[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Proposed Rules]
[Pages 53556-53616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18249]
[[Page 53555]]
Vol. 87
Wednesday,
No. 168
August 31, 2022
Part II
Environmental Protection Agency
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40 CFR Part 68
Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act; Safer Communities by Chemical Accident
Prevention; Proposed Rule
Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 /
Proposed Rules
[[Page 53556]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[EPA-HQ-OLEM-2022-0174; FRL-5766.6-01-OLEM]
RIN 2050-AH22
Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act; Safer Communities by Chemical
Accident Prevention
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend its Risk Management Program (RMP) regulations as a result of
Agency review. The proposed revisions include several changes and
amplifications to the accident prevention program requirements,
enhancements to the emergency preparedness requirements, increased
public availability of chemical hazard information, and several other
changes to certain regulatory definitions or points of clarification.
These proposed amendments seek to improve chemical process safety;
assist in planning, preparedness, and responding to RMP-reportable
accidents; and improve public awareness of chemical hazards at
regulated sources.
DATES: Comments must be received on or before October 31, 2022.
Public Hearings: EPA will hold virtual public hearings on September
26, 2022; September 27, 2022; and September 28, 2022, at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. Please refer to the SUPPLEMENTARY
INFORMATION section of this preamble for additional information on the
public hearings.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2022-0174, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, EPA-HQ-OLEM-2022-0174 Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand delivery or courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except
Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and more
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this preamble. For
further information on EPA Docket Center services and the current
status, please visit us online at https://www.epa.gov/dockets.
The virtual hearings will be held at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. The hearing on September 26, 2022, will convene at
9:00 a.m. (local time) and will conclude at 12:00 p.m. (local time).
The hearing on September 27, 2022, will convene at 1:00 p.m. (local
time) and will conclude at 4:00 p.m. (local time). The hearing on
September 28, 2022, will convene at 5:00 p.m. (local time) and will
conclude at 8:00 p.m. (local time). Refer to the SUPPLEMENTARY
INFORMATION section below for additional information.
FOR FURTHER INFORMATION CONTACT: Deanne Grant, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-1096; email: [email protected] or Veronica Southerland, Office
of Emergency Management, Mail Code 5104A, Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number: 202-564-2333; email: [email protected].
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. EPA uses multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
List of Abbreviations and Acronyms
ACC American Chemistry Council
AN ammonium nitrate
ANPI Apache Nitrogen Products Inc.
ANSI American National Standards Institute
API American Petroleum Institute
AQMD Air Quality Management Districts
ASSP American Society of Safety Professionals
ASTM American Society for Testing and Materials
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act
CAAA Clean Air Act Amendments
CDC Centers for Disease Control and Prevention
CDR Chemical Data Reporting
CCPS Center for Chemical Process Safety
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CGA Compressed Gas Association
CSB Chemical Safety and Hazard Investigation Board
DHS Department of Homeland Security
DIR California Department of Industrial Relations
DOJ Department of Justice
DOT Department of Transportation
EHS Extremely Hazardous Substances
EJ Environmental Justice
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-To-Know Act
FEMA Federal Emergency Management Agency
FOIA Freedom of Information Act
FR Federal Register
FRS Facility Registry Service
GDC General Duty Clause
GMARD Guide for Making Acute Risk Decisions
HF hydrofluoric acid
HHC highly hazardous chemical
IEEE Institute of Electrical and Electronics Engineers
IIAR International Institute of Ammonia Refrigeration
IPAWS Integrated Public Alert & Warning System
ISD inherently safer design
IST inherently safer technology
LEPC local emergency planning committee
LPG liquefied petroleum gas
MACT Maximum Achievable Control Technology
NAICS North American Industry Classification System
NASTTPO National Association of SARA Title III Program Officials
NESHAP National Emission Standards for Hazardous Air Pollutants
NFPA National Fire Protection Association
NJAC New Jersey Administrative Code
NJDEP New Jersey Department of Environmental Protection
NREL National Renewable Energy Laboratory
NSPS New Source Performance Standards
NTTAA National Technology Transfer Advancement Act
OCA offsite consequences analysis
OSHA Occupational Safety and Health Administration
PHA process hazard analysis
PRA Paperwork Reduction Act
PSM process safety management
RAGAGEP recognized and generally accepted good engineering practices
RFA Regulatory Flexibility Act
RFI request for information
RIA Regulatory Impact Analysis
RMP Risk Management Program or risk management plan
SARA Superfund Amendments and Reauthorization Act
SCCAP Safer Communities by Chemical Accident Prevention
[[Page 53557]]
SDS Safety Data Sheet
SEMS Safety and Environmental Management Systems
SOCMA Society of Chemical Manufacturers and Affiliates
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TEPC Tribal emergency planning committee
TNT trinitrotoluene
TQ threshold quantity
UMRA Unfunded Mandates Reform Act
Organization of this document. The information in this preamble is
organized as follows:
I. Public Participation
A. Written Comments
B. Comment Headings
C. Participation in Virtual Public Hearings
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the costs and benefits of this action?
1. Summary of Estimated Costs
2. Baseline Damages
3. Summary of Estimated Benefits
III. Background
A. Overview of EPA's Risk Management Program
B. Events Leading to This Action
C. EPA's Authority To Revise the RMP Rule
IV. Proposed Action
A. Prevention Program
1. Hazard Evaluation Amplifications
a. Introduction
b. Natural Hazards
c. Power Loss
d. Stationary Source Siting
e. Hazard Evaluation Recommendation Information Availability
f. Summary of Proposed Regulatory Text
2. Prevention Program Provisions
a. Safer Technologies and Alternatives Analysis (STAA)
i. Background on IST/ISD
ii. Hydrogen Fluoride (HF)
iii. Recent Public Input on STAA
iv. Recent Public Input on HF
v. STAA Applicability
vi. Accident Frequency
vii. Accident Severity
viii. Discussion of Prior STAA Analysis
ix. STAA Technology Transfer
x. Alternative Options
xi. Proposed Revisions to Regulatory Text
xii. Process Hazard Analysis (40 CFR 68.67)
b. Root Cause Analysis
i. Root Cause Analysis Background
ii. Recent Public Comments on Root Cause Analysis
iii. Investigation Timeframe
iv. Proposed Revisions to Regulatory Text
v. ``Near Miss'' Definition
c. Third-Party Compliance Audits
i. Third-Party Compliance Audits in Previous RMP Rulemakings
ii. Recent Public Input on Third-Party Compliance Audits
iii. Proposed Third-Party Compliance Audit Requirements
d. Employee Participation
i. Introduction
ii. Recommendation Decisions
iii. Stop Work Authority
iv. Accident and Non-Compliance Reporting
B. Emergency Response
1. Review of Emergency Response Notification, Detection, and
Response
a. Concerns About Notification of Accidents
b. Release Detection
c. Emergency Response Guidance
2. Proposed Modifications and Amplifications of Emergency
Response Requirements
a. Proposed Regulations to Address Community Notification of RMP
Accidents
b. Community Emergency Response Plan Amplifications
3. Emergency Response Exercises
a. Proposed Amendments to the Emergency Response Requirements
b. Field Exercise Frequency
c. Exercise Evaluation Reports
C. Information Availability
1. Recent Public Input on Information Availability
2. Information Availability in the 2017 Amendments and the 2019
Reconsideration Rule
3. Proposed Regulatory Revisions
a. Request for Comment on Potential Non-Rule RMP Access Policy
Changes
b. Current Data Availability of Risk Management Plan Information
c. Other EPA Facility Hazardous Substance Registries
d. Balancing Security Risks and Community Right-to-Know
D. Other Areas of Technical Clarification
1. Process Safety Information
2. Program 2 and 3 Requirements for Compliance With RAGAGEP
3. Retention of Hot Work Permits
4. Storage Incident to Transportation
5. Retail Facility Exemption
6. RAGAGEP
E. Compliance Dates
V. Additional Considerations
VI. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income Populations
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2022-
0174, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section, above. Once
submitted, comments cannot be edited or removed from the docket. EPA
may publish any comment received to its public docket. Do not submit to
EPA's docket at https://www.regulations.gov any information you
consider to be confidential business information or other information
whose disclosure is restricted by statute. Multimedia submissions
(audio, video, etc.) must be accompanied by a written comment. The
written comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about confidential business information or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets.
Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and its Federal partners so that it can respond
rapidly as conditions change regarding COVID-19.
B. Comment Headings
Commentors should review the discussions in the preamble and may
comment on any matter that is addressed by the proposed rule. For
comments submitted through postal mail or https://www.regulations.gov,
EPA is requesting commenters to identify their comments on specific
issues by using the appropriate number and comment headings listed
below to make it simpler for the Agency to
[[Page 53558]]
process your comment. If your comment covers multiple issues, please
use all the heading numbers and names that relate to that comment. As
an example of this optional method, where one individual comment
relates to issue #1 and a second individual comment pertains to issues
#2 and #3, a set of comments would be submitted as follows:
1. Natural Hazards--EPA requests comment on the following (See
Section IV.A.1.b):
The Agency's proposed approach.
Whether EPA should develop additional guidance for
assessing natural hazards.
Natural hazard resources such as databases, checklists, or
narrative discussions, as well as commenters' recommendations for
regional versus national, or sector-specific guidance.
Whether to specify geographic areas most at risk from
climate or other natural events by adopting the list of areas exposed
to heightened risk of wildfire, flooding, storm surge, or coastal
flooding and if this approach would simplify implementation.
If the Agency should require sources in areas exposed to
heightened risk of wildfire, flooding, storm surge, coastal flooding,
or earthquake, to conduct hazard evaluations associated with climate or
earthquake as a minimum, while also requiring all sources to consider
the potential for natural hazards unrelated to climate or earthquake in
their specific locations.
2. Power Loss--EPA requests comment on the following (See Section
IV.A.1.c):
The Agency's proposed approach.
The proposed provision to require air pollution control or
monitoring equipment associated with prevention and detection of
accidental releases from RMP-regulated processes to have standby or
backup power and any potential safety issues associated with it.
3. Stationary Source Siting--EPA requests comment on the following
(See Section IV.A.1.d):
The Agency's proposed approach.
4. Hazard Evaluation Recommendation Information Availability--EPA
requests comment on the following (See Section IV.A.1.e):
The Agency's proposed approach.
Whether EPA should require declined hazard evaluation
recommendations to be included in narrative form, whether the Agency
should provide specific categories of recommendations for facilities to
choose from when reporting or allowing the owner or operator to post
this information online and provide a link to their information within
their RMP.
Methods to provide justification for declining relevant
hazard evaluation recommendations, the proposed approach or alternative
categories.
5. Safer Technology and Alternatives Analysis (STAA)--EPA requests
comment on the following (See Section IV.A.2.a):
The Agency's proposed approach.
Industry understanding of the practicability assessment,
and how this might differ from the findings identified in the PHA.
Additional benefits provided by the practicability
assessment.
EPA's definition of the practicability assessment.
How to determine if a facility is within a 1-mile radius
and if EPA should use locational data provided by facilities, or
develop a standard definition (e.g., 1 mile to the facility fenceline
or 1 mile to the regulated process location).
Information that should be collected in a STAA
clearinghouse.
The proposed STAA applicability criteria and alternatives.
Whether EPA should reinstate the 2017 rule provisions
requiring STAA for all NAICS 324 and 325 processes.
Whether the proposal to limit the STAA provisions to NAICS
324 and 325 regulated processes within 1 mile of another NAICS 324 and
325 regulated facility is appropriate or if another distance (e.g., 3
miles) would be appropriate, and the rationale for proposed distance
alternatives.
Other industries for which STAA should be required and how
EPA might justify extending these provisions to other industries.
What other information or consideration EPA can use to
assess probability of an accident in other industries without accident
history data as well as what specific chemicals or processes may merit
the most focus, and how EPA may require STAA requirements for
industries without a history of accidents.
If the Agency should only require the STAA as part of the
PHA, without the additional practicability assessment.
For any cited costs of implementing the STAA as part of
the PHA, documentation to support cost estimates.
For any cited costs of implementing the practicability
assessment of the STAA provisions, documentation to support cost
estimates.
6. Root Cause Analysis--EPA requests comment on the following (See
Section IV.A.2.b):
The Agency's proposed approach.
A potential definition of ``near miss'' that would address
difficulties in identifying the variety of incidents that may occur at
RMP facilities that could be near misses that should be investigated.
A universal ``near miss'' definition, as well as comments
on strengths and limitations of the definition provided by NJDEP and
how the definition may clarify requirements for incident
investigations.
7. Third Party Compliance Audits--EPA requests comment on the
following (See Section IV.A.2.c):
The Agency's proposed approach.
Proposed independence criteria modified from the 2017
rule.
Whether the selected auditor should be mutually approved
by the owner or operator and employees and their representatives, and
if direct participation from employees and their representative should
be required when a third party conducts an audit.
Whether EPA should require declined findings be included
in narrative form, or whether the Agency should provide specific
categories of findings for facilities to choose from when reporting.
8. Employee Participation--EPA requests comment on the following
(See Section IV.A.2.d):
The Agency's proposed approach.
Whether there should be a representative number or
percentage of employees and their representatives involved in these
recommendations decision teams as well as the development of other
process safety elements as outlined in 40 CFR 68.83(b).
Relevant sources that have provided useful guidance in
making risk decisions.
Whether owners and operators should distribute an annual
written or electronic notice to employees that employee participation
plans and other RMP information is readily accessible upon request and
provide training for those plans and how to access the information.
9. Proposed Modifications and Amplifications to Emergency Response
Requirements--EPA requests comment on the following (See Section
IV.B.2):
The Agency's proposed approach.
Additional information that is useful to share when
notifying the public of RMP-accidental releases.
Impediments to accessing community emergency response
plans and potential solutions to having the plans more accessible
within the scope of the RMP rule.
10. Emergency Response Exercises--EPA requests comment on the
following (See Section IV.B.3):
The Agency's proposed approach.
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11. Information Availability--EPA requests comment on the following
(See Section IV.C.3):
The Agency's proposed approach.
If the 6-mile radius for requesting information is
appropriate. For alternative distances, information on the
justification for these alternative distances.
Specific information on the increased likelihood of
security threats arising from dissemination of this information.
Which data elements, or combinations of elements, may pose
a security risk if released to the public (provided in Section 10 of
the Technical Background Document).
For each element or combination of elements identified as
a potential security risk: (1) Specific comments on why the element or
combination of elements presents a security risk and (2) documentation
or basis for these security claims, such as expert studies,
intelligence assessments, a prior incident, documented security threat,
or near miss incident.
12. Other Areas of Technical Clarification--EPA requests comment on
the following (See Section IV.D):
The Agency's proposed approaches.
For revisions to ``storage incident to transportation''
definition, the proposed 48-hour time frame, suggestions for other
appropriate time frames, and any safety concerns that may arise from
transportation containers being exempt from the RMP rule when
disconnected for less than 48 hours.
13. Regulatory Impact Analysis--EPA requests comment on the
following (See Section II.D):
The assumptions and information used in the analysis,
including burden estimates and the likelihood of adopting safer
alternatives.
The estimated costs of the proposed provisions and whether
these costs should accrue to this proposal.
Cost data or studies related to the cost of practicability
studies for conversion of hydrofluoric acid alkylation units to safer
technologies.
The estimated benefits of the proposed provisions.
14. Regulatory Flexibility Act Analysis
The number of small entities potentially affected by the
proposed provisions of this rule.
The estimated cost impacts on small entities by the
proposed provisions of this rule.
15. OTHER--Any comments not falling under one of the preceding
categories should be identified using `OTHER' as the comment header.
C. Participation in Virtual Public Hearings
Please note that because of current CDC recommendations, as well as
State and local orders for social distancing to limit the spread of
COVID-19, EPA cannot hold in-person public meetings at this time.
EPA will begin pre-registering speakers for the hearing upon
publication of this preamble in the Federal Register (FR). To register
to speak at the virtual hearings, please see the online registration
form available at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident or
contact Deanne Grant at 202-564-1096 or [email protected] to
register to speak at the virtual hearings. The last day to pre-register
to speak at the hearings will be September 22, 2022, EPA will post a
general agenda for the hearings that will list pre-registered speakers
in approximate order at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearings; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 3 minutes to provide oral testimony. EPA
encourages commenters to provide EPA with a copy of their oral
testimony electronically (via email) by emailing it to Deanne Grant at
[email protected]. EPA also recommends submitting the text of your
oral comments as written comments to the rulemaking docket.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearings.
Please note that any updates made to any aspect of the hearings are
posted online at https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident. While EPA
expects the hearings to go forward as set forth above, please monitor
the Agency's website or contact Deanne Grant, 202-564-1096,
[email protected], to determine if there are any updates. EPA does
not intend to publish a document in the Federal Register announcing
updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearings with Deanne Grant and describe your needs by September 19,
2022. EPA may not be able to arrange accommodations without advanced
notice.
II. General Information
A. Does this action apply to me?
This rule applies to those facilities (referred to as ``stationary
sources'' under the Clean Air Act, or CAA) that are subject to the
chemical accident prevention requirements at 40 CFR part 68. This
includes stationary sources holding more than a threshold quantity (TQ)
of a regulated substance in a process. Nothing in this rule would
impact the scope and applicability of the General Duty Clause in CAA
112(r)(1), 42 U.S.C. 7412(r)(1). See 40 CFR 68.1. Table 1 provides
industrial sectors and the associated North American Industry
Classification System (NAICS) codes for entities potentially affected
by this action. The Agency's goal is to provide a guide on entities
that might be affected by this action. However, this action may affect
other entities not listed in this table. If you have questions about
the applicability of this action to a particular entity, consult the
person(s) listed in the FOR FURTHER INFORMATION CONTACT section of this
preamble.
Table 1--Entities Potentially Affected by the Proposed Rule
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Number of
Sector NAICS codes facilities Chemical uses
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Administration of environmental 92, 2213 (government-owned)......... 1,449 Use chlorine and
quality programs (i.e., other chemicals for
governments, government-owned water treatment.
water).
Agricultural chemical distributors/ 11, 424 (except 4246, 4247)......... 3,315 Store ammonia for
wholesalers. sale; some in NAICS
111 and 115 use
ammonia as a
refrigerant.
Chemical manufacturing............. 325................................. 1,502 Manufacture, process,
store.
[[Page 53560]]
Chemical wholesalers............... 4246................................ 317 Store for sale.
Food and beverage manufacturing.... 311, 312............................ 1,571 Use (mostly ammonia)
as a refrigerant.
Oil and gas extraction............. 211................................. 719 Intermediate
processing (mostly
regulated flammable
substances and
flammable mixtures).
Other.............................. 21 (except 211), 23, 44, 45, 48, 246 Use chemicals for
491, 54, 55, 56, 61, 62, 71, 72, wastewater
81, 99. treatment,
refrigeration, store
chemicals for sale.
Other manufacturing................ 313, 314, 315, 326, 327, 33......... 375 Use various chemicals
in manufacturing
process, waste
treatment.
Other wholesale.................... 421, 422, 423....................... 39 Use (mostly ammonia)
as a refrigerant.
Paper manufacturing................ 321, 322............................ 55 Use various chemicals
in pulp and paper
manufacturing.
Petroleum and coal products 324................................. 156 Manufacture, process,
manufacturing. store (mostly
regulated flammable
substances and
flammable mixtures).
Petroleum wholesalers.............. 4247................................ 367 Store for sale
(mostly regulated
flammable substances
and flammable
mixtures).
Utilities/water/wastewater......... 221 (non-government-owned water).... 519 Use chlorine (mostly
for water treatment)
and other chemicals.
Warehousing and storage............ 493................................. 1,110 Use (mostly ammonia)
as a refrigerant.
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Total.......................... .................................... 11,740 .....................
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B. What action is the Agency taking?
The purpose of this action is to propose changes to the RMP rule in
order to improve safety at facilities that use and distribute hazardous
chemicals. The RMP regulations have been effective in preventing and
mitigating chemical accidents in the United States. However, EPA
believes that revisions could further protect human health and the
environment from chemical hazards through advancement of process safety
based on lessons learned. These proposed revisions are a result of
review of the existing RMP regulations and information gathered from
the 2021 virtual public listening sessions (hereinafter referred to as
the ``2021 listening sessions'').\1\
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\1\ Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act, Section 112(r)(7); Rule
Retrospection Under Executive Order 13990; Virtual Public Listening
Sessions; Request for Public Comment; EPA-HQ-OLEM-2021-0312-0001.
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C. What is the Agency's authority for taking this action?
The statutory authority for this action is provided by section
112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each modification of
the RMP rule that EPA proposes in this document is based on EPA's
rulemaking authority under CAA section 112(r)(7) (42 U.S.C.
7412(r)(7)). When promulgating rules under CAA section 112(r)(7)(A) and
(B), EPA must follow the procedures for rulemaking set out in CAA
section 307(d) (see CAA sections 112(r)(7)(E) and 307(d)(1)(C)). Among
other things, CAA section 307(d) sets out requirements for the content
of proposed and final rules, the docket for each rulemaking,
opportunities for oral testimony on proposed rulemakings, the length of
time for comments, and judicial review.
