentation of the feasibility of applying safer
technologies and alternatives in their PHAs. One of the commenters
noted, however, that only doing STAAs within the PHA will limit the
effectiveness of the evaluations, and therefore, STAA should be
evaluated within the PHA process as well as outside of the PHA in a
separate study to evaluate each existing process.
Some commenters expressed opposition to EPA requiring a mandatory
STAA component in the PHA. A few commenters noted that mandating a full
IST or ISD review would require a completely different PHA team,
extensively increase the time and resources necessary to complete a
PHA, require the PHA team to perform hazard assessments of ever-
changing technology they may not be familiar with, and dilute a PHA's
core purpose.
One commenter noted that the proposed rule's STAA requirements do
not acknowledge the value of the PHA risk assessment function. Another
commenter stated that the analysis of passive measures, active
measures, and procedural measures already occurs as part of the PHA, as
required by 40 CFR 68.67(c)(3) and (4) and (6) and (7), and no
modification of the current regulations is thus required to ensure that
this analysis occurs. The commenter added that STAA requirements will
detract from and reduce the effectiveness of PHAs as it will divert
resources from PHA processes that are currently working well at
regulated facilities. The commenter noted the effectiveness of a PHA
depends heavily upon the availability of high-quality process safety
information (PSI), yet the proposed rule provides no direction on how
the PHA team is to assemble the PSI needed to perform the STAA. The
commenter explained that facilities would not normally have information
about processes not in use there. The commenter added this detracts
from the PHA focus on existing facility processes and potentially
reduces the effectiveness of the analysis.
ii. EPA Responses
EPA believes that STAA analysis can be incorporated in the existing
RMP PHAs by using PHA techniques such as the Hazard and Operability
Study, What-If? Method, checklists, a combination of these, or other
appropriate equivalent methodologies. (See 40 CFR 68.67(b)) These
techniques themselves are not requirements, but tools available to help
the facility owner or operator to identify, evaluate, and control the
hazards involved in the process. The Agency also notes that, when EPA
previously considered an IST requirement, commenters noted that ``PHA
teams regularly suggest viable, effective (and inherently safer)
alternatives for risk reduction,'' and EPA observed that ``good PHA
techniques often reveal opportunities for continuous improvement of
existing processes and operations'' (61 FR 31699-700).
Therefore, EPA agrees with commenters expressing support for
including a STAA in the PHA and disagrees with commenters that argue it
is not appropriate to include a STAA in the PHA. In fact, the RMP PHA
requirements include other aspects of analysis that are typically
associated with process design. For example, the PHA must also address
stationary source siting issues, which involve the location and
proximity of the source relative to local populations.
Nevertheless, EPA agrees that for situations where a STAA involves
a novel process that is entirely different from the current process,
the process design must exist or be developed within the industry, and
PSI be compiled, to conduct a PHA for this new process. EPA does not
expect facility owners or operators to research and create new
processes or conduct research into all possibilities for the use of new
chemicals. Instead, the STAA should focus on the industry known and
existing substitute processes and chemicals that have been demonstrated
to be safe in commercial use.
If a facility is considering an IST chemical substitution or
process change from their STAA that involves a significant redesign of
their process, such efforts involved with redesign and its evaluation
may need to be undertaken as part of a practicability study. The
definition of practicability allows for consideration of technological
factors, which could include whether the potential safer
[[Page 17645]]
alternative can be designed and operated to meet the process functions
needed. However, not all IST involves substituting a chemical or an
entirely new process. Also, there are other types of IST measures
(minimization, moderation, or simplification) that can be considered to
address various points within the current process where hazards and
risks exist.
Facilities may, if desired, conduct a separate STAA analysis of
each entire process, outside of the PHA process, as long as it is done
in the same timeframe as the PHA, and the results are documented. If a
facility does not have staff capable to identify and evaluate
alternatives, the facility owner or operator may obtain outside
assistance from engineering firms or consultants. Furthermore, the
Agency has accounted for the technical capabilities of facilities in
the sectors targeted for STAA when determining reasonable requirements
that provide for the prevention of accidents to the greatest extent
practicable.
Due to the performance-based approach of the current RMP PHA
requirements at 40 CFR 68.67(c)(3), to identify, evaluate, and control
the hazards involved in the process, EPA believes some facilities may
have already performed a STAA-type analysis as part of their PHA. If
the facility has already performed such STAA analysis in the past, then
the owner or operator should consider these analyses when updating or
revalidating their PHAs and determine whether there is new information
that should be considered as part of conducting the current STAA.
Costs and Benefits of Implementing STAA as Part of PHA
i. Comments
A couple of commenters stated that the STAA provisions would not be
cost-effective. The commenters stated that the STAA represents 70
percent of the total costs EPA estimated apply to the proposed rule.
The commenters noted that the proposed STAA requirement is solely for
consideration of possible alternatives and has unproven and
unquantified benefits that do not justify the annual cost of $51.8
million. One of the commenters added that EPA stated that they expect
``some portion of future damages would be prevented through
implementation of a Final Rule,'' but they did not identify any
benefits specifically tied to the STAA provision. The commenter stated
that there is consensus on the theoretical value of STAA as a tool to
inform future investment decisions and said that once a facility has
committed to a particular production technology, STAA is not
particularly useful nor informative. In contrast, another commenter
stated that the costs of transitioning to safer alternatives are not
sufficiently weighed against the costs of a major incident. The
commenter provided an example that indicates that safety improvements
could avoid major incidents costing owners $220 million on average. The
commenter also noted that this figure does not include costs to
society, such as human lives, economic stress, and health care and
emergency service costs.
ii. EPA Responses
EPA disagrees that the benefits of the STAA requirements do not
justify the costs. EPA believes that the STAA should identify potential
IST process changes that, if implemented, would result in owners or
operators using less hazardous substances, minimizing the amount of
regulated substances present in a process, moderating process
conditions and reducing process complexity. The STAA also should
identify potential passive, active, or procedural safeguards that, when
implemented, will result in changes to make processes safer. Such
changes help reduce the prevalence of higher risk processes and thereby
prevent accidents by either: (1) Eliminating the possibility of an
accidental release entirely, by making a process more fault-tolerant,
such that a minor process upset, or equipment malfunction does not
result in a serious accidental release; and (2) reducing the severity
of releases that do occur.
RMP accident data show past accidents have generated highly
variable impacts, so the impacts of future accidents are difficult to
predict. Nevertheless, it is clear from RMP accident data \74\ and
other data from RMP regulated industry sectors,\75\ that chemical
accidents can impose substantial costs on firms, employees, emergency
responders, the community, and the broader economy. Because major and
other concerning RMP accidents continue to occur, by lowering risk of
accidents, the benefits include: reductions in the number of fatalities
and injuries both onsite and offsite and residents evacuated or
otherwise inconvenienced by sheltering in place; reductions in the
damage caused to property onsite and offsite of the facility including
damages to product, equipment, and buildings; reductions in damages to
the environment and ecosystems; and reductions in resources diverted to
extinguish fires and clean up affected areas. Preventing serious
accidents avoids numerous direct costs, including worker, responder,
and public fatalities and injuries, public evacuations, public
sheltering in place, and property and environmental damage. It also
avoids indirect costs, such as lost productivity due to lost or damaged
property and business interruption both onsite and offsite, expenditure
of emergency response resources and attendant transaction costs, and
reduced offsite property values. Actions that prevent or reduce the
severity of accidents in RMP-covered processes are also likely to
prevent or mitigate non-RMP accidents at the same facilities because
the same or similar actions can be taken for processes and equipment
not subject to the regulation, often at minimal additional cost.
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\74\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\75\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
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Further, for IST/ISD practicability and implementation of certain
measures, EPA recognizes facilities will most likely implement IST/ISD
when an IST/ISD's net cost is less than a passive measure's cost. The
Agency assumes owners and operators will likely explore specific
benefits to their facility when making decisions and expects the
evaluation to consider several factors, such as:
Operating and Maintenance (O&M) cost--IST/ISD may have a
change in O&M costs compared to passive measures. For example,
chemicals used in the process may change, which could cause changes in
recurring input costs, including potentially lower those costs.
Productivity improvements--IST/ISD could result in
productivity improvements from more efficient process and changes to
input costs.
Safety improvements--IST/ISD may reduce risks of an
accident more than would a passive-equivalent measure. A lower accident
risk will result in facility safety benefits and social benefits from
fewer accidents.
Capital/facility reduced losses--Similar to safety, a
lower accident risk will reduce losses to capital as well as shorter
than expected facility shutdown time from accidents.
These facility specific factors will further help owners and
operators justify identify facility-specific benefits associated with
the costs to comply with this provision. EPA continues to believe the
performance-based nature of both this provision and the overall rule
allow facility owners and operators the
[[Page 17646]]
discretion to determine which IST/ISDs and passive, active and
procedural safeguard measures work best for their particular chemical
use, process, or facility and for protecting the community potentially
affected.
EPA disagrees that the benefits of the STAA requirements are
unproven. Since 1996, EPA has seen that advances in ISTs and safer
alternatives are becoming more widely available and are being adopted
by some companies. Voluntary implementation of some ISTs has been
identified through surveys and studies and potential opportunities have
been identified through EPA enforcement cases and the U.S. Chemical
Safety and Hazard Investigation Board (CSB) incident investigations. As
discussed in the 2017 amendments rule (82 FR 4645, Jan. 13, 2017), the
Contra Costa County Health Services and New Jersey Department of
Environmental Protection (NJDEP) IST regulations have resulted in some
facilities adopting IST measures.
EPA disagrees that STAA is not useful or informative for facilities
that have committed to a particular production technology. Innovations
and research in chemical process safety have evolved and continue to
evolve. For those facilities who have not considered adopting any IST
or have only done so in limited fashion, EPA believes that there is
value in requiring facilities with regulated substances to evaluate
whether they can improve risk management of current hazards through
potential implementation of ISTs or risk management measures that are
more robust and reliable than ones currently in use at the facility.
For those facilities who have already considered IST, EPA believes
facilities should re-evaluate whether any improvements in hazard or
risk reduction can be made.
In response to the comment that EPA did not identify any benefits
specifically tied to the STAA provision, EPA was able to qualitatively
judge that the risk reduction from STAA implementation \76\ reasonably
justified the costs. In principle, the STAA eliminates or minimizes the
opportunities for a chemical release because identification and
implementation of ``safer'' technologies and alternatives, should
result in a hazard or risk reduction for a particular RMP chemical or
process. EPA recognizes that neither IST nor other procedural, active,
or passive measures alone will eliminate all hazards or risks and that
reliance on a combination of risk reduction measures will probably be
needed for other points in a process.
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\76\ This is further discussed in greater detail in Chapter 6 of
the RIA.
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Hydrogen Fluoride
i. Comments
Some commenters were concerned that the proposed rule leaves the
continued use of HF up to owners/operators. A few commenters urged EPA
to strengthen the proposed rule by requiring facilities to switch from
HF or other acutely toxic substances to a safer alternative whenever
feasible, since safer alternatives are available. One of the commenters
noted the CSB's 2022 report recommendations that HF in remaining
alkylation units in the U.S. be eliminated and replaced, if necessary,
with less hazardous chemicals that are consistent with ISD. One
commenter requested that safer alternatives to HF be implemented across
all oil refineries in the U.S.
One commenter stated that the proposed rule was not comprehensive
enough to adequately mitigate the inherent risks associated with using
HF. The commenter stated that asking these facilities to merely
consider switching from HF alkylation to safer alternatives and
requiring them to include an STAA as part of their PHA was not enough
to eliminate the inherent risk of having HF onsite. A couple of
commenters recommended that the use of HF in refineries be banned. One
of the commenters urged EPA to establish an aggressive timeline to
phase out HF's use and said that further study is a waste of time.
Another commenter contended that adding a larger scale ban of HF across
all the oil refineries in the U.S. would safeguard millions of
Americans from facing disaster in the event of an accidental release.
Several commenters stated that the history of HF use and accidents
supported the idea that stronger EPA action was necessary to protect
communities.
Several commenters stated a range of concerns regarding the dangers
of HF. A few of the commenters specifically noted near misses or
releases of HF and their associated harms and costs. One commenter
noted the dangers of HF and the risks to communities, workforces,
wildlife, hospitals, and first responders. Another commenter noted the
risk of a catastrophic event caused not only by accidents and human
error, but also from terrorism and natural disasters, which the
commenter claimed cannot be mitigated. One commenter noted that
earthquakes could cause the release of HF from refineries. One
commenter noted the prevalence of refineries using HF near urban
centers. Another commenter noted their concerns regarding the hazards
of HF, specifically the dangers for nearby school children and a lack
of emergency preparedness in schools.
Conversely, one commenter urged EPA not to advance requirements
specific to HF alkylation units. The commenter claimed that EPA has no
legal authority to mandate STAA on existing processes and that the
proposed STAA requirements on all HF alkylation processes at petroleum
refineries are arbitrary and unlawful. The commenter claimed that EPA
did not provide a meaningful account of the benefits associated with
this requirement, failed to state specifically how this requirement
would fulfill any statutory requirements of the RMP, and has little or
no data to support its proposal. The commenter further claimed that the
data indicates that the industry is safely managing the risks with HF.
One commenter claimed that data show that HF alkylation processes
are well managed by refiners. The commenter noted EPA's 1993 report on
HF \77\ and the continuous improvement of industry-developed HF
management policy American Petroleum Institute (API) Recommended
Practice 751, ``Safe Operation of Hydrofluoric Acid Alkylation Units''
(RP 751).\78\ The commenter stated that RP 751 is recognized by OSHA
and the CSB as providing effective guidance for the safe operation of
HF alkylation units and management of HF catalyst. The commenter
claimed that there have never been life-threatening injuries to people
in surrounding communities stemming from HF-related incidents at
refineries, which the commenter noted was because of multiple layers of
mitigation technologies and emergency procedures. The commenter claimed
that the benefits of STAA are flawed because the commenter noted that
EPA failed to consider the measures taken at facilities that follow or
audit against RP 751.
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\77\ EPA, Hydrogen Fluoride Study, Report to Congress section
112(n)(6) Clean Air Act As Amended, https://nepis.epa.gov/Exe/ZyPDF.cgi/10003920.PDF?Dockey=10003920.PDF.
\78\ 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.
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ii. EPA Responses
EPA notes that HF is an extremely toxic chemical used for
alkylation at 27 percent of facilities in NAICS 324 (45 of 163). EPA is
requiring that all HF alkylation processes at petroleum refineries
(NAICS 324) conduct an initial STAA evaluation, a practicability
assessment for IST/ISD, and
[[Page 17647]]
implementation of at least one passive measure (or combination of
active or procedural measures equivalent to the risk reduction of a
passive measure), primarily due to recent incidents where HF was nearly
released when there were explosions, fires, and other releases that
could have triggered releases of HF. While API RP 751 offers industry
guidance to help safely manage HF alkylation process and its hazards,
those process hazards still exist. In contrast, there are recognized
potentially safer chemical 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. These eliminate the hazard. With several known alternatives
and with recent incident history, EPA believes the process of HF
alkylation merits a rule-based prevention approach rather than only
selective oversight. In response to the comments urging EPA to require
facilities to switch from HF to a safer alternative whenever feasible,
the practicability of these potentially safer alternatives is
situation-specific, and owners and operators are usually in the best
position to make these determinations.
EPA summarized its legal authority for the various provisions of
this final rule in the preamble to the proposed rule, specifically
identifying STAA as a prevention measure authorized under CAA section
112(r)(7) (87 FR 53563-64, Aug. 31, 2022). EPA's legal authority to
require an STAA evaluation and implementation of reasonable STAA
measures is well-established under both paragraphs (A) and (B) of CAA
section 112(r)(7). In authorizing rules for the prevention of
accidental releases of regulated substances, subparagraph (A) of
section 112(r)(7) specifically allows for rules that address design,
equipment, and operations while permitting EPA to distinguish among
classes of facilities based on factors ``including, but not limited to
. . . location [and] process.'' This language authorizes EPA to put
restrictions on and impose requirements for permissible design of a
process and the types of equipment used as well as continuing operation
of such designs and technologies. With respect to HF alkylation
processes, not only does the statute authorize consideration of
location when identifying classes to regulate, it also provides that
EPA may consider the ``potency of substances'' when making distinctions
among facilities that are covered by regulations under section
112(r)(7)(A). As discussed in the proposed rule, HF is a particularly
potent regulated substance. 87 FR 53576 (Aug. 31, 2022).
In addition to the authority granted by subparagraph (A), the
authority in subparagraph (B) to develop ``reasonable regulations
[that] provide, to the greatest extent practicable, for the prevention
and detection of accidental releases'' authorizes reasonable
regulations to mandate examination of potential methods to prevent
releases, to examine the practicability of alternative designs and
technologies, and to require adoption of release prevention measures
when practicable. Many of the same terms appear in both subparagraph
(B)(i) as in subparagraph (A)--the requirement to cover ongoing
operations, the authority to recognize ``differences in . . .
operations, processes and class . . . of sources,'' while also granting
authority to regulate ``use'' of regulated substances. Subparagraph
(7)(B)(ii) authorizes rules to ``minimize'' accidental releases, which
encompasses a mandate to implement practicable passive mitigation
measures or their equivalent active and procedural measures. STAA is a
``safety precaution'' under the prevention program. CAA
112(r)(7)(B)(ii)(II).
As noted in the 2017 amendments rule (82 FR 4630, Jan 13, 2017),
both the Conference Report for the 1990 CAAA \79\ and the 1989 Senate
Report related to the CAAA \80\ provide substantial support for the
concepts of STAA. The Conference Report included support for ``a review
of the efficacy of various prevention and control measures, including
process changes or substitution of materials'' (Conference Report pp.
340-41). Further, the Senate Report supported ``release prevention
measures'' that contemplate IST and STAA (Senate Report p. 242). While
neither the 1996 RMP rule nor the 2019 reconsideration rule required
IST or STAA, neither action based those decisions on a lack of
authority under CAA section 112(r)(7) to require examination of safer
alternatives at either existing or new processes.
---------------------------------------------------------------------------
\79\ H.R. Rep. No. 101-952 (1990) (Conf. Rep.).
\80\ S. Rep. No. 101-228 (1989).
---------------------------------------------------------------------------
Furthermore, in discussing the purpose of the chemical accident
provisions, the Senate Report identified a preference for measures that
promote safer technologies to those that merely mitigate or respond to
releases (pp. 208-209):
Systems and measures which are effective in preventing accidents
are preferable to those which are intended to minimize the consequences
of a release. Measures which entirely eliminate the presence of
potential hazards (through substitution of less harmful substances or
by minimizing the quantity of an extremely hazardous substance present
at any one time), as opposed to those which merely provide additional
containment, are the most preferred.
The Senate Report is entirely consistent with a preference for the
hierarchy of controls that forms the basis of STAA.
b. STAA Evaluation
Applicability
i. Comments
Several commenters recommended that EPA expand STAA requirements to
cover more facilities. Some of the commenters highlighted that the
proposed rule would only require approximately 5 percent of RMP
facilities to conduct STAAs, which is a small subset of facilities.
Some of the commenters suggested EPA require all RMP facilities to
develop a hierarchy of hazard controls in sequence and priority order
to eliminate risks of catastrophic releases. One commenter noted that
EPA has failed to justify excluding any refineries, chemical
manufacturing plants, pulp/paper mills, wastewater treatment,
agricultural chemical or fertilizer plants, or thousands of other
hazardous facilities where safer technologies are available.
One commenter claimed that there was no valid justification not to
require a refinery or chemical manufacturer to assess IST and consider
ways to operate more safely simply because it was not within 1 mile of
another refinery or chemical plant. The commenter claimed that the 1-
mile radius restriction was unworkable as well as unjustifiable and
that it was unclear how to determine the distance restriction. The
commenter stated that a 1-mile radius restricted the likely impact area
for severe hazards and releases from refineries and chemical plants
especially for communities where there are many facilities within a 1-
to-10-mile radius that can impact health, the ability of communities to
evacuate, and the ability of first responders to assist. The commenter
additionally noted that a hurricane, flooding, wildfire, or earthquake
tended to have impacts greater than a 1-mile radius.
Several commenters stated that the use of the 1-mile distance from
fencelines instead of process location is unreasonable as there are
facilities that have processes hundreds of yards from their fenceline.
The commenters suggested that this additional distance should be
accounted for in this
[[Page 17648]]
provision and requested that EPA use distances between the covered
processes at the adjacent stationary source as opposed to fencelines.
A couple of commenters stated that STAA is inappropriate and cost-
prohibitive for existing processes. These and other commenters urged
that EPA should limit any STAA requirement to the design and
development phases of new processes. A couple of commenters stated that
the reasons different technologies are not implemented after a facility
is already built are complex--ranging from chemical production or
storage capability to life expectancy of operating equipment, capital
expenditures, and market demands. Some commenters noted that EPA does
not have the statutory authority under CAA section 112(r) to impose
facility design requirements at any stage of a regulated facility's
lifespan, much less for existing facilities.
A couple of commenters noted that the considerations of STAA would
have little relevance among the diverse processes, formulations, and
applications relevant to the fertilizer industry, specifically. The
commenters added that forcing companies to incorporate this ill-fitting
approach in their PHAs would lead to higher RMP-compliance costs that
would be passed on to farmers and consumers. One of the commenters
further added these increased costs provide no benefit to the
communities in which regulated facilities are located.
ii. EPA Responses
EPA agrees in part with commenters requesting that the
applicability of the STAA provision be expanded to apply to more
facilities compared to the requirements included in the proposed rule.
In this final rule, EPA is expanding the initial STAA evaluation to all
Program 3 facilities with NAICS 324 and 325 processes. EPA believes
that high RMP accident frequency among NAICS 324 and 325 processes as
shown by recent data \81\ presented in the proposed rule, is reasonable
justification for requiring RMP owners and operators to evaluate safer
technologies and alternatives to help prevent accidental releases. As
noted in the proposed rule, between 2016 and 2020,\82\ sector accident
rates (unique facilities having accidents) for NAICS 324 and 325 were,
respectively, seven times higher (23 percent, n = 41 out of 177) and
two times higher (6 percent, n = 96 out of 1631) than the rate for all
RMP-regulated facilities (87 FR 53578).\83\ By expanding applicability
of the STAA evaluation to these additional NAICS 324 and 325 processes,
EPA expects to also capture complex facilities in less facility-dense
areas that nonetheless may cause significant harm to human health and
the environment.
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\81\ Such data are also consistent with accident frequency data
that formed part of the basis for the STAA applicability provisions
in the 2017 amendments rule. See 81 FR 13668-69, March 14, 2016
(amendments rule NPRM); 82 FR 4632-34, January 13, 2017.
\82\ Due to a lack of alternative data describing RMP accident
impacts more comprehensively, EPA chose this five-year dataset to
reflect the most recent trends regarding RMP accidents. EPA used the
August 1, 2021, version of the RMP database to complete its analysis
because under 40 CFR 68.195(a), facilities are required to report
RMP accidents and specific associated information within six months
to the RMP database. Therefore, the RMP database as of August 1,
2021, is expected to include RMP accidents and their specific
associated information as of December 31, 2020. However, because
accident data are reported to the RMP database by facility owners
and operators, EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data because some
facilities may have not reported their RMP accidents as they are
required to do. See sections 3.2 and 3.3 of the RIA for more on this
and other limitations on the number and costs of baseline accidents.
\83\ The list of these accidents and their details can be found
in the 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, https://www.regulations.gov/document/EPA-HQ-OLEM-2022-0174-0065. These accidents are specifically
identified in Column BZ.
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In response to the comment stating that EPA has failed to justify
excluding any hazardous facilities where safer technologies or
alternatives are available, EPA notes that it has provided
justification for applying the STAA requirement to facilities with
NAICS 324 and 325 processes and does not believe that the final
provisions have been limited arbitrarily, or that the Agency's decision
to limit applicability of the STAA provisions to the petroleum refining
and chemical manufacturing sectors implies that other sectors do not
have viable safer technology alternatives. EPA notes that sources
involved in complex manufacturing operations have the greatest range of
opportunities to identify and implement safer technologies,
particularly in the area of inherent safety, because these sources
generally produce, transform, and consume large quantities of regulated
substances under sometimes extreme process conditions and using a wide
range of complex technologies. Therefore, such sources can often
consider the full range of inherent safety options, including
minimization, substitution, moderation, and simplification, as well as
passive, active, and procedural measures. Further, EPA notes that RMP
facilities in the selected sectors have been responsible for a
relatively large number of accidents, deaths, injuries, and property
damage and have significantly higher accidents rates as compared to
other sectors. The 5 percent of sources mentioned by the commenter,
augmented by those refineries and chemical manufacturer sources that
have had accidents in the past 5 years, are responsible for 42% of the
total accidents from RMP-covered sources over the period from 2016-
2020, and 83% of the accident damage. Concentrating the most demanding
requirements on this subset of sources recognizes the track record of
heightened risk presented by these sources to their nearby communities.
While EPA is not requiring all Program 3 sources, or all sources in
industry sectors where feasible safer technology alternatives have been
identified to perform a STAA, the Agency encourages such sources to
consider performing a STAA, and to determine practicability of IST or
ISD considered, even if they are not subject to the STAA provisions of
the final rule. EPA expects guidance for this provision and the data
resulting from the STAA Technology Transfer described in section e. of
this section will be useful for all facilities to adopt to identify
potential IST/ISD and safeguards. As noted in the preamble of the 2016
proposed amendments rule, provisions in the existing rule provides
several incentives to encourage the use of STAA and the adoption of
safer technologies, including having applicability based on a chemical
threshold, allowing a source to take credit for passive mitigation in
calculating its worst-case scenario and both passive and active
controls when calculating its alternative scenarios (81 FR 13663, Mar.
14, 2016). Consistent with EPA's general approach to the RMP
regulations, the Agency allows flexibility for owners and operators to
adopt various methods to meet performance standards, with more
specific, demanding standards for sources that pose a greater
likelihood of an accidental release and have greater complexity, and
for sources that pose a greater risk to nearby communities.
In the final rule, the definition of the 1-mile radius is relevant
to the applicability of the IST/ISD practicability assessment and
safeguard implementation only. Acknowledging that refineries and
chemical manufacturers have sector accident rates that are higher than
the general rates for RMP-covered facilities, close co-location of
sources in NAICS codes 324 and 325 further increases the risk to the
public that may be potentially exposed to a
[[Page 17649]]
release from multiple sources. It is appropriate to increase the
stringency and transparency of the requirement for so situated sources.
Discussion of the application of the 1-mile criteria is later discussed
in the Practicability Assessment and Safeguard Implementation sections
of this preamble.
In response to the comments that the STAA requirement should be
limited to the design and development phases of new Program 2 and
Program 3 processes, EPA disagrees. While the greatest potential
opportunities for using IST may exist early in process design and
development, many IST options may still be practicable after the
initial design phase. Furthermore, STAA involves more than just IST.
Safer technology alternatives also include passive measures, active
measures, and procedural measures, and these measures can be modified
and improved after the initial design of a facility. EPA notes that
while many RMP-regulated facilities were originally constructed decades
ago, major enhancements have been reported in some plants that have
been operating for many years. Moreover, to the extent that particular
measures are cost-prohibitive, the rule allows for that to be a factor
in assessing whether a measure is practicable.
The Agency disagrees with the comments that the CAA does not
authorize the STAA provisions of this final rule. Both paragraphs (A)
and (B) of CAA section 112(r)(7) authorize STAA and IST in particular.
EPA cited all of section 112(r)(7) as authority for ``[e]ach of the
portions of the Risk Management Program rule we propose to modify'' (81
FR 13646, March 14, 2016). The authority section for 40 CFR part 68
references CAA section 112(r) and is not limited to particular
paragraphs. The proposed rule also noted that paragraph 112(r)(7)(A)
had been invoked in the rulemaking petition on IST. Therefore, EPA
provided sufficient notice that the Agency contemplated action under
any authority under CAA section 112(r)(7). Nevertheless, EPA also views
its authority to require STAA assessments or an IST review, or
implementation of safeguards to reduce risk as being consistent with
paragraph 112(r)(7)(B). Under paragraph (B), EPA has authority to
develop ``reasonable regulations . . . for the prevention of accidental
releases.'' The reduction in severity of conditions in a process
plainly impacts the accidental release conditions and thus the modeling
called for in section 112(r)(7)(B)(ii)(I). Moreover, section
112(r)(7)(B)(ii)(II) specifically mentions that prevention programs in
risk management plans shall provide for ``safety precautions;'' STAA
measures are a type of safety precaution. Finally, as noted above, the
Conference Report for the 1990 CAAA and the Senate Report both
demonstrate that Congress intended the regulations to prioritize STAA
as a prevention measure.
With regard to comments relating to STAA requirements for the
fertilizer industry, EPA is not requiring agricultural fertilizer
retail facilities to perform a STAA, and thus there should be no burden
to this particular industry as a result of the STAA provision. The STAA
requirement in the PHA will only apply to Program 3 facilities in
chemical manufacturing (NAICS code 325) and petroleum and coal products
manufacturing (NAICS code 324).
c. Practicability Assessment
i. Comments
One commenter expressed support for EPA's proposal to require
owners and operators to identify, evaluate, and document the
practicability of implementing inherent safety measures, including
documenting the practicability of publicly available safer
alternatives. Another commenter stated that EPA should include the STAA
practicability assessment as part of the PHA because such an assessment
will provide additional context to the public, local officials, and
emergency managers regarding a facility's consideration of risk
management. The commenter added that the assessment should be used
internally by the facility to plan future process and technology
improvements to increase safety. One commenter urged EPA to move beyond
just the assessment and reporting of safer technologies and require
that facilities implement the identified alternatives when practicable,
working with employees and communities to do so expeditiously.
One commenter opposed the proposed new 40 CFR 68.67(c)(9)(ii) and
stated that EPA should not adopt the proposed practicability assessment
requirement. The commenter expressed opposition to any requirement to
consider IST in existing processes at covered stationary sources. A
couple of commenters questioned how EPA, focused on process safety,
would be able to assess social and economic factors as part of the PHA
STAA component. The commenters noted that the consideration of
``social'' factors extend far beyond the traditional, performance-
oriented ``process safety'' scope of a PHA, presenting a conflict with
the scope of the PHA required by the OSHA PSM standard. The commenters
also noted that EPA's ``practicability'' definition and evaluation does
not distinguish between technologies or practices that have been
proffered in research papers or demonstrated in pilot plants versus at
the large-scale facilities subject to the RMP and required to perform a
STAA. The commenters emphasized that ``real-world'' technologies should
be the focus of the STAA, not theoretical or possible technologies that
have not been tested or tried at RMP-regulated sources.
ii. EPA Responses
In this final rule, EPA is expanding the applicability of the IST/
ISD practicability assessment to apply to more facilities compared to
the requirements included in the proposed rule. The IST/ISD
practicability assessment will also apply to the owner or operator of a
facility with Program 3 processes in NAICS codes 324 and 325 that has
had an accidental release that meets the accident history reporting
requirements under 40 CFR 68.42 since the facility's most recent PHA.
As EPA noted in the 2019 reconsideration rule, a past accident is one
of the best predictors of future accidents that could potentially
threaten a facility's nearby community. Additionally, as indicated in
the proposal, of the 70 facilities experiencing 2 or more incidents
between 2016 and 2020, 43 (60 percent) were in NAICS 324 and 325. The
facilities required to conduct practicability assessments for IST/ISDs
identified in the STAA accounted for 42% of all accidents and 83% of
the cost of accidents among all RMP facilities during the period from
2016-2020.\84\ A more in-depth look at implementation of IST/ISD by:
(1) These facilities with accidents; (2) those identified in the
proposal at facilities with processes in NAICS 324 and 325 located
within 1 mile of another NAICS 324 or 325 facility; (3) and facilities
with hydrofluoric alkylation, should lead to avoiding or reducing
hazards at these facilities. At this time, EPA believes it is best to
further focus the practicability assessment of IST/ISD on this subset
of facilities as they present an even more heightened risk to a
facility's surrounding community than other facilities with NAICS 324
and 325 processes.
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\84\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
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EPA agrees that the practicability assessment will provide the
public and local emergency managers with important context regarding a
facility's
[[Page 17650]]
consideration of safer technologies and alternatives. In response to
the comment that the practicability assessment should be used by
facilities to increase safety, EPA believes that the final rule will
allow the owner or operator to consider the potential for risk
reduction, risk transfers, and tradeoffs when determining whether it is
practicable to implement ISTs or ISDs considered. IST is a relative
concept dependent on the hazard, the technology, and the facility.
Therefore, EPA is requiring facilities to only consider IST as a
possibility for addressing hazards rather than requiring ISTs be
implemented. The final rule will give the facility owner or operator
the flexibility to assess and to determine the practicability of any
measures considered based on various factors for IST (including those
involving risk transference).
In response to the comment that EPA should require facilities to
implement identified alternatives when practicable, in this final rule,
EPA is requiring implementation of at least one passive measure at an
applicable facility, or an inherently safer technology or design, or a
combination of active and procedural measures equivalent to or greater
than the risk reduction of a passive measure; further discussion of
this requirement is below in the Safeguard Implementation section
(V.B.3.d) of this preamble. EPA is not requiring implementation of
identified IST. EPA believes facility owners and operators will adopt
IST even in the absence of a mandate when it is practicable technically
and economically and when the hazard reduction is significant. Part of
the basis for this belief is the likelihood that most of the economic
savings resulting from reduced accidents will be from reduced onsite
property damage to the owner or operator's facility.
In response to the comment that the consideration of ``social''
factors extends far beyond the traditional, performance-oriented
``process safety'' scope of a PHA, EPA disagrees. While the PHA
identifies the hazards, the RMP PHA requires the facility to identify
the risk management measures applicable to eliminating or reducing the
risks from the process hazards. EPA believes that it is appropriate for
a facility to consider the five practicability factors (i.e., economic,
environmental, legal, social and technological) for evaluating the
appropriateness of implementing for potential IST measures because some
IST can involve significant costs or involve impacts that go beyond the
facility. These factors are recognized and further discussed in in
CCPS' 2019 ``Guidelines for Inherently Safer Chemical Processes, A Life
Cycle Approach,'' 3rd edition, and NJDEP's Guidance for Toxic
Catastrophe Prevention Act (TCPA), ``Inherently Safer Technology (IST)
Review,'' Attachment 1 ``Feasibility guidance.'' \85\
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\85\ https://www.nj.gov/dep/enforcement/tcpa/downloads/istguidance_rev2.pdf.
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In response to comments stating that ``real-world'' technologies
should be the focus of the STAA, not theoretical or possible
technologies that have not been tested or tried at RMP-regulated
sources, EPA expects that facilities will only evaluate chemical
substitutes that have already been shown to be commercially viable and
does not expect facility owners or operators to expend a major effort
on hypothetical or untested chemical substitutes or uses. This approach
is consistent with EPA's authority to require reasonable regulations
that prevent accidental releases to the greatest extent practicable.
In the final rule, the definition of the 1-mile radius is relevant
to the applicability of the practicability assessment and safeguard
implementation only. Acknowledging that refineries and chemical
manufacturers have sector accident rates that are higher than the
general rates for RMP-covered facilities, close co-location of sources
in NAICS codes 324 and 325 further increases the risk to the public
that may be potentially exposed to a release from multiple sources. In
these sectors, the worst-case scenarios of 80 percent of sources extend
at least 1 mile, therefore the communities surrounding these sources
will typically face multiple threats. It is appropriate to increase the
stringency and transparency of the requirement for so situated sources.
In the proposal, EPA proposed to define facility location based on
distance to the facility fenceline but sought comment on other
definitions of facility proximity. Recognizing that the distance from a
process is a more accurate way to calculate a release scenario than the
distance from a fenceline, EPA will nevertheless retain 1 mile from the
fenceline as the applicability criterion, as opposed to 1 mile from
process locations, both for simplicity in implementation and also in
deference to restrictions on source-specific information on release
scenarios. The Agency believes that regulated facilities, the public,
and implementing agencies can more easily calculate and verify a
fenceline-to-fenceline measurement than a process-to-process
measurement because it does not require access to facility-specific
process information.
d. Safeguard Implementation
i. Comments
A couple of commenters recommended EPA require industries to seek
out solutions that pose less inherent risk and danger to their
employees and surrounding communities and that they implement all
practicable alternatives that could eliminate risks of a catastrophic
release. A couple of commenters urged EPA to require that facilities
work with employees and communities to implement the identified
alternatives when practicable. A few commenters called on EPA to add a
requirement to implement recognized safer alternatives. One of the
commenters stated that relying on voluntary measures alone does not
satisfy the requirement of the Act for EPA to assure prevention ``to
the greatest extent practicable.'' The commenter noted the proposal is
inconsistent with the CSB recommendation requiring both assessment and
implementation of IST. One commenter claimed that relying on voluntary
implementation alone is insufficient to protect fenceline communities
who have seen nearby facilities repeatedly refuse to implement safer
ways to operate, no matter how inexpensive or easy they may be. Because
risks faced by nearby communities impose costs that are external to the
firm, there is a market failure and firms do not face an appropriate
level of incentive to reduce these risks. The commenter stated that
voluntary measures cannot be relied upon given that market failure has
delayed and prevented common-sense solutions. The commenter stated
that, while the STAA, practicability assessment, and justification
report are all valuable and should be expanded and finalized, the rule
should require the implementation of practicable IST through careful
consultation with workers and worker representatives and community
members.
Some of the commenters asserted that EPA does not have the
statutory authority, under section 112(r) of the CAA, to impose
facility design requirements at any stage of a regulated facility's
lifespan, much less for existing facilities. Several commenters noted
IST and ISD are in the best interest of facilities to implement where
there are practical and effective; therefore, there is no reason to
require it. The commenters also expressed concern over excessive costs
to implement unnecessary technologies if required to implement
inherently safer technologies.
[[Page 17651]]
The commenters urged EPA to allow facilities to decide what is best
on a case-by-case basis due to instances where adopting an inherently
safer process may not actually make a process safer when put into
practice. One commenter added there are cases where there are no safer
alternatives and conducting an STAA is not necessary, does little to
improve safety, and creates extra complexity for employers to present a
case to regulators for their processes. The commenter also said that
regulations should be straightforward and easy to understand, so a
vague requirement to require facility owners to present a case that
their processes are safe will create confusion and not improve safety.
Some commenters noted that the proposed STAA requirement is solely
for consideration of possible alternatives and has unproven and
unquantified benefits that do not justify the annual cost of $51.8
million. One of the commenters added that EPA stated that they expect
``some portion of future damages would be prevented through
implementation of a Final Rule,'' but they do not identify any benefits
specifically tied to the STAA provision. The commenter expressed
concern that EPA did not review and summarize literature on STAA in the
proposed rule since there are a large amount of studies on its
practical effectiveness; the commenter stated that there is consensus
on its theoretical value as a tool to inform future investment
decisions, and that once a facility has committed to a particular
production technology, STAA is not particularly useful nor informative.
ii. EPA Responses
The CAA directs EPA to ``promulgate reasonable regulations . . . to
provide, to the greatest extent practicable, for the prevention and
detection of accidental releases . . .'' In some circumstances, solely
relying on voluntary implementation of STAA measures is not reasonable
and would be inadequate to prevent accidents ``to the greatest extent
practicable.'' This is particularly true when safeguards are identified
and generally deemed practicable, but not implemented. A reasonable
decision to not implement such safeguards at a facility must be
supported with a comprehensive review of factors like cost, risk
reduction, risk transfer, employee input, and engineering that
concludes the technology is not practicable contextually. EPA's 2022
SCCAP proposed rule emphasized the importance of identifying ``new risk
reduction strategies, as well as revisit[ing] strategies that were
previously evaluated to determine whether they are now practicable as a
result of changes in cost and technology.'' Safer design and technology
information and lessons learned are continually being generated, and
facilities should integrate such updated information to help prevent
accidents.
Taking an important step to reinforce these crucial factors, this
final rule is requiring processes subject to the IST practicability
assessment to also implement at least one practicable passive measure
resulting from the STAA evaluation. For this provision, practicable
active and procedural measures or their combination can be implemented
as a substitute to practicable passive measures if no practicable
passive measures are identified or if they achieve layers of protection
equivalent to or greater than the risk reduction of passive measures.
This provision is intended to reduce the risks of the accidental
releases by requiring processes that EPA has identified to present a
heightened risk to a community to implement reliable safeguards
necessary to help prevent or mitigate chemical releases and their
consequences; in particular, the provision requires RMP-regulated
facilities with P3 processes: (1) In NAICS codes 324 and 325 located
within 1 mile of another NAICS 324 or 325 facility; (2) in NAICS codes
324 and 325 that has had an accidental release that meets the accident
history reporting requirements under 40 CFR 68.42 since the facility's
most recent PHA; and (3) in NAICS 324 with hydrofluoric alkylation
processes--to implement practicable safeguards that help prevent or
mitigate chemical releases and their consequences.
The PHA requirements at 40 CFR 68.67 have always required sources
to ``identify, evaluate and control the hazards involved in the
process.'' Currently the provision does not prescribe exactly which
type or what measures must be implemented to control the hazards. In
guidance, the Agency discusses how sources can resolve hazard
evaluation recommendations after identifying and evaluating solutions
to control hazards, stating that, ``EPA does not require that you
implement every recommendation. It is up to you to make reasonable
decisions about which recommendations are necessary and feasible. You
may decide that other steps are as effective as the recommended actions
or that the risk is too low to merit the expense. You must, however,
document your decision on each recommendation.'' \86\ Guidance further
indicates, ``You may not always agree with your PHA team's
recommendations and may wish to reject a recommendation. OSHA's
compliance directive CPL 2-2.45A(revised) states that you may decline a
team recommendation if you can document one of the following: (1) The
analysis upon which the recommendation is based contains relevant
factual errors; (2) the recommendation is not necessary to protect the
health of employees or contractors; (3) an alternative measure would
provide a sufficient level of protection; or (4) the recommendation is
infeasible. For part 68, you may also decline a recommendation if you
can show that it is not necessary to protect public health and the
environment.'' \87\ While EPA continues to believe that the source has
the primary expertise and resources to weigh decisions on process
design, process safety and accident prevention, EPA is concerned that
controlling hazards and adopting reasonable safety measures and layers
of protection necessary to keep the public and environment safe from
chemical releases based on reasoned, documented decision-making do not
always occur.
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\86\ EPA, General RMP Guidance--Chapter. 6: Prevention Program
(Program 2) (2004), pp. 6-11, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
\87\ EPA, General RMP Guidance--Chapter 7: Prevention Program
(Program 3) (2004), pp. 7-7, https://www.epa.gov/sites/default/files/2013-11/documents/chap-07-final.pdf.
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In two recent CSB accident reports, ``FCC Unit Explosion and
Asphalt Fire at Husky Superior Refinery'' \88\ and ``Fire and
Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric Acid
Alkylation Unit,'' \89\ the CSB addresses safeguards that should have
been in place to prevent or mitigate major accidents at refineries.
These cases highlight the consequences to workers and the surrounding
community when sources do not take the necessary steps to implement
safeguards to control known hazards.
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\88\ https://www.csb.gov/husky-energy-superior-refinery-explosion-and-fire/.
\89\ https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/.
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On April 26, 2018, an explosion and subsequent fire occurred at
Husky Energy's Superior Refining Company LLC refinery in Superior,
Wisconsin (Husky). The incident occurred during a planned maintenance
event when flammable hydrocarbons inadvertently mixed with air. As a
result of the explosion and fire, 36 refinery and contract workers were
injured and sought medical attention. The CSB found that Husky failed
to properly
[[Page 17652]]
implement safeguards that could have prevented the inadvertent mixing
of air and hydrocarbons during the shutdown. The safeguards CSB
identified, a steam barrier, gas purge, and slide valves, are typically
vital to this type of process and are generally known and broadly
applied within the refining industry. Not applying these safeguards
allowed oxygen to enter and accumulate in process equipment containing
flammable material, which ignited and exploded.
On Friday June 21, 2019, Philadelphia Energy Solutions (PES)
refinery in Philadelphia, Pennsylvania, had a release of propane and
toxic hydrofluoric acid vapor from a ruptured pipe in the PES refinery
alkylation unit. The vapor found an ignition source, causing a fire and
multiple explosions. Five workers and a firefighter experienced minor
injuries during the incident and response. The incident also resulted
in estimated property damage of $750 million. The CSB determined the
cause of rupture was from a piping component that corroded. CSB
indicated that the absence of safeguards, remotely operated emergency
isolation valves, and passive safeguards to prevent incident-induced
damage to the water mitigation system, contributed to the severity of
the incident.
As discussed in previous rulemakings, the hierarchy of control
methods in an STAA analysis--IST/ISD, passive, active, procedural--
systematically provides for the identification of practicable control
methods. The Agency expects the STAA analyses to lead to new hazard
control approaches at sources where management finds such approaches to
be reasonable and practicable. The Agency acknowledges requiring
facilities to implement IST can involve extensive changes to a
facility's process, depending on the IST, especially if it involves
substitution of alternative chemicals and/or major process redesign to
existing processes. EPA believes that measures lower on the hierarchy
of controls, passive, active and procedural measures, when implemented
appropriately, can be used to help operate a hazardous chemical process
safely and can also reduce hazard risks of that process. When compared
with IST, these measures could also more likely be added, modified, and
improved after the initial design or operation of a facility.
Nothing in this rule forces the adoption or abandonment of any
technology or design. The mandate we adopt is limited to selecting
additional mitigation periodically for specific processes so long as
the risk of an impact release persists,\90\ with a preference
consistent with the well-understood hierarchy of controls.
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\90\ If passive mitigation or other adopted mitigation measures
would be sufficient to change all NAICS 324 or 325 processes to
Program 1, then the source no longer would have an obligation to add
additional mitigation measures in future PHAs, as the mandate for
safeguard implementation only applies to Program 3 processes. If the
adopted mitigation measure is insufficient to meet Program 1 at all
NAICS 324 and 325 processes at the source, then the potential for
offsite impacts presenting risk would remain.
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EPA is requiring implementation of passive measures as a priority
rather than active and procedural because it is the next highest level
below IST on the hierarchy of controls and the most reliable in
comparison to active and procedural safeguards, as they reduce risks
without human, mechanical, or other energy input. As discussed in CSB's
PES report, active safeguards that require a person or technology to
trigger their activation have the potential to fail in major incidents
involving fire or explosions, which was the case in the PES accident
and could be a likely release scenario for flammable substances, which
are regulated substances often present at refineries and chemical
manufacturers.
EPA recognizes that passive safeguards may not exist or may not be
practicable for a variety of reasons and other safeguards are needed to
cover gaps in process safety risk reduction. EPA also recognizes that a
passive measure may be even more effective when applied appropriately
with other measures. This concept of layers of protection acknowledges
that individual safeguards are not completely reliable or effective,
and thus multiple safeguards (``layers'') may be needed to minimize the
chances of an initial fault propagating to a full-blown incident with
potential for harm. This is often illustrated using the ``Swiss
Cheese'' model for incidents. In this model, each safeguard layer has
the potential to fail, with highly reliable safeguards (e.g.,
``inherent'' ones) having relatively few ``holes'', and less reliable
safeguards (e.g., ``procedural'') having more. While no single layer
can adequately control the hazard, having enough adequately reliable
safeguards can greatly reduce the chance of all of the ``holes'' lining
up so that an incident actually occurs. This final rule will give the
facility owner or operator the flexibility to assess and potentially
implement IST, implement passive measures, or implement a combination
of active and procedural measures to reduce risk associated with a
process. The approach adopted in this final rule does not require a
facility to implement a hazard reduction approach beyond what is to the
greatest extent practicable among the reasonable options.
EPA acknowledges that because the requirement to control hazards
has been a PHA requirement since the inception of the rule, some
passive (or equivalent) safeguards to control hazards are likely
already in place within facility processes. Facilities that have
already implemented passive measures or an equivalent level of risk
reduction should document their implementation in their next PHA,
determine whether there is additional information that should be
considered in their STAA, and continue to consider additional passive
(or equivalent) measures during subsequent PHA re-validation cycles.
The Agency recognizes that requiring any implementation of STAA
measures is a departure from both the 2017 amendments rule (82 FR 4648-
49, Jan. 13, 2017) and the 2022 proposed rule and that the Agency
identified reasons for not requiring implementation of any STAA in the
2022 proposed rule (87 FR 53580, Aug. 31, 2022).\91\ However, the 2017
amendments rule and the 2022 proposed rule primarily focused discussion
on the reasonableness of mandating adoption of IST/ISD rather than
passive, active, or procedural measures. For example, in 2017, EPA
explained that one reason the Agency did not require implementation of
IST/ISD is that a source may reasonably decide to employ more than one
method of hazard reduction to address a hazard or that a given type of
safer technology may not exist for a particular hazard point (82 FR
4649, Jan. 13, 2017); consistent with these observations, this rule
allows a source to adopt layering active and procedural measures to
achieve the equivalent risk reduction a passive measure would achieve
and does not adopt a requirement for an IST/ISD at each hazard point.
The Agency retains substantial flexibility for owners and operators to
select among passive measures they deem appropriate for their
stationary sources. The final rule allows for consideration of factors
highlighted in the 2017 amendments rule like chemical formula
specifications for toll manufacturers, the potential for risk transfer,
supply chain
[[Page 17653]]
limitations, and the need to address security implications of any
change when assessing whether to reject particular passive measures.
See 82 FR 4635-36 (toll manufacturers), 4643 (risk transfer), 4648
(supply chain), and 4649 (security).
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\91\ The 2019 reconsideration rule did not specifically discuss
requiring or not requiring implementation of measures identified in
a STAA because it more generally rescinded all prevention measures
promulgated in 2017. With no requirement to perform an STAA, there
was no need to assess whether implementation of measures identified
in such an analysis needed to be implemented. The proposed rule and
this final rule discuss the reasons for adopting a different broad
approach to prevention than that adopted in 2019.
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The 2022 proposed rule contended that a requirement for
implementation of IST/ISD or any measure was unnecessary because
sources were likely to implement practicable measures when economically
and technically reasonable and risk reduction would be significant. EPA
partially based this contention on the observation that most of the
economic savings from reducing accidents would accrue to the source
itself (87 FR 53580, Aug. 31, 2022). However, not all damages accrue to
the source responsible for the accident. For example, offsite impacts
such as injuries, sheltering in place events, evacuations,
environmental damage, and so on are experienced by people other than
the regulated facility. Because these costs are external to the
facility, there is a market failure, and firms do not have an
appropriate level of incentive to prevent them. This market failure has
been noted by commenters with respect to catastrophic events, the
prevention of which is a primary purpose of enacting CAA section
112(r). Catastrophic events impose extensive burdens on people external
to the source responsible for the accident. Moreover, these incidents
are low probability, high consequence events that are difficult for
owners and operators to assess; therefore, it may be unreasonable to
rely primarily on sources to make the ultimate decision on whether to
adopt any measures at all. The standard adopted in this final rule for
sources presenting elevated risks to communities, wherein EPA mandates
adoption of at least one passive measure at the facility, or an
inherently safer technology or design, or a combination of active and
procedural measures equivalent to or greater than the risk reduction of
a passive measure, reasonably addresses the potential market failure
that would lead to less implementation than would be necessary for risk
reduction.
EPA disagrees with commenters indicating implementation of STAA
measures has no proven benefits. A review of corrective actions
following RMP accidents provides insight that practicable methods to
address hazards are not infrequently found after accidents, which
suggests the rule could be strengthened by providing incentives to
implement those controls in advance of the accident. In reviewing RMP
data from facilities subject to the practicability assessment and this
STAA safeguard implementation provision (621 facilities), 59 percent of
facilities indicated in their most recent PHA, some type of change was
implemented. On average, 1.2 process safety changes \92\ were
implemented because of the PHA, but of those facilities having
accidents (16.8 percent), an average of 2.2 process safety changes were
made after an accident occurred.\93\ This review was one piece of
evidence supporting EPA's reasoned judgment that the risk reduction
benefits of the STAA implementation justified the costs. Therefore, as
RMP facility process change data has shown, EPA expects there are
benefits to make risk reduction changes through the PHA prior to an
accident occurring.
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\92\ Changes include chemical reduction, chemical increase,
change in process parameters, installation of process controls,
installation of process detection, installation of perimeter
monitoring, installation of mitigation systems, revised maintenance,
revised training, revised operating procedures, or other changes not
included in these categories. These change categories are those
reported in RMPs under 40 CFR 68.175(e)(6).
\93\ The list of RMP facilities whose most current RMP plans (as
of December 31, 2020) were reviewed is provided in the docket for
this rulemaking, EPA-HQ-OLEM-2022-0174, RMP facilities in
PHA_accident change analysis.
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In response to comments concerning costs for implementing STAA
measures, EPA believes there is an overemphasis on initial costs
leading to less consideration of safer, reliable methods to reduce
process risks. CCPS' 2019 ``Guidelines for Inherently Safer Chemical
Processes, A Life Cycle Approach'' discusses the tradeoff of initial
and operating costs of implementing different STAA measures. CCPS
indicates that while inherently safer and passive measures do tend to
have higher initial capital costs, operating costs are usually lower
than those for the other measures. For active measures as compared to
inherently safer and passive measures, reliability is typically lower,
and complexity is greater. Operating costs are also actually likely to
be the greatest for active solutions. While procedural measures are
most often tempting solutions due to their initial very low capital
cost and typically lower complexity, they are often also the least
reliable and should be considered only after other solutions have been
explored. Similarly, EPA believes passive measures (or active/
procedural equivalent) measures that reduce risk and are practicable
should be implemented.
The Agency is not requiring formal practicability assessments (as
is now required for IST) for passive, active, or procedural measures.
Since evaluation of passive, active and procedural measures have been a
part of the RMP rule, leading to implementation of some, it is expected
that the determination of their practicability already occurs. The
Agency believes the requirement to determine what actions are to be
taken in 40 CFR 68.67(e) suffices as a practicability determination for
the less extensive upgrades or changes to the process as compared to
IST. However, to ensure the assessment determining a measure is not
practicable complies with the final rule definition, sources will be
required to document this conclusion to the implementing agency's
satisfaction; this requirement will help ensure costs alone are not the
sole factor in determining practicability.
Finally, contrary to the assertion that the statute does not
authorize regulations that impose design standards, the Agency notes
that the statute explicitly provides the Administrator with the
authority to promulgate ``design, equipment, work practice, and
operational requirements'' in CAA section 112(r)(7)(A), as well as
requirements for ``preventing accidental releases of regulated
substances, including safety precautions and maintenance'' in CAA
section 112(r)(7)(B)(ii)(II). The regulation promulgated in this final
rule simply imposes standards on continuing safe operations and
equipment. Furthermore, the regulations required by CAA section
112(r)(7)(B)(i), ``shall cover the use, operation, repair, replacement,
and maintenance of equipment to monitor, detect, inspect, and control''
accidental releases of regulated substances as appropriate (emphasis
added). Terms such as ``use'' and ``operation'' necessarily allow EPA
to address ongoing activities and not simply the pre-construction
phase, and ``replacement'' of ``equipment'' to ``control'' releases
authorizes EPA to require upgrades to release prevention measure such
as practicable passive control measures. As discussed above, the
Conference Report and the Senate Report provide ample support for
requiring implementation of process and control measures to lessen the
likelihood and impact of accidental releases.
e. STAA Technology Transfer
i. Comments
Several commenters supported EPA's proposed technology transfer
provisions. A few commenters stated that EPA should require every RMP
facility to routinely report the safer technologies/designs evaluated,
implemented, or planned because, as
[[Page 17654]]
proposed, 95 percent of RMP facilities will not report any solutions
data. One of the commenters stated this will allow EPA to better assess
the impacts of its own activities for promoting prevention of
catastrophic releases. Another commenter suggested that this reporting
occur as a regular part of semi-annual CAA compliance reports, and at a
minimum, as a regular part of RMP reporting to EPA. One commenter
stated that EPA should require the STAA-exempt 95 percent of RMP
facilities to report whether they have evaluated IST/ISD and, if so,
identify the major options evaluated, implemented, or planned. The
commenter stated that this approach would be low cost, fill a major
information gap, and yield invaluable insights. Another commenter
supported expanding the technology transfer provision to cover more
facilities and gather additional valuable information, including on
wastewater and water treatment plants.
A couple of commenters opposed the submission of STAA findings as
part of the STAA technology transfer section. One commenter noted that
any submitted STAA findings would probably not consider the nuance of
the real practicality of switching between technologies, and if
facilities are not required to switch to alternate technologies, it is
unclear how EPA intends to effectively use these data. Another
commenter stated that EPA should not require reporting of STAA measures
implemented in facilities' risk management plans because this
requirement would create significant potential for third parties to
insert themselves into what is a highly technical and site-specific
analysis. The commenter added that EPA does not provide a clear basis
in the proposed rule for its assumption that reporting and public
availability of information on IST/ISD measures implemented will
improve facility safety or mitigate the potential for accidental
releases in any measurable way; therefore, determining that reporting
this information in the RMP is simply not justified.
ii. EPA Responses
EPA is requiring that basic information on IST, facility
information, categories of safer design identified and implemented and
causal factor for initiating safer design implementation be provided in
the RMP submission in accordance with 40 CFR 68.175(e)(7). Facilities
must provide in their RMP any IST/ISD measures implemented since the
last PHA, if any, and the technology category (substitution,
minimization, simplification and/or moderation). These technology
transfer provisions apply to all facilities required to conduct any
component of STAA (evaluation or practicability) under the final rule.