D. What are the costs and benefits of this action?
1. Summary of Estimated Costs
Approximately 11,740 facilities have filed current risk management
plans with EPA and are potentially affected by the proposed rule. Table
1 presents the number of facilities according to the latest RMP
reporting as of December 31, 2020, by industrial sector and chemical
use. These facilities range from petroleum refineries and large
chemical manufacturers to water and wastewater treatment systems;
chemical and petroleum wholesalers and terminals; food manufacturers,
packing plants, and other cold storage facilities with ammonia
refrigeration systems; agricultural chemical distributors; midstream
gas plants; and a limited number of other sources, including Federal
installations, that use RMP-regulated substances. Among the stationary
sources potentially affected, the Agency has determined that 2,911 are
regulated private sector small entities and 630 are small government
entities.
Table 2 presents a summary of the annualized costs estimated in the
regulatory impact analysis (RIA).\2\ In total, EPA estimates annualized
costs of $75.8 million at a 3% discount rate and $76.7 million at a 7%
discount rate.
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\2\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Proposed Rule (April 19, 2022).
Table 2--Summary of Estimated Annualized Costs Over a 10-Year Period
[Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
Total Total
Cost elements Total discounted discounted Annualized Annualized
undiscounted (3%) (7%) (3%) (7%)
----------------------------------------------------------------------------------------------------------------
Third-party Audits.............. $102.7 $87.6 $72.1 $10.3 $10.3
Root Cause Analysis............. 7.3 6.2 5.1 0.7 0.7
Safer Technology and 518.2 442.0 364.0 51.8 51.8
Alternatives Analysis..........
Backup Power for Perimeter 0.4 0.4 0.4 ** 0.0 ** 0.0
Monitors.......................
Employee Participation Plan..... 8.6 7.3 6.0 0.9 0.9
[[Page 53561]]
Community Notification System... 38.0 32.4 26.7 3.8 3.8
Information Availability........ 30.3 25.8 21.3 3.0 3.0
Rule Familiarization............ 46.5 45.2 43.5 5.3 6.2
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Total Cost *................ 751.8 646.8 538.8 75.8 76.7
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Totals are zero due to rounding, Unrounded totals are $44,600 at 3% and $52,200 at 7% discount rates.
The largest annualized cost of the proposed rule is the safer
technologies and alternatives analysis (STAA) provision ($51.8 million
at both 3% and 7% discount rates), followed by third-party audits
($10.3 million at both 3% and 7% discount rates), rule familiarization
($5.3 million at a 3% discount rate and $6.2 million at a 7% discount
rate), and information availability ($3.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including employee participation ($0.9 million at both 3%
and 7% discount rates), root cause analysis ($0.7 million at both 3%
and 7% discount rates), and emergency backup power for perimeter
monitors (less than $0.1 million at both 3% and 7% discount rates).
The Agency has determined that among the 2,911 potentially
regulated private sector small entities so impacted, 2,822, or 96.9
percent, may experience an impact of less than one percent with an
average small entity cost of $10,618; and 84, or 2.9 percent, may
experience an impact of between one and three percent of revenues with
an average small cost entity of $108,921. Among the 630 small
government entities potentially affected, 488, or 77 percent would
incur costs of less than $1,000; 109, or 17 percent costs ranging from
$1,000 to $2,000; 18, or 3 percent costs ranging from $2,000 to $3,000;
and only one would incur costs greater than $10,000, and EPA estimated
that for the rule to have a larger than one percent impact on this
entity, it would need to have revenue of less than $103 per resident.
For detailed costs by provision and NAICS code see Chapter 8 of the
RIA.
EPA seeks further information on the estimated costs of these
provisions and whether these costs should accrue to this proposal. EPA
particularly requests cost data or studies related to the cost of
practicability studies for conversion of hydrofluoric acid alkylation
units to safer technologies. For more information see Chapter 4 of the
RIA.
2. Baseline Damages
Accidents and chemical releases from RMP facilities occur every
year. They cause fires and explosions, damage to property, acute and
chronic exposures of workers and nearby residents to hazardous
materials and result in serious injuries and fatalities. EPA is able to
present data on the total damages that currently occur at RMP
facilities each year. EPA presents the data based on a 5-year baseline
period, summarizes RMP accident impacts and, when possible, monetizes
them. EPA expects that some portion of future damages would be
prevented through implementation of a final rule. Table 3 presents a
summary of the quantified damages identified in the analysis.
Table 3--Summary of Quantified Damages
[Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
Average/
Unit value 5-year total Average/ year accident
----------------------------------------------------------------------------------------------------------------
On site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... $9.3 $111.6 $22.32 $0.23
Injuries........................................ 0.05 27.50 5.50 0.06
Property Damage................................. .............. 2,031 406.20 4.16
---------------------------------------------------------------
Onsite Total................................ .............. 2,170.10 434.02 4.45
----------------------------------------------------------------------------------------------------------------
Off site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... 9.30 0.00 0.00 0.00
Hospitalizations................................ 0.045 1.40 0.28 0.003
Medical Treatment............................... 0.001 0.13 0.03 0.0003
Evacuations *................................... 0.00 14.16 2.83 0.029
Sheltering in Place *........................... 0.00 9.39 1.88 0.019
Property Damage................................. .............. 191.53 38.31 0.39
---------------------------------------------------------------
Offsite Total............................... .............. 216.61 43.32 0.44
---------------------------------------------------------------
Total................................... .............. 2,386.71 477.34 4.89
----------------------------------------------------------------------------------------------------------------
* The unit value for evacuations and for sheltering in place are less than $300 so when expressed in rounded
millions the value represented in the table is zero.
[[Page 53562]]
In total, EPA estimated monetized damages from RMP facility
accidents of $477.3 million per year. These damages are divided into
onsite and offsite categories where possible. EPA estimated total,
average annual onsite damages from chemical releases at RMP facilities
of $434.0 million. The largest monetized category was property damage,
valued at $406.2 million. The next largest impacts were onsite
fatalities ($22.3 million) and injuries ($5.5 million).
EPA estimated total, average annual offsite damages of $43.3
million. Property damage again was the highest value category,
estimated at approximately $38.3 million. In decreasing order, the next
largest average annual offsite impact was from evacuations ($2.8
million), then sheltering in place ($1.9 million), hospitalizations
($0.3 million), and medical treatment ($0.03 million).
3. Summary of Benefits
EPA anticipates that promulgation and implementation of this
proposed rule would result in a reduced frequency and magnitude of
damages from releases, including damages that are quantified in Table 3
such as fatalities, injuries, property damage, hospitalizations,
medical treatment, sheltering-in-place and so on. EPA also expects that
the proposed rule provisions would reduce baseline damages that are not
quantified in Table 3 such as lost productivity, responder costs,
property value reductions, damages from catastrophes, and so on.
Although EPA was unable to quantify the reductions in damages that may
occur as a result of the proposed rule provisions, EPA expects that a
portion of future damages would be prevented by the proposed rule.
Table 4 summarizes four broad social benefit categories related to
accident prevention and mitigation, including prevention of RMP
accidents, mitigation of RMP accidents, prevention and mitigation of
non-RMP accidents at RMP facilities, and prevention of major
catastrophes. The table explains each and identifies ten associated
specific benefit categories, ranging from avoided fatalities to avoided
emergency response costs.
Table 4--Summary of Social Benefits of Proposed Rule Provisions
------------------------------------------------------------------------
Specific benefit
Broad benefit category Explanation categories
------------------------------------------------------------------------
Accident Prevention............. Prevention of Reduced
future RMP Fatalities.
facility
accidents.
Reduced
Injuries.
Reduced
Property Damage.
Accident Mitigation............. Mitigation of Fewer
future RMP People Sheltered-
facility in-Place.
accidents.
Fewer
Evacuations.
Avoided
Lost
Productivity.
Non-RMP Accident Prevention and Prevention and Avoided
Mitigation. mitigation of Emergency
future non-RMP Response Costs.
accidents at RMP
facilities.
Avoided
Transaction
Costs.
Avoided Catastrophes............ Prevention of rare Avoided
but extremely Property Value
high consequence Impacts.*
events.
Avoided
Environmental
Impacts.
Information Availability........ Provision of Improved
information to Efficiency of
the public and Property Markets.
emergency
responders.
Improved
Resource
Allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories.
EPA seeks further information on the estimated benefits of these
provisions. For more information see Chapter 6 of the RIA.
III. Background
A. Overview of EPA's Risk Management Program
EPA originally issued the RMP regulation in two stages. The Agency
published the list of regulated substances and TQs in 1994: ``List of
Regulated Substances and Thresholds for Accidental Release Prevention;
Requirements for Petitions Under Section 112(r) of the Clean Air Act as
Amended'' (59 FR 4478, January 31, 1994), hereinafter referred to as
the ``list rule.'' \3\ The Agency published the RMP final regulation,
containing risk management requirements for covered sources, in 1996:
``Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7)'' (61 FR 31668, June 20, 1996),
hereinafter referred to as the ``1996 RMP rule.'' 4 5
Subsequent modifications to the list rule and the 1996 RMP rule were
made as discussed in the 2017 amendments rule published in 2017
(``Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act''; 82 FR 4594, January 13, 2017, at 4600,
hereinafter referred to as the ``2017 amendments rule''). Prior to
development of EPA's 1996 RMP rule, the Occupational Safety and Health
Administration (OSHA) published its Process Safety Management (PSM)
standard in 1992 (57 FR 6356, February 24, 1992), as required by
section 304 of the 1990 Clean Air Act Amendments (CAAA), using its
authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29
Code of Federal Regulations (CFR) 1910.119. Both the OSHA PSM standard
and EPA's RMP rule aim to prevent or minimize the consequences of
accidental chemical releases through implementation of management
program elements that integrate technologies, procedures, and
management practices. In addition to requiring implementation of
management program elements, the RMP rule requires any covered source
to submit (to EPA) a document summarizing the source's risk management
program--called a risk management plan (or RMP).
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\3\ Documents and information related to development of the list
rule can be found in the EPA docket for the rulemaking, docket
number A-91-74.
\4\ Documents and information related to development of the 1996
RMP rule can be found in EPA docket number A-91-73.
\5\ 40 CFR part 68 applies to owners and operators of stationary
sources that have more than a TQ of a regulated substance within a
process. The regulations do not apply to chemical hazards other than
listed substances held above a TQ within a regulated process.
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EPA's risk management program requirements include conducting a
worst-case scenario analysis and a review of accident history,
coordinating emergency response procedures with local response
organizations, conducting a hazard assessment,
[[Page 53563]]
documenting a management system, implementing a prevention program and
an emergency response program, and submitting a risk management plan
that addresses all aspects of the risk management program for all
covered processes and chemicals. A process at a source is covered under
one of three different prevention programs (Program 1, Program 2, or
Program 3) based directly or indirectly on the threat posed to the
community and the environment. Program 1 has minimal requirements and
is for processes that have not had an accidental release with offsite
consequences in the last 5 years before submission of the source's risk
management plan, and that have no public receptors within the worst-
case release scenario vulnerable zone for the process. Program 3
applies to processes not eligible for Program 1, has the most
requirements, and applies to processes covered by the OSHA PSM standard
or classified in specified industrial sectors. Program 2 has fewer
requirements than Program 3 and applies to any process not covered
under Programs 1 or 3. Programs 2 and 3 both require a hazard
assessment, a prevention program, and an emergency response program,
although Program 2 requirements are less extensive and more
streamlined. For example, the Program 2 prevention program was intended
to cover in many cases simpler processes at smaller businesses and does
not require the following process safety elements: management of
change, pre-startup review, contractors, employee participation, and
hot work permits. The Program 3 prevention program is fundamentally
identical to the OSHA PSM standard and designed to cover those
processes in the chemical industry.
B. Events Leading to This Action
On January 13, 2017, EPA published amendments to the RMP rule (82
FR 4594). The 2017 amendments rule was prompted by E.O. 13650,
``Improving Chemical Facility Safety and Security,'' \6\ which directed
EPA (and several other Federal agencies) to, among other things,
modernize policies, regulations, and standards to enhance safety and
security in chemical facilities. The 2017 amendments rule contained
various new provisions applicable to RMP-regulated facilities
addressing prevention program elements (safer technology and
alternatives analysis (``STAA''); incident investigation root cause
analysis; and third-party compliance audits), emergency response
coordination with local responders (including emergency response
exercises), and availability of information to the public. EPA received
three petitions for reconsideration of the 2017 amendments rule under
CAA section 307(d)(7)(B).\7\ In December 2019, EPA finalized revisions
to the RMP regulations to reconsider the rule changes made in January
2017 (``Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act,'' 84 FR 69834, December 19, 2019,
hereinafter referred to as the ``2019 reconsideration rule''). The 2019
reconsideration rule rescinded certain information disclosure
provisions of the 2017 amendments rule, removed most new accident
prevention requirements added by the 2017 rule, and modified some other
provisions of the 2017 amendments rule. The rule changes made by the
2019 reconsideration rule reflect the current RMP regulations to date.
There are petitions for judicial review of both the 2017 amendments and
the 2019 reconsideration rules. The 2019 reconsideration rule
challenges are being held in abeyance until October 3, 2022, by which
time the parties must submit motions to govern. The case against the
2017 amendments rule is in abeyance pending resolution of the 2019
reconsideration rule case.
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\6\ Available at https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
\7\ Available at https://www.epa.gov/petitions/petitions-office-land-and-emergency-management.
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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 Climate Crisis.'' \8\ E.O. 13990 directed Federal agencies
to review existing regulations and take action to address priorities
established by the current Administration, which include bolstering
resilience to the impacts of climate change and prioritizing
environmental justice (EJ). As a result, EPA was tasked to review the
current RMP regulations.
---------------------------------------------------------------------------
\8\ Available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/.
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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 includes
27,720 received at regulations.gov,\9\ 35 provided during the listening
session on June 16, 2021,\10\ and 73 provided during the listening
session on July 8, 2021.\11\ Most of the comments received in the
docket were copies of form letters related to four different form
letter campaigns. The remaining comments included 302 submissions
containing unique content. Of the 302 unique submissions, a total of
163 were deemed to be substantive (i.e., the commenters presented both
a position and a reasoned argument in support of the position).
Information collected through these comments has informed the review.
---------------------------------------------------------------------------
\9\ EPA-HQ-OLEM-2021-0312.
\10\ EPA-HQ-OLEM-2021-0312-0011.
\11\ EPA-HQ-OLEM-2021-0312-0020.
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EPA seeks comment on the proposed amendments. Any suggestions for
alternative options should include an appropriate rationale and
supporting data for the Agency to be able to consider it for a final
action. To the extent submitted comments will repeat or rely on
material submitted in the docket used for the 2017 amendments rule or
the 2019 reconsideration rule, include the relevant material in the
submitted comment with a specific reference to the portion of the
material cited as support.
C. EPA's Authority To Revise the RMP Rule
Congress granted EPA authority to establish accident prevention
rules under two provisions in CAA section 112(r)(7). Under CAA section
112(r)(7)(A), EPA may set rules addressing the prevention, detection,
and correction of accidental releases of substances listed by EPA by
rule (``regulated substances'' listed in the Tables 1 through 4 to 40
CFR 68.130). Such rules may include requirements related to monitoring,
data collection, training, design, equipment, work practice, and
operations. In promulgating its regulations, EPA may draw distinctions
between types, classes, and kinds of facilities by taking into
consideration various factors including size and location. This section
also indicates that EPA has discretion regarding the date rules will
take effect. Regulations become effective ``as determined by the
Administrator,
[[Page 53564]]
assuring compliance as expeditiously as practicable.''
Under CAA section 112(r)(7)(B), Congress directed EPA to develop
``reasonable regulations and appropriate guidance'' that provide for
the prevention and detection of accidental releases and the response to
such releases ``to the greatest extent practicable.'' Congress required
an initial rulemaking under this subparagraph by November 15, 1993.
Section 112(r)(7)(B) sets out a series of mandatory subjects to
address, interagency consultation requirements, and discretionary
provisions that allowed EPA to tailor requirements to make them
reasonable and practicable. The regulations needed to address
``storage, as well as operations'' and emergency response after
accidental releases, and EPA was to use the expertise of the
Secretaries of Labor and Transportation in promulgating the
regulations. This provision gave EPA the discretion to recognize
differences in factors such as ``size, operations, processes, class,
and categories of sources'' and the voluntary actions taken by owners
and operators of regulated sources to prevent and respond to accidental
releases (CAA section 112(r)(7)(B)(i)). At a minimum, the regulations
had to require any stationary source with more than a threshold
quantity of regulated substances to prepare and implement a risk
management plan (RMP). Such an RMP needed to provide for compliance
with rule requirements under CAA section 112(r) and include a hazard
assessment with release scenarios, an accident history, a release
prevention program, and a response program (CAA section
112(r)(7)(B)(ii)). Plans were to be registered with EPA and submitted
to various planning entities (CAA section 112(r)(7)(B)(iii)). These
initial rules had to apply to sources 3 years after promulgation or 3
years after a substance was first listed for regulation under CAA
section 112(r) (CAA section 112(r)(7)(B)(i)). EPA fulfilled its initial
obligations under section 112(r)(7)(B) with the 1996 RMP rule, but the
agency views section 112(r)(7)(B) to give EPA continuing authority to
improve the RMP regulations to achieve the statutory directives.
In addition to the direction to use the expertise of the
Secretaries of Labor and Transportation in CAA section 112(r)(7)(B),
the statute more broadly requires EPA to consult with these secretaries
when carrying out the authority of CAA section 112(r)(7) and to
``coordinate any requirements under [CAA section 112(r)(7)] with any
requirements established for comparable purposes by'' OSHA (CAA section
112(r)(7)(D)). This consultation and coordination language derives from
and expands upon provisions on hazard assessments in the bill that
passed in the Senate as its version of what eventually became the 1990
CAAA, section 129(e)(4) of S.1630. The Senate committee report on this
language notes that the purpose of the coordination requirement is to
ensure that ``requirements imposed by both agencies to accomplish the
same purpose are not unduly burdensome or duplicative.'' \12\ The
mandate for coordination in the area of safer chemical processes was
incorporated into CAA section 112(r)(7)(D). In the same legislation,
Congress directed OSHA to promulgate a process safety standard that
became the PSM standard (see CAAA of 1990 section 304).
---------------------------------------------------------------------------
\12\ Committee on Environment and Public Works, Clean Air Act
Amendments of 1989: Report of the Committee on Environment and
Public Works, U.S. Senate, Together with Additional and Minority
Views, to Accompany S.1630 (December 20, 1989), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-0645. EPA-HQ-OEM-
2015-0725-0645.
---------------------------------------------------------------------------
EPA used its authority under CAA section 112(r)(7) to issue the
1996 RMP rule (61 FR 31668; June 20, 1996), the 2017 amendments rule
(82 FR 4594; January 13, 2017), and the 2019 reconsideration rule (84
FR 69834; December 19, 2019). The Agency is also implementing this
authority in this proposed rulemaking. These proposed amendments
address three requirements of the Risk Management Program: accident
prevention program requirements, emergency preparedness requirements,
and information availability requirements. The prevention program
provisions in this rule address the prevention and detection of
accidental releases and include the following topics: stationary source
siting, safer technologies and alternatives analysis (STAA), root cause
analysis incident investigation, third-party compliance auditing, and
employee participation. The emergency response provisions in this rule
modify existing provisions that provide for owner or operator responses
to accidental releases. The information availability provisions
discussed in this document generally assist in the development of
emergency response procedures and measures to protect human health and
the environment after an accidental release (CAA section
112(r)(7)(B)(i)).\13\ When determining which amendments would result in
the prevention and detection of accidental releases of regulated
substances to the greatest extent practicable, EPA took into
consideration multiple factors including--but not limited to--the size
of the facility, the quantity of the substances handled, and the
location of the facility in relation to other RMP facilities in
accordance with both CAA sections 112(r)(7)(A) and (B)(i). The rule
distinguishes among classes and categories of sources by industry and
process type, as well as likelihood of an accidental release that may
impact a community. This rulemaking action therefore proposes
substantive amendments to 40 CFR part 68 and is authorized by CAA
section 112(r)(7)(A) and (B), as explained herein.
---------------------------------------------------------------------------
\13\ Incident investigation, compliance auditing, and STAA are
also authorized as release prevention requirements pertaining to
stationary source design, equipment, work practice, recordkeeping,
and reporting. Information disclosure is also authorized as
reporting (CAA section 112(r)(7)(A)).
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In considering whether it is legally permissible for EPA to modify
provisions of the RMP rule while continuing to meet its obligations
under CAA section 112(r), the Agency notes that it has made
discretionary amendments to the 1996 RMP rule several times without
dispute over its authority to issue discretionary amendments. (See 64
FR 964, January 6, 1999; 64 FR 28696, May 26, 1999; 69 FR 18819, April
9, 2004.) According to the decision in Air Alliance Houston v. EPA, 906
F.3d 1049 (D.C. Cir. 2018), ``EPA retains the authority under Section
7412(r)(7) [CAA section 112(r)(7)] to substantively amend the
programmatic requirements of the [2017 RMP amendments] . . . subject to
arbitrary and capricious review'' (906 F.3d at 1066). Therefore, EPA is
authorized to modify the provisions of the current RMP regulations if
it finds that it is reasonable to do so.\14\
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\14\ See Motor Vehicle Manufacturers. Association of the United
States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29
(1983). In addressing the standard of review to reconsider a
regulation, the Supreme Court stated that the rescission or
modification of safety standards ``is subject to the same test'' as
the ``agency's action in promulgating such standards [and] may be
set aside if found to be `arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law' '' (463 U.S. at
41, quoting 5 U.S.C. 706). The same standard that applies to the
promulgation of a rule applies to the modification or rescission of
that rule.
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The Supreme Court has also recognized that agencies have broad
discretion to reconsider a regulation at any time so long as the
changes in policy are ``permissible under the statute, . . . there are
good reasons for [them], and that the agency believes [them] to be
better'' than prior policies. (See Federal Communications Commission v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); emphasis
[[Page 53565]]
in quote original).\15\ As explained in detail above, the policy
changes proposed in this action are permissible under the statute.
Additionally, there are good reasons for the policies adopted in this
rule. Accidental releases remain a significant concern to communities
and cost society more than $477 million yearly.\16\ The risk of being
impacted by an accidental release is even more apparent in communities
where multiple RMP facilities are in close proximity to residential
areas. Lowering the probability and magnitude of accidents by putting
more of a focus on prevention reduces the risks posed by these RMP
facilities, which is one of the objectives of the present RMP proposed
amendments.
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\15\ The full quote from Fox states: ``But [the Agency] need not
demonstrate to a court's satisfaction that the reasons for the new
policy are better than the reasons for the old one; it suffices that
the new policy is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be better, which
the conscious change of course adequately indicates'' (Federal
Communications Commission v. Fox Television Stations, Inc., 556 U.S.
at 515; emphasis original).
\16\ A full description of costs and benefits for this proposed
rule can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Proposed Rule (April
19, 2022). This document is available in the docket for this
rulemaking (EPA-HQ-OLEM-2022-0174).
---------------------------------------------------------------------------
In the 2019 reconsideration rule, the Agency justified rescinding
the prevention program provisions of the 2017 amendments rule, STAA,
incident investigation, root cause analysis, and third party compliance
audits based on two main rationales: (1) That a case-by-case
compliance-driven approach to oversight focusing on problematic sources
(generally, sources that have had releases) could obtain many of the
accident-reduction benefits of a rule without broadly burdening sources
that were less likely to have a release under regulatory mandates, and
(2) that the Agency was being consistent with the OSHA PSM prevention
provisions. The Agency discusses each rationale in turn below.
The conclusion in the 2019 reconsideration rule that a case-by-
case, compliance-driven approach relying on traditional tools such as
compliance outreach and administrative and judicial enforcement could
provide many of the same benefits as a rule without imposing broad
burdens rested upon an observation that accidents are declining and
concentrated among few sources, allowing for concentrated compliance
oversight. See 84 FR 69843-44 (Dec. 19, 2019). While focusing on
accident and impact rates, the rate analysis did not account for the
likelihood that low-probability, high consequence events could impact
trends. Thus, in the 2019 reconsideration rule, EPA acknowledged the
decline in yearly total count of accidents and accident rates. For the
2017 amendments rule and 2019 reconsideration rule, EPA analyzed
accidents for the periods 2004 to 2013, and 2014 to 2016,
respectively.\17\ Using a yearly average for the 2017 amendments rule
(2004-2013) and the 2019 reconsideration rule (2014-2016), in 2019 EPA
found declining yearly averages for every metric of onsite and offsite
damage.\18\ As part of this proposed rule, EPA analyzed accidents from
2016 to 2020.\19\ The impacts of high consequence RMP-reportable
accident events between 2017 and 2020 demonstrate the impact of low-
probability, high consequence events on annual averages. For example,
using the same methods used in the 2019 rule, current data show the
average annual rate of those seeking medical treatment increased by
230% (10 per year in the 2019 reconsideration rule and 33 per year for
this proposed rule); evacuations increased by 75% (1,868 per year
versus 3,268 per year) and accidents resulting in sheltering in place
increased by 18% (12,534 per year versus 14,845 per year). The more
current data since the 2019 analyses shows that reliance on a declining
trend in accidents and impacts to conduct selective, often post-
incident oversight may prove insufficiently effective over time and
make it difficult to stay ahead of reversals in trends.
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\17\ Exhibit 6-2, Page 77, EPA-HQ-OEM-2015-0725-2089.
\18\ The exception being a higher annual average offsite
property damage for the period of 2014-2016 as compared to 2004-
2013.
\19\ In the RIA for this proposed rule, EPA includes 2016 again
to account for accidents not reported prior to the 2019
reconsideration rule analysis.
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Recent accidents also highlight EPA's improper reliance on only
annual count of total accidents to address the low-probability, high-
consequence nature of accidental releases. For example, while the
annual count of accidents decreased overall between 2016 and 2020, in
2019, the TPC Group explosion and fire in Port Neches, Texas, reported
the largest number of persons ever evacuated (n=50,000) as a result of
an RMP-reportable incident, as well as $153 million in offsite property
damage. Large events are rare, but to the extent that CAA 112(r) was
intended as a prevention program for large catastrophic releases,
selective oversight through a ``compliance-driven'' approach that
relies heavily on determining if the facility was compliant with
accident prevention regulations after an accident occurred would not
meet the goal of preventing the initial accident. The RMP rule must be
broader based, and rule-driven in order to have stationary sources
handling dangerous chemicals work to prevent potentially catastrophic
incidents.
Additionally, the 2019 reconsideration rule failed to acknowledge
that mostly relying on relief like post-accident settlement,
particularly at those industries that already have a history of
frequent accidents, entails significant transaction costs, delays, and
uncertainty of obtaining necessary prevention improvements. While such
delays and transaction costs are inherent in compliance oversight and
the enforcement process, the failure of the 2019 reconsideration rule
to address this important limitation on the feasibility and utility of
a ``compliance-driven'' approach is a flaw in the determination made in
2019 that such an approach is a reasonable substitute for a rule-driven
approach to prevention. While enforcement of the RMP regulation has and
will continue to occur, EPA expects under a rule-drive approach most
facilities will proactively make the necessary prevention improvements
to be in compliance with the rule to avoid enforcement. The 2019
reconsideration rule does not acknowledge that settlements often
involve compromises, and that, in the course of settlement, EPA cannot
always obtain all appropriate relief. The history of one of EPA's
largest enforcement actions under the RMP rule involving Chevron's
operations illustrates many of these points. EPA's enforcement
engagement with Chevron began shortly after a fire at the Richmond, CA,
refinery in August 2012. Subsequent accidents at Chevron refineries in
El Segundo, CA, and Pascagoula, MS, led EPA to investigate all five
Chevron refineries in the United States, including refineries in Salt
Lake City, UT and Kapolei, HI (no longer owned by Chevron). EPA
concluded a final civil judicial settlement with Chevron in October
2018, more than 6 years after the investigation began.\20\
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\20\ U.S. Environmental Protection Agency, Chevron Settlement
Information Sheet, https://www.epa.gov/enforcement/chevron-settlement-information-sheet.
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Moreover, as discussed in more detail below, even when individual
facilities have not yet experienced an accident, certain classes of
facilities are more likely to have accidents near communities.
Communities surrounding these classes of facilities would benefit from
rule-based prevention prior to
[[Page 53566]]
incidents, rather than the case-by-case oversight approach of the 2019
reconsideration rule.
Regarding alignment with OSHA PSM prevention provisions, the 2019
reconsideration rule indicated that the 2017 amendments rule only
represented a departure from PSM requirements. The 2019 reconsideration
rule acknowledged there were no legal requirements to defer to OSHA in
rulemaking, or for EPA and OSHA to proceed on identical timelines in
making changes to the RMP rule and PSM standard, and that some
divergence between the RMP rule and PSM standard may at times be
necessary given the agencies' separate missions. See 83 FR 24863-64.
While EPA, in the 2019 reconsideration rule, decided to take a
traditional approach of maintaining consistency with OSHA PSM because
benefits were recognized at that time, EPA now believes the benefits of
a rule-based prevention for certain high-risk classes of facilities
could help prevent high consequence accidents that affect communities,
such as the TPC Group explosion. Furthermore, the statute's consult-
and-coordinate requirements are to ensure the agencies are working
together to ensure rules are compatible and not conflicting. The
proposed prevention program provisions presented today are compatible
and do not conflict with the prevention provisions of OSHA PSM, as
detailed further in the discussions of each provision.
In contrast to the 2019 approach, the approach taken in this
proposal for the prevention program provision, STAA, incident
investigation root cause analysis, and third-party compliance audits,
refines the focused regulatory approach found in the 2017 amendments
rule, and proposes provisions modified from those in the 2017
amendments rule, to better identify risky facilities to prevent
accidental releases before they can occur. As explained in further
detail in following sections of this preamble, EPA therefore maintains
that by taking a rule-based, prevention-focused approach in this action
rather than the 2019 reconsideration rule's compliance-driven, mostly
post-incident, approach, the proposed rule revisions could further
protect human health and the environment from chemical hazards through
PSM advancement without undue burden. Similarly, other proposed
modifications to approaches adopted in 2019 to information disclosure
and emergency response will also better balance security concerns with
improved community awareness and lead to better community preparedness
for accidents.\21\ To the extent that both approaches are reasonable,
the approach of this proposed rule would be more protective, and thus
provide for release prevention, detection, and response ``to the
greatest extent practicable'' among the reasonable approaches.
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\21\ The term ``information disclosure'' refers to specific
provisions adopted in 2017 that the 2019 reconsideration rule
rescinded. EPA uses the term ``information availability'' in the
current rulemaking to mean the broader set of measures the Agency is
adopting today.
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IV. Proposed Action
The RMP rule has been effective in preventing and mitigating
chemical accidents in the United States and protecting human health and
the environment from chemical hazards, but major accidents continue to
occur. More importantly, even though there has been a long-term trend
of reducing accidents and the gravity of accidents, this trend can be
improved to further protect human health and the environment.
Below EPA presents several proposed amendments for consideration
and public comment. Many of these amendments would better focus new
prevention program elements on particular classes of facilities than
the 2017 amendments rule, and promote more information availability,
employee participation and emergency response measures than the 2019
reconsideration rule. As a result of the changes in this proposal, the
Agency, as described in further detail below, considered the
possibility of potential reliance interests associated with portions of
the 2019 reconsideration rule. The Agency views these proposed measures
and other aspects of this proposed rule as integrated and reinforcing.
As discussed below, some of the proposed rule changes focus enhanced
prevention measures like STAA and third-party auditing on individual
sources and classes of sources with a history of accidental releases.
Were the proposed rule adopted, EPA believes that many if not most
sources are likely to respond to this approach of triggering
requirements based on accident history by undertaking enhanced
prevention measures to comply with the rule and avoid accidents.
However, some sources may try to evade these enhanced accident
prevention requirements by avoiding reporting incidents that trigger
additional requirements. The employee participation, public information
availability, and emergency response measures would make it more
difficult to evade the accident history-triggered requirements by
leveraging workers and the public in facility oversight. Thus, in
addition to the merits of each proposed provisions as considered in
isolation, the proposed rule changes can be seen as complementary to
each other. Adopting these provisions together will help ensure owners
and operators have these complementing measures in place to prevent or
minimize accidental release of their regulated substances to protect
human health and the environment. Nevertheless, while many of the
provisions reinforce each other, EPA also views each one as merited on
its own if it ultimately adopted, and thus severable should there be
judicial review.
A. Prevention Program
1. Hazard Evaluation Amplifications
a. Introduction
A hazard evaluation is defined as the identification of individual
hazards of a system, determination of the mechanisms by which they
could give rise to undesired events, and evaluation of the consequences
of these events on health (including public health), environment, and
property. These evaluations often use qualitative techniques to
pinpoint weaknesses in the design and operation of facilities that
could lead to incidents.\22\ Current requirements exist within the RMP
rule to conduct these evaluations. RMP hazard evaluation regulations
require, among other things, owners or operators with Program 2
processes to conduct hazard reviews under 40 CFR 68.50(a) that
identify: (1) The hazards associated with the process and regulated
substances; (2) opportunities for equipment malfunctions or human
errors that could cause an accidental release; (3) the safeguards used
or needed to control the hazards or prevent equipment malfunction or
human error; and (4) any steps used or needed to detect or monitor
releases. Owners or operators with Program 3 processes are required to
conduct process hazard analyses (PHAs) under 40 CFR 68.67(c) that
address: (1) The hazards of the process; (2) the identification of any
previous incident which had a likely potential for catastrophic
consequences; (3) engineering and administrative controls applicable to
the hazards and their interrelationships, such as appropriate
application of detection methodologies to provide early warning of
releases (acceptable detection methods might include process monitoring
and control instrumentation
[[Page 53567]]
with alarms, and detection hardware such as hydrocarbon sensors); (4)
consequences of failure of engineering and administrative controls; (5)
stationary source siting; (6) human factors; and (7) a qualitative
evaluation of a range of the possible safety and health effects of
failure of controls. The hazard evaluation requirements are key to
understanding how to operate safely and prevent accidents and the
release of hazardous substances.
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\22\ Center for Chemical Process Safety (CCPS), ``CCPS Process
Safety Glossary,'' accessed January 28, 2022, https://www.aiche.org/ccps/resources/glossary?title=hazard+evaluation#views-exposed-form-glossary-page.
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In developing the initial 1996 RMP rule, the Agency recognized that
many workplace hazards also threaten public receptors and that most
accident prevention steps taken to protect workers also protect the
public and the environment. Consequently, EPA adopted and built on much
of the existing accident prevention language from OSHA's PSM standard,
including the process hazard analysis (PHA) language from 29 CFR
1910.119(e). EPA's understanding of the PHA was based on OSHA's: \23\ a
PHA analyzes potential causes and consequences of fires, explosions,
releases of toxic or flammable chemicals, and major spills of hazardous
chemicals. The PHA focuses on equipment, instrumentation, utilities,
human actions (routine and nonroutine), and external factors that might
impact the process. These considerations assist in determining the
hazards and potential failure points or failure modes in a process.
OSHA pointed to detailed industry guidance that serves as the basis for
understanding what hazards are widely recognized as threats to safe
chemical process operations. For example, the American Institute of
Chemical Engineers' Center for Chemical Process Safety (CCPS) developed
the publication ``Guidelines for Hazard Evaluation Procedures,'' \24\
which EPA and OSHA agree generally addresses the most common categories
of hazards relevant to facilities that handle hazardous chemicals.
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\23\ See 58 FR 54190, October 20, 1993, p. 54204.
\24\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd
Edition (New York: American Institute of Chemical Engineers, 2008).
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While EPA and OSHA have not explicitly added language in their
regulations on certain hazard evaluation elements that were assumed
implicit and recognized as hazards among industry, EPA seeks to
emphasize that some hazards should be explicitly addressed by
facilities to further protect human health and the environment. EPA is
not proposing additional regulatory requirements from what already
exists in the RMP regulations, rather EPA is proposing adding
regulatory text to emphasize that natural hazards and loss of power are
among the hazards that must be addressed in hazard reviews and PHAs.
EPA is also proposing to emphasize that facility siting should be
addressed in hazard reviews, and to explicitly define the facility
siting requirement for Program 2 and Program 3 hazard evaluations. EPA
seeks to better reflect its longstanding regulatory requirement rather
than impose additional regulatory requirements (and potential
additional costs) that diverge from the OSHA PSM regulatory
requirements. EPA has coordinated with OSHA throughout the development
of this proposed rule to ensure the intent of adding specificity to
these hazard evaluation requirements is consistent with the intent and
meaning of the OSHA PSM standard to avoid inconsistencies between the
two regulatory programs.
b. Natural Hazards
Natural hazards (e.g., extreme temperatures, high winds, floods,
earthquakes, wildfires) are hazards for chemical facilities because
they have the potential to initiate accidents and challenge hazardous
chemical process equipment and operations. If not properly managed,
these hazards can trigger chemical accidents that threaten human health
and the environment. EPA believes many facilities with RMP processes
are generally managing natural hazards well; however, some RMP
accidents are still being reported as linked to natural hazards.
Climate change increases the threat of extreme weather as a natural
hazard. Therefore, EPA is proposing to emphasize that natural hazards
should explicitly be included in the hazards evaluated in hazard
reviews and PHAs for Program 2 and Program 3 RMP-regulated processes.
EPA believes making more explicit this already-existing accident
prevention program requirement \25\ will ensure the threats of natural
hazards are properly evaluated and managed to prevent or mitigate
releases of RMP-regulated substances at covered facilities.
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\25\ Existing requirements of the hazards to be evaluated in
hazard evaluations are found at 40 CFR 68.50(a) for Program 2
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
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CCPS' ``Guidelines for Hazard Evaluation Procedures'' \26\ includes
external events as a hazard evaluation category that should be
addressed. It defines these as events external to the system/plant
caused by: (1) A natural hazard (e.g., earthquake, flood, tornado,
extreme temperature, lightning) or (2) a human induced event (aircraft
crash, missile, nearby industrial activity, fire, sabotage, etc.). At
the time of initial RMP rule development, EPA had not explicitly added
language about considering external events to the rule. However, EPA
did acknowledge that sources must consider the hazards created by
external events. In the 1996 RMP final rule Response to Comments,\27\
EPA indicated the following: ``As part of a properly conducted PHA,
sources would normally consider whether a process is vulnerable to
damage caused by external events, such as earthquakes, floods, high
winds, and evaluate the potential consequences if such events damaged
the integrity of the process.'' To further express this expectation,
EPA's RMP guidance states: ``Natural Events and Other Outside
Influences: Whichever [hazard review/process hazard analysis] approach
you use, you should consider reasonably anticipated external events as
well as internal failures. If you are in an area subject to
earthquakes, hurricanes, or floods, you should examine whether your
process would survive these natural events without releasing the
substance. In your hazard review, you should consider the potential
impacts of lightning strikes and power failures.'' \28\ In comments
submitted during the 2021 listening sessions,\29\ some industry trade
associations stated that the current provisions of the RMP rule are
sufficient to protect against climate-related impacts.\30\
Specifically, one industry trade association remarked that ``under
requirements in the current program, the impact of severe weather
events such as storms and flooding on operations and consequently the
risk they pose for an accidental release, must already be considered
and addressed in the plans submitted to EPA.'' \31\
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\26\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd
Edition (New York: American Institute of Chemical Engineers, 2008).
\27\ A-91-73-IX-C-1-Volume-1[H], pp. 9-23.
\28\ EPA, General Guidance on Risk Management Programs for
Chemical Distributors, Ch. 6: Prevention Programs (2004), pp. 6-10
to 6-11, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
\29\ EPA-HQ-OLEM-2021-0312.
\30\ EPA-HQ-OLEM-2021-0312-0005; 0045.
\31\ EPA-HQ-OLEM-2021-0312-0005.
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Despite this general knowledge that natural hazards are process
hazards that should be evaluated and addressed during hazard reviews
and PHAs, EPA's recent review of the RMP National Database indicates
that when reporting accidents, some RMP facilities report ``natural''
and ``unusual weather conditions'' as the respective initiating event
or as a contributing factor to their
[[Page 53568]]
accidents.\32\ According to the Agency's data from 2004-2020,
facilities reported 38 RMP-reportable accidents as having a natural
cause as the initiating event of their accident and another 46 RMP-
reportable accidents as having unusual weather conditions as a
contributing factor of their accident.\33\
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\32\ These fields are options when reporting accidents on RMP
reports. Description of these options: EPA, Risk Management Plan:
RMP*eSubmit User's Manual (2019), pp. 76-77. https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf.
\33\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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In addition to these natural hazard-linked accidents, RMP data
indicate that the locations of many RMP facilities leave them exposed
to natural hazards. In a review of the National Oceanic and Atmospheric
Administration's Storm Events Database from the last two decades, EPA
generally found that extreme weather events are common in counties with
RMP facilities. For example, during 2000-2020, over 90 percent of
counties with RMP facilities experienced flooding, 1 in 4 counties with
RMP facilities suffered damage from hurricanes, and counties with RMP
facilities have on average experienced 30 floods (over one per year)
and 40 extreme winter weather events (approximately two per year), such
as blizzards. Some counties with RMP facilities also experience extreme
weather events much more often than average. For instance, many regions
in Florida, Louisiana, and South Carolina were impacted by more than 30
hurricanes over the prior 20 years. Similarly, regions of northern
California and Oregon suffered from over 500 days of wildfires during
the same period.\34\
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\34\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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With new studies showing that the threat of natural hazards is
increasing, actions to ensure natural hazards are evaluated and
properly managed are critical. A recent report by the Center for
Progressive Reform, Earthjustice, and the Union of Concerned
Scientists--entitled ``Preventing `Double Disasters'' \35\--indicates
that one-third of RMP facilities are at risk of climate-related events,
such as wildfire, flooding, hurricane storm surge, and/or coastal
flooding. This finding is nearly identical to the estimate of the
Government Accountability Office in its recent report, ``Chemical
Accident Prevention: EPA Should Ensure Regulated Facilities Consider
Risks from Climate Change.'' \36\ The 2018 National Climate Assessment
\37\ and several publications from the Intergovernmental Panel on
Climate Change, which are authoritative sources for the impacts of
climate change on the severity and frequency of weather events, found
that there is a scientific consensus that the future holds increased
risks of more severe and frequent extreme weather events, including
tropical cyclones, coastal flooding, wildfire, tornados, severe
thunderstorms, and extreme precipitation. EPA must consider the
increased risk to RMP facilities.
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\35\ David Flores, et al., Preventing ``Double Disasters''
(2021), https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf.
\36\ U.S. Government Accountability Office, Chemical Accident
Prevention: EPA Should Ensure Regulated Facilities Consider Risks
from Climate Change (2022), https://www.gao.gov/assets/gao-22-104494.pdf.
\37\ U.S. Global Change Research Program, Fourth National
Climate Assessment (2018), https://nca2018.globalchange.gov/.