This reporting is also voluntary for all other facilities, including
deregistered facilities, by which EPA expects to capture useful
information about how some facilities, on their own accord, choose to
make their processes safer. EPA intends for this not to be a cumbersome
exercise, but rather, one that is based on information facilities
likely already have. The intended fields of check boxes, dates, and
numbers that summarize STAA activities for this provision will help
facilitate data analysis for EPA to compile and make available for
other industries to identify safer alternatives.
EPA believes that the primary utility of STAA information for the
public is to identify whether facilities are implementing IST and the
nature of that change. In addition to information exchanged through an
information request under 40 CFR 68.210, EPA encourages facilities to
provide information about any IST or other safer technology
alternatives that the facility is using or could be using at the public
meeting forum under 40 CFR 68.210 or any other community outreach
opportunity. Facilities should expect that a community wants to discuss
hazards and risks associated with their chemical processes. Effective
communication with the public can be an opportunity to develop robust
relationships with communities, and trust is gained when considering
the needs and challenges facing those potentially affected by
accidents. Additionally, as will be discussed further in the
Information Availability section (VII) of this preamble, having
information available to the public builds upon the planning approach
of Emergency Planning and Community Right-to-Know Act (EPCRA) and
Agency studies of the value of right-to-know in emergencies, and
promotes accident prevention by facilitating public participation at
the local level. The Agency expects a more informed and involved public
to have less fear of the unknown.
C. Root Cause Analysis
1. Summary of Proposed Rulemaking
a. Definition of ``Root Cause'' in 40 CFR 68.3
EPA proposed to define ``root cause'' in 40 CFR 68.3 to mean a
fundamental, underlying, system-related reason why an incident
occurred.
EPA did not propose a definition of ``near miss'' as part of the
proposed rulemaking. Nevertheless, EPA solicited 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 considered near misses that should be
investigated. EPA solicited 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. EPA stated that, based on
these comments, EPA may propose a definition of ``near miss'' in a
future rulemaking.
b. Incident Investigation/Root Cause Analysis, 40 CFR 68.60 and 68.81
EPA proposed to revise 40 CFR 68.60, which is applicable to Program
2 processes, and 40 CFR 68.81, which is applicable to Program 3
processes, by adding a new paragraph (h) which would require the owner
or operator to investigate specific factors that contributed to an
incident, for incidents that meet the accident history reporting
requirements under 40 CFR 68.42. Proposed paragraph (h)(1) would
require that a report be prepared at the conclusion of the
investigation and completed within 12 months of the incident (though it
allowed for facility owners or operators to request an extension from
the implementing agency). Proposed paragraph (h)(2) would require
specific factors to be investigated, including the initiating event,
direct and indirect contributing factors, and root causes.
Additionally, determination of root causes would be required by
conducting an analysis for each incident using a recognized method.
2. Summary of Final Rule
EPA is finalizing the definition of root cause under 40 CFR 68.3
with modifications. Root cause will be defined as a fundamental,
underlying, system-related reason why an incident occurred that
identifies a correctable failure(s) in management systems and, if
applicable, in process design.
EPA is finalizing the provisions of the incident investigation
sections at 40 CFR 68.60(h) and 68.81(h) as proposed.
Although EPA solicited comments on a potential definition of ``near
miss,'' EPA is not finalizing a definition of ``near miss.''
[[Page 17655]]
3. Discussion of Comments and Basis for Final Rule Provisions
a. Definitions
i. Comments
Root cause. A couple of commenters expressed support for the
proposed definition of ``root cause.'' However, a commenter requested
that if EPA determines that all incident investigations require a root
cause analysis, EPA update the definition for ``root cause'' to remove
the ``system-related'' and ``in management systems'' language. The
commenter suggested that by focusing on system-related releases, EPA
ignores that humans or environmental causes could be the cause of an
incident. Conversely, another commenter suggested EPA revise the
definition to state, ``Root cause means a fundamental, underlying,
system-related reason why an incident occurred that identifies a
correctable failure(s) in process design and/or management systems.''
Near miss. Several commenters supported the development of a
definition of ``near miss.'' Additionally, one commenter expressed a
concern about selective enforcement in the absence of a clarifying
definition, while another commenter said that without specificity to
define a near miss, the language might have established due process
concerns as the proposal failed to provide adequate notice to the
regulated community. However, several commenters opposed the
development of a definition for ``near miss,'' stating that they oppose
a definition due to the broad nature of facilities subject to the rule
and that developing a definition would be difficult due to the context
required to determine what a near miss is. Another commenter suggested
that EPA provide guidance on near misses but allow facilities to
determine their own definition. Additionally, several commenters
opposed a universal definition of near miss, as a one-size-fits-all
approach will be overburdensome and challenging for facilities to
implement.
ii. EPA Responses
EPA is finalizing the proposed definition of ``root cause'' with
modifications to include that the root cause must identify a
correctable failure(s) in management systems, and if applicable, in
process design. In finalizing this definition, EPA recognizes that an
incident may have more than one root cause. EPA acknowledged in the
proposal that the CCPS root cause definition identified that a root
cause includes a correctable failure in management systems. EPA
intended to use CCPS' definition in its entirety due to its wide use
among the process safety industry. As such, EPA will include management
systems as a correctable failure that must be identified when
determining root causes for incident investigations. EPA also believes
adding process design to the definition of root cause is useful as
process design points to a specific management system failure that may
offer facilities an opportunity to design their process more safely.
EPA did not propose a definition of near miss in the proposal.
However, EPA will consider these comments when determining whether to
develop a regulatory definition of ``near miss'' to identify incidents
that require investigation in a future action.
b. Root Cause Analysis
i. Comments
Many commenters supported the proposed approach to require
facilities to conduct root cause analyses after an incident. One of the
commenters suggested that the proposed requirements would likely
prevent harm from repeated incidents. Another commenter noted that root
cause analyses provide an additional opportunity to better understand
the processes, procedures, and culture that may contribute to
accidents.
Several commenters did not support the revision of the incident
investigation provision to include root cause analysis requirements.
Several commenters suggested that EPA has not justified the additional
regulation, shown that the current rules are ineffective, or proven
that root cause analysis is effective at reducing accidents. A couple
of the commenters stated that EPA does not provide data to show that
repeat accidents are partially or fully caused by a facility's failure
to conduct a root cause analysis. A commenter also stated that the
concept of ``root cause'' can be misleading, as there is not always a
singular reason for why an incident occurred. The commenter said EPA
should recognize that a root cause analysis is not always the most
appropriate post-incident investigation method. Several commenters
noted that the inclusion of the root cause analysis requirements is
duplicative of existing regulations or common industry practices, is
unnecessary, and thus will not result in meaningful benefits. Several
commenters stated that OSHA PSM programs already include root cause
analysis as a part of incident investigations. A couple of commenters
suggested that EPA not expand incident investigation thresholds without
coordination with OSHA's anticipated updates to the PSM standard. One
commenter noted that OSHA has primary jurisdiction on this issue, and
therefore EPA should ensure consistency with current and future changes
to the PSM.
ii. EPA Responses
EPA is finalizing the requirements as proposed. EPA agrees with
those comments supporting the proposed provision and believes that
requiring root cause analyses after RMP-reportable accidents, and
including root cause information in incident investigation reports, is
vital for understanding the nature of these events and how they may
occur.
In response to comments asserting that EPA has not justified the
root cause analysis requirement or provided data to show that repeat
accidents are partially or fully caused by a facility's failure to
conduct a root cause analysis, EPA acknowledges that such data has not
been provided to show causation, but notes that EPA has not previously
required a root cause analysis for incident investigations, and
therefore, does not have data available to compare the frequency of
repeat accidents at facilities conducting (or failing to conduct) root
cause analyses. However, EPA did perform an analysis of EPA's RMP
accident reporting data and identified repeat accidents at facilities
within the same process.\94\ The result of this analysis demonstrates
that, among facilities reporting accidents, facilities that reported
one accident often have a history of multiple accidents, thus
indicating a failure to properly address circumstances leading to
subsequent accidents. 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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\94\ 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 regard to comments about the appropriateness of a root cause
analysis as a post-incident investigation method, EPA has provided
detailed background information on the usefulness of root cause
analysis in both the 2016 amendments proposed rule (81 FR 13638) and
the 2022 SCCAP proposed rule (87 FR 53556). EPA also notes that the
final rule does not require facilities to use a specific root cause
analysis method, select from a predetermined list of root causes, or
force-fit investigation findings into an inappropriate category.
[[Page 17656]]
With regard to comments that noted potential overlap with existing
regulations, EPA notes that a regulated source already subject to
another requirement that duplicates the RMP root cause analysis
requirement may use its compliance with the other requirement to
demonstrate compliance with the equivalent RMP root cause analysis
requirement. Additionally, EPA continues to routinely coordinate with
OSHA to ensure that any incident investigation root cause analysis
provisions do not contradict OSHA PSM requirements.
c. Applicability of the Root Cause Analysis Requirements
i. Comments
A commenter expressed support for EPA's proposal to limit the root
cause analysis requirements to Program 2 and Program 3 processes. A
couple of commenters recommended that EPA expand coverage of this
requirement to apply to all RMP facilities. A couple of commenters
proposed that EPA further limit facilities subject to the root cause
analysis requirements. One of the commenters recommended that the root
cause analysis requirement should only be mandated for Program 3
facilities, since they have the most complex processes, which is where
root cause analyses are most useful. The commenter suggested that
conducting root cause analyses is resource intensive and costly, and
imposing the requirements on other non-Program 3 facilities will be
overly burdensome without commensurate benefits. Another commenter
recommended that EPA only require root cause analyses for larger, more
complex water systems, as the root cause analysis process is resource
intensive and burdensome. Commenters asked EPA to clarify that root
cause analysis is still required where a process is decommissioned or
destroyed.
ii. EPA Responses
EPA is finalizing the applicability of the root cause analysis
provision, as proposed. EPA believes this provision is most appropriate
for Program 2 and 3 processes because facilities with these processes
have RMP-reportable accidents more often (Program 2 = 15 percent,
Program 3 = 83 percent of total accidents from 2004-2020) and pose a
greater risk to the public because their worst-case scenario distance
would affect public receptors. Program 1 processes only account for few
of the total RMP-reportable accidents (3 percent of total accidents
from 2004-2020), do not have recent accident history with specific
offsite consequences, and have no public receptors within the worst-
case release scenario distance.\95\
---------------------------------------------------------------------------
\95\ 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).
---------------------------------------------------------------------------
While it is true that most RMP-reportable accidents occur at
Program 3 processes, EPA decided that there was little justification
for limiting the root cause requirements to only Program 3 processes,
because serious accidents also occur at Program 2 processes (87 FR
53593). Also, the Agency notes that some of the accidents at Program 2
processes occur at publicly-owned water and wastewater treatment
facilities that are not in Program 3 only because they are not located
in a State with an OSHA-approved State Plan.\96\ While State and local
government employees at facilities in States with OSHA-approved State
Plans must comply with State Plan requirements that are at least as
effective as the Federal OSHA PSM standard, State and local government
employees at facilities in States under Federal OSHA authority are not
covered by the OSHA PSM standard or any equivalent measures. This
results in regulated processes at these sources being placed in Program
2, even though the processes generally pose the same risk as similar
processes at publicly owned water or wastewater treatment processes
that are located at sources in States with an OSHA State Plan. With
regard to those commenters that recommended narrowing the applicability
of the root cause analysis requirement because of the burden associated
with the requirement, EPA notes that the burden of the proposed root
cause analysis is relatively small. Few sources will have to conduct a
root cause analysis because accidents occur at only a small number of
sources, and many sources already perform root cause analyses in a
manner consistent with industry or company protocols. Therefore, EPA
does not believe that the anticipated burden of this requirement is a
rationale for revising the applicability of the requirements.
---------------------------------------------------------------------------
\96\ See 40 CFR 68.10 (Program 2 eligibility requirements).
---------------------------------------------------------------------------
With regards to clarity on applicability of decommissioned or
destroyed processes to the root cause analysis provision, the Agency
did not propose, and therefore will not require, decommissioned or
destroyed processes, as long as they remain in that decommissioned or
destroyed state, to comply with this provision. As discussed in the
previous rulemakings, commenters have not identified a significant
number of release incidents at RMP facilities that had resulted in a
destroyed or decommissioned process without any RMP accident report.
The absence of a substantial number of examples leads the Agency to
conclude that the gap is not significant enough to address at this
time.
d. Use of a Recognized Investigation Method
i. Comments
Several commenters provided feedback on the investigation methods
and analysis elements described in the proposed rule. Several
commenters noted that EPA should not mandate the use of a recognized
method for the analysis, as there are many ways to conduct the
analysis. One of the commenters indicated that prescribing a method may
interfere with a facility's engineering judgement and use of
investigative practices that are tailored to their unique facilities.
Another commenter said EPA should ensure that owners and operators have
flexibility to modify recognized investigation methods to reflect the
context, which may involve very complex or relatively simple processes
or incidents. A couple of commenters requested that EPA define
``recognized investigation method'' to clarify what entity is approving
a methodology. One of the commenters recommended revising the language
to read ``investigation method recognized by applicable industry code
writing or RAGAGEP establishing body.'' One commenter suggested that
EPA require that incident investigations include staff with expertise
in: the process involved, the facility's root cause analysis method,
and overseeing incident investigation analysis.
ii. EPA Responses
EPA is finalizing, as proposed, the requirements that root causes
must be determined through the use of a recognized method. The final
rule will allow the owner or operator to determine root causes using a
``recognized method'' that is appropriate for their facility and
circumstance. EPA disagrees that the Agency should specify recognized
investigation methods or point to specific entities for such methods.
Investigation methods evolve over time, and new methods may be
developed. Therefore, any list promulgated by EPA in this rule may soon
be obsolete. The Agency took a similar approach in the PHA requirements
for the existing rule, where it listed several potential methods, but
also included the option to
[[Page 17657]]
use an appropriate equivalent methodology. EPA recommends that owners
and operators consult available literature on root cause investigation
methodologies to select those appropriate for their facility and
processes. For example, CCPS has published ``Guidelines for
Investigating Process Safety Incidents,'' which provides extensive
guidance on incident investigations, near miss identification, root
cause analysis, and other related topics.\97\
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\97\ CCPS 2019. Center for Chemical Process Safety, Guidelines
for Investigating Process Safety Incidents, 3rd Edition, NY: AIChE.
---------------------------------------------------------------------------
In response to comments requesting that the incident investigation
team be required to include someone knowledgeable in the root cause
analysis technique, EPA believes this is already required under 40 CFR
68.60(c) and 68.81(c), where the incident investigation team is
required to consist of ``persons with appropriate knowledge and
experience to thoroughly investigate and analyze the incident.'' EPA
intends this phrase to include a person knowledgeable in selection and
use of root cause analysis techniques.
e. Investigation Timeframe
i. Comments
Several commenters suggested a shorter investigation timeframe. A
few commenters suggested an initial report/investigation be completed
within 90 days, and a final report within a shorter timeframe, such as
6 months. One commenter also suggested EPA require initiation of
incident investigations and root cause analyses within 24 hours after
the incident. Several commenters supported the 12-month requirement for
completing an incident investigation. A couple of commenters also
supported EPA allowing extensions, when necessary. One commenter also
said EPA should not question extension requests from facilities, as
some thorough investigations will require more than 12 months. Several
commenters opposed the regulatory deadlines for root cause analysis
investigations. A couple of commenters stated that based on the
complexity of the incident and level of input needed from external
technical experts, a 12-month timeline may not provide enough time. One
commenter requested that EPA clarify that the 12-month timeline is only
for the completion of the investigation, not when the recommendations
must be implemented.
ii. EPA Responses
After considering these comments, EPA has is finalizing the
requirement to complete incident investigations within 12 months as
proposed. EPA believes that this timeframe will provide a reasonable
amount of time to conduct most investigations, while also ensuring that
investigation findings are available relatively quickly in order to
assist in preventing future incidents. For very complex incident
investigations that cannot be completed within 12 months, EPA is
allowing an extension of time if the implementing agency (i.e., EPA and
delegated authorities) approves such an extension, in writing. EPA
encourages owners and operators to complete incident investigations as
soon as practicable and believes that 12 months is typically long
enough to complete even complex incident investigations. However, EPA
has provided flexibility for facilities to request more time to
complete investigations when they consult with their implementing
agency and receive written approval for an extension. EPA also re-
emphasizes the importance of implementing recommendations as soon as
possible after incident investigation completion to prevent future
similar incidents.
D. Third-Party Compliance Audits
1. Summary of Proposed Rulemaking
a. Definitions, 40 CFR 68.3
EPA proposed to define ``third-party audit'' to mean a compliance
audit conducted pursuant to the requirements of 40 CFR 68.59 and/or
68.80, performed or led by an entity (individual or firm) meeting the
competency and independence requirements in those sections.
b. Compliance Audits, 40 CFR 68.58(a) and 68.79(a)
EPA proposed to edit 40 CFR 68.58(a) and 68.79(a) to add the
language ``for each covered process'' to compliance audits, self and
third-party, to address compliance with the provisions of subpart C or
D for each covered process.
EPA also added a sentence at the end of the paragraph to reference
when a compliance audit must be a third-party audit.
c. Third-Party Audit Applicability for Compliance Audits, 40 CFR
68.58(f) and 68.79(f)
EPA proposed to add paragraph (f) to 40 CFR 68.58 and 68.79 which
identified third-party audit applicability. EPA proposed that the next
required compliance audit for an RMP facility would be a third-party
audit when one of the following conditions apply:
Two accidental releases within five years meeting the
criteria in 40 CFR 68.42(a), from a covered process have occurred.
One accidental release within five years meeting the
criteria in 40 CFR 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.
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 40 CFR
68.59(c) or 68.80(c).
In addition to the proposed approach for third-party audit
applicability, EPA particularly sought comment on the two new
conditions modified from the 2017 amendments rule, which applied
increased accident severity, frequency, and consequences as a basis for
the proposed provision.
d. Third-Party Audit Implementing Agency Notification and Appeals, 40
CFR 68.58(g) and 68.79(g)
EPA proposed to add paragraph (g) to 40 CFR 68.58 and 68.79 which
described the procedure when an implementing agency requires a third-
party audit and proposed an internal appeals process. EPA proposed to
require an implementing agency to provide written notice to the
facility owner or operator stating the reasons for the implementing
agency's preliminary determination that a third-party audit is
necessary. The owner or operator would have an opportunity to respond
by providing information to, and consulting with, the implementing
agency. The implementing agency would then provide a final
determination to the owner or operator. If the final determination
requires a third-party audit, the owner or operator would have an
opportunity to appeal the final determination. EPA proposed that the
implementing agency would provide a written, final decision on the
appeal to the owner or operator after considering the appeal.
e. Schedule for Conducting a Third-Party Audit, 40 CFR 68.58(h) and
68.79(h)
EPA proposed to add paragraph (h) to 40 CFR 68.58 and 68.79 which
described the schedule for completing third-party audits. For third-
party audits required pursuant to paragraph (f)(1) of the section, the
proposed language
[[Page 17658]]
required the audit and associated report to be completed within 12
months of the second of 2 releases within 5 years. For third-party
audits required pursuant to paragraph (f)(2) of the section, the
proposed language required the audit and associated report to be
completed within 12 months of the release. For third-party audits
required pursuant to paragraph (f)(3) of the section, the proposed
language required the audit and associated report to be completed
within 12 months of the date of the final determination pursuant to
paragraph (g)(3) of the section, or if the final determination is
appealed pursuant to paragraph (g)(4) of the section, within 12 months
of the date of the final decision on the appeal.
f. Third-Party Audits Applicability, 40 CFR 68.59(a) and 68.80(a)
EPA proposed to add 40 CFR 68.59 and 68.80, which included
requirements for both third-party audits and third-party auditors. In
paragraph (a), EPA proposed that owners or operators engage a third-
party to conduct an audit that evaluates compliance with the provisions
of subpart C or D (as applicable) when the applicability criteria of 40
CFR 68.58(f) or 68.79(f) are met.
g. Third-Party Auditors and Auditing Teams, 40 CFR 68.59(b) and
68.80(b)
EPA proposed to include paragraph (b) to 40 CFR 68.59 and 68.80
which provides that owners or operators either engage a third-party
auditor meeting the competency and independence criteria of paragraph
(c) of the section, or assemble an auditing team, led by a third-party
auditor meeting the competency and independence criteria of paragraph
(c) of the section. The team may include other employees of the third-
party auditing firm or other personnel, including facility personnel.
h. Third-Party Auditor Qualifications, 40 CFR 68.59(c) and 68.80(c)
EPA proposed to include paragraph (c) to 40 CFR 68.59 and 68.80
which includes qualifications for third-party auditors and required
facility owners and operators to document that the third-party
auditor(s) meet the competency and independence requirements.
Specifically, EPA proposed that facility owners or operators determine
and document that the third-party auditors meet the competency
requirements set forth in paragraph (c)(1) and the independence
requirements in paragraph (c)(2).
The proposed competency requirements for auditors require third-
party auditors to be:
Knowledgeable with the requirements of 40 CFR part 68.
Experienced with the facility type and processes being
audited and the applicable RAGAGEP; and
Trained or certified in proper auditing techniques.
The proposed independence requirements that would apply to the
third-party auditors require the third-party auditors to:
Act impartially when performing all activities under this
section.
Receive no financial benefit from the outcome of the
audit, apart from payment for the auditing services.
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.
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 40 CFR 68.59 or 68.80.
In paragraph (c)(3), the proposed rule required the auditor to have
written policies and procedures to ensure that all personnel comply
with the competency and impartiality requirements.
In addition to the proposed approach for third-party auditor
qualifications, EPA particularly sought comment on the proposed
independence criterion as it is modified from the 2017 amendments rule.
i. Third-Party Auditor Responsibilities, 40 CFR 68.59(d) and 68.80(d)
EPA proposed to include paragraph (d) to 40 CFR 68.59 and 68.80
which includes the responsibilities for third-party auditors.
Specifically, EPA proposed that the owner or operator ensure that the
third-party auditor:
Manages the audit and participates in audit initiation,
design, implementation, and reporting.
Determines appropriate roles and responsibilities for the
audit team members based on the qualifications of each team member.
Prepares the audit report and where there is a team,
documents the full audit team's views in the final audit report.
Certifies the final audit report and its contents as
meeting the requirements of this section.
Provides a copy of the audit report to the owner or
operator.
j. Third-Party Audit Report, 40 CFR 68.59(e) and 68.80(e)
EPA proposed requirements for the audit report in paragraph (e) of
40 CFR 68.59 and 68.80. Specifically, EPA proposed that the audit
report:
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
the section are met.
Describe or incorporate by reference the policies and
procedures required under paragraph (c)(3) of the section.
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.
Document the findings of the audit, including any
identified compliance or performance deficiencies.
Summarize any significant revisions (if any) between draft
and final versions of the report.
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.
k. Third-Party Audit Findings, 40 CFR 68.59(f) and 68.80(f)
EPA proposed requirements for the audit findings in paragraph (f)
of 40 CFR 68.59 and 68.80. EPA proposed in paragraph (f)(1), to require
owners or operators, as soon as possible, but no later than 90 days
after receiving the final audit report, to determine an appropriate
response to each of the findings in the audit report and develop and
provide a findings response report. EPA proposed that the findings
response report would include:
[[Page 17659]]
A copy of the final audit report.
An appropriate response to each of the audit report
findings.
A schedule for promptly addressing deficiencies.
A statement, signed and dated by a senior corporate
officer, certifying that appropriate responses to the findings in the
audit report have been identified and deficiencies were corrected, or
are being corrected, consistent with the requirements of subpart C or D
of 40 CFR part 68.
EPA proposed in paragraph (f)(2), to require the owner or operator
to implement the schedule to address deficiencies identified in the
audit findings response report, and document the action taken to
address each deficiency, along with the date completed.
Proposed paragraph (f)(3) required the owner or operator to provide
a copy of documents required under paragraphs (f)(1) and (2) to the
owner or operator's audit committee of the Board of Directors, or other
comparable committee, if applicable.
l. Third-Party Audit Recordkeeping, 40 CFR 68.59(g) and 68.80(g)
Finally, in paragraph (g) of 40 CFR 68.59 and 68.80, EPA proposed
recordkeeping requirements for the owner or operator regarding third-
party audits. The proposal required the owner or operator to retain
records at the stationary source, including: the two most recent final
third-party audit reports, related findings response reports,
documentation of actions taken to address deficiencies, and related
records. EPA proposed that these requirements would not apply to any
documents that are more than five years old.
2. Summary of Final Rule
Based on review of comments, EPA is finalizing the proposed
provisions for third-party audits with the following modifications:
EPA is revising the requirements in paragraph (f) of 40
CFR 68.58 and 68.79 that triggered when a third-party audit would be
required. For the final rule, two of the three proposed conditions
(i.e., two accidental releases within five years meeting the criteria
in 40 CFR 68.42(a), from a covered process have occurred; or one
accidental release within five years meeting the criteria in 40 CFR
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) are being replaced with
one condition--one accidental release meeting the criteria in 40 CFR
68.42(a), from a covered process. The other condition allowing an
implementing agency to require a third-party audit is being finalized
as proposed.
EPA is not finalizing compliance audit language at 40 CFR
68.58(a) and 68.79(a) which proposed auditing for every covered process
at a facility. This corrects an error in the proposed rulemaking text.
By not finalizing this language, compliance audits will remain
consistent with the current practice, which allows for representative
sampling. A discussion of representative sampling as an acceptable
practice for compliance audits can be found in the reconsideration
final rule.\98\
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\98\ 84 FR 69834 (69882).
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EPA is also not finalizing compliance audit language at 40
CFR 68.58(h) and 68.79(h) which proposed a 12-month timeline for a
third-party audit after a triggering criterion. The revised final
requirement relies on the language at 40 CFR 68.58(f) and 68.79(f)
which refers to the timeline of a third-party audit to be the ``next
required compliance audit,'' which is at least every 3 years under 40
CFR 68.58(a) and 68.79(a).
3. Discussion of Comments and Basis for Final Rule Provisions
In the proposed rule, EPA sought comment on several aspects of the
Agency's proposed approach for third-party audits. As described in the
proposed rule, third-party audits were included in the 2017 amendments
rule, and at that time EPA addressed many general comments regarding
the inclusion of third-party audits in the RMP rule, including the
justification for and legality of, third party audits, and the benefits
of third-party audits. This final rule contains some differences from
both the 2017 amendments rule and the 2022 SCCAP proposed rule. EPA
specifically sought comment on some of the changes, including: the
proposed approach for third party audits; the proposed independence
criteria, as modified from the 2017 amendments rule; whether the
selected auditor should be mutually approved by the owner or operator
and employees and their representatives; if direct participation from
employees and their representative should be required when a third
party conducts an audit; and, 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. The following discusses EPA's basis for the third-party
audit provisions adopted in this final rule.
a. Proposed Approach for Third-Party Audits
Regarding the proposed approach for third-party audits, EPA
received comments supporting, opposing, and suggesting improvements to
various aspects of the new proposed approach. Numerous commenters
expressed support for restoring the third-party auditing requirements
of the 2017 amendments rule. One of the commenters noted that third-
party auditing helps to ensure a systematic evaluation of the full
prevention program for covered processes, while self-auditing may be
insufficient to prevent accidents and ensure compliance. Another
commenter emphasized that third-party audits will also ensure they are
unbiased, compared to self-audits. Many commenters expressed opposition
to the third-party audit provision. Some commenters argued that the
third-party auditing requirements are unnecessary, would be too
burdensome, and could be potentially costly for facilities. Some
commenters proposed that the language in the provision should be
revised to state that audits should be performed every three years,
pointing out an inconsistency in when audits would be required.
Several commenters recommended that the requirement triggering a
third-party audit after 2 accidental releases within a 5-year period is
not stringent enough, and facilities should be required to conduct a
third-party audit after one accidental release or discovery of
significant non-compliance. One of the commenters suggested that a 5-
year window for accident history is too narrow. A few commenters
suggested that third-party audits be required for all RMP facilities
without waiting for an incident to occur. Several commenters opposed
the 2-accident trigger for third-party compliance audits due to its
vague nature that could result in facilities conducting audits when
they are not warranted. One of the commenters suggested that EPA narrow
the third-party audit trigger from reportable accidents to catastrophic
releases. Another commenter noted that accidental releases already
trigger incident investigations, including the proposed root cause
analysis; therefore, an additional third-party audit will unnecessarily
dilute the investigation effort and will be overly burdensome to
facilities.