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The Chemical Safety and Hazard Investigation Board (CSB) and many
public listening session commenters identified the August 2017 Arkema
Inc. chemical plant fire in Crosby, Texas, as a significant accident
caused by natural hazards.\38\ \39\ \40\ Flooding from Hurricane Harvey
disabled the refrigeration system at the Arkema plant, which allowed
the temperature of organic peroxides to increase and spontaneously
combust. Twenty-one people sought medical attention from reported
exposures to the fumes. More than 200 residents living near the
facility were evacuated and could not return home for a week. While
this part of the Arkema facility was not an RMP-regulated process, the
increased occurrence of extreme-weather-caused events like this
highlight the importance of ensuring proper evaluation of natural
hazards on process operations.
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\38\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May
24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
\39\ Center for Progressive Reform, Preventing Double Disasters
(2021), https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0312-0035. EPA-HQ-OLEM-2021-0312-0035-10.
\40\ EPA-HQ-OLEM-2021-0312-0004; 0080, 0081.
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As a result of the Arkema incident, CSB developed a safety alert
that includes guidance for chemical plants during extreme weather
events.\41\ In the final report on the Arkema incident,\42\ CSB
recommended CCPS develop broad and comprehensive guidance to help
companies assess their U.S. facility risk from potential extreme
weather events. As a result, CCPS produced the monograph, ``Assessment
of and Planning for Natural Hazards.'' \43\ In addition to outlining
the importance of rising threats, it outlines resources that many of
its member companies--many of which have RMP-regulated processes--have
successfully used to identify natural hazards, gather data and identify
equipment to be addressed in natural hazard assessments, and evaluate
and meet design criteria of equipment according to recognized and
generally accepted good engineering practices (RAGAGEP).
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\41\ CSB, 2020 Hurricane Season: Guidance for Chemical Plants
during Extreme Weather Events (n.d.), https://www.csb.gov/assets/1/6/extreme_weather_-_final_w_links.pdf.
\42\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May
24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
\43\ CCPS, CCPS Monograph: Assessment of and Planning For
Natural Hazards (American Institute of Chemical Engineers, 2019),
https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html.
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With climate change-related natural hazards as a global concern,
other countries are also expanding efforts to address natural hazards
at chemical facilities. For example, the Organisation for Economic Co-
operation and Development Programme on Chemical Accidents started work
on natural hazards triggering technological accidents (``NaTech'') risk
management in 2008 in partnership with the European Commission Joint
Research Center, the United Nations Environment Programme, and the
United Nations Economic Commission for Europe. The project aimed to
investigate NaTech prevention, preparedness, and response to chemical
accidents; exchange experience across countries; and provide guidance
on NaTech risk management. Studies, databases, and information continue
to be collected and published to help countries manage this increasing
threat.\44\
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\44\ Organisation for Economic Co-operation and Development,
``Risks from Natural Hazards at Hazardous Installations (Natech),''
accessed January 28, 2022, https://www.oecd.org/chemicalsafety/chemical-accidents/risks-from-natural-hazards-at-hazardous-installations.htm.
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While well-prepared hazard evaluations under the RMP rule already
address NaTech, EPA is proposing to emphasize that natural hazards,
including those associated with climate change, be explicitly addressed
in RMP Program 2 hazard reviews and Program 3 PHAs. EPA is proposing to
make language changes that include requiring hazard evaluations under
40 CFR 68.50(a)(5) and 68.67(c)(8) to address external events such as
natural hazards, including those caused by climate change or other
triggering events that could lead to an accidental release.
EPA is also proposing to define natural hazards in a way that is
similar
[[Page 53569]]
to the description used by CCPS. Under the proposed rule, natural
hazards would be defined as naturally occurring events with the
potential for negative impacts, including meteorological hazards due to
weather and climactic cycles, as well as geological hazards. EPA seeks
comment on this approach.
EPA continues to expect facilities to utilize all available
resources to properly evaluate what natural hazards could potentially
trigger accidental releases from their regulated processes. EPA
understands that natural hazards and process operations vary throughout
the United States. However, because the RMP rule is performance-based,
EPA believes that all regulated RMP facilities can be successful in
addressing natural hazards within their risk management programs.
Because natural hazards continue to be a factor in RMP accidents and
present a growing threat to process safety at RMP facilities, a
requirement to evaluate and control natural hazards should be
explicitly stated in the RMP regulation. While EPA will continue to
rely on available industry guidance to evaluate compliance with this
provision, the Agency requests public comment on whether EPA should
develop additional guidance (beyond the Agency's existing RMP general
guidance for risk management programs) \45\ to help regulated
facilities comply with this provision. EPA is particularly interested
in comments related to suggested information resources such as
databases, checklists, or narrative discussions, as well as commenters'
recommendations for regional versus national, or sector-specific
guidance.
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\45\ EPA, ``Guidance for Facilities on Risk Management Programs
(RMP),'' last modified December 20, 2021, https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general.
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As an alternative to the preferred approach, EPA seeks comment on
whether to specify areas most at risk from climate or other natural
events by adopting the list of areas exposed to heightened risk of
wildfire, flooding, storm surge, or coastal flooding identified in,
``Preventing Double Disasters,'' discussed above. EPA could also add
areas prone to earthquake to this list of areas, which presents a
significant risk of NaTech that is unrelated to climate. Would this
more definite, but limited, approach be easier to implement for
stationary sources? Would this be simpler for public oversight by
providing a specific reference such that all parties would know whether
there is a heightened risk for a potential climate or earthquake impact
at a facility? Should the Agency require sources in these areas to
conduct hazard evaluations associated with climate or earthquakes as a
minimum, while also requiring that all sources consider the potential
for natural hazards unrelated to climate or earthquakes in their
specific locations?
c. Power Loss
Whether caused by a natural hazard or some other event, power loss
at hazardous chemical facilities can lead to a variety of negative
impacts. Pumps and compressors may stop running, stirrers may quit
mixing, lights may go out, and instruments and controls may
malfunction. These equipment outages can lead to tank overflows,
runaway chemical reactions, temperature or pressure excursions, or
other process upsets which could lead to a spill, explosion, or fire.
Even if there is no immediate release, thermal shock or other factors
could result in a delayed effect that compromises the mechanical
integrity of equipment during subsequent operations. When power is
restored even after a brief interruption, some equipment may
automatically restart before process operations are ready, while other
equipment may need to be reset and manually restarted. When a facility
relies on electrical power for any aspect of its process operations, it
is imperative to anticipate how power loss affects the safeguards that
prevent releases of hazardous chemicals.
Power loss has resulted in serious accidents at RMP-regulated
facilities. The aforementioned 2017 Arkema incident highlighted the
hazard of power loss on process safety; other previous incidents have
also highlighted this hazard and offered lessons on potential
safeguards that could be applied to prevent accidental chemical
releases. The accidents described below--all associated with power
failure--are examples of these situations and their potential severity.
They also highlight the in-depth evaluation needed to prevent loss of
power from resulting in an accidental release.
On May 1, 2001, at General Chemical Corp., in Richmond, California,
a truck struck a utility pole, causing a power interruption and total
plant shutdown. Shortly after, sulfur dioxide and sulfur trioxide began
to escape from a boiler exit flue. When power was restored a short time
later, a steam turbine that was required to keep the boiler exit flue
under negative pressure could not be immediately restarted. While the
turbine could not be restarted, residents near the plant were
instructed to remain indoors. Somewhere between 50 to 100 individuals
sought medical attention following the release. Troubleshooting
revealed that an automatically controlled governor valve had
malfunctioned.\46\
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\46\ EPA, Chemical Accidents from Electric Power Outages (Office
of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf.
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On August 23, 2010, at the Millard Refrigerated Services in
Theodore, Alabama, hydraulic shock caused a roof-mounted suction pipe
to catastrophically fail, leading to the release of more than 32,000
pounds of anhydrous ammonia. The hydraulic shock occurred during the
restart of the plant's ammonia refrigeration system following a 7-hour
power outage. Downwind of the ammonia release were crew members on the
ships docked at Millard and over 800 contractors working outdoors at a
clean-up site for the Deepwater Horizon oil spill. Nine ship crew
members and 143 of the offsite contractors downwind reported exposure.
Of the victims, 32 required hospitalization and four were placed in
intensive care.\47\
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\47\ CSB, ``Millard Refrigerated Services Ammonia Release,''
last modified January 15, 2015, https://www.csb.gov/millard-refrigerated-services-ammonia-release/.
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National Response Center data also include information on 3,077
reported accidents from 2004-2020 that were associated with power
loss.\48\ While most of these incidents did not involve RMP chemicals,
processes, or accidental releases as defined in CAA 112(r)(2), these
events demonstrate a connection between the loss of power, loss of
containment, and release into the environment.
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\48\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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The European Union published a 2021 bulletin that presents lessons
learned from incidents worldwide involving power supply failures. The
findings point to the importance of understanding the scenarios
triggered by a primary failure in external power supply systems, power
loss attributed to failures of onsite electrical equipment or
electrical components, and even failures of redundant power supplies.
In addition to providing statistics on the effects of power outages at
chemical facilities, data provided by the European Union indicate that
power failures at hazardous sites have resulted in 21 fatalities and
over 9,500 injuries worldwide since 1981, as well as significant
property damage and production loss from resulting fires and
explosions. The most catastrophic event in the study occurred in Sakai
(Osaka),
[[Page 53570]]
Japan, in 1982. It killed six people, injured 9,080 others (of which
8,876 were offsite), and destroyed 1,788 buildings.\49\
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\49\ Chemical Accident Prevention & Preparedness (European
Commission, 2021), https://minerva.jrc.ec.europa.eu/en/shorturl/minerva/mahb_bulletin_15_on_power_failuresfinalpubsypdf.
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EPA has long recognized that loss of power can threaten hazardous
chemical processes and cause accidental releases if not properly
managed. While EPA did not specifically require power loss to be
evaluated for Program 2 and Program 3 hazard reviews and PHAs, EPA and
OSHA guidance has referred to it. In addition to acknowledging power
failure in the Agency's ``General Guidance on Risk Management Programs
for Chemical Distributors,'' \50\ in 2001 EPA issued the safety alert,
``Chemical Accidents from Electric Power Outages.'' \51\ These
guidelines warned RMP facilities that power outages and restarts could
potentially trigger serious chemical accidents. The alert outlined some
of the accidents previously discussed and warned that process
operations must be evaluated for the consequences of power outages to
ensure that the process remains safe. It also indicates that if there
is critical equipment that needs to operate to ensure the safety of the
process or work area, facilities should install backup power supplies
and services.
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\50\ EPA, General Guidance on Risk Management Programs for
Chemical Distributors, Ch. 6: Prevention Programs (2012), pp. 6-10
to 6-11, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
\51\ EPA, Chemical Accidents from Electric Power Outages (Office
of Solid Waste and Emergency Response, 2001), https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf.
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In 2008, OSHA published an interpretation letter \52\ that
addressed the concern about utility systems and their evaluation within
the scope of PSM. OSHA indicated that the proper, safe functioning of
all aspects of a process, whether they contain a highly hazardous
chemical \53\ or not, are important for the prevention and mitigation
of catastrophic releases of highly hazardous chemicals. OSHA's position
is that any engineering control (including utility systems) which does
not contain a highly hazardous chemical (HHC) but can affect or cause a
release of an HHC or interfere in the mitigation of the consequences of
a release must be, at a minimum, evaluated, designed, installed,
operated (with appropriate training and procedures), changed, and
inspected/tested/maintained per OSHA PSM requirements. OSHA provided
the example of an employer that identifies, through its PHA, that safe
operation of its covered process relies on the electrical utility
system. In response, the employer could determine that an
uninterruptible power supply would be an appropriate safeguard against
the loss of electrical utility to the process equipment.
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\52\ OSHA, ``Standard Interpretation 1910.119,'' accessed
January 28, 2022, https://www.osha.gov/laws-regs/standardinterpretations/2008-01-31.
\53\ Term similar to ``RMP-regulated substance.''
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EPA believes making more explicit this already-existing accident
prevention program requirement, to evaluate hazards of the process \54\
will ensure the threats of power loss are properly evaluated and
managed to prevent or mitigate releases of RMP-regulated substances at
covered facilities. EPA believes many facilities with RMP processes are
managing the hazard of power loss. However, some recent RMP accidents
are linked to power loss. EPA's review of RMP accident history data
from 2004-2020 shows that at least 20 accident history reports have
specifically indicated that power failure was a contributing factor to
an accident. However, only 63 percent (310) and 44 percent (1,971) of
facilities with Program 2 and Program 3 processes, respectively, have
implemented backup power at their facilities, despite identifying that
the loss of cooling, heating, electricity, and instrument air is a
major potential hazard to their process operations.\55\ \56\
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\54\ Existing requirements of the hazards to be evaluated in
hazard evaluations are found at 40 CFR 68.50(a) for Program 2
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
\55\ EPA recognizes that not all RMP-regulated processes will
need emergency backup power (for example, certain RMP-regulated
storage processes).
\56\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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The frequency and severity of extreme weather events may exacerbate
power failure events if the impacts of potential power failures are not
identified, and control strategies are not implemented. Climate change
poses long-term challenges because it affects the frequency, intensity,
and duration of weather events that represent the largest source of
disruptions to the U.S. electricity grid. New studies have shown that
the threat of power loss is increasing for utility customers. The
Department of Energy reported that an increase in extreme weather
events has led to an increase in power outages in recent years.
Specifically, the Department of Energy's U.S. Energy Information
Agency's data showed that electric power for U.S. customers was
interrupted for an average of 7.8 hours (470 minutes) in 2017, nearly
double the average total duration of interruptions experienced in 2016.
Data indicate that more major weather events, such as hurricanes and
winter storms, occurred in 2017 than in previous years, and the total
duration of power interruptions caused by major events was longer.\57\
\58\ Recent major power outages also provide examples of this threat.
In February 2021 in Texas, Winter Storm Uri left 4.5 million customers
without power, some for several days.\59\ In January 2022, one of the
five worst winter storms in Virginia's history resulted in
approximately 400,000 Dominion Energy customers experiencing a power
outage when heavy snow and high winds impacted utility services.\60\
Events like these also have the potential to impact hazardous chemical
process operations.
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\57\ U.S. Energy Information Administration, ``Today in
Energy,'' last modified November 30, 2018, https://www.eia.gov/todayinenergy/detail.php?id=37652#.
\58\ Department of Energy, ``Electric Disturbance Events (OE-
417) Annual Summaries,'' accessed January 28, 2022, https://www.oe.netl.doe.gov/OE417_annual_summary.aspx.
\59\ Chris Stipes, ``New Report Details Impact of Winter Storm
Uri on Texans,'' University of Houston, last modified March 29,
2021, https://uh.edu/news-events/stories/2021/march-2021/03292021-hobby-winter-storm.php.
\60\ Dominion Energy, ``Dominion Energy Making Significant
Progress Restoring Power, Preparing for Second Winter Storm,'' last
modified January 5, 2022, https://news.dominionenergy.com/2022-01-05-Dominion-Energy-Making-Significant-Progress-Restoring-Power,-Preparing-for-Second-Winter-Storm.
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Therefore, EPA is proposing to further emphasize loss of power in
the hazards evaluated in hazard reviews and PHAs for Program 2 and
Program 3 RMP-regulated processes. EPA believes further emphasis on
these accident prevention program provisions will ensure that the risk
of power failure is properly evaluated and managed to prevent or
mitigate releases of RMP-regulated substances at covered facilities.
EPA is proposing to include emphasizing that hazard evaluations under
40 CFR 68.50(a)(3) and 68.67(c)(3) address standby or emergency power
systems.
EPA expects facilities to continue to use available resources to
properly evaluate whether power loss is a hazard to their process and,
if so, implement appropriate controls to prevent or reduce that hazard.
In addition to the hazard evaluation guidance offered by CCPS and other
industry-specific resources, below are resources that broadly discuss
options for evaluation of power loss and standby power:
National Fire Protection Association (NFPA) 70: National
Electrical Code.\61\
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\61\ NFPA, NFPA 70, National Electric Code (2020), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=70.
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[[Page 53571]]
NFPA 110: Standard for Emergency and Standby Power
Systems.\62\
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\62\ NFPA, NFPA 110, Standard for Emergency and Standby Power
Systems (2022), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=110.
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NFPA 1600: Standard on Continuity, Emergency, and Crisis
Management.\63\
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\63\ NFPA, NFPA 1600, Standard on Continuity, Emergency, and
Crisis Management (2019), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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3005.4-2020: Institute of Electrical and Electronics
Engineers (IEEE) Recommended Practice for Improving the Reliability of
Emergency and Stand By Power Systems.\64\
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\64\ IEEE, IEEE Recommended Practice for Improving the
Reliability of Emergency and Stand By Power Systems (2020), https://standards.ieee.org/ieee/3005.4/6218/.
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3006.7-2013: IEEE Recommended Practice for Determining the
Reliability of 7x24 Continuous Power Systems in Industrial and
Commercial Facilities.\65\
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\65\ IEEE, IEEE Recommended Practice for Determining the
Reliability of 7x24 Continuous Power Systems in Industrial and
Commercial Facilities (2013), https://ieeexplore.ieee.org/document/6493367.
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National Renewable Energy Laboratory (NREL), ``Backup
power cost of ownership analysis and incumbent technology,'' NREL,
NREL/TP-5400-60732, Golden, CO (2014).\66\
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\66\ Kurtz, J., et al., Backup Power Cost of Ownership Analysis
and Incumbent Technology Comparison (2014), https://www.nrel.gov/docs/fy14osti/60732.pdf.
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NREL, ``A comparison of fuel choice for backup
generators,'' NREL, NREL/TP-6A50-72509, Golden, CO (2019).\67\
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\67\ Ericson, S., and Olis, D., A Comparison of Fuel Choice for
Backup Generators (2019), https://www.nrel.gov/docs/fy19osti/72509.pdf.
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The Agency is concerned that the threat of extreme weather events
has and will be used by some owners or operators to justify disabling
equipment designed to monitor and detect chemical releases of RMP-
regulated substances at their facility. EPA is concerned that air
monitoring and control equipment is often removed from service before
natural disasters to potentially prevent damage to equipment or,
conceivably in some cases, evade monitoring requirements and therefore
may not become operational again until much later, after the event or
threat has passed. To prevent accidents, RMP owners or operators are
required to develop a program that includes monitoring for accidental
releases. EPA does not believe natural disasters should be treated as
an exception to this requirement. A large-scale natural disaster may
threaten multiple RMP facilities in a community simultaneously, leaving
communities to endure the direct effects of a natural disaster without
receiving warning of associated chemical releases. EPA wants to ensure
RMP-regulated substances at covered processes are continually being
monitored so that potential exposure to chemical substances can be
measured during and following a natural disaster. Some industry
standards already require continuous monitoring of process chemicals.
For example, the International Institute of Ammonia Refrigeration's
(IIAR's) ``Minimum Safety Requirements for Existing Closed Circuit
Ammonia Refrigeration Systems'' requires facilities with ammonia
refrigeration systems to provide a means for monitoring the
concentration of an ammonia release in the event of a power
failure.\68\ While EPA is not requiring implementation of standby or
emergency power for the entirety of an RMP process, EPA is proposing to
require air pollution control or monitoring equipment associated with
prevention and detection of accidental releases from RMP-regulated
processes to have standby or backup power to ensure compliance with the
intent of the rule. EPA seeks comment and data on this proposed
provision, particularly on any potential safety issues associated with
it.
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\68\ IIAR, IIAR-9-2020 Minimum Safety Requirements for Existing
Closed Circuit Ammonia Refrigeration Systems 7.4.7.2.
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d. Stationary Source Siting
The location of stationary sources, and the location and
configuration of regulated processes and equipment within a source, can
significantly affect the severity of an accidental release. The
location of the stationary source in relation to public and
environmental receptors may exacerbate the impacts of an accidental
release, such as blast overpressures or concentrations of toxic gases,
or conversely, it may allow such effects to dissipate prior to reaching
receptors. Siting of processes and equipment within a stationary source
can impact the surrounding community not only through the proximity of
the accidental release to offsite receptors adjacent to the facility
boundary (e.g., people, infrastructure, environmental resources), but
also through increasing the likelihood of a secondary ``knock-on''
release by compromising nearby processes. EPA is proposing to emphasize
the requirement to consider stationary source siting in regulatory text
to make sure that the intent of the requirement is properly
incorporated in siting hazard evaluations.
The lack of sufficient distance between the source boundary and
neighboring residential areas was a significant factor in the severity
of several chemical accidents in the United States and internationally.
The following are examples which illustrate the potential of such
effects:
1984, Bhopal, India: Union Carbide release of
approximately 40 tons of methyl isocyanate into the air killed over
3,700 people. Most of the deaths and injuries occurred in a residential
area near the plant.\69\
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\69\ Lees, Frank P. Loss Prevention in the Process Industries,
Volume 3, 2nd ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann,
1996).
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1984, Juan Ixhuatepec, Mexico: Pemex liquefied petroleum
gas (LPG) tank farm LPG pipeline rupture resulted in a large ground
fire that spread to nearby LPG storage vessels, initiating a series of
massive explosions. The cascading explosions and fires ultimately
destroyed the entire facility and many nearby residences, resulting in
over 500 fatalities and thousands of severe injuries.\70\
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\70\ Lees, Frank P. Loss Prevention in the Process Industries,
Volume 3, 2nd ed. Appendix 4, Mexico City (Oxford: Butterworth-
Heinemann, 1996).
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1994, Port Neal, Iowa, United States: Terra Industries
explosion involving ammonium nitrate (AN) killed four workers and
damaged onsite ammonia tanks, creating an ammonia cloud that resulted
in the evacuation of 2,500 people in nearby neighborhoods.\71\
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\71\ EPA. Chemical Accident Investigation Report: Terra
Industries, Inc., Nitrogen Fertilizer Facility (2014), https://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf.
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2009, Belvidere, Illinois, United States: NDK Crystal
facility catastrophic rupture of a pressure vessel resulted in one
public fatality and one public injury. A building fragment propelled by
the force of the blast traveled nearly 650 feet and killed a member of
the public at a highway rest stop parking lot. An 8,600-pound vessel
fragment traveled 435 feet and impacted a neighboring business,
injuring one offsite worker and causing significant property
damage.\72\
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\72\ CSB, ``NDK Crystal Inc. Explosion with Offsite Fatality,''
last modified November 14, 2013, https://www.csb.gov/ndk-crystal-inc-explosion-with-offsite-fatality-/.
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2013, West, Texas, United States: West Fertilizer Company
explosion involving AN damaged an apartment complex and a nursing home
located approximately 450 feet and 600 feet, respectively, from the
source of the explosion, resulting in 3 public fatalities
[[Page 53572]]
(out of a total of 15 people killed in the explosion). The explosion
also caused over 260 injuries, as well as damage to over 350 homes and
3 schools located near the plant.\73\
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\73\ CSB, ``West Fertilizer Explosion and Fire,'' last modified
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
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2018, Superior, Wisconsin, United States: Superior
Refining Company, LLC, explosion and subsequent fire in the refinery's
fluid catalytic cracking unit resulted in 36 people (workers and
community members) seeking medical attention. In addition, a portion of
Superior, Wisconsin, had to be evacuated.\74\
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\74\ CSB, ``Husky Energy Refinery Explosion and Fire,'' accessed
January 28, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
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2020, Visakhapatnam, Andhra Pradesh, India: LG Polymers
styrene release incident produced a toxic cloud that caused at least 11
fatalities and hundreds of injuries in the nearby community.\75\
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\75\ Doyle, Amanda, ``Hundreds Hospitalized After Styrene Gas
Leak in India,'' The Chemical Engineer, last modified May 7, 2020,
https://www.thechemicalengineer.com/news/hundreds-hospitalised-after-styrene-gas-leak-in-india.
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This list of accidents provides examples of the numerous accidents
with offsite consequences resulting from the close proximity of
industrial facilities to public receptors, demonstrating that selection
of locations of processes and process equipment within a stationary
source can impact the surrounding community. Communities are affected
not only by the proximity of accidental releases to offsite receptors
(e.g., people, infrastructure, environmental resources) near the
facility boundary, but also by the increased likelihood of subsequent
releases from other nearby processes compromised by the initial
release. As accidents continue to happen, EPA is proposing to emphasize
the intent of the required siting evaluation to ensure protection of
human health and the environment.
The OSHA PSM standard and RMP rule both require that facility
siting be addressed as one element of a PHA (29 CFR 1910.119(e)(3)(v),
and 40 CFR 68.67(c)(5)). In response to comments on the proposed PSM
rule, OSHA indicated that facility siting should always be considered
during PHAs and therefore decided to emphasize this element by
specifically listing siting evaluation in regulatory text.\76\ With the
adoption of PHA regulatory text, EPA also recognized the offsite
benefits of siting evaluations. EPA's approach to the siting
requirement is consistent with its general approach to PSM in the 1996
RMP rule: sound, comprehensive PSM systems can protect workers, the
public, and the environment.\77\ The Agency chose to include additional
guidance in a frequently asked questions section of its website to not
only indicate the Agency's expectations, but also to provide guidance
on the RMP rule's coverage of facility siting evaluation to include
consideration of offsite receptors. The guidance states: ``The
requirement to consider stationary source siting during the process
hazard analysis means that you should consider the location of the
covered vessels and evaluate whether their location creates risks for
offsite public or environmental receptors, as well as onsite receptors.
This analysis should consider the proximity of the vessels that could
lead to a release of a regulated substance. The proximity of the
vessels to onsite equipment or activities nearby will have been
considered for OSHA; the proximity of the vessels in relation to
offsite receptors will be considered if not already considered for
OSHA. The analysis may be done qualitatively. The analysis addresses
whether the location of the vessels creates risks that could be reduced
by changing the location or taking other actions, such as installing
mitigation systems.'' \78\
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\76\ OSHA, Final Rule on Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part
1910 (1992), https://www.osha.gov/laws-regs/federalregister/1992-02-24.
\77\ 61 FR 31687; June 20, 1996.
\78\ EPA, ``Is EPA's PHA Stationary Source Siting Requirement
Analogous to OSHA's PSM?'' accessed January 31, 2022, https://www.epa.gov/rmp/epas-pha-stationary-source-siting-requirement-analogous-oshas-psm.
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As with other aspects of the RMP rule, EPA expects regulated
facilities to rely on industry guidance to help adequately address
stationary source siting in PHAs. The following examples of relevant
industry guidance on siting considerations are available to facility
owners and operators:
American Petroleum Institute (API) Recommended Practice
752, Management of Hazards Associated with Location of Process Plant
Buildings.\79\
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\79\ API, Recommended Practice 752, Management of Hazards
Associated with Location of Process Plant Buildings, 3rd Edition
(December 2020), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-752.
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API Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings.\80\
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\80\ API, Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings, 1st
Edition (June 2007), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-753.
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CCPS Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases.\81\
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\81\ CCPS, Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases, 2nd Edition (2012),
https://www.aiche.org/resources/publications/books/guidelines-evaluating-process-plant-buildings-external-explosions-fires-and-toxic-releases-2nd.
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CCPS Guidelines for Siting and Layout of Facilities.\82\
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\82\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.
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NFPA Separation Distances in NFPA Codes and Standards.\83\
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\83\ Argo, Ted, and Evan Sandstrom, Separation Distances in NFPA
Codes and Standards (The Fire Protection Research Foundation, 2014),
https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Hazardous-materials/RFSeparationDistancesNFPACodesAndStandards.ashx.
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The CCPS ``Guidelines for Siting and Layout of Facilities''
addresses external factors influencing site selection, as well as
factors internal to the source that could influence site layout and
equipment spacing. The most recent edition of this CCPS publication was
updated to address many developments in the last decade that have
improved how companies survey and select new sites, evaluate
acquisitions, and expand their existing facilities.\84\ The title was
also updated to emphasize not only siting of buildings and unit
operations within a facility, but also siting of facilities within a
community. The guidance addresses identifying the process hazards and
risks, selecting a facility location, selecting process unit layout
within a facility, selecting equipment within a process unit, and
managing changes.
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\84\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition.).
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As an industry-specific example for siting, the Compressed Gas
Association's (CGA's) ``G-2.1--Requirements for the Storage and
Handling of Anhydrous Ammonia,'' \85\ among other things, requires
facilities with anhydrous ammonia systems to apply specific location
requirements for processes, such as tank loading and unloading
operations, and equipment, such as ammonia storage containers, piping,
and nurse wagons. It also includes specific minimum separation
distances from storage containers to railroad mainlines, highways,
lines of
[[Page 53573]]
adjoining properties, and places of public assembly and residential and
institutional occupancy. Asmark Institute,\86\ a well-known
agricultural industry organization, developed an RMP Program 2 Hazard
Review checklist as a resource for its industry to apply CGA G-2.1 and
other applicable industry standards.\87\
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\85\ ANSI/CGA, Requirements for the Storage and Handling of
Anhydrous Ammonia (an American National Standard) (2014), https://webstore.ansi.org/standards/cga/ansicga2014.
\86\ Asmark Institute, https://www.asmark.org/.
\87\ Asmark Institute, MyRMP Hazard Review Worksheet for Program
2 Facilities with Anhydrous Ammonia (2015), https://www.asmark.org/myRMP/Forms/P2AnhydrousWorksheet.pdf.
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Despite enforcement and the consequences of catastrophic accidents,
issues of siting continue to threaten process safety. For example, in
2018, EPA took an enforcement action against an agricultural anhydrous
ammonia sales operation in Missouri that failed to identify the hazards
associated with the proximity of the facility to a home and a nearby
firehouse.\88\ In 2021, EPA took an enforcement action against a
chemical manufacturing facility in Maine that did not address the
facility's proximity to a nearby bay; lack of proximity to external
trained emergency responders; and process layout--specifically, the
proximity of shutdown valves to operations.\89\
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\88\ Available at https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/
Filings/E54E9167BD7A4EF6852582C0001BCFD5/$File/CAA-07-2018-
0214%20United%20Cooperatives%20CAFO.pdf.
\89\ Available at https://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/
Filings/D26E190D9B6DA9E18525875F006CA916/$File/CAA-01-2021-
0070%20CAF)%20ViewPDF%20(8).pdf.
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EPA reviewed data from OSHA PSM PHA enforcement actions. In 2018,
16 cases were filed where facility siting was cited as a serious
violation \90\ that could cause an accident or illness that would most
likely result in death or serious physical harm.\91\ One of those cases
was also reported as an RMP accident that occurred on September 1,
2016, at the Brookshire Grocery Company's distribution center in Tyler,
Texas. A failure in the piping on the roof of the cold storage building
caused an ammonia leak. The leak caused 16 injuries and resulted in the
evacuation of the building, the closure of a nearby intersection, and
the need for nearby residents to shelter in place.\92\ Given the
potential risk demonstrated by recurring accidents, EPA seeks to ensure
that emphasis is placed on the importance of all aspects of a proper
facility siting evaluation.
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\90\ Identified as a ``serious'' violation under OSHA in: OSHA,
``Federal Employer Rights and Responsibilities Following an OSHA
Inspection-1996,'' accessed January 31, 2022, https://www.osha.gov/
publications/
fedrites#:~:text=SERIOUS%3A%20A%20serious%20violation%20exists,have%2
0known%20of%20the%20violation.
\91\ U.S. Department of Labor, ``Data Catalog; OSHA Enforcement
Data; osha_violation'' accessed March 17, 2022, https://enforcedata.dol.gov/views/data_summary.php.
\92\ Louanna Campbell, ``Tyler Fire Marshal's Office Releases
Cause of Ammonia Leak at Brookshire's Warehouse,'' last modified
September 5, 2017, https://tylerpaper.com/news/local/tyler-fire-marshals-office-releases-cause-of-ammonia-leak-at-brookshires-warehouse/article_3a7581b2-63b9-57b9-96c2-0b163f546668.html.
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In a 2014 RMP request for information (RFI),\93\ EPA requested
comments on whether to consider stationary source location requirements
for future rulemaking. EPA specifically asked whether it should amend
the RMP rule to include more specific siting requirements as part of
the PHA. Though EPA received comments on the issue, EPA chose not to
move forward with additional action on siting in the amendment's final
rule but indicated that the Agency would consider comments for a future
rulemaking.
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\93\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, Section 112(r)(7),
Proposed rule, 79 FR 44603 (July 13, 2014), pp. 44603-44633, https://www.federalregister.gov/documents/2014/07/31/2014-18037/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-section.
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In response to the RFI, commenters opposed adding additional
provisions to address stationary source siting, citing as rationale
that:
Existing facilities have limited flexibility to alter
locations onsite.\94\
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\94\ EPA-HQ-OEM-2014-0328-0121; 0543, 0548, 0605, 0616, 0624.
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Specifying or requiring buffer or setback zones is a
complicated issue and must be looked at differently for new and
existing facilities.\95\
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\95\ EPA-HQ-OEM-2014-0328-0543; 0546, 0584, 0616, 0632.
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EPA would be intruding on local zoning codes when
establishing siting criteria.\96\
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\96\ EPA-HQ-OEM-2014-0328-0543; 0584, 0614, 0616, 0624, 0626,
0646, 0667.
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Existing industry guidance is sufficient.\97\
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\97\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546, 0605, 0620, 0624,
0640, 0665.
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Requiring additional siting requirements for both new and
existing facilities could result in significant cost to the regulated
entity.\98\
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\98\ EPA-HQ-OEM-2014-0328-0624; 0626.
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One opposing commenter specifically indicated that, to date, EPA
has allowed for siting considerations to be included under performance-
based elements of the RMP program. The commenter stated that any
modification of the existing requirements would be inconsistent with a
risk-based management system approach.\99\ Another commenter, although
generally in opposition to new siting requirements, stated that for
existing facilities, the owner/operator should demonstrate that other
technologies, such as early detection, early communication, prevention
measures, and mitigation measures, are applied to manage risk within
acceptable levels. This commenter also stated that in some cases, it
may be necessary to make process changes, and in unique cases where the
risk cannot be abated, owners/operators should consider relocation of
part or all facility operations.\100\
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\99\ EPA-HQ-OEM-2014-0328-0691.
\100\ EPA-HQ-OEM-2014-0328-0543.
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There were also commenters who argued stationary source siting
should be expanded in the RMP rule. For example, one commenter stated
the PHA must address issues of co-location both in terms of adjacent
facilities and in terms of vulnerable populations and infrastructure.
This commenter stated that at a minimum, facilities must address
hazards to and from adjacent facilities--including impacts that a
release from their facility would have on other facilities and the
impact that a release from other facilities would have on their
facility--and further expansion should address buffer zones for nearby
residents, hospitals, and infrastructure. The commenter argued that new
facilities or expansion of facilities must consider the cumulative
impacts from adjacent facilities and look at the threat that a release
from the new facility or expansion would pose to other facilities,
infrastructure, populations, and environmental resources.\101\
Additionally, CSB encouraged EPA to incorporate more explicit
requirements for identifying, evaluating, and addressing facility
siting during a PHA to assess both offsite consequences and onsite
receptors within that stationary source that may be impacted by
chemical fire, explosion, or release.\102\
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\101\ EPA-HQ-OEM-2014-0328-0637.
\102\ EPA-HQ-OEM-2014-0328-0689.
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EPA believes that many matters outlined in comments about the
current stationary source siting provision, while not explicitly
addressed within the current regulatory text, are implicit and
mandatory. Therefore, at this time, EPA is only choosing to make more
explicit what is required to be addressed in a stationary source siting
evaluation. Rather than propose additional requirements, EPA is
expounding on the current regulatory text to ensure that siting
evaluations properly account for hazards resulting from the location of
processes, equipment, building, and proximate facilities, and their
effects on the surrounding community. In addition
[[Page 53574]]
to providing some detail on what is intended by the Program 3
regulatory text on stationary source siting, EPA is also proposing to
revise language to Program 2 hazard evaluations to ensure that all RMP
facilities with the potential to cause offsite consequences to public
receptors account for these hazards. Therefore, EPA is proposing to
amend regulatory text for Program 2 and Program 3 under 40 CFR
68.50(a)(6) and 68.67(c)(5), respectively, to define stationary source
siting evaluation as inclusive of the placement of processes,
equipment, buildings, and hazards posed by proximate facilities, and
accidental release consequences posed by proximity to the public and
public receptors. The proposed amendments would make more explicit the
requirement that hazard evaluations for processes under both Program 2
(hazard review) and Program 3 (PHA) need to address the matters in the
siting evaluation.
Because there is a breadth of guidance on siting, EPA believes
there is adequate information available for facilities to comply with
the proposed text. EPA expects facilities to continue to use available
resources, including those previously mentioned, and any additional
industry-specific guidance to properly evaluate siting hazards.
e. Hazard Evaluation Recommendation Information Availability
Ensuring that communities, local planners, local first responders,
and the public have appropriate chemical facility hazard-related
information is critical to the health and safety of responders and the
local community. In this action, EPA is proposing ways to enhance
information sharing and collaboration between chemical facility owners/
operators, Tribal and local emergency planning committees (TEPCs/
LEPCs), first responders, and the public in a manner that EPA believes
balances security and proprietary considerations. In addition to the
information accessibility provisions in section IV.C of this preamble,
EPA is also proposing that recommendations resulting from hazard
evaluations discussed in this section be included in a facility's risk
management plan submitted under 40 CFR part 68, subpart G.
Specifically, facilities would be required to implement recommendations
or list in their risk management plans the recommendations from their
natural hazard, loss of power, and siting evaluations that were not
adopted and the justification for those decisions. EPA believes this
will enable the public to ensure facilities have conducted appropriate
evaluations to address potential hazards that can affect communities
near the fenceline of facilities. In response to comments in the RFI on
increased public disclosure of information, one commenter stated that
it is important to help the public understand how the facilities
address the hazard present in their community and keep the risk at or
below the ``acceptable level.'' EPA believes that when local citizens
have adequate information and knowledge about facility hazards,
facility owners and operators may be motivated to further improve their
safety in response to community pressure and oversight.\103\
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\103\ EPA-HQ-OEM-2014-0328-0543-27.
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EPA is proposing to require facilities to list in section 7
(Program 3) and section 8 (Program 2) of their risk management plans,
for each process, recommendations resulting from hazard evaluations of
natural hazards, loss of power, and facility siting that the owner/
operator chooses to decline. EPA realizes that the number of hazard
evaluation recommendations may vary widely, depending on the complexity
of the process or facility. Therefore, EPA seeks comments on the format
of listing the recommendations, whether EPA should require
recommendations to be included in narrative form, or whether the Agency
should provide specific categories of recommendations for facilities to
choose from when reporting. Another option would be to allow the owner
or operator to post this information online and provide a link to the
information within their risk management plan.
Regarding the requirement to provide justification for not
implementing recommendations, EPA is proposing to allow facilities to
choose from pre-selected categories. Under OSHA guidance, an employer
may decline to adopt a PHA recommendation if, based upon adequate
evidence, the employer can document that one or more of the following
conditions is true:\104\
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\104\ OSHA, Process Safety Management of Highly Hazardous
Chemicals--Compliance Guidelines and Enforcement Procedures, 29 CFR
1910.119 (September 13, 1994), https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf.
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The analysis upon which the recommendation is based
contains material factual errors.
The recommendation is not necessary to protect the health
and safety of the employer's own employees, or the employees of
contractors.
An alternative measure would provide a sufficient level of
protection.
The recommendation is infeasible.
EPA is proposing to adopt these same categories in the risk
management plan as justification for declined recommendations, with a
modification to account for public receptors (i.e., the recommendation
is not necessary to protect public receptors). EPA seeks public comment
on this approach and on alternative categories or methods to provide
justification for declining relevant recommendations. EPA wants to
ensure a balanced approach to providing beneficial data to the public
as well as a straightforward method of reporting for facility owners/
operators.
Proposed revisions to regulatory text include, requiring risk
management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8), reporting
declined natural hazard, power loss, and siting hazard evaluation
recommendations and their associated justifications in the risk
management plan submitted to EPA.
f. Summary of Proposed Regulatory Text
EPA is proposing to emphasize that Program 2 hazard reviews and
Program 3 PHAs identify and address natural hazards, loss of power, and
facility siting (as described in this document) in order to effectively
prevent or minimize accidental releases of regulated substances to
protect human health and the environment. EPA is also proposing to
require the owner or operator to report any recommendations arising
from these evaluations that are declined, along with the owner or
operator's justification for declining them, within the risk management
plan submitted to EPA. A summary of the proposed regulatory text
changes are described below:
Hazard evaluations under 40 CFR 68.50(a)(5) and
68.67(c)(8) to explicitly address external events such as natural
hazards, including those caused by climate change or other triggering
events that could lead to an accidental release.
Hazard evaluations under 40 CFR 68.50(a)(3) and
68.67(c)(3) to explicitly address standby or emergency power systems.
Hazard evaluations under 40 CFR 68.50(a)(6) and
68.67(c)(5) to explicitly define stationary source siting as inclusive
of the placement of processes, equipment, buildings within the
facility, and hazards posed by proximate facilities, and accidental
release consequences posed by proximity to the public and public
receptors.
Risk management plans under 40 CFR 68.170(e)(7) and
68.175(e)(8) to include declined natural hazard, power loss, and siting
hazard evaluation recommendations and their associated justifications.
[[Page 53575]]
EPA realizes, and commenters have indicated in the past,\105\ that
only a small number of facilities are responsible for a significant
percentage of RMP accidents. EPA expects the proposed language will
ensure that those owner/operators who are not properly evaluating these
hazards will be explicitly required to do so, which will better ensure
owner/operators do their due diligence in preventing or minimizing
accidental releases of regulated substances to protect human health and
the environment. EPA seeks comment on the proposed language or
alternative language that will not unnecessarily expand the scope of
hazard evaluations.
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\105\ EPA-HQ-OEM-2015-0725-1628.
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2. Prevention Program Provisions
The following section describes proposed modifications to the
prevention program provisions of the RMP rule. Several of these changes
address issues that have been the subject of both the 2017 amendments
rule and the 2019 reconsideration rule, including safer technologies
and alternatives analysis, root cause analysis incident investigations,
and third-party audits. As detailed below, the Agency's preferred
options for these topics adjust the scope of the provisions adopted and
rescinded by the prior rulemakings. EPA also proposes new requirements
for improved employee participation in prevention programs. The options
proposed below should enhance community safety, especially in
communities facing elevated probability of accidents, without unduly
burdening overly broad classes of stationary sources.
a. Safer Technologies and Alternatives Analysis (STAA)
EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some
Program 3 regulated processes to consider and document the feasibility
of applying safer technologies and alternatives as part of their PHA.