Comments were received regarding the 1-mile audit triggering
criteria, mostly in opposition, for various
[[Page 17660]]
reasons, including that it is too vague and overly broad. Another
commenter interpreted this requirement as emphasizing protecting select
facilities over protecting the public. One commenter suggested that
this requirement could penalize facilities with an otherwise
outstanding environmental and safety record because a neighboring
facility within one mile does not. One commenter suggested that that
the requirement triggering a third-party audit should be required after
one accidental release at a facility with a 324 or 325 NAICS code
regardless of location to another facility. Another commenter suggested
that EPA develop a more user friendly, up-to-date, and accessible
method of determining if a facility is within 1 mile of another
facility with a 324 or 324 NAICS code to ensure compliance with this
provision.
ii. EPA Responses
EPA agrees with the comments in support of the third-party
compliance audit requirement to be included in the final rule and
believes it is appropriate to require a subset of RMP-regulated
facilities to engage competent and independent third-party auditors
following the conditions set forth in this final rule after: (1) One
accidental release meeting the criteria in 40 CFR 68.42(a) from a
covered process at a stationary source has occurred; or (2) an
implementing agency requires a third-party audit due to conditions at
the stationary source that could lead to an accidental release of a
regulated substance, or when a previous third-party audit failed to
meet the competency or independence criteria of 40 CFR 68.80(c). As
indicated in the proposal, 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 1 RMP-
reportable accident and 0.5 percent (n = 70) of all RMP facilities had
2 or more RMP-reportable accidents. EPA views one 40 CFR 68.42(a)
accidental release as a serious matter, considering the possible
outcomes are deaths, injuries, or significant property damage on site,
or known offsite deaths, injuries, evacuations, sheltering in place,
property damage, or environmental damage. Further, the average per
accident damage estimate from 2016-2020 is $5.5 million. It is arguable
that having even one accident should be a cause for concern considering
most RMP facilities have never had any accidents. Additionally, of
these 70 facilities that had at least 1 RMP-reportable accident, 61
percent (n = 43) had experienced another accident prior to 2016. EPA
does not believe affected communities should have to experience the
adverse consequences of a second reportable accident before an
objective party comes in to evaluate the facility for compliance. The
pattern of repeated accidents at RMP facilities provide a reasoned
basis for EPA's focus on these facilities to apply a greater level of
risk reduction measures.
EPA notes that under 40 CFR part 68, sources with any Program 2
and/or Program 3 processes are already required to conduct compliance
audits every three years. This rule does not change the requirement
that RMP facilities regularly conduct RMP compliance audits, but adds
that, in specific situations, those audits must be performed by a
third-party or a team led by a third-party, pursuant to the
requirements and schedule in 40 CFR 68.58 and/or 68.79 of the rule. EPA
notes that having a third-party conduct a compliance audit does not
preclude the facility from conducting an in-house compliance audit in
tandem. If the goal is to ensure that preventative measures are in
place to prevent future accidents, EPA hopes that a facility would want
to implement all such measures to ensure it is compliant. EPA disagrees
that the third-party audit requirement should be expanded to include,
as some commenters suggested, all RMP facilities without waiting for an
accident. While independent third-party audits help to ensure an
independent systematic evaluation of the full prevention program at an
RMP facility, EPA is not making this a regulatory requirement for all
RMP sources before an accident, at this time, due to the increased
burden associated with these audits.
EPA acknowledges the costs associated with third-party audit
requirements. Although this final rule requires a larger group of
stationary sources to conduct third-party audits than the proposal, the
costs are justified. The Agency believes the affected group of
stationary sources are sources that will benefit from an independent
objective audit of their compliance with prevention program
requirements, as they have already had one RMP-reportable accidental
release. As described in the proposed rule, EPA recognizes that a
relatively small number of RMP-regulated facilities have had RMP-
reportable accidents. EPA continues to be concerned with these RMP
facilities that--despite current RMP regulations, enforcement, and
lessons learned from previous accidents--continue to have accidents
and, in some cases, multiple accidents, thereby continuing to put
nearby communities at risk. Sources that have had one accident are
substantially more likely to have another accident than the general
population of RMP-regulated sources. EPA is concerned that those
facilities may not have 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 accident releases from occurring. Considering
the goal of the RMP regulations is to prevent accidental releases, EPA
believes that the increased cost of third-party compliance audits at
such facilities is therefore justified.
In response to comments on when third-party audits are required,
EPA is clarifying and finalizing that, whichever criteria triggers the
requirement, a third-party need only be engaged for the next required
compliance audit(s), which is no later than 3 years from the previous
compliance audit. The revised final requirement relies on the language
at 40 CFR 68.58(f) and 68.79(f) which refer to the timeline of a third-
party compliance audit to be the ``next required compliance audit,''
which is at least every 3 years under 40 CFR 68.58(a) and 68.79(a). For
example, if a facility conducted an internal compliance audit in August
2024 and had an RMP-reportable accident in October 2024, the next
compliance audit, required by August 2027, would be a third-party
audit. EPA believes this approach is appropriate because it will allow
the source to remain within their already required scheduled timing for
audits. Further, when an accident occurs, the source will be required
to conduct an RCA within 12 months; the 3-year finalized timeframe for
the audit will give the source flexibility to accomplish both within
their compliance due dates. If the third-party audit is completed after
the RCA, it will give the source an additional opportunity to uncover
deficiencies that led to the accident. In other words, the third-party
audit will be a follow-up to review the RCA and ensure all practices to
prevent an accident have been resolved.
The third-party audit provision is intended to reduce the risk of
future accidental releases by requiring an objective auditing process
to assist owners and operators in determining whether facility
procedures and practices comply with subparts C and/or D of the RMP
rule (i.e., the prevention program requirements), are adequate, and are
being followed. Thus, EPA is finalizing requirements for third-party
audits under 40 CFR 68.58 and 68.79 to require that owners and
operators
[[Page 17661]]
ensure that third-party auditors meet qualification criteria, that
audits are conducted and documented, and that findings are addressed
pursuant to the requirements of 40 CFR 68.59 and 68.80, as applicable.
b. Proposed Independence Criteria
In the preamble to the 2022 SCCAP proposed rule, EPA sought comment
on the proposed independence requirements modified from the 2017
amendments rule. The modification was to 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.
i. Comments
Many of the comments received regarding independence requirements
did not address the change, which removed these two requirements. As
with the 2017 amendments rule, EPA has received comments generally in
support of the proposed independence requirements, and some generally
opposed to the independence requirements. Such general comments were
previously addressed by EPA during the 2017 rulemaking.\99\
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\99\ Response to Comments on the 2016 Proposed Rule Amending
EPA's Risk Management Program Regulations; https://www.epa.gov/sites/default/files/2016-12/documents/rmp_rtc_compiled_12-21-16.pdf.
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However, EPA did receive some comments specifically regarding this
proposal to remove these two independence requirements, generally in
support of removing these requirements. One commenter supported
removing these requirements, describing them as unrealistic and
unworkable, and another commenter described them as onerous and
unnecessary. This commenter further stated that these requirements
would have resulted in an insufficient pool of qualified auditors,
harmed the quality of audits, and significantly driven up costs.
However, another commenter requested that EPA reconsider the proposal
to remove the proposed auditor independence requirements, stating that
auditor independence is of paramount importance.
ii. EPA Responses
EPA is finalizing the proposed independence requirements and
believes this is an important and necessary aspect of third-party
audits. EPA notes that these independence requirements were simplified
and streamlined from the 2017 rule, which included a limitation for
auditors who conducted consulting type services for the owner or
operator within the last two years, or for a period of at least 2 years
following the audit report. EPA believes the provision, as adopted,
ensures additional available independent auditors to act in an
independent and impartial manner, allowing more flexibility in choosing
auditors.
c. Employee Participation
In the preamble to the proposed rule, EPA sought 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 a third party conducts an audit.
i. Comments
EPA received comments in support and in opposition to these
provisions. One commenter supported the provision that the selection of
a third-party auditor be mutually approved by the owner or operator and
employee representatives and suggested that employees and their
representatives be involved in all stages of the audit. However,
several commenters expressed opposition to a requirement that the
selected auditor be mutually approved by the owner/operator, employees,
and employee representatives. One commenter noting that this
requirement would increase the time needed to vet and approve auditors,
causing unnecessary delays. Another commenter suggested that the
auditor be selected by facility management and that bringing
unknowledgeable employees into the decision-making process would be
burdensome and will not improve compliance.
ii. EPA Responses
While EPA encourages sources to include employee participation
during third-party audits, EPA is not finalizing a provision that
requires employee participation in third-party audits at this time. The
Agency expects the enhancements to employee participation required by
this rule will motivate owners and operators to recognize the benefit
of involving their employees and their representatives in all aspects
of the process safety management at their facility.
d. Format of Declined Third-Party Compliance Audit Findings
i. Comments
EPA has received comments in support of, and in opposition to,
requiring declined findings to be included in narrative form. One
comment in support argued that more detailed information on the
recommendations and decisions are needed to ensure that a facility does
not avoid implementing necessary or practical recommendations. Another
commenter noted that the suggested categories would fall short of
capturing the reasons to decline an audit recommendation, such as a
recommendation that is impractical or ineffective.
Several commenters expressed opposition to requiring facilities to
provide declined findings in narrative form in the RMP. Several
commenters noted that this requirement would be overly burdensome.
Several commenters raised concerns that the public release of this
information would be confusing to those that are not knowledgeable
about a facility's processes. Some commenters noted that public
pressure may result in difficult technical debates about unfounded
findings or cause facilities to address findings they disagree with.
Another commenter recommended that the justification for declined
findings should be consistent with the criteria outlined by OSHA's 1994
Compliance Directive, asserting that this would make a narrative text
in the RMP repetitive. One commenter noted concerns about releasing
information to local responders, who may lack the expertise in chemical
processes, could result in incorrect response activities during an
accidental release. A couple of commenters suggested that this
requirement would discourage facility leaders from encouraging audit
teams to identify potential hazards to limit the information that must
be reported to EPA. The commenters also suggested that audit findings
are already readily available to EPA. Several commenters requested that
EPA not mandate that facilities make declined findings publicly
available online due to security concerns of releasing highly sensitive
information.
[[Page 17662]]
ii. EPA Responses
In the final rule, EPA is requiring facilities to choose from
categories, similar to those in OSHA's 1994 Compliance Directive, as
the Agency believes it will ease the use and general consistency for
facilities to report and communities to review declined third-party
audit recommendations. This format will also help EPA administer and
track how facilities choose to comply with this provision.
e. Reporting Requirements
A commenter suggested that EPA ensure that the reporting
requirements for Program 3 facilities match those for Program 2
facilities, noting that 40 CFR 68.175(k) is missing the key language in
proposed 40 CFR 68.170(i): ``and findings declined from third-party
compliance audits and justifications.''
EPA notes that this was an error, and this has been corrected in
the final rule.
E. Employee Participation
1. Summary of Proposed Rulemaking
a. Recommendation Decisions, 40 CFR 68.83(c)
EPA proposed to revise 40 CFR 68.83, which is applicable to Program
3 processes, by adding an additional provision, paragraph (c), to the
written employee participation plan of action. Proposed paragraph (c)
would require the owner or operator to consult with employees and their
representatives on addressing, correcting, resolving, documenting, and
implementing recommendations and findings of PHAs under 40 CFR
68.67(e), compliance audits under 40 CFR 68.79(d), and incident
investigations under 40 CFR 68.81(e).
b. Stop Work Authority, 40 CFR 68.83(d)
EPA proposed to revise 40 CFR 68.83, which is applicable to Program
3 processes, by adding an additional provision, paragraph (d), to the
written employee participation plan of action. Proposed paragraph (d)
would require the owner or operator to provide the following
authorities to employees and their representatives, and to document and
respond in writing, within 30 days of the authority being exercised:
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.
c. Accident and Noncompliance Reporting, 40 CFR 68.62, 68.83(e)
EPA proposed to add 40 CFR 68.62, which is applicable to Program 2
processes, to require the owner or operator to:
Develop a written plan of action regarding the
implementation of the employee participation requirements.
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.
Provide employees and their representatives access to
hazard reviews and to all other information required to be developed
under this rule.
EPA proposed to revise 40 CFR 68.83, which is applicable to Program
3 processes, by adding an additional provision, paragraph (e), to the
written employee participation plan of action. Proposed paragraph (e)
would require the owner or operator to 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.
In addition to the proposed approach to accident and noncompliance
reporting, EPA solicited comment on whether owners and operators
should: (1) Distribute an annual written or electronic notice to
employees that employee participation plans and other RMP information
is readily accessible upon request; (2) provide training for those
plans; and (3) provide training on how to access the information.
2. Summary of Final Rule
EPA is finalizing the proposed provisions for employee
participation with the following modifications:
Revising 40 CFR 68.83(c) to specifically apply only to
those employees knowledgeable in the process.
Removing from 40 CFR 68.83(d) the stop work criterion
allowing an employee to refuse to perform a task when doing so could
reasonably result in a catastrophic release.
Revising 40 CFR 68.83(d) so that the two remaining stop
work criteria specifically apply only to those employees knowledgeable
in the process.
Removing from 40 CFR 68.83(d) the requirement to document
and respond in writing within 30 days of the stop work authority being
exercised.
Revising 40 CFR 68.62(b) and 68.83(e) to allow the person
reporting an unaddressed hazard, unreported accident, or noncompliance
to decide whether or not they wish to make an anonymous report or
attribute their identity to the report.
Revising 40 CFR 68.62(b) and 68.83(e) to specify the
methods of making a report to the owner and operator and EPA.
Adding a provision to 40 CFR 68.62(b) and 68.83(e) to
require the owner or operator to keep a written record of the report of
noncompliance.
Adding a provision to 40 CFR 68.62(a)(1) and 68.83(a)(1)
for the owner or operator to provide an annual written or electronic
notice to employees indicating RMP information is available.
Adding a provision to 40 CFR 68.62(a)(2) and 68.83(a)(2)
requiring the owner or operator to provide training on the written
employee participation plan.
Revising 40 CFR 68.62(a) and 68.83(a) to add the word
``requirements'' as a clarifying edit.
3. Discussion of Comments and Basis for Final Rule Provisions
a. Recommendation Decisions, 40 CFR 68.83(c)
i. Comments
Many commenters expressed support for the proposed requirement in
40 CFR 68.83(c) for the owner or operator to consult with employees and
their representatives on addressing, correcting, resolving,
documenting, and implementing recommendations and findings of PHAs,
compliance audits, and incident investigations as a way of promoting
collaboration between employees and management representatives. One
State agency remarked that the goal of the provision is to ensure the
team remains effective and is reflective of diverse viewpoints and
backgrounds. However, other commenters opposed the provision, stating
that transferring decision-making authority to employees presents
additional legal issues in terms of employee responsibility and
accountability, such as in the event an incident occurs, is
investigated, and results in disciplinary action or legal liability.
Another commenter noted that EPA's use of ``employees and their
representatives'' can be viewed too broadly.
[[Page 17663]]
ii. EPA Responses
EPA disagrees that this provision presents additional legal issues.
This provision does not transfer decision-making responsibility to
employees and their representatives. The provision also does not
attempt to shift ultimate accountability to the employee for decisions
that the owner or operator is responsible for. For example, at 40 CFR
68.67(e), the PHA provision indicates the owner or operator shall
establish a system to promptly address the team's findings and
recommendations, to assure that the recommendations are resolved in a
timely manner, and that the resolutions are documented. Despite this
provision, the regulated entity remains the owner or operator of the
stationary source. The requirement to consult with employees and their
representatives does not make employees the decision-making authority.
This provision does, however, provide for consultation that gives
employees the opportunity to provide their input and perspective, based
on their firsthand knowledge of specific process safety concerns,
before final decisions are made regarding whether to implement
recommended process safety solutions. This provision helps ensure that
a well-informed approach is applied when finalizing resolutions for
reducing hazards and mitigating process safety risks.
In response to the comment that the term ``employees and their
representatives'' can be viewed too broadly, EPA has amended the
language to specify that the provision only applies to employees
knowledgeable in the process and their representatives. EPA expects
employees involved in the consultation to be knowledgeable in the
process, as these employees are expected to have a better firsthand
understanding of the process than employees who do not work in the
process, who are new to the process, or who do not understand the
process. EPA expects that these employees are likely to also be the
employees that have the qualifications to participate as a team member
when developing recommendations from incident investigations under 40
CFR 68.81(c), compliance audits under 40 CFR 68.79(b), and PHAs under
40 CFR 68.67(d). At 40 CFR 68.67(d), the PHA provision indicates that
the PHA shall be performed by a team with expertise in engineering and
process operations, and the team shall include at least one employee
who has experience and knowledge specific to the process being
evaluated. EPA believes it is prudent to apply at least the same
qualification criterion to employees who can participate in developing
recommendations as to those who can assist in deciding whether those
recommendations will be implemented.
After review of the comments, the Agency continues to believe that
involving directly affected employees and their representatives in
recommendation 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. EPA is
finalizing the proposed provision with the modification, for clarity,
that those employees who are to be consulted on addressing, correcting,
resolving, documenting, and implementing the recommendations and
findings of PHAs, compliance audits, and incident investigations must
be those knowledgeable in the process.
b. Stop Work Authority, 40 CFR 68.83(d)
i. Comments
Several commenters supported the proposed stop work authority
provision of the employee participation plan under 40 CFR 68.83(d). One
Federal agency indicated that any program that does not appropriately
enable workers to freely exercise stop work authority in necessary
circumstances would allow risks to occur and accumulate. Some
commenters supported the provision in principle but recommended
modifications. A couple of commenters recommended removing the 30-day
response period arguing that it should not be necessary when the
authority is primarily used in imminently dangerous situations. A few
commenters asserted that EPA should also require prompt reports of all
stop-work authority usage so that EPA and the public are made aware and
can evaluate whether additional quick action is needed to support the
workers, assure compliance, and save lives.
Some commenters did not support the proposed stop work authority
provision of the employee participation plan. One commenter noted that
having uniform requirements and procedures for an operation shutdown
ignores the diverse array of regulated facilities in terms of industry
and process. The commenter asserted that EPA should allow for
operational flexibility in recognition of these circumstances and
emphasized the risk an abrupt shutdown of complex chemical processes
would pose. Another commenter asserted that the underlying intent of
the provision can be better addressed by establishing clear written
guidelines on how employees can raise such concerns in ``real time.''
Several commenters claimed that the stop work authority could result in
increased safety risks, indicating the potential for employees to lack
adequate knowledge or training to make such a decision. The commenters
expressed further concern that the frequency of transient operations
could increase, and that more unplanned or abrupt shutdowns could
occur, which are often dangerous. A few of the commenters noted that
giving this authority to all employees would leave facilities more
susceptible to RMP incidents occurring and make the processes at RMP-
covered facilities less safe.
A couple of commenters opposed the provision and noted that the
language in the stop work authority provision would be too general,
inevitably allowing every RMP covered process to be shut down by an
employee. The commenters noted that this does not align with EPA's
stated purpose of the RMP rule, which is to improve safety at
facilities. One State agency expressed concerns about and opposed the
provision allowing employees to refuse to perform a task when they
believe doing so could reasonably result in a catastrophic failure. The
commenter further stated that it is extremely important that any stop
work authority be implemented in a manner that minimizes the chance for
adverse unintended consequences.
ii. EPA Responses
The proposed stop work provision within the employee participation
section of this final rule is intended only to include the stop work
authorities, established by the operating procedure provisions under 40
CFR 68.69(a), into the written employee participation plan. This
provision is not intended to create new authorities or require
additional components to those already developed. The final rule
conforms the amendments to this intent. Therefore, while EPA believes
that it is useful to evaluate any stop work authority exercised, EPA
expects these internal evaluations to already be occurring in the owner
or operator's annual review of operating procedures, through training
activities, or when conducting compliance audits. The final rule does
not add a provision to require evaluations be included in the written
plan. Additionally, EPA agrees that stop work authorities are expected
to be carried out in imminently dangerous situations such that a 30-day
response to an authority being exercised long after the threat has
passed may not be practical. Regarding providing reports of stop work
to EPA, the Agency disagrees
[[Page 17664]]
that this is necessary because stop work should be exercised to prevent
imminently dangerous situations from resulting in catastrophic releases
and therefore should not be contingent on or require quick action by
outside parties. Furthermore, the Agency does not have the capability
or resources to immediately respond to all instances of stop work being
exercised. If, for some reason, quick action by outside parties was
needed, EPA believes that the emergency response plans required by the
rule should already outline a plan for responding to dangerous
situations by the facility and/or local responders as they will be the
most familiar with the source's processes and hazards.
The proposed rule provided an extensive discussion of the stop work
authority that is already inherent in the current RMP rule.\100\ As the
proposed rule explained, the current RMP rule already addresses many
aspects of a stop work authority that provides means for employees to
identify and resolve imminent operational risks before they occur.
Operating procedures, maintenance/mechanical integrity, and their
associated training requirements, which are already mandatory under the
rule, create a stop work authority as they address the circumstances
and procedures to identify unsafe operations. 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. Therefore, EPA disagrees
with the comments that a stop work authority documented in the employee
participation plan would cause more shutdowns and possibly more
accidents, as the authority that is being provided by the final rule's
provisions leverages existing operating procedure and maintenance
requirements. In reference to the comment citing the potential for an
increase in safety risks when an employee lacks adequate knowledge to
make a stop work decision, EPA has amended the provision to specify
that this authority should be exercised only by employees knowledgeable
in the process and their representatives.
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\100\ 87 FR 53591.
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EPA disagrees that the new stop work authority provision does not
align with the purpose of the RMP rule. Under the existing RMP rule,
operating procedures are designed for, and assigned to, employees who
will be trained on performing the tasks described, thereby producing
employees knowledgeable in the process they are working in. However,
because of the significant disruption to process operations that can
occur when stop work authority is exercised, EPA agrees that it is
useful to explicitly state that these authorities are applicable only
to employees who are knowledgeable in the process. Further, EPA
believes a work culture that promotes process safety allows for
opportunities for employees to refuse to perform work. In a scenario
where there is a potential for a catastrophic release, EPA believes it
is important to take further steps to shutdown a process to prevent an
accident. Rather than refusing to perform work only, steps necessary to
shut down the process should be set in motion. Therefore, the Agency is
deleting the change noted below from 40 CFR 68.83(d) to ensure that
potentially imminent catastrophic releases are followed through with
properly. The basis for including stop work authorities in the employee
participation plan is to enhance authorities already provided to
employees under the rule.
After review of comments, EPA maintains that it is important to
ensure facilities' employees have authorities to manage unsafe work as
they are one of the last lines of defense to protect human health and
the environment from a catastrophic release. EPA, however, does agree
with some recommendations offered in the comments to enhance the
provision. Therefore, EPA is finalizing the proposed provision with the
following modifications as discussed above:
Removing from 40 CFR 68.83(d) the requirement to document
and respond in writing within 30 days of the stop work authority being
exercised.
Removing from 40 CFR 68.83(d) the stop work criterion
allowing an employee to refuse to perform a task when doing so could
reasonably result in a catastrophic release.
Revising 40 CFR 68.83(d) so that the two remaining stop
work criteria specifically apply to those employees knowledgeable in
the process and their representatives.
c. Accident and Non-Compliance Reporting, 40 CFR 68.62(b) and 68.83(e)
i. Comments
EPA received comments supporting, opposing, and suggesting
improvements to the accident and non-compliance reporting provision.
One commenter supported EPA's proposal to require an anonymous
reporting mechanism. The commenter stated that owners and operators
should be required to make all employee participation plans and RMPs
accessible and also should be required to provide annual training, at
minimum, to facility employees. One of the labor commenters who
supported the provision in principle also expressed concern that the
language proposed does not adequately specify what the reporting
process should be. The commenter also stated that the provision is of
limited value since an employee could report anonymously without a
formal process. The commenter likewise stated that the provision is
restrictive since, as written, the requirement excludes reporting in
situations where the reporter does not wish to remain anonymous.
Although a couple of commenters agreed that it is important that
employees can voice concern without fear of repercussions, these
commenters stated that anonymous reports require someone to judge the
validity of the report. Some of the industry commenters also stated
that anonymous reports could create a burden. The commenters expressed
further concern that, for example, reports could be filed by
misinformed persons, thus necessitating the development of methods and
time frames to determine the credibility of reports as well as when
appropriate action should be taken. One of the commenters stated that a
better approach is to allow RMP-regulated entities to continue efforts
to improve safety cultures, strengthen safety teams, and foster
employee communication in lieu of expending resources on anonymous
reporting features.
ii. EPA Responses
EPA does not expect to see a ``one-size fits-all'' plan developed
by sources for reporting areas of non-compliance. Some RMP facilities
are less complex, operating with a handful of employees, while other
RMP facilities have very complex processes that involve hundreds of
employees. Like other provisions of the RMP regulation, the employee
participation provisions allow facility owners and operators the
flexibility to exercise reasonable judgement in determining how to best
engage their employees and make them aware of their facility's efforts
to apply the RMP rule to process operations. In the absence of a more
specific performance standard like RAGAGEP or a specific direction, the
RMP rule relies on the reasonable judgments and efforts of regulated
entities in designing compliance programs that are aimed at preventing
or mitigating accidental releases. EPA agrees with commenters that it
is useful for individual RMP facility owners and operators to
continually improve their efforts to
[[Page 17665]]
enhance safety cultures, strengthen safety teams, and foster employee
communication. EPA also agrees that the most effective programs
probably already comply with most aspects of the provision. EPA
believes that sources should create a welcoming atmosphere for
employees to discuss safety concerns internally. However, commenters,
particularly commenters from labor organizations who supported the
provision, stated that this is not always the case. Therefore, EPA
maintains that this provision is necessary to establish a minimum
standard for conduct. To ensure a consistent understanding of EPA's
expectations for this provision, modifications to the provision are
discussed below.
To clarify EPA's intent in the proposal, EPA is specifically
defining in this final rule that the process developed to report
noncompliance must detail how to report to the owner or operator and/or
EPA. It is understandable that in some instances employees will feel
more comfortable reporting to one or the other entity (or both), which
will be up to the reporter, but the details provided in the plan should
provide clear instructions for how to report to both entities.
Reporting areas of non-compliance to the owner or operator allows
employers to become aware of areas of concern and/or opportunities to
improve process safety. It is expected that validating reports will not
impose a heavy burden on the owner or operator as they should already
be familiar with their level of compliance with the rule through
regular compliance monitoring activities, such as triennial compliance
audits. While EPA is not prescribing details of how a facility needs to
follow-up with the report, the owner or operator will be required to at
least maintain a record of the report. EPA believes it is in the owner
or operator's best interest for the necessary follow-up to address
employees' process safety concerns and/or areas where the owner or
operator may have fallen short on compliance with the rule. When an
employer is engaged first and does not resolve an issue, it is expected
that the next step for reporting noncompliance will be to report to
EPA. Reporting areas of non-compliance to EPA \101\ will allow the
Agency's Office of Enforcement and Compliance Assurance to determine
the validity of the report received through appropriate levels of
follow-up, investigation, and enforcement, if necessary.
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\101\ Some EPA resources to report RMP non-compliance include:
https://echo.epa.gov/report-environmental-violations, https://www.epa.gov/rmp/epa-regional-rmp-contacts.
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Regarding anonymous reporting, EPA recognizes both the concern for
anonymity and the desire from employees wanting to identify themselves
as the reporter. EPA believes this option to remain anonymous or not
will be particularly useful if there are additional follow-up steps
that the reporter and or the owner/operator must take in order to
resolve an issue.
Regarding the concern that reporting could create a burden or be
performed by misinformed employees, EPA notes that the current Program
3 employee participation provisions under 40 CFR 68.83 already provide
employees access to all RMP-related information. The new requirement
for Program 2 processes under 40 CFR 68.62(c) will allow this as well.
However, EPA is concerned that some sources may provide RMP-related
information to their employees without providing details or
explanations of the information. EPA agrees with comments stating that
workers without required information and training may be unaware of
their opportunities and authorities to participate in hazard
prevention, and that the lack of worker understanding will inevitably
lead to less participation. Therefore, to ensure that employees are
regularly reminded that RMP information is available to them, owners
and operators of all Program 2 and Program 3 processes will be required
to provide an annual written or electronic notice to employees
indicating that RMP information is available.
The Agency also believes that management, employees, and their
representatives involved in the process could benefit from training on
employee participation plans to ensure these facility stakeholders are
aware of the information included in the plans or otherwise available.
A more thorough understanding through the training may help reduce
unvalidated non-compliance reports, some of which commenters indicated
could become a concern associated with this noncompliance reporting
provision. Ultimately EPA expects training on employee participation
plans will help employees identify, and owners and operators correct,
issues that may prevent and mitigate accidents.
After review of EPA's preferred approach, options, and comments,
the Agency maintains that workers can play an important role in
promoting process safety through reporting noncompliance. EPA, however,
does agree with some recommendations offered in the comments to enhance
the clarity of the provision. Therefore, EPA is finalizing the proposed
provision with the following modifications as previously discussed:
Revising 40 CFR 68.62(b) and 68.83(e) to specify the
report methods to either or both the owner and operator and EPA.
Revising 40 CFR 68.62(b) and 68.83(e) to let anonymity be
decided by the reporter.
Adding a provision to 40 CFR 68.62(b) and 68.83(e) to
require the owner or operator to keep a written record of the report of
noncompliance.
Adding a provision to 40 CFR 68.62(a)(1) and 68.83(a)(1)
for the owner or operator to provide an annual written or electronic
notice to employees indicating RMP information is available.
Adding a provision to 40 CFR 68.62(a)(2) and 68.83(a)(2)
for training on the written employee participation plan.
VI. Emergency Response
A. Summary of Proposed Rulemaking
1. Community Emergency Response Plan Amplifications, 40 CFR 68.90(b),
68.95(c)
EPA proposed to revise 40 CFR 68.90(b)(1) and 68.95(c), which are
applicable to non-responding and responding facilities respectively, to
detail the required elements of the EPCRA community emergency response
plan in RMP regulatory text. The proposed RMP regulatory text indicated
that the EPCRA community emergency response plan should include: (1)
Identification of facilities within the emergency planning district;
(2) identification of routes likely to be used for the transportation
of substances on the list of extremely hazardous substances (EHS); (3)
identification of additional facilities contributing or subjected to
additional risk due to their proximity to facilities, such as hospitals
or natural gas facilities; (4) 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; (5) designation of a
community emergency coordinator and facility emergency coordinators,
who shall make determinations necessary to implement the plan; (6)
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; (7) methods for determining the
occurrence of a release, and the area or population likely to be
affected by such release; (8) description of
[[Page 17666]]
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; (9) evacuation plans,
including provisions for a precautionary evacuation and alternative
traffic routes; (10) training programs, including schedules for
training of local emergency response and medical personnel; and (11)
methods and schedules for exercising the emergency plan. The proposed
revisions also included that upon request of the LEPC or emergency
response officials, the owner or operator would be required to promptly
provide to the local emergency response officials information necessary
for developing and implementing the community emergency response plan.
2. Community Notification of RMP Accidents, 40 CFR 68.90(b), 68.95(a),
(c)
EPA proposed to revise and add provisions to 40 CFR 68.90(b),
paragraphs (b)(3) and (6) respectively, pertaining to non-responding
facility designation qualifications. Revised proposed paragraph (b)(3)
would have required the owner or operator to provide to emergency
responders timely data and information detailing the current
understanding and best estimates of the nature of a release when there
is a need for a response. Proposed paragraph (b)(6) would require the
owner or operator to maintain 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. Proposed paragraph (b)(6) would additionally require the
owner or operator to ensure that a community notification system is in
place to warn the public within the area potentially threatened by the
release.
EPA proposed to revise 40 CFR 68.95, which is applicable to
responding facilities, by revising paragraphs (a)(1)(i) and (c).
Revised proposed paragraph (a)(1)(i) would have required the owner or
operator to include in the procedures for informing the public about
releases, assurance that a community notification system is in place to
warn the public within the area threatened by the release. Revised
proposed paragraph (c) would additionally require the emergency
response plan to include providing timely data and information
detailing the current understanding and best estimates of the nature of
the release when a release occurs.
3. Emergency Response Exercise Program, 40 CFR 68.96(b)
EPA proposed to revise 40 CFR 68.96, which is applicable to
responding facilities, by revising the frequency requirement for field
exercises under paragraph (b)(1)(i) and the documentation requirements
for field and tabletop exercises under paragraph (b)(3). Proposed
paragraph (b)(1)(i) would require the owner or operator to 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
agree, the owner or operator shall consult with emergency response
officials to establish an alternate appropriate frequency for field
exercises. Proposed paragraph (b)(3) would require the field and
tabletop exercise reports to 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.
B. Summary of Final Rule
EPA is not finalizing the proposed community emergency response
plan amplifications at 40 CFR 68.90(b)(1) and 68.95(c).
EPA is finalizing the proposed provisions for community
notification of RMP accidents and the emergency response exercise
program with the following modifications:
Revising 40 CFR 68.90(b)(3) and 68.95(c) to allow other
existing notification mechanisms or regulations that satisfy the
notification requirements, if applicable.
Revising 40 CFR 68.90(b)(6) and 68.95(a)(1)(i) to specify
that the owner or operator should partner with local response agencies
to ensure a community notification system is in place, and to document
the collaboration.
Removing from 40 CFR 68.96(b)(1)(i) the requirement that
Federal and State agencies require consultation when determining a
field exercise frequency less than once every 10 years.
Revising 40 CFR 68.95(a)(1)(i) to add the word
``potentially'' as a clarifying edit.
C. Discussion of Comments
1. Community Emergency Response Plan Amplifications, 40 CFR 68.90(b),
68.95(c)
a. Comments
EPA received comments supporting and opposing the proposal to
revise 40 CFR 68.90(b)(1) and 68.95(c) to detail the required elements
of the EPCRA community response plan in RMP regulatory text. Some
commenters in support of the amplifications indicated that it is
important to reaffirm and ensure coordination with the EPCRA emergency
response planning teams. Another commenter mentioned that the use of
``should'' in the community response plan renders the entire section as
voluntary while the commenter suggested that the section should instead
be required. Some commenters stated that EPA should not expand the
regulatory language. One commenter expressed concern that it is not
reasonable to expect facilities to ensure that plans include the
features in proposed 40 CFR 68.90(b). The same commenter also asked for
greater clarity over the use of the word ``should,'' rather than
``must.'' One commenter noted that it is inappropriate for EPA to put
the responsibility of the community plan on the RMP facility. Some
commenters expressed confusion over the requirement that RMP facilities
assume responsibility for an emergency plan only if the LEPC's current
plan is inadequate. These commenters further explained that this places
the burden of being held accountable on the RMP facility for the
adequacy of a plan that they have no control over.
b. EPA Responses
EPA notes that the modification to 40 CFR 68.90(b)(1) and 68.95(c)
in the proposed rule was intended only to include details of EPCRA's
community emergency response plan requirements into RMP regulatory text
for reference, not to ultimately transfer plan development and
implementation responsibility to RMP facilities. Rather, EPA's goal was
to make it simpler for RMP-regulated facilities to be knowledgeable
about the components of the community emergency response plan to ensure
that they understand how their facility's processes could impact the
larger community emergency response plan and understand the facility's
role in coordination of the required plan provisions. While this
proposed modification did not include a new regulatory requirement, EPA
acknowledges the confusion expressed by including EPCRA requirements in
[[Page 17667]]
the RMP regulatory text. Therefore, after reviewing the comments, the
Agency has decided not to finalize this proposed regulatory text
modification. EPA notes that 40 CFR 68.90(b)(1) and 68.95(c) will
continue to reference the statutory citation for the EPCRA community
response plan, 42 U.S.C. 11003. EPA encourages owners and operators to
be familiar with all the elements of the community emergency response
plan to effectively consider the potential impacts of a chemical
release from their facility on the community.
2. Community Notification of RMP Accidents, 40 CFR 68.90(b), 68.95(a),
(c)
Providing Timely Data to First Responders
a. Comments
Some commenters supported the proposed provision for facility
owners and operators to provide timely release data to local first
responders when there is a need for such response. One commenter in
support indicated that, while it is true that LEPCs and local first
responders can utilize tools to perform analyses outside the fence
line, the facility's own first-hand information will improve this
process and increase first responder awareness and safety during a
response. Some supporters also offered modifications to the provision.
One commenter suggested that EPA require a follow-up notice of the
actual final release information in the short-term in addition to the
public meeting requirement. Similarly, another commenter pointed out
that real-time air quality data should be made available to the public
and not just select officials. Some commenters did not support the
proposed provision. A few commenters stated that the requirement to
provide ``necessary entities'' with ``accurate and timely data'' is
duplicative and vague. These commenters urged EPA to remove this
provision. Commenters added that facilities are already required to
notify and provide information of certain releases to the National
Response Center (NRC), State Emergency Response Commissions (SERCs),
and LEPCs under EPCRA and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA).
b. EPA Responses
EPA disagrees that the provision is duplicative and vague. EPA
believes that the provision offers the appropriate level of flexibility
that may be needed during accidental release events. As stated in the
proposal, the expectation for this provision is for owners and
operators to provide initial information about their release to local
responders as soon as possible, and to provide more accurate data or
correct erroneous data that had been previously relayed when new
information is available. EPA acknowledges that the time to gather and
update release information can vary widely depending on the
circumstances, extent and consequences of the release, and the status
of individuals conducting the investigation during the accident. EPA
also acknowledges that local responders may be different entities
(e.g., fire department, Hazmat team, police, etc.) depending on the
community. The initial and follow-up information required by this
provision will help facilitate proper communication among responders
and the facility to ensure the appropriate type and level of response
is provided during a release.
While EPA encourages follow-up communication with local responders
and the public after conclusion of response activities, EPA does not
believe that an interim written follow-up-notice of the actual final
release information should be required after the response ends. EPA
believes that the public meeting requirement at 40 CFR 68.210 and the
five-year accident history requirement at 40 CFR 68.42 provide adequate
time for the facility to gather and finalize information to share with
the public. The Agency notes that sources are required to update their
accident histories in their RMPs within 6 months of an RMP-reportable
accident (40 CFR 68.195(a)). Additionally, many States separately
require follow-up release reporting within a short time after response
activities are concluded (e.g., 30 days), and this information may be
publicly available.
Regarding providing real time air quality data to the public, EPA
acknowledges the need to consider expanding fenceline monitoring
requirements for RMP-regulated facilities to provide real time data to
local responders and the public. EPA took comment on this in the
proposal and is reviewing the comments received in consideration for a
future rulemaking.
In response to the comment that facilities are already required to
notify and provide information about imminent releases to the NRC,
SERCs, and LEPCs under CERCLA and EPCRA, EPA has amended the language
in the final rule to allow existing release notification requirements
to satisfy this provision, if applicable. EPA acknowledges that EPCRA
section 304, CERCLA section 103, and the CSB have similar Federal
reporting requirements, and that there may also be State-only
requirements for release notification and reporting that could meet
this requirement. Therefore, EPA believes the amendment to this
provision can help prevent any undue burden in complying with multiple
requirements when a chemical release occurs. EPA believes this
provision is particularly useful in closing regulatory gaps for
chemical release notification where other statutory requirements do not
apply. For example, reporting under EPCRA section 304 is required only
to the SERC and LEPC, and reporting under CERCLA section 103 is
required only to the NRC. Additionally, not all RMP regulated
substances are EPCRA extremely hazardous substances and/or CERCLA
hazardous substances (e.g., propane, butane, pentane, and hydrogen are
regulated under RMP, but not under EPCRA section 304 or CERCLA section
103); thus, while there might be some overlap, some chemicals will
require only Federal release reporting under RMP.
After review of comments, EPA maintains that the requirement to
provide timely release data to responders in the case of an accidental
release will help ensure that local responders have sufficient
information to make the best decision on whether community notification
is appropriate. Furthermore, EPA does agree with the recommendation
offered in the comments to prevent undue burden in complying with
multiple requirements when a chemical release occurs. EPA is therefore
finalizing the proposed provision with the following modification as
previously discussed--revising the proposed provisions for 40 CFR
68.90(b)(3) and 68.95(c) to allow existing notification mechanisms or
regulations to satisfy the RMP release notification requirements if
applicable.
Ensure a Community Notification System is in Place
a. Comments
Some commenters supported the provision that facilities ensure a
community notification system is in place. One commenter explained that
current notification procedures are inadequate, with some community
members not learning about a release until hours afterward. One
commenter noted that while they support the presence of State and/or
local alerting authorities, EPA should consider that this notification
system may not be appropriate for all communities, especially those
that are dealing with systemic barriers to safety and justice. A few
commenters suggested that, to remove the burden on facilities to
[[Page 17668]]
ensure the notification systems of local responders, EPA should change
``and ensure that'' to ``and partner to ensure that.'' Some commenters
opposed the language requiring RMP facilities to be responsible for
community warning systems and notification of emergencies to the local
community. Several commenters stated the requirements of public
notification are better suited to third parties, LEPCs, and government
agencies already tasked with this coordination. A couple of the
commenters stated these agencies have the resources and infrastructure
needed for disseminating emergency information to a community and
coordinating local response. A few commenters noted that while
Integrated Public Alert & Warning Systems (IPAWS) are in use in
communities nationwide, many facilities are not in areas with these
systems. Furthermore, a few commenters expressed that neither the
burden of ensuring IPAWS capabilities nor providing direct notification
to the public should fall on RMP facilities. Another commenter noted
that IPAWS does not accept information from private entities, only
government entities. One commenter stated that while they support the
need for a community notification system, they believe EPA should
ensure that RMP facilities covered under this rule are in areas already
covered by the IPAWS and, if so, re-evaluate how this may impact local
governments and their ability to allocate resources.
b. EPA Responses
In response to comments that the language in this provision should
be changed from ``and ensure that'' to ``and partner to ensure that'' a
community notification system is in place, EPA has amended the language
as suggested. It was not EPA's intention in the proposed provision to
transfer inherent government responsibilities to RMP regulated
facilities. Rather, EPA's intention for this provision has always been
for facility owners and operators to work with the local responders to
ensure that, during a release, a notification system is in place that
will notify the public of the impending situation. The Agency expects
that in most cases government emergency response officials will be the
entities providing the notice. However, for the purposes of this rule,
regulated facilities which have accidental releases are responsible for
ensuring a prompt emergency response to any release at their facility's
covered processes in order to protect human health and the environment.
As discussed in the proposal, if local public responders are not
capable of providing such a response, the owner or operator is
ultimately responsible for ensuring effective emergency response to any
release at their facility occurs.
EPA expects the partnership between facility owners and operators
and emergency response officials to ensure a public notification system
is in place should occur at least during annual coordination
discussions under 40 CFR 68.93. Under 40 CFR 68.93, owners and
operators are required, among others, to annually coordinate response
needs with local emergency planning and response organizations to
determine how the facility is addressed in the community emergency
response plan. A component of the community emergency response plan is
public notification of chemical releases, and it is expected that this
component will be discussed and documented by the facility owner or
operator as part of the annual coordination obligations.
With regard to specific comments about IPAWS, EPA acknowledges that
while IPAWS is not currently operational in all communities, it could
be. IPAWS is available in all States statewide, and, if not currently
available in certain local communities, it can be made available if the
local designated government authorities apply to be an Alerting
Authority.\102\ While IPAWS is a well-known option as a notification
system compliant with this provision, EPA is not requiring the use of
this specific system to be the one solely used to notify the public.
EPA encourages facility owners and operators to work with response
agencies to determine how best to alert a potentially affected
community about impending chemical releases.
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\102\ A jurisdiction 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; https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system/public-safety-officials/sign-up.
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After review of comments, EPA maintains that the requirement to
ensure that, during a release, all necessary resources are in place for
a community notification system to function and operate as expected
will help protect the public from accidental releases. Furthermore, EPA
agrees with the recommendation offered in the comments to enhance the
provision. EPA is therefore finalizing the proposed provision with the
following modification as previously discussed--revising the proposed
provisions for 40 CFR 68.90(b)(6) and 68.95(a)(1)(i) to specify that
the owner or operator should partner with local response agencies to
ensure a community notification system is in place and to document the
collaboration.
3. Emergency Response Exercises, 40 CFR 68.96(b)
Field Exercises
a. Comments
Several commenters expressed support for the 10-year timeline for
conducting field exercises. One of the commenters noted that the
timeline would allow local responders to maintain capabilities and
familiarity with facility processes for responding to accidental
releases. The same commenters added that the timeline also would allow
industry to obtain appropriate staff, experts, and funds. A few
commenters particularly expressed support for EPA's efforts to
encourage and require facilities to coordinate with LEPCs in
circumstances where it is practical. Other commenters opposed the
proposed provision, with some offering suggestions for improvement.
Several commenters noted that EPA should recognize that not every
location has a functioning LEPC that can coordinate field exercises
with facilities and that clear carve outs should be established. The
commenters suggested that EPA allow facilities to demonstrate a good
faith effort to coordinate with LEPCs or demonstrate the absence of an
LEPC as exemptions from this requirement. A few commenters expressed
concerns regarding the proposed requirement for State and Federal
approval of a change in frequency. The commenters noted that it would
be inappropriate for EPA to provide Federal and State officials veto
power over scheduling an exercise for which they have no required role.
One of the commenters recommended that EPA remove the reference to
Federal and State agencies, to clarify that RMP facilities do not need
to obtain approval from Federal or State agencies if the local
emergency responders have identified the frequency of an exercise is
impractical.
b. EPA Responses
EPA agrees with comments that describe the varying capabilities of
LEPCs and responding agencies and believes the approach the Agency
offers supports those comments. The Agency believes the frequency
exemption provided, which allows facilities and communities that do not
have resources to complete field exercises every 10 years to work
together to determine a lesser frequency, is more useful than the
Agency being more prescriptive about when the frequency does not apply.
[[Page 17669]]
EPA believes various communities have different concerns as to why they
would need to conduct field exercises less frequently and therefore
does not expect a one-size fits all approach to be appropriate in
accommodating those various circumstances. Additionally, EPA
understands that there may be cases where local emergency response
agencies are unable or unwilling to coordinate with a regulated
facility on exercise frequencies. In such cases, the owner or operator
may establish appropriate exercise frequencies and plans on their own,
provided they meet the minimum requirements set forth in 40 CFR 68.96.
The final rule will not specifically require the owner or operator to
document unsuccessful coordination attempts, but EPA believes it will
be in the owner or operator's best interest to do so and allow the
owner or operator to demonstrate their good faith efforts for
consultation in the event that an implementing agency requests this
information.
In response to comments that EPA should remove the reference to
consultation with Federal and State agencies when developing field
exercise frequencies, EPA has amended the language to reflect that the
consultation required for this provision need only be with local
emergency responding agencies. EPA acknowledges that the emergency
response exercise program provisions under 40 CFR 68.96(b), only
require coordination with local public emergency response officials,
and wants to remain consistent with activities that most likely will
occur on the local level.
Therefore, EPA is finalizing the requirement for facility owners
and operators to coordinate with local emergency response officials to
establish an appropriate frequency for field exercises at a minimum at
least once every ten years unless the appropriate local emergency
response agencies agree in writing that such frequency is impractical.
EPA is not finalizing the requirement for Federal and State agencies to
be consulted when coordinating the 10-year (or other determined)
frequency.
Emergency Exercise Reports
a. Comments
Several commenters expressed their support for the requirement that
the current recommended field and tabletop exercise evaluation report
components be mandatory. Other commenters opposed the provision. One of
the commenters noted that EPA failed to consider the paperwork burden,
hours and costs associated with requiring the reporting of such
information. One commenter mentioned that, in 2019, EPA recognized 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. The commenter urged EPA to
retain this flexibility and not add this requirement to the existing
RMP rule. Another commenter noted that the proposed post-exercise
reporting requirements provide little value to the program.
b. EPA Responses
EPA disagrees that the requirement of this provision--to make the
scope and documentation requirements of the exercise evaluation report
mandatory--is overly burdensome. While the elements of the evaluation
report were not previously mandatory, there was already a requirement
to develop a report. In most cases, for those previously voluntary
report elements, particularly lessons learned and recommendations for
improvement, EPA had expected these to be included in the report, as
they are advantageous in assuring that over time emergency response
efforts improved. Other report elements such as names and organizations
of each participant are expected to be collected using low-cost
methods, such as sign-in sheets or registration websites. Local
emergency response organizations participating in exercises will also
likely be able to assist the owner or operator in collecting and
providing this information. EPA has updated the RIA to consider the
minimal paperwork hours and costs associated with this provision.
The Agency acknowledges that it had previously stated in the 2019
reconsideration rule that the scope and documentation provisions left
as discretionary would allow owners and operators to coordinate with
local responders to design exercises that are most suitable for their
own situations. Different facilities use a variety of emergency
response equipment types and may have many different actions specified
in their emergency response plans. However, as discussed in the
proposal, EPA now finds it beneficial to provide consistency between
exercise evaluation and incident investigation documentation
requirements, as incident investigation reports can be used to satisfy
response exercise evaluation report requirements under the current
rule. Since EPA cannot anticipate all variations of incidents that may
occur, EPA also cannot anticipate all variations of appropriate
exercises. The current provision for incident investigation reports
under 40 CFR 68.60 and 68.81 identifies general topics that must be
included in the report but does not contain further prescriptive
requirements about how those topics need to be addressed. Similarly, so
will similar general elements guide the content of exercise evaluation
reports. The flexibility in both provisions allows participants to
develop an evaluation that owners, operators, and responders can learn
from.
Upon consideration of comments, EPA is finalizing the provision to
require mandatory reporting for exercise evaluation reports as
proposed.
VII. Information Availability
A. Summary of Proposed Rulemaking
EPA proposed to amend 40 CFR 68.210 by adding new paragraphs (d),
(e), and (f). Proposed 40 CFR 68.210(d) required the owner or operator
of a stationary source to provide, upon request by any member of the
public residing within six miles of the stationary source, certain
chemical hazard information for all regulated processes in the language
requested. EPA proposed to require the owner or operator to provide, as
applicable:
Names of regulated substances held in a process.
Safety Data Sheets (SDS) for all regulated substances at
the facility.
The facility's five-year accident history required under
40 CFR 68.42.
Emergency response program information concerning the
source's compliance with 40 CFR 68.10(f)(3) and the emergency response
provisions of subpart E, as applicable, including: (1) Whether the
source is a responding stationary source or a non-responding stationary
source; (2) name and phone number of local emergency response
organizations with which the owner or operator last coordinated
emergency response efforts, pursuant to 40 CFR 68.180; and (3) for
sources subject to 40 CFR 68.95, procedures for informing the public
and local emergency response agencies about accidental releases.
A list of scheduled exercises required under 40 CFR 68.96.
LEPC contact information, including LEPC name, phone
number, and web address as available.
Proposed 40 CFR 68.210(e) required the owner or operator to provide
ongoing notification on a company website, social media platforms, or
through other publicly accessible means that:
Information specified in proposed 40 CFR 68.210(d) is
available to the
[[Page 17670]]
public residing within six miles of the stationary source upon request.
This notification is required to: (1) Specify the information elements,
identified in 40 CFR 68.210(b), that can be requested; and (2) provide
instructions for how to request the information.
Identifies where to access information on community
preparedness, if available, including shelter-in-place and evacuation
procedures.
Proposed 40 CFR 68.210(f) required the owner or operator to provide
the requested information under proposed 40 CFR 68.210(d) within 45
days of receiving a request.
In addition to the proposed approach to this information
availability provision, EPA also sought feedback on if the 6-mile
radius for requesting information is appropriate, or if other
alternative distances would be more suitable. The Agency also requested
specific information on the increased likelihood of security threats
arising from dissemination of this information, and which data
elements, or combinations of elements, may pose a security risk if
released to the public.
B. Summary of Final Rule
EPA is finalizing 40 CFR 68.210 with changes to address public
comments, including potential security concerns. Under 40 CFR
68.210(d), the final rule:
Expands the population eligible to submit information
requests to include members of the public residing, working, or
spending significant time in a 6-mile radius from the fenceline of the
facility, as opposed to just those residing in a 6-mile radius.
Includes a verification process to confirm that members of
the public submitting information requests reside, work, or spend
significant time in the 6-mile radius, and a recordkeeping component of
the requestors.
Limits the language translations offered for information
available upon request to at least two major languages used in the
community (other than English), while the proposed rule would have
required the owner or operator of a stationary source to provide
information in any language requested.
Excludes dates of exercises occurring within one year of
the date of request.
Expands the list of information required to be available
upon request to include declined recommendations reported under 40 CFR
68.170(e)(7) and 68.175(e)(7) through (9).
C. Discussion of Comments and Basis for Final Rule Provisions
1. Requirement To Make Information Available to the Public
EPA's Proposed Approach
a. Comments
Several commenters generally supported increasing information
sharing and provided further recommendations in addition to the
provisions outlined in the proposed rule.
Several other commenters generally opposed the proposed information
availability requirements, including those who opposed the provision
because it may create unintended community anxiety. Several commenters
noted that due to the complex technical information such as SDSs, it
will have limited value or use to the public, and instead EPA's efforts
should focus on improving the LEPC's ability to interpret the
information. One commenter noted that the LEPC should be provided with
relevant chemical hazard information, which then could be shared with
local citizens. A commenter stated that the general premise that making
the RMP more accessible to the public will encourage facility operators
to be more safety-conscious via the imposition of ``community pressure
and oversight'' is misguided. The commenter added that requiring
members of the public to ``pull'' the information from the facility
does little to promote proactive safety and accident/risk reduction at
the fencelines as that public member must first have some idea that a
facility presents a risk.
Several commenters indicated that the proposed information
availability requirements would be burdensome for facilities. A few
commenters stated that EPA underestimates the costs to deliver
community information requests. One commenter noted that facilities may
not have the expertise for communicating the information as envisioned
by EPA. One commenter stated that the requirement to disclose
information would potentially make facilities with covered processes
the target of high volumes of requests submitted by individuals or
groups.
A few commenters noted that the proposed requirements would be
duplicative of EPCRA. Some commenters recommended EPA consider existing
programs that already require facilities to report specific
information.
b. EPA Responses
EPA continues to believe that providing chemical hazard information
to the general public will allow people that live or work near a
regulated facility to improve their awareness of risks to the community
and to be prepared to protect themselves in the event of an accidental
release. The public's ability to participate in emergency planning and
readiness is enhanced by being better informed about accident history,
types of chemicals present, and how to interact with the stationary
source. In drafting both the proposed and final rule, EPA has been
selective in identifying what information a source must make available;
for example, the Agency has not required the facility to provide an
entire RMP to the public.
The Agency disagrees that community involvement in prevention and
response planning, which in effect is a form of oversight and may be
perceived as ``pressure,'' does not have value in minimizing the
likelihood of accidental releases and in improving the responses to
such releases. The statute itself provides support for the Agency's
position by generally making RMPs available to the public, subject to
limited restrictions (42 U.S.C. 7414(c), 42 U.S.C. 7412(r)(7)(H)). In
the 2022 SCCAP proposed rule, the Agency discussed its multiple means
of access to information about a source to facilitate involvement about
the risks a source presents (87 FR 53602). The Agency believes every
RMP regulated source presents some level of risk, as each regulated
source stores and manages toxic or flammable substances which may be
accidentally released. Having the source provide the information set
out in 40 CFR 68.210 directly to the public within the confines of the
final rule promotes accident prevention and response by facilitating
public participation at the local level.
Under CAA section 112(r)(7)(H)(ii)(I)(bb), EPA conducted a benefits
assessment in 2000, describing the benefits of providing community
access to OCA information specifically but also addressing the benefits
of public disclosure of risk management plan information. EPA found
that public disclosure of risk management plan information would likely
lead to a reduction in the number and severity of accidents.\103\ It
also found that comparisons between facilities,
[[Page 17671]]
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. The approach taken in this
final rule builds upon the planning approach of EPCRA and EPA studies
of the value of ``right to know'' in emergencies.
---------------------------------------------------------------------------
\103\ 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, at 2.
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While EPA acknowledges the potential for ``community anxiety'' as a
result from the affected public having easier access to information
about safety risks, public participation in the pre-rulemaking
listening sessions and during the public hearings in this rulemaking
demonstrate that anxiety among the public near facilities already
plainly exists as a result of the more cumbersome disclosure
authorizations of the current rule. The Agency expects a more informed
and involved public, as a result of this final rule, to have less fear
of the unknown.
In response to commenters recommending that the facility share the
information with the LEPC, which would then be responsible for sharing
the information with interested members of the public, EPA notes
analysis of active facility risk management plan submissions
demonstrates that 10 percent of active facilities have not provided the
names or information about their LEPCs. Without further 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
Freedom of Information Act (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. Therefore, EPA believes that providing information solely
to LEPCs would not be sufficient or improve safety as effectively as
additionally requiring that information be provided directly to the
affected public.
Regarding comments on the burden of the information availability
requirements, EPA notes that other statutes and regulatory programs, or
other provisions of the RMP, require the stationary source to assemble
the information that the rule makes available upon request (e.g.,
accident history, SDSs, and aspects of the emergency response program).
Thus, the burden of making this information directly available from the
source is minimal.
Regarding comments stating that the proposed requirements are
duplicative of existing reporting requirements, EPA believes, for the
reasons already stated, that this information should be more easily
accessible to the public than the existing approaches to access
information under EPCRA and other programs/regulations.
Translation Requirements
A commenter stated that the information should be provided in plain
language and in multiple languages. Another commenter stated it is
difficult for facilities to translate technical information into
multiple languages. A couple of commenters noted that the proposed
translation requirements go beyond EPA authority and would be
burdensome and costly.