This requirement applies to petroleum and coal products manufacturing
processes (classified in NAICS code 324) and chemical manufacturing
processes (NAICS code 325) that are located within 1 mile of another
RMP-regulated facility with these same processes (classified in NAICS
324 and 325). EPA is also proposing that all facilities with petroleum
and coal products processes (in NAICS 324) using hydrofluoric acid (HF)
in an alkylation unit (approximately 45 facilities) consider safer
alternatives to HF alkylation, regardless of proximity to another NAICS
324- or 325-regulated facility.
Current PHA requirements (40 CFR 68.67) under the RMP rule include
some aspects of the hierarchy of controls analysis.\106\ As discussed
in the proposed regulation that became the 2017 amendments rule,
Program 3 processes are required to address process hazards using
engineering and administrative controls since 1996. However, as EPA
pointed out, there is no explicit requirement for owners and operators
to address inherent safety--the first tier of the hierarchy of
controls. EPA is proposing to expand upon these requirements by
requiring the owners or operators to consider safer technology and
alternative risk management measures that could eliminate or reduce
risk from process hazards. In addition to engineering and
administrative controls, owners and operators of facilities with
Program 3 processes covered under this provision would have to consider
the application of the following safer technology measures, in the
following order: inherently safer technology (IST) or inherently safer
design (ISD), passive safeguards, active safeguards, and procedural
safeguards.
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\106\ Safety experts have developed a way to group types of
controls in an order or ``hierarchy of controls'' that prefers those
that are least likely to fail. As discussed in more detail in in
section IV.A.2.a.i, below, controls that eliminate the hazard are
preferred over those that do not require power or activation, which
are preferred over those that do require power or activation, which
are preferred over those that depend simply on rules of operation.
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In this proposed regulation, EPA is not requiring facilities to
implement identified inherent safety measures; rather, EPA is requiring
owners and operators to include an evaluation, including the results of
the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e),
and, to document the feasibility of inherent safety measures based on
more than cost alone. Submission of STAA analysis summaries to EPA is
discussed in further detail under ``STAA technology transfer.''
Finally, EPA is proposing that a facility's STAA team include, and
document the inclusion of, one member who works in the process and has
expertise in the process being evaluated. EPA is also proposing to
include a more comprehensive practicability assessment, in addition to
the STAA evaluation requirements as part of the PHA. As part of this
analysis, owners and operators would be required to identify, evaluate,
and document the practicability of implementing inherent safety
measures, including documenting the practicability of publicly
available safer alternatives.
i. Background on IST/ISD
EPA discussed safer technology and alternatives at length in its
proposed RMP rule amendments published in 2016. ``Accidental Release
Prevention Requirements: Risk Management Programs Under the Clean Air
Act'' (81 FR 13638, March 14, 2016). ``Safer technology and
alternatives'' refers to risk reduction or risk management strategies
developed through analysis using a hierarchy of process risk management
strategies (or hierarchy of controls). In this context, the hierarchy
of controls consists of controls that are inherent, passive, active,
and procedural. STAA involves considering IST or ISD, which refer to
strategies that permanently reduce or eliminate hazards associated with
the materials and operations of a process. As discussed in EPA/OSHA's
2015 chemical safety fact sheet,\107\ the four major inherently safer
strategies are: (1) substitution: replacing hazardous materials with
less hazardous substances; (2) minimization: using smaller quantities
of hazardous substances; (3) moderation: creating less hazardous
conditions or using less hazardous forms or facility designs to
minimize the impact of potential releases of hazardous materials or
energy; and (4) simplification: designing facilities to eliminate
unnecessary complexity and make operating errors less likely. Inclusion
of IST/ISD in the RMP regulations is consistent with several CSB
investigations that demonstrated that incidents could have been
prevented or consequences mitigated by using IST/
ISD.108 109 110 111
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\107\ EPA and OSHA, Chemical Safety Alert: Safer Technology and
Alternatives (June 2015), https://www.epa.gov/sites/default/files/2015-06/documents/alert_safer_tech_alts.pdf.
\108\ CSB, ``Chevron Refinery Fire,'' last modified January 28,
2015, https://www.csb.gov/chevron-refinery-fire/.
\109\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
\110\ CSB, ``Kleen Energy Natural Gas Explosion,'' last modified
June 28, 2010, https://www.csb.gov/kleen-energy-natural-gas-explosion/.
\111\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,''
last modified January 1, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
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In the supplemental proposed RMP rule for the initial requirements
under CAA 112(r)(7), EPA solicited comments on requiring IST.
``Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7)'' (60 FR 13526, March 13, 1995)
(1995 supplemental proposal). Prior to the 2017 final RMP amendments,
however, EPA had never
[[Page 53576]]
required RMP facilities to conduct an STAA or implement identified IST/
ISD. The 2017 amendments rule added a requirement to the PHA for
regulated sources in specified industrial sectors to identify and
address hazards at least every 5 years. Specifically, owners or
operators of facilities with Program 3 regulated processes in NAICS
codes 322 (paper manufacturing), 324 (petroleum and coal products
manufacturing), and 325 (chemical manufacturing) were required to
conduct an STAA as part of their PHA and evaluate and document the
practicability of any IST identified. The provision was intended to
reduce the risk of serious accidental releases by requiring facilities
in these sectors to conduct a careful examination of potentially safer
technology and designs that they could implement in lieu of, or in
addition to, their current technologies. EPA adopted STAA based on
recommendations from CSB and other engineering experts, as well as
lessons learned from case studies and investigations of accidents. EPA
identified the sectors covered by this requirement by using sector-wide
accident rates. EPA believes that some of the practicability of
implementation will be identified in the course of the PHA and that for
many processes, owner/operators will already know if implementing a
particular technology is practicable. EPA solicits comments on the
industry understanding of the practicability assessment, and how this
might differ from the findings identified in the PHA, as well as the
additional benefit of such a provision.
In the 2019 rule completing the process of reconsidering the 2017
rule, EPA removed the new regulatory STAA requirement on all facilities
in NAICS 322, 324, and 325 that are in the RMP program. ``Accidental
Release Prevention Requirements: Risk Management Programs Under the
CAA'' (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA
analyzed accident history data in the RMP database, both nationally and
in States and localities with programs that contained some or all the
elements of the prevention program provisions. EPA discusses accident
trends overall in Section III.C of this preamble. The analysis
suggested that accident rates in jurisdictions that adopted STAA-like
programs were not lower than national accident rates. Based on this
assessment, EPA stated that STAA regulations would likely not be
effective at reducing accidents if applied on a national scale,
relative to the pre-2017 program. Instead, EPA decided to take a
source-specific, compliance-driven approach, using oversight and
enforcement tools to identify sources that would appear to benefit from
STAA and to then seek STAA adoption at such sources.
ii. Hydrogen Fluoride
Hydrogen fluoride (HF) is an extremely toxic chemical that is
lethal at 30 ppm. It is covered by RMP when more than 1,000 pounds are
used in a process. HF is an extremely toxic chemical used for
alkylation at 27 percent of facilities in NAICS 324 (45 of 163). HF has
been the subject of recent catastrophic near-miss investigations by
CSB. One of these investigations involved an explosion at the Husky
Refinery in Superior, Wisconsin, wherein debris impacted processes at a
further distance from the explosion than the refinery's HF storage
tank.\112\ CSB also investigated a near-miss in Torrance, California,
wherein the explosion of ExxonMobil's electrostatic precipitator
resulted in debris landing near the refinery's modified HF tanks.\113\
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\112\ CSB, ``Husky Energy Refinery Explosion and Fire,''
accessed February 10, 2022, https://www.csb.gov/husky-energy-refinery-explosion-and-fire/.
\113\ CSB, ``ExxonMobil Refinery Explosion,'' last updated May
3, 2017, https://www.csb.gov/exxonmobil-refinery-explosion-/.
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There are recognized potentially safer alternatives available for
HF alkylation that have been successfully implemented by refineries,
such as sulfuric acid alkylation, ionic liquid alkylation, or solid
acid catalyst alkylation.114 115 EPA contends that the
practicability of these potentially safer alternatives is situation-
specific and that owners and operators are usually in the best position
to make these determinations. Phasing out HF or switching to an
inherently safer alternative may require construction of a new
alkylation unit. Depending on the production levels of the refinery,
implementation of alternatives to HF alkylation could cost between $35
million and $900 million (see RIA, Appendix A).
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\114\ Chevron, ``Chevron and Honeywell Announce Start-up of
World's First Commercial ISOALKYTM Ionic Liquids
Alkylation Unit,'' last modified April 13, 2021, https://www.chevron.com/stories/chevron-and-honeywell-announce-start-up-of-isoalky-ionic-liquids-alkylation-unit.
\115\ United Steelworkers, A Risk Too Great: Hydrofluoric Acid
in U.S. Refineries (April 2013), https://www.usw.org/workplaces/oil/oil-reports/A-Risk-Too-Great.pdf.
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iii. Recent Public Input on STAA
During EPA's 2021 listening sessions, approximately 245 commenters
provided feedback on STAA. Many commenters, including individual
commenters, professional associations, advocacy groups, labor
organizations, an association of government agencies, and a Federal
agency, supported EPA restoring the 2017 amendments rule requirement
for facilities to assess safer technologies and substitute safer
alternatives in their processes where feasible.\116\ A group of retired
Federal agency officials said that facilities should share this
analysis with communities and emergency responders, and EPA should
establish a ``publicly accessible clearinghouse of safer
alternatives.'' \117\ Individual commenters stated that STAAs should
include an assessment of environmental justice, including the burden on
surrounding communities,\118\ while another commenter stressed that
STAAs would be very beneficial for communities with environmental
justice concerns.\119\ An environmental advocacy group suggested that
RMP facilities should be required to develop and submit a hazard
reduction plan made by facility experts and workers that would start at
the top of the hierarchy of controls and include considerations of an
EPA-generated list of inherently safer chemicals.\120\
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\116\ EPA-HQ-OLEM-2021-0312-0028; 0035, 0039, 0044, 0051, 0057,
0058, 0081, 0095, 0387, 0388.
\117\ EPA-HQ-OLEM-2021-0312-0004.
\118\ EPA-HQ-OLEM-2021-0312-0013; 0380.
\119\ EPA-HQ-OLEM-2021-0312-0028.
\120\ EPA-HQ-OLEM-2021-0312-0149.
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Another advocacy group stated that it is interested in having
facilities incorporate solutions data into STAAs and--along with a
State regulatory agency, labor organizations, advocacy groups, and an
individual commenter--supported requiring STAAs from every RMP facility
in sectors such as water treatment, not just in oil manufacturing,
chemical manufacturing, and paper manufacturing.\121\ A State
regulatory agency mentioned that many safer technology alternative
opportunities exist in other sectors and expressed that there should
not be any limit on how many NAICS sectors are included.\122\
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\121\ EPA-HQ-OLEM-2021-0312-0014; 0039, 0057, 0152.
\122\ EPA-HQ-OLEM-2021-0312-0039.
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An advocacy group suggested that EPA implement an even more robust
alternatives analysis and implementation process than that of the STAA
proposed during the 2017 amendments rule. The commenter said that,
rather than basing the universe of facilities subject to the STAA
requirement on the results of data analysis performed in 2017, EPA
should require this type of assessment at all facilities. The commenter
proposed that,
[[Page 53577]]
should EPA determine that ``tiered protection should be implemented,''
it should require IST assessment and implementation at facilities in
sectors with known hazard elimination or reduction methods, in areas
with climate risks and other natural hazard risks, in communities with
more than one RMP facility, and at facilities that are using or storing
the highest quantity and toxicity of regulated chemicals and are most
accident-prone.\123\
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\123\ EPA-HQ-OLEM-2021-0312-0170.
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A few industry trade associations stated that STAAs and IST
evaluations would not generate tangible safety outcomes beyond the
current PHA requirements.\124\ One of the industry trade associations
also discussed EPA's decision to limit the number of facilities covered
by STAA provisions in the 2017 amendments rule, which the commenter
described as lacking evidentiary support.\125\ An industry trade
association that strongly opposed the STAA provision in the 2017
amendments rule supported its removal in the 2019 reconsideration rule,
stating that such a STAA requirement would not improve the
effectiveness of the rule in relation to protecting communities with
environmental justice concerns; instead, it would divert
resources.\126\ An industry trade association stated that some
industries already adopt inherently safer processes and technologies
without direction from EPA.\127\
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\124\ EPA-HQ-OLEM-2021-0312-0037; 0053, 0071.
\125\ EPA-HQ-OLEM-2021-0312-0071.
\126\ EPA-HQ-OLEM-2021-0312-0077.
\127\ EPA-HQ-OLEM-2021-0312-0077.
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iv. Recent Public Input on HF
During EPA's 2021 listening sessions, many commenters, including
individual commenters and advocacy groups, discussed the dangers of HF
and modified HF and argued that facilities should be required to
transition to safer alternatives.\128\ An individual commenter said
that HF is often located in facilities in communities with
environmental justice concerns that are already exposed to many other
hazards. A State elected official said that EPA should require
refineries to evaluate the replacement of these chemicals and report
their findings to EPA within a year.\129\ A form letter campaign
recommended an amendment to 40 CFR 68.169 which, if implemented, would
convert all HF refineries to safer alternatives within 4 years.\130\ A
few individual commenters and an advocacy group expressed general
support for this amendment.\131\ Another individual commenter in
support of this amendment stated that over 40 refineries containing
large quantities of HF endanger 19 million people, including children,
young adults, unhoused people, and more.\132\
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\128\ EPA-HQ-OLEM-2021-0312-0013; 0035, 0043, 0054, 0036, 0319,
0146, 0067, 0068, 0096.
\129\ EPA-HQ-OLEM-2021-0312-0043.
\130\ EPA-HQ-OLEM-2021-0312-0067.
\131\ EPA-HQ-OLEM-2021-0312-0354; 0379, 0382, 0384.
\132\ EPA-HQ-OLEM-2021-0312-0380.
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v. STAA Applicability
EPA is proposing to limit the applicability of the STAA provisions
to sources in the petroleum and coal products manufacturing (NAICS 324)
and chemical manufacturing (NAICS 325) sectors, located within 1 mile
of another RMP-regulated 324 or 325 facility. EPA is also proposing
that all facilities in NAICS 324 using HF in an alkylation unit
(approximately 45 facilities) conduct an STAA for the use of safer
alternatives compared to HF alkylation. EPA believes that while most
sectors regulated under 40 CFR part 68 could identify safer technology
and alternatives, sources involved in complex manufacturing operations
have the greatest range of opportunities to identify and implement
safer technologies and alternatives, particularly related to inherent
safety. These sources generally produce, transform, and consume large
quantities of regulated substances under sometimes extreme process
conditions and using a wide range of complex technologies.
Multiple factors led EPA to propose focusing the STAA requirement
on densely co-located petroleum refining and chemical manufacturing
facilities (i.e., facilities with processes in NAICS codes 324 and 325
that are within 1 mile of another facility in those NAICS codes). The
distance of 1 mile represents the median distance of facilities with
324 and 325 NAICS processes that have had accidents in the period from
2016 to 2020 to the nearest facility with a process in these NAICS in
324 or 325. Facilities in these NAICS codes experience more frequent
accidental releases (see IV.A.2.vi, below). In the period from 2016 to
2020, communities near densely co-located facilities in these NAICS
codes have experienced more frequent accidents than communities near
other facilities in these NAICS codes and have had more offsite impacts
from releases than other communities have experienced (see IV.A.2.vii,
below). Additionally, 80% of 324 and 325 facilities located within 1
mile of another 324/325 facility have toxic worst case release scenario
distance to endpoints reaching or exceeding 1 mile. The proximity of
densely co-located refining and chemical manufacturing facilities
creates a greater risk of an accident at one facility impacting safety
at the nearby facility, thereby increasing the potential for a release
at the second facility (a ``knock-on'' release). Communities in areas
with such densely co-located petroleum refining and chemical
manufacturing facilities face overlapping vulnerability zones and a
heightened risk of being impacted by an accidental release relative to
other communities. The heightened risk of community impacts presented
by densely co-located refineries and chemical manufacturers make it
reasonable for EPA to propose the 1 mile criterion for additional
prevention measures such as STAA. The 1 mile criterion also serves to
limit the burden on portions of both the petroleum refining and
chemical manufacturing industries relative to the 2017 amendments rule
while promoting accident prevention to a greater extent than the
approach taken in the 2019 reconsideration rule (see IV.A.2.viii,
below).
EPA is proposing that all HF alkylation processes at petroleum
refineries (NAICS 324) conduct a STAA review primarily due the recent
incidents discussed above where HF was nearly released when there were
explosions, fires, and other releases that could have triggered
releases of HF. The recent incident involving Philadelphia Energy
Solutions,\133\ where some of the HF stored apparently was released in
a fire but a worse release was prevented by trained staff activating
release mitigation systems close to the time the event started, raises
the question of whether a more inherently safe process could have
completely avoided a potential catastrophe, or whether reliance on
operational procedures and trained staff is adequate. As mentioned
above, there are recognized potentially safer alternatives available
for HF alkylation that have been successfully implemented by
refineries, such as sulfuric acid alkylation, ionic liquid alkylation,
or solid acid catalyst alkylation. While EPA is not proposing that all
existing refinery processes undergo STAA review, the process of HF
alkylation, with several known alternatives and with recent incident
[[Page 53578]]
history, EPA believes may merit a rule-based prevention approach rather
than selective oversight.
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\133\ CSB, ``Philadelphia Energy Solutions (PES) Refinery Fire
and Explosions,'' last modified October 16, 2019, https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/.
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vi. Accident Frequency
EPA notes that RMP facilities in the two selected sectors have been
responsible for a relatively large number of accidents, deaths,
injuries, and property damage.\134\ Although the per-facility accident
rate between 2016 and 2020 for all regulated facilities was 3 percent
(n = 382 facilities reporting at least one accident out of 12,855
unique facilities reporting between 2016 and 2020), the sector accident
rates (number of unique facilities with accidents per sector divided by
the number of unique facilities in each sector) for petroleum and coal
manufacturing were seven times higher (23 percent, n = 41 out of 177)
and two times higher for chemical manufacturing (6 percent, n = 96 out
of 1631). Moreover, of the 70 facilities experiencing two or more
incidents between 2016 and 2020, 43 (60 percent) of these facilities
were NAICS 324 and 325. Implementation of safer technology and
alternatives by these facilities in the chemical manufacturing and
petroleum refining sectors may prevent serious accidental releases in
the future.
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\134\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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vii. Accident Severity
EPA is proposing to apply STAA requirements to processes at
facilities in NAICS 324 and 325 located within 1 mile of another NAICS
324 or 325 facility, as the increased accident frequency found in these
industries is exacerbated when examining those facilities in more
facility-dense areas (here defined as facilities within 1 mile of
another facility).
Based on accidents occurring between 2016 and 2020, communities
located near facilities in NAICS 324/325 that are located within 1 mile
of another 324/325 facility are 1.5 times more likely to have been
exposed to accidents at these facilities as compared to communities
near facilities in NAICS 324/325 that are not located within 1 mile of
another 324/325 facility. This increased accident frequency in
facility-dense areas has resulted in considerably larger offsite
impacts, including over 47,000 people sheltering in place, 56,800
people evacuating, and over 153 million dollars in offsite property
damage.\135\
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\135\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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Using RMP data from 2016 to 2020, EPA estimates the proposed
approach impacts approximately 563 unique, active facilities. EPA is
making available in the Technical Background Document, a list of
sources it believes would be required to conduct STAA based on the
location information currently provided in facility risk management
plans. In estimating these facilities, EPA used the latitude and
longitude reported to EPA by facilities, which can vary in the
measurement of facility location. For example, facilities can report
location based on the regulated process, facility fenceline or facility
centroid. EPA is proposing to define facility location based on
distance to the facility fenceline but seeks comment on other
definitions of facility proximity.
Although accident rates for the paper manufacturing sector (NAICS
322, 17 percent, 20 accidents at 11 out of 65 facilities between 2016
and 2020) were similar to NAICS 324, EPA has not proposed STAA
requirements at facilities in NAICS 322 due to the low actual number of
incidents and comparatively fewer accident consequences. While 30
workers were injured (non-fatally) as a result of these accidents, the
accidents resulted in no other reported offsite consequences (i.e.,
sheltering in place, evacuation, or offsite property damage).\136\
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\136\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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viii. Discussion of Prior STAA Analysis
In its 2019 decision to rescind STAA requirements, EPA relied on
data analysis of RMP accidents from States with STAA- and IST-like
regulations, primarily New Jersey's Toxic Catastrophe Prevention Act
(TCPA) regulation and the Massachusetts Toxic Use Reduction Act. Using
the accident data EPA provided in the rulemaking docket, EPA compared
accident data for New Jersey and Massachusetts RMP facilities from 2008
through 2016 to the same measures for the national set of RMP
facilities.\137\ EPA interpreted the results as showing that New Jersey
and Massachusetts RMP facilities reported more RMP-reportable accidents
than RMP facilities nationally over the same period. Although the rate
of RMP facility accidents in New Jersey and Massachusetts have
declined, EPA found that this decline is less than the decline in
accidents for RMP facilities nationally over the same period. New
Jersey and Massachusetts exhibited a 1.7 percent and 3.5 percent annual
decline in accident frequency, respectively, whereas nationally, RMP
facilities experienced a 4.1 percent decline in accident frequency over
the same period. The normalized accident rate in New Jersey and
Massachusetts declined by approximately 2 percent and 3 percent per
year, respectively, whereas the normalized accident rate at RMP
facilities nationwide declined by 3.3 percent per year. Regarding
accident severity, EPA examined the impacts of RMP-reportable accidents
in New Jersey over the same period and could discern no declining trend
in accident severity in New Jersey. Based on this data analysis, EPA
concluded the New Jersey and Massachusetts programs had not resulted in
a reduction in either accident frequency or severity at RMP-regulated
facilities subject to the provision, and therefore the costs were
disproportionate to the benefits.