The final rule requires that language translations be offered in at
least two other major languages in the community. EPA expects owners
and operators to use the most recent Census Language Use data,\104\ or
other recent authoritative information,\105\ to determine the two major
languages spoken in a comparable size designation to the six-mile or
worst-case release scenario distance radius of their facility. EPA
believes this will provide the vast majority of the surrounding
community with the information requested and account for language
barriers while minimizing burden to facilities. Requiring translation
in up to two of the major non-English languages of the community
reflects a balance of the right-to-know purposes of CAA section
112(r)(7)(B)(iii) with the time and financial burden of providing such
translations. The Agency believes community involvement is integral to
a well-functioning accident prevention program, and the translation
requirement promotes accomplishing this objective.\106\
---------------------------------------------------------------------------
\104\ https://data.census.gov/table?t=Language+Spoken+at+Home.
\105\ https://www.lep.gov/language-access-planning.
\106\ While not the basis of this provision, these language
translation requirements advance the policies in Executive Orders
13166 and 14096: 88 FR 25251 (April 26, 2023), https://www.federalregister.gov/documents/2023/04/26/2023-08955/revitalizing-our-nations-commitment-to-environmental-justice-for-all; 65 FR 50121 (August 16, 2000), https://www.federalregister.gov/documents/2000/08/16/00-20938/improving-access-to-services-for-persons-with-limited-english-proficiency.
---------------------------------------------------------------------------
Notification Requirements
One commenter noted that the information available to the public is
meaningless if the public does not know it exists. Therefore, the
commenter suggested that EPA require facilities to provide notice to
communities within six miles that they have the right to request this
information.
EPA agrees with the commenter that the information availability
requirements are most impactful if the public is aware of the
availability of the information. Therefore, EPA is finalizing the
proposed requirements that the owner or operator of the facility
provide ongoing notification on either a company website, social media
platforms, or through other publicly accessible means, that facility
information is directly available to the public within six miles upon
request.
45-Day Disclosure Timeline
A few commenters suggested EPA shorten the required response time.
A couple of commenters specifically expressed concern that the 45-day
period to receive information once requested is too long for people to
wait for that urgently needed information.
EPA is finalizing the 40 CFR 68.210(g) requirement that the
facility owner or operator provide the information under 40 CFR
68.210(d) to the requester within 45 days of receiving a request. EPA
selected 45 days because that timeframe is consistent with the
requirement for the public availability provision of facility chemical
inventory information (i.e., ``Tier II information'') under section
312(e)(3)(D) of EPCRA, which states, ``a State emergency response
commission or LEPC shall respond to a request for Tier II information
under this paragraph no later than 45 days after the date of receipt of
the request.'' EPA believes the 45-day timeline appropriately balances
the burden imposed on facilities to keep chemical hazard information
updated and the need to provide the public with timely access to this
information. EPA encourages facilities to update their chemical hazard
information as needed to ensure that accurate information can be made
available to the requester within the required timeframe.
Suggestions for EPA To Disclose Facility Information
Many commenters suggested that EPA create an online database to
contain information from facilities. A couple of commenters stated that
it is essential for EPA to take prompt action to provide publicly
accessible information on RMP facility hazards and safety plans on the
Agency's website. Similarly, a few commenters stated that EPA should
develop, maintain, and update a public, multilingual online database
containing non-protected RMP information.
[[Page 17672]]
By policy, EPA has restricted access to the RMP database, even
though only a portion of the database is restricted by CAA section
112(r)(7)(H) and its implementing regulations in 40 CFR part 1400. As
described in the 2022 SCCAP proposed rule, EPA intends to, at a
prospective date, begin publishing non-OCA risk management plan data
annually, less any CAA section 112(r)(7)(H) protected sensitive
information (87 FR 53602). The discussion in the proposed rule was
intended to highlight some of the issues that are relevant to relaxing
restrictions on data availability.
Environmental Justice and Fenceline Communities
Several commenters recommended EPA consider EJ and fenceline
communities when developing information availability provisions,
including, by championing community information as a fundamental EJ
goal. One commenter suggested that EPA inform fenceline communities
that they live near an RMP facility because, oftentimes, people are
unaware that they live near RMP facilities.
EPA has considered impacts and risks to local communities,
including communities with EJ concerns and fenceline communities
throughout the rulemaking process. EPA believes that the final
information availability provision makes significant improvements to
provide more information to the public, including communities with EJ
concerns and fenceline communities.
2. 6-Mile Radius
a. Comments
A few commenters supported EPA's proposed approach of the 6-mile
radius for requesting information.
Several commenters recommended EPA abandon any geographic
limitation and instead make basic emergency preparedness information
commonly available to the public. One commenter emphasized that the
proposed rule violates FOIA as non-OCA RMP data are public information.
The commenter noted that EPA cannot deny public access to this
information. The commenter also noted that this restriction would
violate 42 U.S.C. 7412(r)(7)(B), which requires EPA to provide
prevention, incident detection, and response ``to the greatest extent
practicable.'' One commenter stated that the proposal's within 6-mile
residency requirement creates an unnecessary obstacle to accessing
information that could undermine EPA's goals to address EJ, especially
as people in fenceline communities may not have a trusting relationship
with government authorities, a home address, or documented status to
demonstrate their residency. The commenter requested EPA eliminate the
requirement that community members demonstrate they live within six
miles of a facility to access information.
Several commenters suggested that the 6-mile radius lacks
justification and is arbitrary. Some of the commenters expressed
concerns that residents could use a P.O. Box within 6-miles of a
facility to obtain access to and share information. Several commenters
noted there are no means to retain or prevent information from being
shared outside of its intended use.
Many of the commenters referenced social media and other web-based
networks as means of quickly spreading sensitive information. Some
commenters added that terrorists and criminals would be able to readily
obtain sensitive information and could easily falsify their identity or
location. Several commenters requested EPA to clarify what is meant by
the requirement of a person to ``reside'' within six miles of a
facility and how a facility will be able to verify the information.
A couple of the commenters suggested EPA build upon existing
programs and safeguards, such as LEPCs, to protect sensitive chemical
information instead of choosing to impose an arbitrary 6-mile
threshold. One commenter added that EPA did not explain how the 6-mile
radius requirement builds on existing regulatory programs designed by
Department of Homeland Security (DHS) and EPA to safeguard sensitive
information. One commenter recommended that anyone requesting
information should be required to complete a mandatory background check
before any information is shared. Another commenter stated that EPA
should not put the responsibility of vetting community members on
facilities.
b. EPA Responses
EPA believes the 6-mile radius restriction to be reasonable, as 90
percent of all toxic worst-case distances to endpoints are within six
miles or less, and almost all flammable worst-case distances are less
than 1 mile (87 FR 53601). The 6-mile radius for being able to request
information from facilities allows people in most areas potentially
impacted by a worst-case scenario to have access to information while
also providing a limit on widespread access to nationwide assembly of
data. EPA agrees with commenters that allowing only those individuals
that reside within the 6-mile radius to access information is too
limited and has thus expanded the provision in the final rule to also
allow members of the public working or otherwise spending significant
time in the 6-mile radius to request information from a facility.
The 6-mile radius limitation also seeks to limit the potential
security risk of allowing anonymous confidential access to this
information to the entire public that was of concern to EPA in the 2019
reconsideration rule. This approach strikes a better balance between
those security concerns and the interests of people spending
significant time near facilities who could benefit from the
information, including personal preparedness in the event of an
accident, knowledge of potential risks and safety conditions where one
lives, and more informed participation in community emergency and
safety planning.
EPA is also clarifying in the final rule that the 6-mile radius is
from the fenceline of the facility. EPA expects that in most cases, six
miles from the fenceline is the appropriate definition, as opposed to
six miles from process locations or any other location at the facility,
because this consistent approach captures the wide variations of
facility size, process locations and any process movement within the
facility. It is also simpler to verify for the public and oversight
agencies and does not require revealing of the precise location of the
place in the process from which a release could occur, which may raise
security concerns.
In response to comments requesting clarification on what it means
for a person to ``reside'' within six miles of a facility, the final
rule specifies that members of the public residing, working, or
spending significant time in a 6-mile radius from the fenceline of the
facility are able to submit information requests to a source. EPA
interprets residing as occupying a dwelling (owning or renting),
working as having paid employment, and spending significant time as
frequently using services, volunteering, visiting with family or
friends, etc.
Regarding concerns about the verification of the identity of
members of the public requesting information, EPA is requiring sources
to provide instructions for how to request the information, which
should include the necessary verification components for the public
within a 6-mile radius of the facility. Nothing in the rule requires a
facility to accept a mere P.O. Box address as evidence of residence,
employment, or presence within the 6-mile radius. For this final rule,
EPA is
[[Page 17673]]
also requiring owners and operators to maintain a record of the
requestors. The final rule leaves substantial flexibility for
facilities to design a process for obtaining verification and keeping
records of requestors that allows for facilities to have a suitable,
minimally burdensome process for themselves and the community. The
final rule allows for a straightforward process that does not hinder
the right of the public to access this information, allows facilities
to be aware who has their information, and permits oversight by
implementing agencies. However, as this is a performance-based
provision, just as most components of the rule, EPA recognizes that
there is not a one-size fits all approach that works best for notifying
the public that this information is available and verifying presence
within a 6-mile radius. EPA expects facility owners and operators to
notify the public that information is available in a variety of ways,
such as using free or low-cost internet platforms, and social media
tools that are designed for sharing information with the public. EPA
also expects verification of the population within the 6-mile radius to
be carried out through many methods, such as asking a member of the
public to provide a utility bill for verification of residence, pay
stub for verification of employment, or specific documentation to
verify significant time spent within the 6-mile radius. EPA encourages
the facility owner or operator to coordinate information distribution
and verification requirements with the LEPC or local emergency response
officials to determine the best way to reach public stakeholders. EPA
notes that the owner or operator shall document the method and the
location of the notification in the RMP pursuant to 40 CFR
68.160(b)(22).
The 6-mile radius provision reasonably and practicably balances
enhancing means of access for affected communities while also limiting
security concerns about widespread, anonymous access that raised
concerns in EPA's 2019 reconsideration rule. Further, the final
provisions do not limit or violate FOIA rights of the public to obtain
Government-held records.
3. Data Elements To Be Released to the Public
a. Comments
In the preamble of the proposed rule, EPA solicited comment on its
announcement of its policy decision that, at some future date, EPA
would post online portions of the RMP database that do not contain
legally restricted information or information that raises significant
security concerns. The Agency solicited comments to help identify such
information. The comment solicitation did not propose regulatory
changes, but instead sought public input on a policy position.
Nevertheless, because some of the data elements EPA is considering
releasing through policy change are the same data elements facilities
will be required to disclose under the information availability
regulatory provision in this final rule, discussion of the comments and
the Agency's rationale of releasing those data elements, through a
future policy change and in this final rulemaking, is provided here.
In response to this comment solicitation, many commenters discussed
data elements that should not be publicly released in order to avoid
security threats. One commenter stated that security sensitive
information, such as OCA data, should only be publicly accessible
through Federal Reading Rooms. A few commenters listed specific
elements that should not be publicly available, citing a potential
increased vulnerability to terrorist attacks.
Data elements noted by commenters as posing security threats if
released to the public, which the commenters argued should therefore
not be disclosed, include:
Chemical hazard information.
Specific substance names and hazard characteristics.
Names of regulated substances held in a process, SDSs, and
any site-specific information.
Information regarding hazardous substances on site.
Storage location and transportation information.
Emergency response details.
Audit reports and exercise schedules and summaries.
Accident history.
One commenter stated that sensitive information, such as audit
reports, exercise schedules and summaries, and emergency response
details, does not prevent accidents or reduce potential harm, but does
increase the vulnerability of a facility to attacks by terrorists or
other criminals. One commenter stated that specific information
regarding security threats is held by DHS, and providing documented
security threats, or security risks from prior incidents or near
misses, provides a road map for bad actors and propagates future
security threats.
A couple of commenters noted that some information, including CBI
and trade secrets, should not be shared with the public. Another
commenter stated that proprietary information about processes and
chemicals should be in the safety plan without disclosing details that
would allow the methods, procedures, or other intellectual property to
be stolen. One commenter noted that EPA should reinstate previous
language that enabled facilities to assert a claim of business
confidentiality regarding any information they are required to make
public under the RMP rule.
b. EPA Responses
The responses below address comments concerning the data elements
required to be released by the source upon request. Additionally, EPA
will consider the input from the commenters when the Agency proceeds
with a policy decision on whether to put some portions of the RMP
database online again in the future. As such, the responses that
immediately follow are also provided to facilitate public dialogue
about implementing EPA's potential policy change.
EPA agrees with commenters that suggested only information that
could improve community awareness of risks should be made available to
the public. Having the source provide the information set out in 40 CFR
68.210 directly to the public promotes accident prevention by
facilitating public participation at the local level. It should be
noted that EPA has been selective in identifying what information a
source must make available; for example, the Agency will not require
the facility to provide an entire RMP to the public. EPA believes the
public has a substantial interest in knowing what chemicals are present
in the community and what it should do in the event of an accidental
release involving facilities handling those chemicals. The public also
has a substantial interest in having the opportunity to participate in
an informed manner regarding emergency planning in its community.
Facilitating access to information before an incident promotes more
effective communication of information during responses to incidents,
and thus promotes more effective response programs. (See the
requirement in CAA section 112(r)(7)(B)(ii)(III) for response programs
to address informing the public.) The public's ability to participate
in emergency planning and readiness is materially advanced by being
better informed about accident history, types of chemicals present, and
how to interact with the stationary source. Nevertheless, of the
information options proposed, EPA acknowledges some security concerns
with releasing
[[Page 17674]]
information identifying actual upcoming dates of tabletop or field
exercises. EPA is therefore requiring facilities to provide a list of
exercises that will occur within the year, indicating that they will
occur, rather than identifying the specific date they will occur.
Although commenters did not explicitly request that the list of
information required to be available upon request should include
declined recommendations from new provisions, EPA is including this
within the final rule. EPA intended this information to be available as
the Agency indicated in the proposal that including this information in
the RMP would ultimately enable the public to ensure facilities have
conducted appropriate evaluations to address potential hazards that can
affect communities near facility fencelines. When local citizens have
adequate information and knowledge about facility hazards, EPA believes
that facility owners and operators may be motivated to further improve
their safety in response to community pressure and oversight.
At this time, EPA will not require the owner or operator to make
additional information available to the public, such as STAA reports,
incident investigation reports (with root cause analyses), and third-
party audit reports. EPA acknowledges there is public interest in
having these reports available to them, but these documents, which can
be lengthy (e.g., the sectors subject to STAA requirements have
multiple processes and some PHAs are hundreds of pages), technically
complex, and could contain not only CBI, but sensitive security
information involving process or equipment vulnerabilities. Even
sanitizing submitted documents and providing upfront justification of
CBI claims would entail a significant level of burden upon industry and
EPA. It would not be practical or a good use of resources to have
thousands of documents submitted to EPA, to any other body, or with the
RMP submission. However, EPA may explore opportunities to simplify this
information for public access in a future rulemaking.
EPA is committed to safeguarding OCA information in accordance with
requirements specified in the CSISSFRRA, which allows for any member of
the public to access paper copies of OCA information for a limited
number of facilities. This OCA information remains accessible to the
public only in Federal Reading Rooms \107\ or upon voluntary disclosure
by the source itself. CAA section112(r)(7)(H)(v)(III).
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\107\ https://www.epa.gov/rmp/federal-reading-rooms-risk-management-plans-rmp.
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EPA has received comments in the past with concerns regarding CBI
and directs these commenters to the requirements in 40 CFR 68.152 for
substantive criteria set forth in 40 CFR 2.301. EPA acknowledges and
shares industry's concerns pertaining to protection of CBI information,
but EPA believes that the Agency has addressed these concerns by
providing the same CBI protections for the public information
availability provisions that exist for the RMP under 40 CFR 68.151 and
68.152 as for information contained in the RMP required under subpart
G. As provided under 40 CFR 68.151(b)(3), an owner or operator of a
stationary source may not claim five-year accident history information
as CBI. As provided in 40 CFR 68.151(c)(2), an owner or operator of a
stationary source asserting that a chemical name is CBI shall provide a
generic category or class name as a substitute. CBI disclosure under
EPCRA is controlled by that statute and rules implementing the
information access provisions of EPCRA. Furthermore, EPA is not
requiring STAA reports to be submitted to LEPCs or the public in the
final rule, and, therefore, no CBI concerns exist for these reports. If
an owner or operator has already claimed CBI for a portion of the RMP,
then that claim still applies for the disclosure elements in the
information availability provisions of the rule. The owner or operator
should provide a sanitized version as described in the RMP*eSubmit
User's Manual. This policy is consistent with existing RMP guidance and
practices.
4. Security Concerns
a. Comments
A few commenters stated that there is no evidence that increasing
information availability leads to security issues. Another commenter
noted that there is no evidence that community members have caused a
chemical disaster or that they pose any security risk. The commenter
stated that a valuable way to address any security risks is to provide
full public transparency and give facilities more incentive to prevent
disasters by reducing or minimizing hazards up front. One commenter
noted that eliminating chemical hazards and reducing risks present at
industrial chemical facilities will not only prevent disasters in the
event of an accident but will also prevent and reduce harm in the event
of an intentional act, such as a cyberattack.
Several commenters emphasized security risks of the proposed rule,
including risks of terrorist attacks or criminal activity. One
commenter stated that the proposed information disclosure requirements
raise security risks and impose significant burdens with no added
benefit. Another commenter noted that providing additional sensitive
accident investigation and chemical information to the public could
result in a national homeland security concern.
Several commenters noted the additional risks of cybersecurity
attacks. A commenter added that other Federal agencies opposed these
requirements, citing security concerns detailed in a 2000 report issued
by the Department of Justice (DOJ). A couple of commenters noted that
other Federal agencies raised security concerns with the proposed
disclosure requirements during interagency review.
Several commenters recommended that EPA withdraw its proposed
information sharing provisions due to conflicts with information
security protocols under DHS Chemical Facility Anti-Terrorism Standards
(CFATS) regulations. One commenter noted that the availability of
information requirements included in the proposed rule are in conflict
with CSISSFRRA, U.S. Department of Transportation (DOT) Regulations,
and DHS Regulations. A few commenters noted that the proposed public
disclosure requirement is contrary to the Critical Infrastructure
Information Act of 2002, and one commenter noted it is also in conflict
with the Maritime Transportation Security Act. One commenter noted that
EPA's proposed information disclosure requirements may conflict with
existing DHS regulations restricting the disclosure of Chemical-
terrorism Vulnerability Information (CVI).
b. EPA Responses
EPA acknowledges the security concerns raised by commenters and is
committed to ensuring a balance between making information available to
the public while also safeguarding that information. EPA worked closely
with Federal partners, including the DHS and the Federal Bureau of
Investigation (FBI), to develop information availability requirements
that strike a balance between security concerns and the need for
sharing chemical hazard information with the public. EPA believes that
the finalized approach is consistent with existing requirements to
secure sensitive
[[Page 17675]]
information. EPA also believes the current approach to notify the
public that information is available upon request strikes an
appropriate balance between various concerns, including information
availability, community right-to-know, minimizing facility disclosure
burden, and minimizing information security risks.
EPA believes the information disclosures required by the final rule
are fully consistent with the statutes and regulatory programs
identified by the commenters as enacted after the 1990 CAA Amendments.
For example, CSISSFRRA specified that portions of RMPs containing
``offsite consequence analysis information'' (OCA Information), any
electronic data base created from those portions, and any statewide or
national ranking derived from such information is subject to
restrictions on disclosure under CAA sections 112(r)(7)(H)(i)(III) and
112(r)(7)(H)(v). Regulations jointly promulgated by EPA and the DOJ
further define OCA Information in 40 CFR 1400.2(j). The final rule will
not require disclosure of release scenarios or rankings based on such
scenarios, nor will it make available any information based on such
scenarios. First, the Critical Infrastructure Information Act restricts
information ``not customarily in the public domain.'' Further, CFATS
creates a category of information, CVI, which protects certain
information submitted to DHS and necessary to implement CFATS (see 6
CFR 27.400). In promulgating CFATS, DHS announced its intent to
preserve Federal release disclosure, emergency planning, and accident
prevention statutes, including EPCRA and CAA section 112(r) (see 72 FR
17714, April 9, 2007). In this final rule, EPA creates no tension
between after-enacted programs and enhancement of the RMP. The
information that the final rule requires facilities to disclose largely
draws on information otherwise in the public domain and simplifies the
public's access to it. EPA has acknowledged that there would be some
value to assembling a centralized, anonymously accessible government
database of already-public information relevant to identifying and
prioritizing facilities for potential impacts. However, this final rule
does not create a central database of the information required to be
disclosed, nor does it permit anonymous access. The limits on
disclosure and access are important steps to minimize security risks.
EPA has therefore coordinated with both the DHS Cybersecurity &
Infrastructure Security Agency (CISA) which manages the CFATS program
and the FBI in order to take steps that will balance accident
prevention and security interests.
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.108 109 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.\110\ 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 section
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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\108\ 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.
\109\ 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.
\110\ 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,\111\
which DOJ also recognized in its 2000 risk assessment.\112\ With over
20 years of data now, EPA has based many of the finalized 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.
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\111\ 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.
\112\ 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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Commenters have referred to certain comments from other agencies in
connection with drafts of prior RMP rulemakings. The cited material
appeared in the docket as required by CAA section 307(d)(4)(B)(ii).
Such material is explicitly excluded from the record for judicial
review under CAA section 307(d)(7)(A). The introduction of this
material into the record by these commenters is an attempt to avoid the
exclusion under CAA section 307(d)(7)(A). Moreover, the comments
addressed early stages of the rules that prior Administrators signed,
and not the versions of prior proposed and final rules that were
published, and do not reflect the ultimate positions of sister agencies
with respect to what was published.
Regarding concerns that the 2000 DOJ report is in conflict with the
information availability requirements, EPA believes the 6-mile radius
provision ensures that, even if community members obtain information
related to OCA data, it would require a difficult nationwide-
coordinated effort among people within six miles of each facility to
create the type of online database described in DOJ's report. The
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
4 years.
[[Page 17676]]
VIII. Other Areas of Technical Clarification/Enforcement Issues
A. Summary of Proposed Rulemaking
1. Process Safety Information, 40 CFR 68.65
EPA proposed to refine the language of 40 CFR 68.65 to clarify that
the requirement to keep PSI up to date explicitly applies to Program 3
processes.
2. Program 2 and 3 Requirements for Compliance With RAGAGEP, 40 CFR
68.48 and 68.65
EPA proposed to harmonize 40 CFR 68.48(b) and 68.65(d)(2) so that
the requirements for compliance with RAGAGEP for Program 2 and Program
3 processes are identical. Specifically, EPA proposed to require that
Program 2 processes and Program 3 processes document compliance rather
than merely ``ensure'' compliance. EPA also proposed 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.''
3. Retention of Hot Work Permits, 40 CFR 68.85
EPA proposed to require retention of hot work permits for five
years, in accordance with the recordkeeping requirements in 40 CFR
68.200.\113\
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\113\ 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.''
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4. Storage Incident to Transportation, 40 CFR 68.3
EPA proposed 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 proposed to apply a
48-hour time frame to this term. EPA also proposed 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
clarify 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.
In addition to the proposed approach, EPA requested comment on
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.
5. Retail Facility Exemption, 40 CFR 68.3
EPA proposed 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.
6. RAGAGEP Gap Analysis, 40 CFR 68.69 and 68.175
EPA proposed that the RMP regulations clarify that PHAs must
include an analysis of the most recently promulgated RAGAGEP in order
to identify any gap between practices related to the facility's design,
maintenance, and operation, and the most current version of RAGAGEP.
EPA also proposed 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 were not
implemented. EPA proposed to allow facilities to choose from pre-
selected categories to provide justification for not implementing
recommendations.
B. Summary of Final Rule
EPA is not finalizing the proposed supplementary storage incident
to transportation language at 40 CFR 68.3.
EPA is finalizing the provisions for PSI, Program 2 and 3
requirements for compliance with RAGAGEP, and the RAGAGEP gap analysis
as proposed.
EPA is finalizing the retention of hot work permits and retail
facility exemption proposed changes with the following modifications:
Revising 40 CFR 68.85(b) to require retention of hot work
permits for three years rather than five.
Revising 40 CFR 68.3 to clarify that ``year,'' in the
context of the definition of ``retail facility,'' can be calendar or
fiscal year.
C. Discussion of Comments and Basis for Final Rule Provisions
1. Process Safety Information
a. Comments
A couple of commenters expressed support for EPA's proposal to
clarify that the requirement to keep PSI up to date explicitly applies
to Program 3 processes. Several commenters stated that the proposal to
update the PSI requirements is unnecessary, redundant with OSHA PSM
requirements, and burdensome. Another commenter asserted that EPA
should not amend 40 CFR 68.65(a) as proposed and should instead adhere
to the existing regulatory language for Program 3 sources to ensure
that the long-standing consistency between the RMP and PSM standard
remain. Some of the commenters also stated that implementation would
result in unnecessary costs on facilities. One commenter noted that, as
currently written, the regulation does not impose a continuing
obligation to maintain PSI. The commenter noted that as PHAs are
conducted on five-year cycles, the applicable PSI need only be compiled
on a corresponding five-year cycle and requiring that PSI be kept up to
date will have associated costs that need to be accounted for in the
RIA.
b. EPA Responses
EPA appreciates the support for the Agency's clarifications to the
PSI requirements and is finalizing the provision as proposed. EPA
believes that refining the language of 40 CFR 68.65 to reflect existing
requirements clarifies that such PSI is required to be up to date for
Program 3 processes--just as it is for Program 2 processes--without the
need for evaluating compliance with management of change, conducting a
pre-startup safety review, or meeting PHA requirements.
EPA disagrees that clarifying the PSI requirements is unnecessary.
For processes subject to Program 3 requirements, the PSI requirements
under 40 CFR 68.65 do not explicitly address updating PSI. 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 equipment complies with RAGAGEP in 40 CFR
68.65(d)(2). EPA is simply clarifying the PSI requirements in order to
make the regulation more consistent throughout.
Additionally, EPA disagrees that the regulation, as currently
written, does
[[Page 17677]]
not impose a continuing obligation to maintain PSI. The requirement in
40 CFR 68.75(d) that PSI must be updated to reflect changes implies
that PSI must be maintained. Further, the requirement to ``document
compliance with RAGAGEP'' additionally supports that current PSI shall
be maintained, since compliance cannot be documented without the
maintaining of current PSI documents.
In response to comments that the updated PSI requirements would be
inconsistent or redundant with OSHA's PSM requirements, EPA disagrees.
EPA has coordinated with OSHA throughout the rulemaking process to
ensure the intent of adding specificity and clarification to the RMP
regulations does not create conflicting requirements with OSHA's PSM
standard.
EPA disagrees that this modification will result in unnecessary
costs on facilities. The intent of the changes to the regulatory text
is to simplify implementation for facilities, as well as oversight,
thereby improving chemical safety. The amendments do not change the
meaning of the RMP rule. Therefore, EPA does not expect the changes to
result in any additional costs for facilities.
2. Program 2 and 3 Requirements for Compliance With RAGAGEP
a. Comments
A couple of commenters supported EPA's proposal to clarify RAGAGEP
requirements for Program 2 and Program 3 processes. One commenter
stated that it is important to clarify the RAGAGEP requirements because
codes, standards, and practices change over time. The commenter also
urged EPA to strengthen the proposed changes by expanding the scope of
applicability of the RAGAGEP requirement to cover all facilities. The
commenter noted that the CAA directs EPA to ensure RAGAGEP is fully
included in the assessment and process safety requirements, and
mandates implementation ``to the maximum extent practicable.'' Another
commenter stated that the industry-wide understanding of the RAGAGEP's
meaning varies widely, and the proposed clarification may help
alleviate this problem and address the concern that Federal and State
regulations may lag behind recognized industry standards for safety.
A couple of commenters stated that the requirement that owners
ensure and document that processes are designed in compliance with
RAGAGEP is an already-existing PSM requirement, and revisions to the
text are therefore not necessary. A couple of commenters opposed
removing 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.'' One commenter stated that if EPA feels that Federal
or State regulations lag behind current RAGAGEP, then the Agency should
advocate for those specific Federal or State regulations to be updated.
The other commenter stated that the CAA does not grant EPA the
authority to substitute compliance with current RAGAGEP for compliance
with promulgated OSHA regulations.
b. EPA Responses
EPA is finalizing the proposed changes to the regulatory language.