---------------------------------------------------------------------------
\137\ EPA-HQ-OEM-2015-0725-2063.
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Comments provided by the New Jersey Department of Environmental
Protection (NJDEP) point out information that questions the validity of
these assumptions.\138\ First, EPA based its decision to rescind STAA
requirements for NAICS codes 324 and 325 on accident information for
all regulated NAICS codes, thereby applying assumptions based on
analysis of all accidents, rather than analysis of NAICS 324 and 325
specifically, to the subset of facilities it intended to regulate.
Second, NJDEP points out that IST is only one measure to prevent
accidental releases; therefore, the absence of a decrease in accidents
should not be solely attributed to ineffectiveness of IST. NJDEP also
points out that facilities with better accident investigation
requirements and release reporting systems may be reporting more
accidents than those without additional reporting programs. EPA
believes these arguments apply to the 2019 Massachusetts analysis as
well. EPA now acknowledges that applying a rate developed through
analysis of all regulated facilities cannot be applied to the specific
sectors that were selected for regulation (NAICS codes 324 and 325) as
a conclusion based on comparing New Jersey's overall accident rate to
the national overall accident rate is inconclusive about sectors that
would have been subject to the RMP STAA requirement.
---------------------------------------------------------------------------
\138\ EPA-HQ-OLEM-2021-0312-0039.
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Additionally, EPA realizes it may have been important to consider
that its conclusions were derived from analysis of a small number of
accidents from a small sample size with a high degree of intra-year
variability. For example, RMP
[[Page 53579]]
data from New Jersey \139\ demonstrate that the facility accident rates
were 2 per 86 in 2008 and 2 per 80 in 2016, extrapolating a slope
showing a 1.7 percent decrease per year. Yet accidents ranging from 0
to 4 and demonstrating a high amount of intra-year variability are
inconclusive. EPA examined data for NAICS 324 and 325--those proposed
to be regulated in this action--and found similarly low accident counts
(0 to 2 per year), prohibiting meaningful conclusions and leaving the
Agency unable to determine if STAA provisions are ineffective.
Therefore, EPA contends that it is more appropriate to emphasize in
this rulemaking factors like the expert views of CSB and other
researchers, case studies, and EPA's technical judgment rather than the
analysis comparing accident rates under the New Jersey TCPA to national
rates for RMP facilities that helped form the basis for rescinding STAA
in the 2019 reconsideration rule. Finally, in proposing to reestablish
STAA requirements for facilities in NAICS 324 and 325 located within 1
mile of another NAICS 324 or 325 facility and those refineries with HF
alkylation processes, EPA has determined that there are likely limited
legitimate reliance interests associated with the 2019 reconsideration
rule's elimination of these requirements. The compliance date for this
requirement on affected facilities is proposed to be three years after
this rule becomes final, which, based on EPA's announced plans in the
Unified Regulatory Agenda, would be sometime in August 2026. For those
sources who last performed a PHA prior to August 2021, they would be
able to integrate STAA in their next PHA. For those performed since
August 2021 and before this proposed rule (approximately one year),
they would need to perform the STAA outside the normal PHA timeframe.
This should be a relatively small number of facilities in part because
of the limited applicability of the preferred approach and the pattern
of years ending in 4s and 9s being the heaviest years for RMP
submittals. Sources performing PHAs after this proposed notice are on
notice of EPA's intent, so whatever reliance interest there was on the
2019 reconsideration rule to this proposal should be minimal.
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\139\ EPA-HQ-OEM-2015-0725-2063, p. 36.
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ix. STAA Technology Transfer
Since the inception of RMP, the required elements of risk
management plans have been a narrative executive summary and primarily
fields of check boxes, dates, and numbers that summarize RMP rule
compliance activities. The format facilitates electronic submission and
data analysis. EPA established central processing and handling to
relieve states of data handling burdens while also promoting easy
access for stakeholders. As a result of legislation in 1999 and a
general increase in security concerns post-September 11, 2001, portions
of the risk management plan are restricted, either on a ``need to
know'' basis (much of the release scenario information) or only
released on compact discs/drives when requested through the Freedom of
Information Act (FOIA). In practice, the minimal narrative in risk
management plans and the restrictions on access to these plans have
minimized the transfer of knowledge of successful accident prevention
practices among all stakeholders (e.g., regulated industry,
communities, labor, researchers, planners, responders).
In the 2017 amendments rule, EPA added an STAA requirement to the
PHA portion of the prevention program requirements for three industry
sectors: petroleum refining (324), chemical manufacturing (325), and
paper production (322). In addition to the previously existing
requirement to report on any changes since the last PHA (40 CFR
68.175(e)(6)), EPA added a requirement for sources to report on whether
IST/ISD--one STAA technique--had been adopted since the last PHA, and
if yes, to report on the broad technology category (i.e., chemical
substitution or minimization, process simplification, and/or moderation
of the process conditions). The 2019 final reconsideration rule
eliminated the additional reporting requirement when EPA eliminated the
STAA prevention provision. EPA is now proposing to reinstate the
provisions to 40 CFR 68.175(e)(7) to report whether the current PHA
addresses the STAA requirement proposed in 40 CFR 68.67(c)(9), whether
any IST/ISD was implemented as a result of 40 CFR 68.67(c)(9)(ii), and
if any IST/ISD was implemented, to identify the measure and technology
category.
During EPA's 2021 listening sessions and public comment period,
some stakeholders supporting IST/ISD advocated for promoting better
reporting and public availability of ``solutions data''--the successful
practices companies are using to reduce and remove RMP chemical
hazards--about IST/ISD and other measures adopted by sources to reduce
risk. For example, a few advocacy groups expressed that solutions data
should be incorporated into RMP by reporting it in risk management
plans from STAAs, reporting it on RMP deregistration forms, including
it in public meetings after incidents to address the best options at
the top of the hierarchy of prevention, and compiling it into a hazard
reduction clearinghouse, through which EPA could collect and
disseminate lessons learned from successful industry practices.\140\
This sentiment was echoed by another advocacy group, which recommended
that EPA ensure that facilities that are no longer regulated under RMP
coordinate with regulatory agencies and share practices or approaches
with other RMP facilities.\141\ These comments suggest ways of
promoting accident prevention technology transfer and improving on not
only the existing rule, but also the reporting provisions of the 2017
amendments rule. EPA has examples of existing information centers which
aggregate best practices, such as the Pollution Prevention Resource
Exchange.\142\
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\140\ EPA-HQ-OLEM-2021-0312-0014; 0058, 0148.
\141\ EPA-HQ-OLEM-2021-0312-0149-18.
\142\ EPA. Pollution Prevention Resource Exchange (P2RX).
Available at: https://www.epa.gov/p2/pollution-prevention-resource-
exchange-
p2rx#:~:text=The%20Pollution%20Prevention%20Resource%20Exchange,and%2
0measured%20P2%20program%20results.
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EPA has included an outline of the potential information that would
be collected from deregistering facilities as well as in the STAA
documentation in Section 10 of the Technical Background Document. EPA
intends for this not to be a cumbersome exercise, but rather, one that
is based on information facilities likely already have, with EPA making
it available for other industries to identify safer alternatives. EPA
solicits comment on any additional information which would be useful
for such a repository.
x. Alternative Options
EPA considered other options and is seeking comment on these
alternative approaches. In contrast to the 2017 amendments rule, EPA is
not proposing to apply STAA to NAICS 322 (pulp mills) based on the
smaller number of accidents at these facilities in the last 5 years (n
= 20).\143\ EPA considered applying STAA requirements to facilities in
NAICS 324 and 325 with a reportable accident within the last 5 years,
estimating that this would apply to approximately 140 RMP facilities
during their 5-year PHA schedule.
---------------------------------------------------------------------------
\143\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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EPA also considered applying these provisions to all NAICS 324 and
325
[[Page 53580]]
facilities, which would be similar to provisions promulgated in the
2017 amendments rule and be estimated to apply to 1,660 active RMP
facilities at least every 5 years. Given the high accident rates in
NAICS 324 and 325 industries without considering proximity to other
facilities, EPA solicits comment on whether the RMP rule should simply
reinstate the 2017 rule provisions requiring STAA for NAICS 324 and
325.
As discussed above regarding recent public comments, EPA is aware
that some commenters would like for all regulated facilities to
implement inherently safer technologies. With respect to whether the
Agency should require implementation of IST/ISD, in this rulemaking,
EPA does not intend to require facilities implement identified IST.
Instead, EPA has required evaluation of STAA as part of the PHA, as
well as employee involvement in the STAA evaluation. EPA believes
facility owners and operators will adopt IST and other safer technology
alternatives when it is practicable technically and economically and
when the risk reduction is significant even in the absence of a
mandate. Part of the basis for this belief is due to most of the
economic savings resulting from reduced accidents will be from reduced
on-site property damage to the owner or operator's facility. However,
EPA seeks comment on whether the Agency should require implementation
of technically practicable IST/ISD and STAAs. With respect to whether
all industries should be required to conduct STAA analysis or
investigate ISTs, as discussed above, while in theory considering IST
may reduce the probability of accidents, the accident history for most
industries does not establish that IST would substantially reduce
accident likelihood or impacts, and that EPA judges lack as many
opportunities for STAA to successfully reduce accidents. To the extent
that commenters have additional considerations relating to probability
and the effectiveness of STAA provisions if extended to all industries,
EPA requests commenters provide this information to EPA.
In this proposed rulemaking, EPA is only requiring STAA in
industries with the most frequent and severe accidents with offsite
consequences. As discussed in section IV.A.2.v., above, EPA has
identified densely co-located refineries and chemical manufacturing
facilities (i.e., facilities with processes in NAICS 324 and 324 within
1 mile of another facility with processes in these NAICS) as a class of
facilities that present a heightened risk to nearby communities. EPA
seeks comment on whether the proposal to limit the STAA provisions to
324 and 325 regulated processes within 1 mile of another 324 and 325
regulated facility is appropriate or if another distance would be
appropriate; commenters should provide rationales for proposed distance
alternatives. EPA also solicits comment on other industries for which
STAA analysis should be required and seeks comment on how EPA might
justify extending these provisions to other industries with fewer
accidents.
Finally, EPA considered requiring implementation of IST identified
in the course of an STAA, both for the proposed regulated industries
and for alternative options examined. The known costs of certain STAA
changes range from less than $1,000 to over $100 million. For many
significant STAA changes, the costs would be facility-specific, and EPA
has little information on the potential costs of large STAA projects.
Due to the uncertainty of STAA provision implementation, it is
challenging to identify the benefits that offset implementation costs.
Commenters have identified industries for which EPA should require
the assessment and specifically suggested implementation of safer
technologies for water treatment facilities; \144\ however, EPA is not
requiring STAA analysis for water treatment facilities for specific
reasons. EPA relies on two reasons for not requiring STAA analysis for
water treatment facilities: our view that the probability of an
incident is low, and our understanding that such a requirement would
unreasonably burden State and local governments, especially when
applied to existing sources. First, in evaluating the potential for
large offsite consequences based on the numbers of persons potentially
exposed, only one of 22 incidents in NAICS 2213 between 2016 and 2020
reported an offsite impact: an evacuation of 125 people caused by an
ammonia leak.\145\ Risk to communities is a function of probability,
hazard, and exposure. Commenters who asked that the Agency mandate IST
for water treatment facilities or at least an assessment have
identified the number of persons potentially exposed in the event of an
accidental release, but generally do not address the accident history
data showing the low probability of an incident when discussing the
risk to be addressed by requiring IST or STAA analysis at water
treatment facilities. Second, most water treatment facilities are
operated by local and State governments. When conducting discretionary
rulemaking, EPA considers the costs to State and local governments. The
benefits of requiring STAA for these facilities would have to be
justified in relation to the costs and EPA needs more information on
such costs before applying any requirements to these facilities.
Therefore, EPA solicits comments on the actual and updated costs to
government-owned water treatment facilities. Additionally, EPA solicits
comments on a provision which would require consideration of ISD in the
design of new water treatment facilities, when the costs of designing
in safer technologies are recognized to be less than the cost of
retrofitting existing facilities.
---------------------------------------------------------------------------
\144\ EPA-HQ-OLEM-2021-0312-0014; 0017, 0039, 0149.
\145\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022), Appendix A.
---------------------------------------------------------------------------
EPA has used accident history data to provide insight into the
probability with which these accidents have actually occurred to
support requiring STAA analysis for portions of particular industries.
However, EPA recognizes that substance and process-specific accident
history may not always be an appropriate metric for probability of an
accident or the risk communities face. For example, the consequences of
an HF release are so potentially catastrophic, and with known
alternatives existing, EPA has proposed that facilities with HF
alkylation evaluate and document STAA as part of their PHA. In this
case, EPA focused on numerous accidental releases that had the
potential to cause a secondary release of HF from alkylation units
rather than actual HF releases and their consequences. EPA solicits
comment on what other information or consideration it can use to assess
probability of an accident in other industries without substantial
accident history data as well as what specific chemicals or process may
merit the most focus, and how EPA may require STAA requirements for
industries without a history of accidents.
xi. Proposed Revisions to Regulatory Text
Definitions (40 CFR 68.3). EPA is proposing to add several
definitions that relate to the STAA in 40 CFR 68.3. EPA is adding these
definitions to describe risk reduction strategies that the owner or
operator can use when considering safer technology and alternatives.
First, EPA is proposing a similar definition for IST/ISD as in the
2017 amendments rule. The proposed definition includes risk management
measures that would eliminate, replace,
[[Page 53581]]
or reduce the use of regulated substances or make operating conditions
less hazardous or less complex.
As in the 2017 amendments rule, EPA is also proposing definitions
for ``passive,'' ``active,'' and ``procedural'' measures. EPA proposes
that ``passive measures'' (in 40 CFR 68.3) be defined as those that
rely on measures that reduce a hazard without human, mechanical, or
other energy input. EPA also proposes to define ``active measures'' as
those that involve engineering controls that rely on mechanical, or
other energy input to detect and respond to process deviations.
Examples of active measures include alarms, safety instrumented
systems, and detection hardware (e.g., hydrocarbon sensors). Lastly,
EPA proposes a definition for ``procedural measures'' that includes
policies, operating procedures, training, administrative controls, and
emergency response actions to prevent or minimize incidents. Examples
of procedural measures include administrative limits on process vessel
fill levels and procedural steps taken to avoid releases.
Finally, EPA is proposing to define ``practicability'' as the
capability of being successfully accomplished within a reasonable time,
accounting for technological, environmental, legal, social, and
economic factors. EPA clarifies in this definition that environmental
factors would include consideration of potential transferred risks for
new risk reduction measures. EPA is not requiring owners or operators
to implement identified IST/ISD. Although an owner or operator may
choose not to implement a safer technology or design identified on
account of its cost, EPA is proposing that the evaluation of
practicability be first based on technological, environmental, legal,
and social factors, with economic considerations evaluated last. EPA
proposes that the practicability assessment be documented with the
technological, environmental, legal, social and economic factors
outlined, along with any methods or processes used to determine
practicability.
xii. Process Hazard Analysis (40 CFR 68.67)
EPA is proposing to modify the process hazard analysis (PHA)
provisions by adding paragraph (c)(9) to 40 CFR 68.67 to require that
the owner or operator of a facility with Program 3 processes in NAICS
codes 324 and 325 located within 1 mile of another 324 and 325
regulated facility address safer technology and alternative risk
management measures applicable to eliminating or reducing risk from
process hazards. EPA proposes that ``1 mile'' be interpreted to mean
``1 mile to the nearest fenceline'' for a facility in NAICS 324 or 325.
EPA is proposing to add paragraph (c)(9)(i) to specify that the
analysis include, in the following order, IST or ISD, passive measures,
active measures, and procedural measures. The owner or operator may
evaluate a combination of risk management measures to reduce risk. By
incorporating these requirements into the PHA, EPA proposes to require
facilities to address STAA in processes that already exist, rather than
only during the design phase. The results of the STAA must be
documented as part of the current PHA provisions in 40 CFR 68.67(e),
which require the owner or operator to document actions to be taken and
resolution of recommendations. EPA is also proposing that a summary of
this information be submitted to EPA as part of the STAA Technology
Transfer section. Finally, EPA is proposing to add paragraph
(c)(9)(iii) to require that the STAA team include and document the
involvement of one member who works in the process and has expertise in
the process being evaluated.
EPA is also proposing to add paragraph (c)(9)(ii) to require that
the owner or operator determine and document the practicability of the
IST or ISD considered. EPA intends for this process to be separate and
additional to the PHA requirements described above. EPA solicits
comment on if it should only require the STAA as part of the PHA,
without the additional practicability assessment.
The PHA must be updated and revalidated at least every 5 years in
accordance with paragraph 40 CFR 68.67(f). This provides the owner or
operator opportunities to evaluate the practicability of IST or ISD
considered since the last PHA review. EPA contends that 5-year
revalidation will give the owner or operator the opportunity to
identify new risk reduction strategies, as well as revisit strategies
that were previously evaluated to determine whether they are now
practicable as a result of changes in cost and technology. EPA seeks
comment on these proposed revisions.
b. Root Cause Analysis
EPA is proposing to require all facilities with Program 2 and 3
processes to conduct a root cause analysis as part of an incident
investigation for an RMP-reportable accident as defined under 40 CFR
68.42. This includes requiring the root cause analysis to include
specific elements, requiring the use of a recognized investigation
method, and requiring that investigations are completed within 12
months. Based on RMP-reportable accidents from 2016 to 2020, EPA
estimates this provision will apply to an average of 100 facilities per
year.
In the 2017 amendments rule, EPA amended 40 CFR 68.81 to add that
incident investigations shall include ``the factors that contributed to
the incident including the initiating event, direct and indirect
contributing factors, and root causes'' and that ``root causes shall be
determined by conducting an analysis for each incident using a
recognized method.'' In the 2019 reconsideration rule, EPA rescinded
the root cause analysis requirements, stating that EPA was ``unable to
make a direct connection between the presence or absence of these
provisions and a number of accidents prevented'' (84 FR 69834). EPA
also stated that it did not rely exclusively on a comparison of costs
and benefits to justify the rescission, but also acted to maintain
consistency with the OSHA PSM standard. As a result of the 2019 removal
of root cause analysis requirements, EPA's current causal incident
investigation requirements under 40 CFR 68.60 and 68.81 require
investigation into only ``the factors that contributed to the
incident.''
Since the 2019 reconsideration rule, EPA has coordinated with OSHA
to ensure that any proposed incident investigation root cause analysis
provisions do not contradict OSHA PSM requirements. In the 2019
reconsideration rule, EPA also indicated that it had not conducted any
overall analysis of data from RMP accident investigations conducted by
regulated facilities to determine how well these investigations
identified causes and contributing factors (84 FR 69834). However, this
is in part because EPA has not required the investigation of root
causes and therefore cannot analyze such data. EPA therefore revisited
commenters' points concerning facilities with more than one accident.
Updated analysis of EPA's RMP accident reporting data identified
repeated accidents in facilities within the same process.\146\
---------------------------------------------------------------------------
\146\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------
For the 2019 reconsideration rule, EPA relied upon data
demonstrating that only a subset of facilities experience accidents.
This holds true for the updated analysis, with only 3 percent (n = 382)
of facilities between
[[Page 53582]]
2016 and 2020 reporting one RMP-reportable accident and 0.5 percent (n
= 70) of all RMP facilities reporting two or more RMP-reportable
accidents during that period. Among facilities reporting accidents,
facilities who reported one often have multiple accidents, indicating a
failure to properly address circumstances leading to subsequent
accidents. For example, between 2016 and 2020, these facilities
accounted for 36 percent (n = 176) of all accidents reported (n = 488).
Additionally, of these 70 facilities, 61 percent (n = 43) had
experienced another accident prior to 2016. Between 2004 and 2020, 18
facilities had more than 10 accidents each, with two facilities
reporting over 20 incidents each to EPA.\147\ These accidents may have
been preventable if root cause analyses had been required. EPA believes
multiple accidents result, in part, from a failure to thoroughly
investigate and learn from prior accidents.
---------------------------------------------------------------------------
\147\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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Although EPA cannot be certain that in all cases, subsequent
accidents are due to a failure to conduct a root cause analysis of an
earlier incident, EPA finds that of the 70 facilities with multiple
accidents between 2016 and 2020, 60 percent (n = 42) reported repeat
causal factors within the same process.\148\ While this could be a
failure to implement incident investigation findings or could be
unrelated to the earlier incident, multiple accidents within the same
process with the same causal factors indicate a likely failure to
rectify prior failures and root causes of these incidents. EPA believes
the occurrence of such subsequent incidents indicates an overall
failure to identify and implement controls that may have prevented
future incidents.