EPA agrees that doing so will clarify the requirements and address the
concern that Federal or State regulations may lag behind current
RAGAGEP. At this time, EPA is not expanding the scope of RMP
applicability of RAGAGEP beyond Program 2 and 3 processes. EPA does,
however, encourage all facilities to use RAGAGEP as it reflects well
known industry practices and lessons learned shown to improve process
safety and prevent accidents.
EPA disagrees that the changes to the regulatory language are
unnecessary. EPA has found that the distinction between ``ensure'' for
Program 2 processes and ``document'' for Program 3 processes creates
confusion, and requiring facilities to ``document'' compliance, rather
than merely ``ensure'' compliance, removes this ambiguity. With regards
to Federal or State regulations that lag behind current RAGAGEP, EPA
notes there is a difference when updated codes augment existing
regulations versus when they conflict. To the extent they conflict,
existing regulations reign over new RAGAGEP. However, if a facility can
comply with existing regulations and new RAGAGEP, then there is an
obligation to comply with both. EPA believes this provision will help
resolve confusion when more current RAGAGEP identify potential
shortcomings in a facility's process.
EPA has coordinated with OSHA throughout the rulemaking process to
ensure the intent of adding specificity and clarification to the RMP
regulations does not create conflicts with the requirements of the OSHA
PSM standard.
3. Retention of Hot Work Permits
a. Comments
A few commenters expressed support for the proposed five-year
retention period for hot work permits. One of the commenters stated
that the provision advances the rule's directive to ensure prevention
and compliance to the greatest extent practicable and assures
compliance as expeditiously as practicable. Another commenter stated
that these simple recordkeeping requirements are not burdensome,
contribute to further safety, and can help demonstrate compliance in
the event of an audit.
Several commenters stated that the retention of hundreds of expired
hot work permits for five years is unnecessary and creates a
substantial recordkeeping and administrative burden for facilities. A
few commenters noted that retaining the hot work permits for five years
provides no added safety benefits to the facility or surrounding
community. A commenter pointed out that facilities are already required
to conduct compliance audits on three-year intervals and to retain the
two most recent compliance audit reports, meaning that compliance audit
documentation will be retained for at least six years. The commenter
stated that these audits will review hot work compliance and are
available to implementing agency personnel; therefore, the proposed hot
work permit retention requirement is excessive in proportion to the
marginal benefit to implementing agencies.
A couple of commenters noted that OSHA does not require that
permits be retained beyond the completion of the hot work task.
Similarly, another commenter pointed out that EPA failed to acknowledge
that a five-year record retention period for hot work permits would
break from the existing PSM rule, where OSHA requires hot work permits
to be maintained only during the hot work. The commenter recommended
that EPA maintain consistency with the PSM rule. Another commenter
agreed that there should be no requirement to retain hot work permits
beyond the completion of the hot work authorized by each permit.
Some commenters suggested retaining hot work permits for periods of
time other than five years. A few commenters specified that a one-year
retention requirement would be more appropriate. One commenter
recommended reducing the retention period from five years to three
years, since the three-year period is consistent with the three-year
audit period under 40 CFR 68.58 and 68.79 for Program 2 and 3
facilities.
[[Page 17678]]
b. EPA Responses
EPA agrees that adding a requirement to retain hot work permits
after the completion of operations would help ensure prevention and
compliance to the greatest extent practicable and contribute to further
safety. However, based on comments on the proposed timeframe, EPA is
finalizing a three-year retention period of hot work permits as opposed
to the five years that were proposed.
EPA does not agree that retention of hot work permits after the
completion of operations is unnecessary. Under the existing RMP
regulations, it can be difficult for implementing agencies, and the
owner or operator, through the compliance audit provision (40 CFR 68.58
and 68.79), 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 or audit
and has hot work permits on file. Adding a requirement to retain hot
work permits after the completion of operations will address this
issue. EPA is finalizing a three-year retention period of hot work
permits in order to make the requirement less burdensome for facilities
conducting hot work often and to align the requirement with the three-
year audit period under 40 CFR 68.58 and 68.79.
In response to comments that the proposed retention period would be
inconsistent with OSHA's PSM rule, EPA has coordinated with OSHA
throughout the rulemaking process to ensure the intent of adding
specificity and clarification to the RMP regulations does not create
conflicts with the requirements of the OSHA PSM standard.
4. Storage Incident to Transportation
EPA's Proposed Approach
a. Comments
One commenter expressed support for the proposed additional
regulatory language and the proposed 48-hour time frame. Other
commenters supported EPA's proposal to continue to exclude facilities
and equipment used in transportation and storage incident to
transportation from the term ``stationary source.'' One commenter
stated that doing so avoids duplication of the existing DOT regulations
and continues the regulatory division of labor between EPA and DOT's
Pipeline and Hazardous Safety Administration (PHMSA).
One commenter stated that transloading can take up to two months
due to a variety of safety and logistics reasons, and requiring
transloaders to move more quickly might increase the risks of release
that the proposed rule seeks to minimize. A couple of commenters stated
that the proposed definition of ``stationary source'' would conflict
with DOT requirements and could create confusion.
One commenter requested that facilities be given a minimum of 72
hours before a disconnected transportation container is considered part
of the stationary source. Similarly, another commenter stated that a
time frame of 48 hours is too short with respect to rail
transportation. The commenter asked EPA to consider eliminating the 48-
hour requirement altogether, or at a minimum, extend it further for
purposes of the RMP rule. The commenter noted that concerns over safety
to the surrounding environment due to an extended timeframe should be
mitigated by the fact that railcars designed to transport hazardous
materials must meet rigorous design specifications as specified by
PHMSA in 49 CFR part 179.
A couple of commenters expressed safety concerns that arise from
transportation containers being exempt from the RMP rule when
disconnected for less than 48 hours. One commenter requested that EPA
strengthen the proposed rule to immediately trigger threshold
determination for the duration that a transportation container is on-
site, regardless of whether it is attached to a source of power or in
motion. The commenter added that the presence of chemical railcars
multiplies the risk for communities by blocking emergency evacuation
routes and increasing air pollution. Another commenter stated that
there are cumulative impacts and risks regardless of the length of time
at a location and asked EPA to work with local community groups to best
resolve the safety concern.
b. EPA Responses
EPA is not finalizing the proposed 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. As explained in
the proposed rule, the term ``storage not incident to transportation''
is currently not defined in the RMP regulations. The proposed
modification sought only to apply a specific timeframe to universally
establish a structure to interpret the term. EPA hoped a specified
timeframe would assist regulated entities and implementing agencies to
more clearly determine when a transportation container used for onsite
storage must be incorporated into a facility's risk management plan.
Nevertheless, after review of comments, EPA acknowledges some of the
concerns with establishing a timeframe and chooses to further consider
the feedback received on the proposed modification before pursuing the
effort. EPA encourages regulated entities and implementing agencies to
continue to rely on guidance EPA has provided to determine if a
transportation container is considered a part of a stationary source.
EPA has demonstrated its intent and application of when
transportation containers are and are not part of the stationary source
in guidance and through court decisions. In the January 1998 amendments
to the RMP rule (63 FR 640),\114\ the Agency explained that EPA
considers a container to be in transportation as long as it is attached
to the motive power that delivered it to the site (e.g., a truck or
locomotive). If a container remains attached to the motive power that
delivered it to the site, even after a facility accepts delivery, it
would be considered as still in transportation, and the contents would
not be subject to threshold determination. Additionally, EPA's guidance
indicates that transportation containers used for storage which are not
incident to transportation and transportation containers connected to
equipment at a stationary source are considered part of the stationary
source. Transportation containers that have been unhooked from the
motive power that delivered them to the site (e.g., truck or
locomotive) and left on a stationary source's site for short-term or
long-term storage are part of the stationary source.\115\
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\114\ https://www.govinfo.gov/content/pkg/FR-1998-01-06/pdf/98-267.pdf.
\115\ https://www.epa.gov/sites/default/files/2013-10/documents/chap-01-final.pdf (page 1-5).
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Since EPA's proposal, courts have also spoken to this issue. In
February 2023, the U.S. Eastern District Court of Washington ruled in
favor of the U.S. against Multistar Industries regarding RMP
applicability to railcars used for stationary storage. The Court
determined that railcars containing trimethylamine (TMA) in 2017 in
Othello, WA, were used as storage outside the scope of
transportation.\116\ The TMA-containing railcars sat for days or weeks
before the TMA was eventually transloaded into trucks for transfer to
the customer. Additionally, in 2017, the NC Department of Air Quality
succeeded against Aberdeen Carolina & Western Railway in demonstrating
that EPA's longstanding
[[Page 17679]]
interpretation of the term ``stationary source'' includes railcars
disconnected from locomotive power and stored for extended periods of
time. In that case, between 2012 and 2016, in Star, NC, railcars
containing butane were stored on tracks awaiting placement at a nearby
terminal for up to 360 days.\117\
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\116\ United States v. Multistar Indus. Inc., No. 2:21-cv-00262-
TOR, 2023 WL 1802387 (E.D. Wash. Feb. 7, 2023).
\117\ Aberdeen Carolina & Western Railway v. NC Dept of Air
Quality, Final Decision on Summary Judgment, State of North
Carolina, County of Montgomery, 16 EHR 07190, May 22, 2017.
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5. Retail Facility Exemption
a. Comments
Several commenters opposed EPA's proposed changes to the definition
of ``retail facility.'' A couple of commenters contended that the
proposed changes to the definition lack justification. One of the
commenters said that EPA failed to: (1) Provide any support for its
assertion that owners and operators of facilities storing propane or
other flammable substances are unclear how to determine whether they
qualify as retail facilities, (2) provide any information to suggest
that the current definition creates safety concerns, and (3) cite
enforcement concerns at facilities claiming to be retail facilities.
One commenter urged EPA to use the retail facility definition used
for the RMP and OSHA PSM standard, which has been in place for a long
time and is well understood by the industry and enforceable by the
agencies. A couple of commenters urged EPA to maintain its existing
definition of a retail facility, which is consistent with the
definition set forth in the Fuels Regulatory Relief Act and OSHA PSM
standard enforcement guidance and interpretations.
A couple of commenters recommended that, if EPA moves forward to
adjust the definition of retail facility, the Agency should provide
businesses and/or facilities with the option of selecting either fiscal
year or calendar year when determining annual income from direct sales
to end users. Similarly, another commenter recommended changing
``calendar year'' to ``fiscal year'' to facilitate the income
calculation for those companies whose fiscal year may not coincide with
the calendar year.
b. EPA Responses
EPA disagrees that the proposed changes to the definition of
``retail facility'' lack justification. With the current definition,
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 eliminates this uncertainty and allows 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 finalizing
the ``one year of sales activity'' amendment because the Agency
believes it captures the seasonality of propane sales at propane
distribution facilities.
EPA disagrees with comments arguing that EPA's proposed definition
would be inconsistent with OSHA's PSM regulations. EPA has coordinated
with OSHA throughout the rulemaking process to ensure the intent of
adding specificity and clarification to the RMP regulations does not
create conflicts with the requirements of the OSHA PSM. EPA believes
that the provisions it proposed and is finalizing are compatible and do
not conflict with the prevention provisions of OSHA's PSM regulations.
In response to comments recommending that EPA adjust the definition
to provide facilities the option of selecting either fiscal year or
calendar year, EPA agrees with this suggestion and is adopting it in
the final rule. The Agency believes this option provides flexibility in
using records in the configuration that may already exist at
facilities.
6. RAGAGEP Gap Analysis
a. Comments
Many commenters expressed opposition to EPA's proposed RAGAGEP gap
analysis provisions. One commenter stated that the existing RMP
regulations already address gaps in RAGAGEP through the PSI requirement
in 40 CFR 68.65(d)(3). Some commenters stated that conducting a gap
analysis of RAGAGEP has no safety benefits. Another commenter contended
that the proposal is an unnecessary intrusion into internal practices
of a facility. The commenter added that, because EPA should not require
disclosure of decisions not to implement RAGAGEP recommendations, there
is no need to provide specific categories for reporting that
information publicly.
Several commenters stated that requiring facilities to include this
information in their risk management plans would result in unnecessary
costs on facilities. A few commenters noted that EPA's failure to
consider costs in the RIA deprives the public of an opportunity to
assess the full costs and benefits of the proposal. One commenter
stated that EPA provided no reasonable explanation for its proposed
RAGAGEP requirements, nor did it consider the cost, including resources
that may be diverted because of this paperwork exercise, or benefits of
the requirement in the RIA.
One commenter noted that the proposed gap analysis provision
ignores several practical difficulties in implementation, such as how
facilities are to identify the most current version of applicable
RAGAGEP, how they are to account for non-mandatory RAGAGEP provisions
in the analysis, and how this analysis can be completed in a timely
manner. The commenter added that the proposed requirement ignores
existing obligations to determine and document that equipment designed
and constructed is in accordance with RAGAGEP.
Some commenters said that the RAGAGEP analysis is ill-suited for
the PHA team to perform. One commenter pointed out that industry
standards are locked into place once a facility is constructed and each
facility is designed, engineered, and built according to the standards
of that time. The commenter added that in some cases it would be
impossible to document that equipment, which may be 20 or 30 years old,
complies with RAGAGEP when RAGAGEP continually changes.
A couple of commenters stated that the proposed gap analysis
provision encroaches on OSHA's PSM regulation. Some commenters pointed
out that EPA adopted their regulation verbatim from OSHA's PSM
regulation, and OSHA has made clear that its regulations require the
verification of safe equipment, not a continual review of RAGAGEP.
Several commenters said that EPA did not explain how the proposed gap
analysis provision would work in tandem with OSHA regulation, which the
proposal fails to repeal or revise. One of the commenters added that
ignoring existing regulations is arbitrary government action.
b. EPA Responses
In response to comments that EPA provided no reasonable explanation
for the requirement, there would be difficulty in implementing the
provision, and costs for the requirement were not considered, EPA notes
that this RAGAGEP gap analysis is already expected under 40 CFR
68.65(d)(2) and (3) for Program 3 processes. EPA notes this PHA
modification merely clarifies when facilities must, at minimum, conduct
or review previous analyses when determining their compliance
[[Page 17680]]
with 40 CFR 68.65(d)(2) and (3). Therefore, EPA does not believe that
the Agency must consider and assess the costs of this provision in the
RIA.
As indicated in a Frequently Asked Question,\118\ EPA expects
owners and operators to regularly review new and updated RAGAGEP
applicable to their industry to determine where safety gaps exist
within their current process. If the updated document explicitly
provides that new clauses or requirements are retroactive, those
updates are relevant to determining whether the owner or operator's
practice continues to conform to RAGAGEP per 40 CFR 68.65(d)(2). Where
RAGAGEP are updated to be more protective, but are not explicitly
retroactive, per 40 CFR 68.65(d)(3), the owner or operator should
thoroughly evaluate how their process could still be considered safe
amid new industry knowledge. Simply indicating that a process incident
has yet to occur is an inappropriate evaluation for choosing not to
adhere to updated RAGAGEP, especially considering changes to RAGAGEP
may result from industry accidents, industry operating experience, and
improved understanding of existing and newly recognized hazards.
Oftentimes it will be difficult for the owner or operator to document
equipment is designed, maintained, inspected, testing, and operating in
a safe manner when there is extensive industry knowledge that indicates
aspects of older process operations are no longer safe.
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\118\ https://www.epa.gov/rmp/complying-process-safety-information-psi-resulting-new-and-updated-recognized-and-generally.
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Evaluation of updated RAGAGEP already is an RMP requirement, as
shown in enforcement actions against facilities not complying with this
provision. For example, in 2022, EPA took an enforcement action against
a refinery in Hawaii that failed to comply with the latest versions of
applicable refining industry standards, API Recommended Practice 941,
``Steels for Hydrogen Service at Elevated Temperatures'' (8th edition,
February 2016), and 581, ``Risk Based Inspection'' (3rd edition, April
2016).\119\ In February 2021, EPA also took an enforcement action
against a seafood processing facility in Massachusetts that failed to
comply with the latest version (at that time) of an applicable ammonia
refrigeration industry standard, International Institute of Ammonia
Refrigeration (IIAR) 2-2014, ``Safe Design of Closed-Circuit Ammonia
Refrigeration Systems.'' \120\ In both cases, the processes at these
facilities were built prior to the updated RAGAGEP cited.
---------------------------------------------------------------------------
\119\ https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/Filings/
F8CDEF8A6F344043852588A90070FA45/$File/
Par%20Hawaii%20Refining%20(CAA112R-09-2022-0008)%20-%20Served.pdf.
\120\ https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/Filings/
0D26DA8B081A54008525867F00634AB2/$File/EPCRA-01-2021-
0037%20and%20CAA%20-01-2021-
0038%20ORPEL%20CAFO%20Respondent%20Signed-RJO-Signed02-17-
21%20(002).pdf.
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EPA disagrees that the RAGAGEP analysis is ill-suited for the PHA
team to perform. PHA teams should include staff who are aware of
industry design standards. The PHA team requirement under 40 CFR
68.67(d) specifies that the PHA shall be performed by a team with
expertise in engineering and process operations, and EPA expects an
expert to be one that has knowledge of current industry standards.
Additionally, industry trade associations are likely to ease the burden
on facilities by identifying which of their current RAGAGEP should be
broadly applied to the industry, regardless of when the process was
designed. For example, the ammonia refrigeration industry has already
done so, specifically in the ANSI/IIAR Standard 9-2020, ``American
National Standard for Minimum System Safety Requirements for Existing
Closed-Circuit Ammonia Refrigeration Systems.''
In response to comments that the provisions encroach on OSHA's PSM
regulations, EPA disagrees. This new PHA requirement is meant to
complement OSHA's equivalent requirement in 29 CFR 1910.119(d)(3)(iii)
and provide a framework for undertaking the analysis. While EPA favors
consistency with OSHA's PSM standard, EPA must also ensure compliance
with the CAA. CAA section 112(r)(1), 42 U.S.C. 7412(r)(1), Purpose and
general duty, states that, ``It shall be the objective of the
regulations and programs authorized under this subsection to prevent
the accidental release and to minimize the consequences of any such
release of any substance listed pursuant to paragraph (3) or any other
extremely hazardous substance.'' Congress further clarified in
legislative history that it intended facility owners and operators to
implement all feasible means to reduce the threat of death, serious
injury, or substantial property damage to satisfy the requirements of
the GDC.\121\ Obligations under the regulatory program authorized by
CAA section 112(r)(7) build upon those under the general duty rather
than undercut it. Accordingly, using the RMP regulations to permanently
lock into place obsolete or out-of-date RAGAGEP is inconsistent with
the purpose and intent of the CAA.
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\121\ S. Rep. 101-228 at 209, 1990 U.S.C.C.A.N. 3385, 3595
(1989).
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IX. Compliance Dates
The initial RMP rule applied three years after promulgation of the
rule on June 20, 1996, which is consistent with the last sentence of
CAA section 112(r)(7)(B)(i). The statute does not directly address when
amendments should become applicable. The provisions of this action
modify terms of the existing rule, and, in some cases, clarify existing
requirements.
A. Summary of Proposed Rulemaking
EPA proposed modifications to 40 CFR 68.10 to establish compliance
dates for an owner or operator to comply with the revised rule
provisions as follows:
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, three years after the effective
date of the final rule (i.e., three years after the FR effective 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 one additional year (i.e., four
years after the effective date of the final rule) to update and
resubmit risk management plans to reflect new and revised data
elements.
B. Summary of Final Rule
EPA is finalizing the compliance dates as proposed with the
following modification:
Adding a compliance date to 40 CFR 68.10 to require
standby or backup power for air monitoring and control equipment by
three years after the effective date of the final rule (i.e., three
years after the effective date of this action as provided in the
Federal Register).
C. Discussion of Comments and Basis for Final Rule Provisions
1. General Comments
a. Comments
One commenter expressed support for the compliance dates proposed
by EPA. Another commenter recommended that the compliance period under
the
[[Page 17681]]
proposed rule be shortened to two years, at least for the emergency
response public notification and exercise evaluation reports, employee
participation, and information availability provisions. The commenter
added that statutory language reflects Congress's intent that EPA
ensure adequate safeguards are promptly put in place to protect workers
and surrounding communities from releases of dangerous chemicals. The
commenter further stated that EPA's proposal should contain shorter
compliance deadlines as compared to the 1996 RMP rule because the
proposed rule is not as extensive as developing a full RMP program.
Another commenter opposed allowing companies three years after the
effective date of the proposed rule to comply. The commenter stated
that this period is too long, given that most companies are already
complying with an existing version of the RMP rule. The commenter
suggested a one-year timeline is most appropriate.
Several commenters stated that there are too many proposed changes
to accomplish in three years and asked EPA to extend the compliance
deadlines to five years after the effective date of the proposed rule.
The commenter stated that to the extent that EPA intends to rely on
forthcoming guidance in interpreting and enforcing the new RMP
provisions, it is imperative that these new requirements not take
effect until at least three years after the relevant guidance is
issued, instead of three years after the effective date of the final
rule, as EPA has proposed. One commenter, who objected to the effective
dates in the proposed rule and said they are too restrictive, said EPA
failed to meet its CAA obligation to set RMP effective dates in a
manner that assures compliance as ``expeditiously as practicable.''
b. EPA Responses
EPA disagrees that the compliance dates for some or all provisions
should be shortened to one or two years or should be lengthened to five
years or three years after guidance is issued. The Agency believes
there is a good balance with three years as the compliance date for
most new provisions while also assuring compliance as expeditiously as
practicable. Moreover, the initial 1996 RMP rule required compliance
per the statute within three years. EPA believes the provisions
finalized in this rule are not as extensive as developing a full RMP
program. Nevertheless, time is needed for facility owners and operators
to understand the revised rule; train facility personnel on the revised
provisions; learn new investigation techniques, as appropriate;
research safer technologies; arrange for emergency response resources;
incorporate changes into their RMPs; and establish a strategy to notify
the public that certain information is available upon request. This
time is necessary to achieve compliance with the new provisions because
as a performance-based rule, EPA has not specified how facilities apply
these provisions to manage and improve process safety at their
facility, whether it involves conforming to minimum standards, such as
codes, or trying to reduce risk to as low as reasonably practical, or
whether it uses qualitative or quantitative assessments. Furthermore,
EPA intends to publish guidance for certain provisions, such as STAA,
root cause analysis, third-party audits, and employee participation,
etc. Once these materials are complete, owners and operators can have
time to familiarize themselves with the new materials if needing
assistance in applying the provisions to improve process safety. EPA
expects to develop and release this information approximately one year
after this final rule. However, most provisions for a source are a
site-specific determination, so EPA expects all regulated RMP
facilities to be successful in beginning to address the provisions
immediately.
2. Safer Technologies and Alternatives Analysis
One commenter pointed out that the effective date for the STAA
requirement would disrupt PHA cycles. The commenter stated that the
proposed STAA deadline is impracticable for facilities scheduled to
complete their PHA update and re-validation any time after August 1,
2021. The commenter requested that EPA modify the effective date to
perform a STAA as part of the next-scheduled PHA update and re-
validation that occurs any time after three years from EPA's issuance
of the intended STAA guidance or the final rule's effective date,
whichever is later.
EPA disagrees with commenters and is finalizing a three-year
compliance date for the STAA evaluation and IST/ISD practicability
assessment. Sources subject to this provision are among the largest and
most complex sources regulated under 40 CFR part 68, and therefore PHAs
and PHA updates and revalidations at these sources typically require a
significant level of planning. While PHA updates are normally done at
five-year intervals, the Agency recognizes that some sources may be far
enough along with their PHAs that they will not be able to schedule
their STAAs as part of their PHAs. Such sources have the option of not
performing STAA as part of their PHA so long as they perform a STAA
within 3 years of the effective date of the final rule. Considering
updates or revalidations to the initial STAA activities will likely
require less effort, the Agency expects many of these sources will
later incorporate further STAA updates on their normal PHA update
schedule. Regarding the STAA safeguard implementation provision, since
implementation (of at least one passive measure, or an inherently safer
technology or design, or a combination of active and procedural
measures equivalent to or greater than the risk reduction of a passive
measure) is required each PHA cycle, EPA expects implementation to be
commenced within that cycle and scheduled for completion as soon as
practicable.
3. Incident Investigation Root Cause Analysis
EPA did not receive any comments specific to the three-year
compliance date for incident investigation root cause analysis.
Therefore, EPA is finalizing the date for this provision, as proposed.
The Agency continues to rely on the rationale expressed in the proposed
rulemaking (87 FR 53606).
4. Third-Party Compliance Audits
EPA did not receive any comments specific to the three-year
compliance date for third-party compliance audits. Therefore, EPA is
finalizing the date for this provision, as proposed. The Agency
continues to rely on the rationale expressed in the proposed rulemaking
(87 FR 53606).
5. Employee Participation
EPA did not receive any distinct comments specific to this issue
other than as a general comment. Therefore, EPA is finalizing a three-
year compliance date for this provision, as proposed. The Agency
continues to rely on the rationale expressed in the proposed rulemaking
(87 FR 53606).
6. Emergency Response
Public Notification. Regarding the community public notification
system requirements, a commenter said they will take more than three
years to implement because it will be a significant undertaking
requiring involvement of and coordination with several different
parties.
EPA disagrees with commenters that this provision will take longer
than three years to implement. This provision is for facility owners
and operators to work with the local responders to ensure that, during
a
[[Page 17682]]
release, a notification system is in place that will notify the public
of the impending situation. EPA expects the partnership to occur at
least during annual coordination discussions under 40 CFR 68.93. Under
40 CFR 68.93, owners and operators are required to annually coordinate
response needs with local emergency planning and response organizations
to determine how the facility is addressed in the community emergency
response plan, among other things. A component of the community
emergency response plan is public notification of chemical releases;
therefore, it is expected that this component will be discussed and
documented by the facility owner or operator as part of the annual
coordination obligations. Therefore, EPA is finalizing the 3-year
compliance date as proposed.
Field Exercises. A couple of the commenters suggested that EPA
speed up compliance because 10 years is too long to wait for essential
emergency planning, especially in communities with multiple RMP
facilities. One commenter noted that five- to ten-year deadlines allow
more time than necessary to comply and would allow another generation
of children to grow up without even the protection of a basic emergency
response exercise at the facility near them.
EPA disagrees that field exercises should be required on an annual,
biennial, or triennial basis. Requiring field exercises to be held at
shorter minimum frequencies, such as these would significantly increase
compliance costs to both regulated facilities and local responder
agencies. Such an approach would discourage the participation of local
emergency responders in field exercises, which is voluntary under the
RMP rule. Additionally, table-top exercises of the emergency plan have
value for protecting the nearby community, and these occur every three
years. The community would not be without a type of ``basic emergency
response exercise.'' Therefore, EPA is finalizing the compliance date
for owners or operators of sources to have planned, scheduled, and
conducted their first field exercise by March 15, 2027.
Exercise Evaluation Reports. EPA did not receive any comments
specific to the three-year compliance date for exercise evaluation
reports other than as a general comment. Therefore, EPA is finalizing
the date for this provision, as proposed. The Agency continues to rely
on the rationale expressed in the proposed rulemaking (87 FR 53606).
7. Information Availability
A couple of commenters stated EPA's proposal to delay information
access for 45 days after a request, and to require compliance after
three years, is unlawful and arbitrary. These commenters stated that
community members need information now--not three years from now--and
that 45 days is far too long for a community member to have to wait for
basic hazard information. The commenters also stated that EPA has
failed to justify these delays when the provision would simply require
a facility to provide only a portion of the information it already
regularly reports to EPA itself, and that EPA has failed to show three
years is the most expeditious compliance date practicable, or that
three years is required to implement this provision.
EPA disagrees with these commenters and is finalizing a three-year
compliance date for the information availability provision. This means
that three years after the effective date of the rule, the facility
owner or operator must have notifications in place to inform the public
that information specified in 40 CFR 68.210(b) is available upon
request. EPA believes that this timeframe is needed to allow facility
staff an opportunity to determine the best method for providing
notifications to the public, to assemble and format information,
including securing appropriate language translation services, and to
prepare to respond to information requests. EPA is therefore finalizing
the three-year compliance date for the information availability
provision.
8. RMP Update
A couple of commenters urged EPA to shorten the 4-year timeline for
facilities to submit updated RMPs.
EPA disagrees with commenters and is finalizing the four-year
compliance date for this provision, as proposed. This timeframe will
allow owners and operators an opportunity to begin to comply with
revised rule provisions prior to certifying compliance in the RMP.
Additionally, the Agency will revise its online RMP submission system,
RMP*eSubmit, to include the additional data elements, and sources will
not be able to update RMPs with new or revised data elements until the
submission system is ready. Also, once it is ready, allowing an
additional year for sources to update RMPs will prevent potential
problems with thousands of sources submitting updated RMPs on the same
day.
9. Hazard Review Amplifications and Other Areas of Technical
Clarification
a. Comments
One commenter asked EPA to clarify the required date for compliance
with the natural hazard assessment and the power loss evaluations. The
commenter asserted that this should occur as expeditiously as
practicable, within one year after the effective date of the final
rule, and facilities should be directed to report that they have
completed these assessments soon after completion. Another commenter
supported requiring backup power for air pollution control and
monitoring equipment associated with the prevention and detection of
accidental releases and suggested that EPA specify an appropriate
compliance deadline, specifically no later than three years from the
date of promulgation.
One commenter pointed out that EPA's proposal would require
facilities to comply with the proposed revisions in the PHAs upon the
effective date of the rule. The commenter said that the deadline is
infeasible because it would take years to address the host of expansive
new PHA requirements that require analysis of a wide range of issues.
Accordingly, the commenter asked EPA to clarify that the deadline for
any new requirements is when the PHA becomes due as part of its five-
year cycle, or three years after the effective date of the final rule,
whichever comes later. Referring to the natural hazards assessment,
another commenter requested an implementation date of no sooner than
five years after the effective date of the final rule.
b. EPA Responses
EPA notes that components of the hazards evaluation amplifications
and the other areas of technical clarification in sections V.A. and
VIII of this preamble impose no new requirements on facilities because
they codify existing industry practice and re-emphasize current RMP
requirements and do not change the meaning of the RMP rule. Compliance
for these provisions is therefore already required and should be
updated on their normal schedule. For example, an evaluation of natural
hazards on a process should already be occurring as part of the hazard
review (40 CFR 68.50) or PHA (40 CFR 68.67) and should be updated at
least once every 5 years. Additionally, any update to the RMP required
by 40 CFR 68.190 should continue to occur as normal and should include
updating the RMP with current information required by Subpart G. The
intent of the amplifications and clarifications discussed in this final
rule are to simplify implementation for
[[Page 17683]]
facilities, thereby improving chemical safety.
In response to comments asking EPA to clarify the compliance date
for requiring standby or backup power for continuous operation of air
monitoring equipment associated with prevention and detection of
accidental releases from covered processes, EPA has adopted the three-
year compliance date and has amended the regulatory language. EPA
believes three years will allow time to evaluate and secure standby or
backup power needs for air monitoring equipment and assure their safe
operation.
X. 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 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'', as defined
under section 3(f)(1) of Executive Order 12866, as amended by Executive
Order 14094. Accordingly, EPA, submitted this action to the Office of
Management and Budget (OMB) for Executive Order 12866 review.
Documentation of any changes made in response to the Executive Order
12866 review is available in the docket. The EPA prepared an analysis
of the potential costs and benefits associated with this action. This
analysis, ``Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention Final Rule'' (Docket ID Number EPA-HQ-OLEM-2022-
0174), is also available in the docket.
B. Paperwork Reduction Act (PRA)
The information collection activities in this rule will be
submitted for approval to OMB under the PRA. The Information Collection
Request (ICR) document that EPA prepared has been assigned EPA ICR
number 2725.02. You can find a copy of the ICR in the docket for this
rule, and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
EPA believes that the RMP regulations, originally promulgated on
June 20, 1996, codified as 40 CFR part 68, and later amended, have been
effective in preventing and mitigating chemical accidents in the United
States. However, EPA believes that revisions will likely further
protect human health and the environment from chemical hazards through
advancement of process safety based on lessons learned. The revisions
in this final rule are a result of reviewing the existing RMP
regulations 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 use RMPs to evaluate compliance with 40 CFR 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 made 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 regulation fall into numerous NAICS
codes. The types of stationary sources affected by the 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 2,636 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 sections 112(r)(7)(B)(iii), 114(c), CAA
114(a)(1))).
Estimated number of respondents: 11,740.
Frequency of response: Occasional.
Total estimated burden: 1,190,991 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: $126,796,471 (per year); includes $12,413,710
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 EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce that approval in the Federal
Register and publish a technical amendment to 40 CFR part 9 to display
the OMB control number for the approved information collection
activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
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 are small
businesses and small governmental entities. The Agency has determined
that among the 2,636 potentially regulated private sector small
entities so impacted, 2,393, or 90.8 percent, may experience an impact
of less than one percent with an average small entity cost of $72,525;
167, or 6.3 percent, may experience an impact of between 1 and 3
percent of revenues with an average small cost entity of $629,271; and
75, or 2.8 percent, may experience an impact of greater than 3 percent
with an average small entity cost of $1,083,823. The industry sectors
of Farm Supplies Merchant Wholesalers and Farm Product Warehousing and
Storage had the most entities potentially affected, with 146 and 96
entities, respectively. Within the Farm Supplies Merchant Wholesalers
sector, the Agency determined that only 8 of the 146 small entities (6
percent of small entities) will experience impacts of between 1 and 3
percent of revenues and only 2 small entities (1 percent of small
entities) will experience impacts of more than 3 percent of revenue.
Within the Farm Product Warehousing and Storage sector, the Agency
determined that only 5 of the 96 small entities (5 percent of small
entities) will experience impacts of between 1 and 3 percent of
revenues and no small entities will experience impacts of more than 3
percent of revenue.
Among the 630 small government entities potentially affected, the
minimum cost any entity will incur is $2,000; 365, or 58 percent, would
incur costs ranging from $2,000 to $3,000; 248, or 39 percent, will
incur costs ranging from $3,000 to $10,000; and 17, or 3 percent, will
incur costs greater than $10,000. EPA estimated that for the rule to
have a larger than 1 percent impact on the government entity with the
largest cost impact, the entity would need to have revenue of less than
$120 per resident. For the rule to have a larger than 1 percent impact
on the smallest government entity identified in the data, the entity
would need to have revenue of less than $650 per resident.
Details of these analyses are presented in Chapter 8 of the RIA,
which is available in the docket.
[[Page 17684]]
D. Unfunded Mandates Reform Act (UMRA)
This action contains a Federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. Accordingly, EPA has prepared a written
statement required under section 202 of UMRA that is included in the
RIA and briefly summarized here.
Over the 23 years of implementing the RMP program and, most
recently through E.O. 13990 listening sessions, meetings, and public
hearings, EPA has engaged States and local communities to discuss
chemical safety issues. In the two E.O. 13990 listening sessions and
three proposal hearings, held between July 2021 and September 2022,
States and local communities identified lack of facility coordination
with local responders and the community as a key barrier to successful
local community preparedness. Additionally, EPA has held consultations
with States and local communities through participation in the National
Association of SARA Title III Program Officials (NASTTPO) annual
meetings to discuss key issues related to chemical facility and local
community coordination and the areas of the RMP regulations which need
to be modernized to facilitate this coordination and improve local
emergency preparedness and prevention. Key priority options discussed
with NASTTPO States and local communities included improving emergency
response coordination between RMP facilities and LEPCs/first
responders.
This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. On April 7, 2022,
September 1, 2022, and September 5, 2023, EPA met with small
governments concerning the regulatory requirements that might affect
them. Also, through the May 28, 2021, notice of virtual public
listening sessions; request for public comment (86 FR 28828) and August
31, 2022, NPRM (87 FR 53556), EPA sought feedback from governmental
entities while formulating the revisions in this action.
With regard to section 205 of UMRA, the Agency considered
finalizing the regulatory requirements as proposed as well as the
regulatory alternatives considered in Chapter 7 of the RIA. However,
none of the alternative options successfully fulfilled the objectives
of the rule, which seek to prevent or reduce the impacts of RMP
accidents on communities near facilities. These objectives are
accomplished by promoting prevention generally and through targeted
enhanced measures at the most accident-prone facilities, which
historically have had a disproportionate share of accidents and the
costliest accidents. Some of these same facilities have widely known
safer alternatives available. The objectives are also accomplished by
enhancing emergency response training and planning through better
information access and exchange among the facility, emergency
responders, and the community potentially exposed to accidents. A
market failure results when RMP accidents impose burdens on nearby
communities. Firms do not have an appropriate level of incentive to
prevent and/or mitigate these external costs. The Agency believes that
the rule objectives to prevent or reduce the impacts of accidents on
communities near facilities are best achieved by the selected
provisions for this final rule, particularly, implementation of process
safeguards or IST/ISD to prevent accidents and allowing a wider segment
of the public potentially affected by accidents to access emergency
preparedness information.
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 early in the process
of developing this regulation to permit them to have meaningful and
timely input into its development. On August 31, 2022, EPA sent a
notification letter via email to Tribal leaders of all 574 federally
recognized Tribes to inform them of the proposed rulemaking and to
provide an opportunity to comment on the action through a Tribal
consultation meeting on September 21, 2022. Approximately 4 Tribal
attendees participated in the meeting. During the consultation meeting,
EPA presented information on the proposed action. A few Tribes provided
comments during the webinar. No Tribes requested government to
government consultation with EPA following the meeting. Additionally,
EPA had an open docket for public comment on the proposal from August
31-October 31, 2022. The Agency did not receive any comments from
federally recognized Tribes. The notification letter and a list of
attendees at the meeting is provided in the docket for this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 directs Federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in Federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because the EPA does not believe the environmental health risks
or safety risks addressed by this action present a disproportionate
risk to children. EPA believes that the revisions to the RMP
regulations made by this final rule will further protect human health,
including the health of children, through advancement of process
safety. However, EPA's Policy on Children's Health applies to this
action.
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.
[[Page 17685]]
J. Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All Executive Order 12898: Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income
Populations
EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with environmental justice concerns.
EPA conducted an EJ analysis using the Agency's EJ screening tool,
EJSCREEN and the U.S. Census Bureau's American Community Survey (ACS).
The EJ analysis shows that historically underserved and overburdened
populations live within proximity to RMP-regulated facilities and thus
are at greater risk than other populations. The analysis also found
evidence that regulated 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 will likely pose disproportionate
risks to historically marginalized communities. However, EPA has
concluded that the regulatory requirements will advance just treatment
of those populations by reducing the disproportionate damages from
accidental releases that RMP-regulated facilities might otherwise
inflict on those populations. EPA's full EJ analysis is documented in
``Regulatory Impact Analysis: Safer Communities by Chemical Accident
Prevention Final Rule,'' which is available in the docket.
EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on communities with EJ concerns.
Because 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 communities. Therefore, the
benefits of this regulation will include reduced risk for historically
underserved and overburdened populations.
EPA additionally identified and addressed EJ concerns by holding
virtual public listening sessions on June 16 and July 8, 2021, and had
an open docket for public comment (86 FR 28828). 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 in the RMP. Following publication
of the proposed rule, EPA held three public hearings (September 26, 27,
and 28, 2022) and had a 60-day open public comment period. Participants
in the virtual public listening sessions and hearings included a wide
range of stakeholders including environmental and community groups,
individual regulated facilities, industry groups, local and State
governments, Federal agencies, and private citizens. Information
collected through oral testimonies and written comments from the
listening sessions and hearings respectively informed the proposed and
final rule.
The information supporting this E.O. review is contained in Chapter
9 of the RIA, which is available in the docket for this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action meets the criteria set forth in defined
by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 68
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, part
68, of the Code of Federal Regulations is amended as follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
0
1. The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
Subpart A--General
0
2. Amend Sec. 68.3 by:
0
a. Adding in alphabetical order the 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''; and
0
c. Adding in alphabetical order the definitions for ``Root cause'' and
``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 meteorological, climatological, environmental
or geological phenomena that have the potential for negative impact,
accounting for impacts due to climate change. Examples of such hazards
include, but are not limited to, avalanche, coastal flooding, cold
wave, drought, earthquake, hail, heat wave, hurricane, ice storm,
landslide, lightning, riverine flooding, strong wind, tornado, tsunami,
volcanic activity, wildfire, and winter weather.
* * * * *
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 or fiscal year) is
obtained from direct sales to end users or at which
[[Page 17686]]
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 that identifies a correctable failure(s) in
management systems, and if applicable, in process design.
* * * * *
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) introductory text;
0
b. Redesignating paragraphs (g) through (k) as paragraphs (j) through
(n);
0
c. Adding new paragraphs (g) through (i); and
0
d. In newly redesignated paragraphs (j) through (l), removing the
paragraph heading.
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:
* * * * *
(g) By May 10, 2027, the owner or operator shall comply with the
following provisions promulgated on May 10, 2024:
(1) Standby or backup power for continuous operation of monitoring
equipment associated with prevention and detection of accidental
releases from covered processes in Sec. Sec. 68.50(a)(3) and
68.67(c)(3);
(2) Third-party audit provisions in Sec. Sec. 68.58(f) through
(h), 68.59, 68.79(f) through (h), and 68.80;
(3) Incident investigation root cause analysis provisions in
Sec. Sec. 68.60(h) and 68.81(h);
(4) Safer technology and alternatives analysis provisions in Sec.
68.67(c)(9) and (h);
(5) Employee participation provisions in Sec. Sec. 68.62 and
68.83;
(6) Emergency response provisions in Sec. Sec. 68.90(b) and
68.95(a); and
(7) Availability of information provisions in Sec. 68.210(d)
through (h).
(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 May 10, 2028, the owner or operator shall comply with the
risk management plan provisions of subpart G of this part promulgated
on May 10, 2024.
* * * * *
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:
0
a. Revising paragraph (a)(3);
0
b. Removing the period at the end of paragraph (a)(4) and adding a
semicolon in its place; and
0
c. Adding paragraphs (a)(5) and (6).
The revision and addition 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; the owner or operator shall ensure monitoring equipment
associated with prevention and detection of accidental releases from
covered processes has standby or backup power to provide continuous
operation;
* * * * *
(5) Natural hazards that could cause or exacerbate an accidental
release; and
(6) Stationary source siting, including the placement of processes,
equipment, and buildings within the facility, and hazards posed by
proximate stationary sources, and accidental release consequences posed
by proximity to the public and public receptors.
* * * * *
0
6. Amend Sec. 68.52 by:
0
a. Removing the word ``and'' at the end of paragraph (b)(7);
0
b. Removing the period at the end of paragraph (b)(8) and adding ``;
and'' in its place; and
0
c. Adding paragraph (b)(9).
The addition reads as follows:
Sec. 68.52 Operating procedures.
* * * * *
(b) * * *
(9) Documentation when monitoring equipment associated with
prevention and detection of accidental releases from covered processes
is removed due to safety concerns from imminent natural hazards.
* * * * *
0
7. 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, 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) The next required compliance audit shall be a third-party audit
when one or more of the following conditions applies:
(1) An accidental release meeting the criteria in Sec. 68.42(a)
from a covered process at a stationary source has occurred; or
(2) An implementing agency requires a third-party audit due to
conditions at the stationary source that could lead to an accidental
release of a regulated substance, or when a previous third-party audit
failed to meet the competency or independence criteria of Sec.
68.59(c).
(g)(1) If an implementing agency makes a preliminary determination
that a third-party audit is necessary pursuant to paragraph (f)(2) of
this section, the implementing agency will provide written notice to
the owner or operator that describes the basis for this determination.
(2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
(3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec. 68.59,
pursuant to the schedule in paragraph (h) of this section.
(4) The owner or operator may appeal a final determination made by
an implementing agency under paragraph
[[Page 17687]]
(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) The audit and audit report shall be completed as in paragraph
(a) of this section, unless a different timeframe is specified by the
implementing agency.
0
8. Section 68.59 is added to subpart C to read as follows:
Sec. 68.59 Third-party audits.
(a) Applicability. The owner or operator shall engage a third party
to conduct an audit that evaluates compliance with the provisions of
this subpart in accordance with the requirements of this section when
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
(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) 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) 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 (c)(2)(ii), 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 the requirement
in this paragraph (c)(2)(iv), employment does not include performing or
participating in third-party audits pursuant to Sec. 68.80 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 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
subpart 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
[[Page 17688]]
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. The requirement in this
paragraph (g) does not apply to any document that is more than five
years old.
0
9. Amend Sec. 68.60 by adding paragraph (h) to read as follows:
Sec. 68.60 Incident investigation.
* * * * *
(h) The owner or operator shall ensure the following are addressed
when the incident in paragraph (a) of this section 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; and
(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
10. 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 requirements
required by this section.
(1) An annual written or electronic notice shall be distributed to
employees and their representatives indicating that the plan is readily
available to view, and how to access the information.
(2) Training shall be provided as often as necessary to ensure
employees and their representatives, and management involved in the
process, are informed of the details of the plan.
(b)(1) The owner or operator shall develop and implement a process
to allow employees and their representatives to report to either or
both the owner or operator and EPA unaddressed hazards that could lead
to a catastrophic release, accidents covered by Sec. 68.42(a) but not
reported under Sec. 68.195(a), and any other noncompliance with this
part.
(2) The employee and their representatives may choose to report
either anonymously or with attribution.
(3) When a report is made to the owner or operator, a record of the
report shall be maintained for three years.
(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 subpart.
Subpart D--Program 3 Prevention Program
0
11. 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 this part 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
12. Amend Sec. 68.67 by:
0
a. Revising paragraphs (c)(3) and (5);
0
b. Removing the word ``and'' at the end of paragraph (c)(6);
0
c. Removing the period at the end of paragraph (c)(7) and adding a
semicolon in its place; and
0
d. Adding paragraphs (c)(8) through (10) and (h).
The revisions and additions 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. (Acceptable detection methods might
include process monitoring and control instrumentation with alarms, and
detection hardware such as hydrocarbon sensors.) The owner or operator
shall ensure monitoring equipment associated with prevention and
detection of accidental releases from covered processes has standby or
backup power to provide continuous operation;
* * * * *
(5) Stationary source siting, including the placement of processes,
equipment, and buildings within the facility, and hazards posed by
proximate stationary sources, and accidental release consequences posed
by proximity to the public and public receptors;
* * * * *
(8) Natural hazards that could cause or exacerbate an accidental
release;
(9) Safer technology and alternative risk management measures
applicable to eliminating or reducing risk from process hazards for the
following covered processes and shall meet all of the following
requirements:
(i) For covered processes in NAICS codes 324 and 325, 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) For covered processes in paragraphs (c)(9)(ii)(A) through (C)
of this section, 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. The owner or operator shall also determine and
document the practicability of the inherently safer technologies and
designs considered.
[[Page 17689]]
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.
(A) In NAICS codes 324 and 325, located within 1 mile of another
stationary source having a covered process in NAICS code 324 or 325;
(B) In NAICS code 324 with hydrofluoric acid alkylation covered
processes; and
(C) In NAICS codes 324 and 325 that have had one accident that
meets the accident history reporting requirements under Sec. 68.42
since the most recent process hazard analysis under this section.
(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; and
(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.
* * * * *
(h)(1) Of the covered processes listed under paragraphs (h)(1)(i)
through (iii) of this section, the owner or operator shall implement at
least one passive measure at the stationary source, or an inherently
safer technology or design, or a combination of active and procedural
measures equivalent to or greater than the risk reduction of a passive
measure, resulting from paragraph (c)(9)(i) of this section:
(i) In NAICS codes 324 and 325, located within 1 mile of another
stationary source having a covered process in NAICS code 324 or 325;
(ii) In NAICS code 324 with hydrofluoric acid alkylation covered
processes; and
(iii) In NAICS codes 324 and 325 that have had one accident that
meets the accident history reporting requirements under Sec. 68.42
since the most recent process hazard analysis under this section.
(2) If no passive measures are identified or all are not
practicable, and no inherently safer technology or design is
implemented, then the owner or operator shall implement at least one
active measure. If no active measures are identified or all are not
practicable, the owner or operator shall implement at least one
procedural measure.
(3) For passive and active measures not implemented, the owner or
operator shall document sufficient evidence to demonstrate to the
implementing agency's satisfaction that implementing the measures is
not practicable and the reasons for this conclusion. A claim that
implementation is not practicable shall not be based solely on evidence
of reduced profits or increased costs.
0
13. Amend Sec. 68.69 by revising paragraph (a)(4) to read as follows:
Sec. 68.69 Operating procedures.
(a) * * *
(4) Safety systems and their functions, including documentation
when monitoring equipment associated with prevention and detection of
accidental releases from covered processes is removed due to safety
concerns from imminent natural hazards.
* * * * *
0
14. Amend Sec. 68.79 by revising paragraph (a) and adding paragraphs
(f) through (h) to read as follows:
Sec. 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart, 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) The next required compliance audit shall be a third-party audit
when one or more of the following conditions applies:
(1) An accidental release meeting the criteria in Sec. 68.42(a)
from a covered process at a stationary source has occurred; or
(2) An implementing agency requires a third-party audit due to
conditions at the stationary source that could lead to an accidental
release of a regulated substance, or when a previous third-party audit
failed to meet the competency or independence criteria of Sec.
68.80(c).
(g)(1) If an implementing agency makes a preliminary determination
that a third-party audit is necessary pursuant to paragraph (f)(2) of
this section, the implementing agency will provide written notice to
the owner or operator that describes the basis for this determination.
(2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
(3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec. 68.80,
pursuant to the schedule in paragraph (h) of this section.
(4) 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) The audit and audit report shall be completed as in paragraph
(a) of this section, unless a different timeframe is specified by the
implementing agency.
0
15. Section 68.80 is added to subpart D to read as follows:
Sec. 68.80 Third-party audits.
(a) Applicability. The owner or operator shall engage a third party
to conduct an audit that evaluates compliance with the provisions of
this subpart in accordance with the requirements of this section when
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) The third-party auditor(s) shall be:
[[Page 17690]]
(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) 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 (c)(2)(ii), 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 the requirement
in this paragraph (c)(2)(iv), 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 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
part 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 appropriate
response to each of the findings in the audit report, and develop a
findings response report that includes:
(i) A copy of the final audit report;
(ii) An appropriate response to each of the audit report findings;
(iii) A schedule for promptly addressing deficiencies; and
(iv) A certification, signed and dated by a senior corporate
officer, or an official in an equivalent position, of the owner or
operator of the stationary source, stating:
I certify under penalty of law that I have engaged a third party
to perform or lead an audit team to conduct a third-party audit in
accordance with the requirements of 40 CFR 68.80 and that the
attached RMP compliance audit report was received, reviewed, and
responded to under my direction or supervision by qualified
personnel. I further certify that appropriate responses to the
findings have been identified and deficiencies were corrected, or
are being corrected, consistent with the requirements of subpart D
of 40 CFR part 68, as documented herein. Based on my personal
knowledge and experience, or inquiry of personnel involved in
evaluating the report findings and determining appropriate responses
to the findings, the information submitted herein is true, accurate,
and complete. I am aware that there are significant penalties for
making false material statements, representations, or
certifications, including the possibility of fines and imprisonment
for knowing violations.
(2) Schedule implementation. The owner or operator shall implement
the schedule to address deficiencies identified in the audit findings
response report in paragraph (f)(1)(iii) of this section and document
the action taken to address each deficiency, along with the date
completed.
(3) Submission to Board of Directors. The owner or operator shall
immediately provide a copy of each document required under paragraphs
(f)(1) and (2) of this section, when completed, to the owner or
operator's audit committee of the Board of Directors, or other
comparable committee or individual, if applicable.
(g) Recordkeeping. The owner or operator shall retain at the
stationary source the two most recent final third-party audit reports,
related findings response reports, documentation of actions taken to
address deficiencies, and related records.
0
16. Amend Sec. 68.81 by 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 paragraph (a) of this section 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; and
(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
17. 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 requirements
required by this section.
[[Page 17691]]
(1) An annual written or electronic notice shall be distributed to
employees and their representatives indicating that the plan is readily
available to view and how to access the information.
(2) Training shall be provided as often as necessary to ensure
employees and their representatives, and management involved in the
process, are informed of the details of the plan.
(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 part.
(c) The owner or operator shall consult with employees
knowledgeable in the process 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 knowledgeable in the process and their representatives:
(1) 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; and
(2) 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)(1) The owner or operator shall develop and implement a process
to allow employees and their representatives to report to either or
both the owner or operator and EPA unaddressed hazards that could lead
to a catastrophic release, accidents covered by Sec. 68.42(a) but not
reported under Sec. 68.195(a), and any other noncompliance with this
part.
(2) The employee and their representatives may choose to report
either anonymously or with attribution.
(3) When a report is made to the owner or operator, a record of the
report shall be maintained for three years.
(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 part.
0
18. Amend 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 three years after the
completion of the hot work operations.
Subpart E--Emergency Response
0
19. Amend Sec. 68.90 by:
0
a. Revising paragraph (b)(3);
0
b. Removing the word ``and'' at the end of paragraph (b)(4);
0
c. Removing the period at the end of paragraph (b)(5) and adding ``;
and'' in its place; and
0
d. Adding paragraph (b)(6).
The revision and addition read as follows:
Sec. 68.90 Applicability.
* * * * *
(b) * * *
(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 accidental release. The owner or
operator may satisfy the requirement in this paragraph (b)(3) through
notification mechanisms designed to meet other Federal, State, or local
notification requirements, provided the notification meets the
requirements of this paragraph (b)(3), as appropriate;
* * * * *
(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 and
partnering with these response agencies to ensure that a community
notification system is in place to warn the public within the area
potentially threatened by the accidental release. Documentation of the
partnership shall be maintained in accordance with Sec. 68.93(c).
0
20. 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 partnering with these response agencies to ensure
that a community notification system is in place to warn the public
within the area potentially threatened by the accidental release.
Documentation of the partnership shall be maintained in accordance with
Sec. 68.93(c);
* * * * *
(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 an accidental release occurs and be coordinated with
the community emergency response plan developed under 42 U.S.C. 11003.
The owner or operator may satisfy the requirement of this paragraph (c)
through notification mechanisms designed to meet other Federal, State,
or local notification requirements, provided the notification meets the
requirements of this paragraph (c), as appropriate. Upon request of the
LEPC or emergency response officials, the owner or operator shall
promptly provide to the local emergency response officials information
necessary for developing and implementing the community emergency
response plan.
0
21. 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) Frequency. As part of coordination with local emergency
response officials required by Sec. 68.93, the owner or operator shall
consult with these officials to establish an appropriate frequency for
field exercises, and shall conduct a field exercise before March 15,
2027, and at a minimum at least once every ten years thereafter, unless
the appropriate local emergency response agencies agree in writing that
such frequency is impractical. If local emergency response agencies so
agree, the owner or operator shall consult with local 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
[[Page 17692]]
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
22. Amend Sec. 68.160 by:
0
a. Removing the semicolons at the ends of paragraphs (b)(1) through
(11) and adding periods in their place;
0
b. Removing ``; and'' at the end of paragraph (b)(12) and adding a
period in its place;
0
c. Removing the semicolons at the ends of paragraphs (b)(13) through
(19) and adding periods in their place; and
0
d. Adding paragraph (b)(22).
The addition reads 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,
working, or spending significant time within 6 miles of the stationary
source, pursuant to Sec. 68.210(d).
0
23. Amend Sec. 68.170 by:
0
a. Removing the word ``and'' at the end of paragraph (e)(5);
0
b. Removing the period at the end of paragraph (e)(6) and adding ``;
and'' in its place;
0
c. Adding paragraph (e)(7); and
0
d. Revising paragraph (i).
The addition and revision 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
24. Amend Sec. 68.175 by:
0
a. Removing the word ``and'' at the end of paragraph (e)(5);
0
b. Removing the period at the end of paragraph (e)(6) and adding a
semicolon in its place;
0
c. Adding paragraphs (e)(7) through (9); and
0
d. Revising paragraph (k).
The addition and revision 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; and
(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-
party audit, pursuant to Sec. Sec. 68.79 and 68.80; and findings
declined from third-party compliance audits and justifications.
* * * * *
Subpart H--Other Requirements
0
25. Amend Sec. 68.210 by adding paragraphs (d) through (h) 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, working, or spending significant time within 6 miles
of the fenceline of a stationary source, the following chemical hazard
information for all regulated processes:
(1) Regulated substances information. Names of regulated substances
held in a process;
(2) Safety Data Sheets. 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 of this part 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, excluding dates,
required under Sec. 68.96 occurring within one year from the date of
request;
(6) LEPC contact information. Include LEPC name, phone number, and
web address as available; and
(7) Declined recommendations and justifications. Include declined
recommendations and justifications required under Sec. Sec.
68.170(e)(7) and 68.175(e)(7) through (9).
(e) Languages. The information shall be made available in English
or in at least any two other commonly spoken languages by the
population potentially affected, as requested.
(f) 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, working, or spending significant time
within 6 miles of the stationary source upon request. The notification
shall:
(i) Specify the information elements, identified in paragraph (d)
of this section, that can be requested; and
(ii) Provide instructions for how to request the information
including verification of presence within 6-miles (e.g., email, mailing
address, and/or telephone or website request); and
(2) Identify where to access information on community preparedness,
if available, including shelter-in-place and evacuation procedures.
(g) 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.
(h) Recordkeeping. The owner or operator shall maintain a record of
the members of the public requesting chemical hazard information for
five years.
[FR Doc. 2024-04458 Filed 3-8-24; 8:45 am]
BILLING CODE 6560-50-P