---------------------------------------------------------------------------
\148\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------
In proposing to reestablish the root-cause analysis requirements,
EPA has determined that there are likely no legitimate reliance
interests associated with the 2019 reconsideration rule's elimination
of these requirements. The 2019 rule has only been in place for three
years and any accident investigation in the past, under way, or that
otherwise would be required that predate the proposed rule will not
have to be revised or changed in scope should EPA finalize the proposed
change. Further, the burden of the proposed root cause analysis is
relatively small. Few sources will have to conduct one because
accidents occur at a small number of sources and many sources perform
root cause analyses already in a manner consistent with industry or
company protocols. The potential benefit from improved incident
investigations is apparent from the significant percentage of sources
and processes that have another accident after the first. Rather than
relying on negotiations in enforcement actions as a basis for promoting
root cause analyses as necessary under the approach of the 2019
reconsideration rule, EPA believes the delays of negotiations and the
transaction costs of such an approach, and the benefit of a root cause
approach to incident investigations, makes it more prudent and
reasonable to impose a rule requirement for root cause analysis in
incident investigations rather than the approach adopted in 2019.
i. Root Cause Analysis Background
EPA discussed root cause analysis at length in the 2016 proposed
amendments. As discussed, CCPS defines root cause analysis as: ``A
formal investigation method that attempts to identify and address the
management system failures that led to an incident. These root causes
often are the causes, or potential causes, of other seemingly unrelated
incidents. Root cause analysis identifies the underlying reasons the
event was allowed to occur so that workable corrective actions can be
implemented to help prevent recurrence of the event (or occurrence of
similar events).'' \149\ EPA also discussed that causes of incidents
are commonly referred to as ``causal factors'' (also known as
contributing causes, contributory causes, contributing factors, or
critical factors). CCPS defines a causal factor as a ``major unplanned,
unintended contributor to an incident (a negative event or undesirable
condition), that if eliminated would have either prevented the
occurrence of the incident or reduced its severity or frequency.''
\150\ Causal or contributing factors usually have underlying reasons
for why they occurred, which are known as ``root causes.'' CCPS defines
a root cause as a ``fundamental, underlying, system-related reason why
an incident occurred that identifies a correctable failure(s) in
management systems.'' \151\ EPA proposed that root causes shall be
determined by conducting a root cause analysis for each incident using
a recognized method or approach. CCPS' ``Guidelines for Investigating
Chemical Process Incidents'' discusses incident investigation
approaches and techniques and root cause analysis methods.\152\
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\149\ CCPS, ``Root Cause Analysis (RCA),'' accessed February 15,
2022, https://www.aiche.org/ccps/resources/glossary/process-safety-glossary/root-cause-analysis-rca.
\150\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
\151\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
\152\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
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EPA previously discussed that identifying and addressing incident
contributing factors and their root causes helps eliminate or
substantially reduce the risk of reoccurrence of the incident and other
similar incidents, citing notable incidents that CSB investigated.
These CSB investigations of the 2004 Formosa Plastics Corporation
incident,\153\ the 2005 BP Texas City Refinery incidents,\154\ and the
2010 Millard Refrigerated Services incident \155\ found that root
causes of prior, similar incidents were not identified, a lack that
contributed to subsequent incidents.
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\153\ CSB, ``Formosa Plastics Vinyl Chloride Explosion,'' last
modified March 6, 2007, https://www.csb.gov/formosa-plastics-vinyl-chloride-explosion/.
\154\ CSB, ``BP America Refinery Explosion,'' last modified
March 20, 2007, https://www.csb.gov/bp-america-refinery-explosion/.
\155\ CSB, ``Millard Refrigerated Services Ammonia Release,''
last modified January 15, 2015, https://www.csb.gov/millard-refrigerated-services-ammonia-release/.
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In the 2016 proposed amendments, EPA also discussed that root cause
analysis of accidents is an accepted safe management practice used by
many industries, noting that the American Chemistry Council (ACC)
conducts root cause analyses as part of its Responsible Care
program.\156\ In addition, New Jersey's TCPA,\157\ as well as
California's PSM for Refineries,\158\ Contra Costa County Health
Services,\159\ and the City of Richmond, California, Industrial Safety
Ordinances, already require root cause analyses for major chemical
accidents.\160\
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\156\ EPA-HQ-OEM-2014-0328-0694.
\157\ NJDEP, Toxic Catastrophe Prevention Act Program, TCPA
Program Consolidated Rule Document, section 68.42 (February 1,
2016), p. 38, https://www.nj.gov/dep/rules/rules/njac7_31_consolidated.pdf.
\158\ California General Industry Safety Orders, Process Safety
Management for Petroleum Refineries, General Industry Safety Orders
section 5189.1(o) (2017).
\159\ Contra Costa County, Chapter 450-8--Risk Management, Ord.
98-48 (1998), https://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.
\160\ City of Richmond, California, Chapter 6.43--Industrial
Safety (2016), https://cchealth.org/hazmat/pdf/iso/RISO-Chapter-6-43-INDUSTRIAL-SAFETY.pdf.
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[[Page 53583]]
ii. Recent Public Comments on Root Cause Analysis
EPA received comments on root cause analysis during its 2021
listening sessions. For instance, a labor organization expressed
support for requiring RMP facilities to conduct root cause analyses as
part of incident investigations, as root cause analyses can prevent
similar events from occurring; this commenter suggested that a lot can
be learned from near misses and smaller incidents.\161\ The commenter
suggested that the definition of ``root cause'' could be revised to
read, ``a fundamental, underlying, system-related reason why an
incident occurred that identifies a correctable failure(s) in
management systems or process design.'' The commenter also suggested
that EPA should implement a timeline for near-miss investigations,
requiring initiation of the incident investigation within 48 hours of
an incident, a preliminary report within 90 days, and a final report
within 6 months. Further, the commenter suggested that EPA require
incident investigation teams including experts involved in the process
and the root cause analysis method, as well as employees and their
representatives and applicable contractors. Similarly, an advocacy
group suggested that the incident investigation should be completed
within 12 months of the incident.\162\ The advocacy group went on to
conclude that incident investigations should include a root cause
analysis, and that facilities should investigate near misses as well as
accidents where the affected process was decommissioned or destroyed.
Another commenter stated that owners or operators should report serious
near misses to EPA and that these incidents should be compiled in a
publicly available online database.\163\
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\161\ EPA-HQ-OLEM-2021-0312-0057.
\162\ EPA-HQ-OLEM-2021-0312-0170.
\163\ EPA-HQ-OLEM-2021-0312-0076.
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EPA also received comments that did not support root cause analysis
provisions. A regional industry trade association expressed concern
about the ``near-miss'' standard of the root cause analysis.\164\ This
commenter stated that the quality of safety reviews under the 2017
amendments rule could be diluted by applying them to high-frequency,
low-consequence events. The commenter also stated that the near-miss
requirement would impose significant administrative burdens and
economic costs on regulated facilities, especially without a clear
threshold for a near-miss event. The commenter requested that EPA not
adopt this proposal from the 2017 amendments rule. Similarly, another
industry trade association stated that facilities do not benefit from a
burdensome, one-size-fits-all requirement.\165\ This commenter went on
to say that near-miss incidents are often examples of active process
protections working as designed and requiring a root cause analysis of
near-miss events would create a disincentive for reporting. An industry
trade association stated that the root cause analysis under the 2017
amendments rule is duplicative of the root cause analysis conducted for
incident investigations under OSHA PSM regulations, as well as some
State regulations.\166\ An individual commenter also expressed general
opposition to the root cause analysis requirement, stating that most
companies already have a tiered process for conducting incident
investigations--including root cause analyses--and that the size of the
investigation should match the size of the incident.\167\ Meanwhile, an
industry trade association stated that EPA's definition of ``root
cause'' in 2017 was too narrow and would potentially exclude non-
system-related root causes, such as human error.\168\ Another industry
trade association stated that requiring an incident investigation
before ``de-registering'' a process would provide no benefit.\169\
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\164\ EPA-HQ-OLEM-2021-0312-0037.
\165\ EPA-HQ-OLEM-2021-0312-0078.
\166\ EPA-HQ-OLEM-2021-0312-0045.
\167\ EPA-HQ-OLEM-2021-0312-0050.
\168\ EPA-HQ-OLEM-2021-0312-0071.
\169\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Investigation Timeframe
In the 2017 amendments rule, EPA discussed that conducting incident
investigations as soon as possible after an incident may yield better
quality data and information, although it may take time to collect,
validate, and integrate data from a range of sources. EPA has
discovered situations where owners or operators of regulated facilities
indefinitely delayed completing incident investigations.
EPA's own experience with accident investigation has shown that a
major accident investigation can take up to a year, or even longer.
Taking into consideration the need to complete an investigation while
allowing the proper time to determine the correct root causes, EPA is
again proposing to require that facility owners or operators complete
an incident investigation report as soon as reasonably practicable, but
no later than 12 months after an RMP-reportable accident. For very
complex incident investigations that cannot be completed within 12
months, EPA is allowing an extension of time if the implementing agency
(i.e., EPA and delegated authorities) approves the extension in
writing. EPA believes that 12 months is long enough to complete most
complex accident investigations but will allow facilities more time if
they consult with their implementing agency and receive approval for an
extension.
In the 2017 amendments rule, EPA noted that the Agency's own
requirements under the Petroleum Refinery Maximum Achievable Control
Technology (MACT) and New Source Performance Standards (NSPS)
regulations already require root cause and corrective action analyses
for certain release events \170\ with a more stringent timeframe (i.e.,
45 days) for completing these analyses than the 12 months specified in
this proposed rule. RMP-regulated facilities that are also required to
meet the MACT and NSPS root cause analysis requirements must continue
to meet the timeframes specified under those rules, as applicable. EPA
again proposes that root cause analyses conducted to meet those
requirements may also be used to comply with the root cause analysis
requirements proposed herein, provided that the analysis meets the
requirements of 40 CFR 68.60 or 68.81. EPA did not receive substantive
comments on this provision, but again invites comments on this
approach.
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\170\ 40 CFR 63.648(j)(6) and (j)(7)), and 40 CFR 60.103a(d).
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iv. Proposed Revisions to Regulatory Text
EPA is proposing to define ``root cause'' as a fundamental,
underlying, system-related reason why an incident occurred. For
incidents that meet the accident history reporting requirements under
40 CFR 68.42, EPA is also proposing to amend 40 CFR 68.81 and 68.60 to
require the owner or operator to investigate the factors that
contributed to an incident. In the proposed amendment, these factors
will now include root causes, and these root causes shall be determined
by conducting an analysis for each incident using a recognized method
(such as CCPS). EPA is also amending both 40 CFR 68.81 and 68.60 to
require that a report be prepared at the conclusion of the
investigation and completed within 12 months of the incident (though it
will allow for facility owners or operators to request an extension
from the implementing agency).
[[Page 53584]]
v. ``Near Miss'' Definition
In the 2017 amendments rule, EPA considered, but elected not to
finalize, a regulatory definition of ``near miss'' to identify
incidents that require investigation. At the time, EPA stated that the
criteria for determining incidents that require investigation would
continue to include events that ``could reasonably have resulted in a
catastrophic release.'' As discussed, adding the term ``near miss'' was
not intended to expand the types of incidents required to be
investigated, but rather, was intended as a clarification of incidents
that may have reasonably resulted in a catastrophic release and were
already required to be investigated. EPA notes that even without a
``near miss'' definition, these incidents are still currently required
to be investigated. EPA also notes that the definition of ``near
miss,'' as described here, is unrelated to the root cause analysis
provisions described above; 40 CFR 68.42 criteria would not be
applicable to near misses. EPA may ultimately believe that adding a
definition of a ``near miss'' may help clarify incident investigation
requirements overall. During the 2017 rulemaking, however, comments
demonstrated that adding the ``near miss'' definition as discussed at
that time instead resulted in confusion about incident investigation
requirements.
EPA is not proposing a definition of ``near miss'' as part of this
rulemaking. Nevertheless, it solicits comments on a potential
definition of ``near miss'' that would address difficulties in
identifying the variety of incidents that may occur at RMP facilities
that could be near misses that should be investigated. For example,
CCPS defines a ``near miss,'' as ``an incident in which an adverse
consequence could potentially have resulted if circumstances (weather
conditions, process safeguard response, adherence to procedure, etc.)
had been slightly different.'' \171\ During the 2019 proposed RMP
reconsideration rule comment period, NJDEP provided recommended draft
text for 40 CFR 68.81 that would require investigation of all
accidental releases and near misses (instead of incidents that resulted
in or could reasonably have resulted in a catastrophic release) and
included a definition of ``near miss'' to mean ``an unplanned,
unforeseen, or unintended incident, situation, condition, or set of
circumstances which does not directly or indirectly result in a
regulated substance release. Examples of a near miss include, but are
not limited to, process upsets such as excursions of process parameters
beyond pre-established critical control limits; activation of layers of
protection such as relief valves, interlocks, rupture discs, blowdown
systems, halon systems, vapor release alarms, and fixed vapor spray
systems; and activation of emergency shutdowns. A near miss also
includes an incident at a nearby process or equipment outside of a
regulated process if the incident had the potential to cause an
unplanned, unforeseen, or unintended incident, situation, condition, or
set of circumstances at the regulated process.'' \172\ EPA solicits
comments on a universal ``near miss'' definition, as well as comments
on strengths and limitations of the definition provided by NJDEP and
how the definition may clarify requirements for incident
investigations. Based on these comments, in a future rulemaking, EPA
may propose a definition of ``near miss.''
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\171\ CCPS, Guidelines for Investigating Process Safety
Incidents, 3rd Edition (2019).
\172\ EPA-HQ-OEM-2015-0725-0973.
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c. Third-Party Compliance Audits
Section IV.A.2.b of this preamble, ``root cause analysis,''
explains that incident investigations following an accident often
reveal multiple causal factors related to prevention program elements.
However, incident investigations generally evaluate only the affected
process; they do not necessarily address all covered processes \173\ at
a facility or even all prevention program elements for the affected
process. EPA expects that the proposed requirement to conduct a formal
root cause analysis after an RMP-reportable accident will be helpful to
ensure deficient prevention program areas are thoroughly investigated
for the specific covered processes involved in the accident.
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\173\ See 2019 RMP reconsideration rule discussion of
``representative sampling'' to satisfy compliance audit evaluation
of multiple processes, 84 FR 69882-69883.
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Compliance audits, in contrast, help to ensure a systematic
evaluation of the full prevention program for all covered processes.
EPA's RMP general guidance explains, ``A compliance audit is a way for
you to evaluate and measure the effectiveness of your risk management
program. An audit reviews each of the prevention program elements to
ensure that they are up-to-date and are being implemented and will help
you identify problem areas and take corrective actions.'' \174\
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\174\ EPA, General Risk Management Program, Ch. 6: Prevention
Programs (2012), p. 6-24, https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf.
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As discussed in the 2019 reconsideration rule, EPA recognizes that
a relatively small number of RMP-regulated facilities have RMP-
reportable accidents. However, EPA continues to be concerned with RMP
facilities that--despite current RMP regulations, enforcement, and
lessons learned from previous accidents--continue to have accidents
and, in some cases, multiple accidents. EPA RMP accident history data
show that while 97 percent of all RMP facilities had no RMP-reportable
accidents from 2016-2020, 3 percent of all RMP facilities had at least
one RMP-reportable accident and 0.5 percent of all RMP facilities had
two or more RMP-reportable accidents. Facilities responsible for two or
more accidents in those 5 years generally were within industry sectors
where regulated facilities have multiple RMP-regulated processes. RMP
facilities within the chemical manufacturing (NAICS 325) and petroleum
and coal products manufacturing (NAICS 324) industries represent over
50 percent of the facilities with two or more accidents in 5 years, and
they have on average two and eight RMP-regulated processes,
respectively, at their facilities.\175\ When RMP facilities have
multiple accidents within a 5-year period, EPA is concerned that those
facilities have not been able to identify measures on their own
(through incident investigations, hazard evaluations, and compliance
self-audits) to properly evaluate and apply appropriate prevention
program measures to stop accidents from occurring.
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\175\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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EPA also has similar concerns for facilities with NAICS code 324
and 325 Program 3 processes that have had one RMP-reportable accident
and are located within a 1-mile radius of another 324 and 325 regulated
facility. EPA discusses the increased accident severity, frequency, and
consequences for these facilities in the STAA section (IV.A.2.a) of
this preamble. Between 2016 and 2020, 66 accidents occurred among
facilities in NAICS codes 324 and 325 located within 1 mile of another
324 or 325 facility.\176\
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\176\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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Stationary sources that have had multiple accidents within a short
period; substantial non-compliance with RMP requirements; and/or high
accident
[[Page 53585]]
severity, frequency, and consequences pose a greater risk to
surrounding communities. EPA therefore believes it is appropriate to
require such stationary sources to undergo auditing by competent and
independent third-party auditors.
i. Third-Party Compliance Audits in Previous RMP Rulemakings
EPA discussed third-party compliance audits at length in the 2016
proposed amendments. EPA discussed that self-auditing may be
insufficient to prevent accidents, determine compliance with the RMP
rule's prevention program requirements, and ensure safe operation. In
the preamble to the 1996 RMP rule, EPA identified the potential to use
independent third-party auditors for RMP compliance audits as an issue
for further consideration. In the 2016 proposed amendments, EPA
explained that poor compliance audits have been cited by EPA and CSB as
a contributing factor to the severity of past chemical accidents and
that in some cases, EPA has required third-party audits in enforcement
settlement agreements.
The 2016 proposed amendments noted that other Federal programs
require third-party audits in existing rules to ensure safe operations.
The Administrative Conference of the United States' ``Third-Party
Programs Final Report'' (October 22, 2012) describes a variety of
third-party programs in Food and Drug Administration, Consumer Product
Safety Commission, and Federal Communications Commission
regulations.\177\ The Bureau of Safety and Environmental Enforcement
(BSEE) also promulgated revisions to their Safety and Environmental
Management Systems (SEMS II) requirements (78 FR 20423, April 5, 2013)
to help ensure the safe operations of offshore oil and natural gas
drilling and production facilities.
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\177\ McCallister, Lesley. October 22, 2012. Third-Party
Programs Final Report (2012). https://www.acus.gov/report/third-party-programs-final-report.
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The 2016 proposed amendments also discussed how industry recognizes
the benefits of third-party auditing programs and has established
programs and standards for third-party audits for some types of
operations, many of which are also subject to the RMP rule. Some of
these programs still in use are:
National Association of Chemical Distributors (NACD)--
Responsible Distribution.\178\
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\178\ National Association of Chemical Distributors, ``About
Responsible Distribution,'' accessed February 15, 2022, https://www.nacd.com/responsible-distribution/about-responsible-distribution/.
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ACC--Responsible Care program.\179\
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\179\ ACC, ``Responsible Care[supreg]: Driving Safety & Industry
Performance,'' accessed February 15, 2022, https://www.americanchemistry.com/chemistry-in-america/responsible-care-driving-safety-industry-performance?gclid=EAIaIQobChMIov_h7qbw9QIVj67ICh3g5guDEAAYASAAEgLHCfD_BwE.
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API--Process Safety Site Assessments.\180\
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\180\ API, ``Process Safety Site Assessments (PSSAP[supreg]),''
accessed February 15, 2022, https://www.api.org/products-and-services/site-safety.
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Society of Chemical Manufacturers & Affiliates (SOCMA)--
ChemStewards program.\181\
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\181\ Society of Chemical Manufacturers & Affiliates (SOCMA),
``SOCMA'S ChemStewards[supreg] Program,'' accessed February 15,
2022, https://www.socma.org/operations-manufacturing/chemstewards/.
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In the 2017 amendments rule, EPA added compliance audit provisions
under 40 CFR 68.58 and 68.79 to require independent third-party
compliance audits after an RMP-reportable accident or findings of
significant non-compliance by an implementing agency for facilities
with Program 2 and Program 3 processes. EPA explained that independent
third-party auditing can assist owners and operators, EPA (or the
implementing agency), and the public to better determine whether the
procedures and practices developed by owners or operators for the
prevention program requirements are adequate and being followed.
The 2019 reconsideration rule rescinded the third-party compliance
audit requirements. EPA's decision to rescind the third-party audit
requirements was to ``allow for coordination of process safety
requirements with OSHA before proposing future regulatory changes, and
to reduce unnecessary regulatory costs and burdens of a broad rule-
based approach to third-party audits rather than a case-by-case
approach (84 FR 69875)''; it was not based on a determination that
third-party audits are not beneficial or justified in certain cases. In
the 2019 reconsideration rule, EPA further indicated that ``while EPA
cannot inspect every RMP facility every year, the Agency performs
approximately 300 RMP facility inspections each year and prioritizes
inspections at facilities that have had accidental releases. Therefore,
EPA's enforcement resources and posture are capable of addressing
accident-prone facilities without additional broad regulatory mandates.
The Agency's choice to use a more surgical approach to accident
prevention at these facilities is reasonable and practicable (84 FR
69853).''
In proposing to reestablish third-party compliance audits, EPA has
determined that there are likely no legitimate reliance interests
associated with the 2019 reconsideration rule's elimination of these
requirements. Similar to the possible reliance interests regarding root
cause analysis, the 2019 rule has only been in place for three years,
and any compliance audit in the past, under way, or that otherwise
would be required that predate the proposed rule will not have to be
revised or changed in scope should EPA finalize the proposed change.
Since the 2019 reconsideration rule, EPA has coordinated with OSHA to
ensure that any proposed third-party compliance audit provisions do not
contradict OSHA PSM requirements. The Agency continues to require third
parties to conduct compliance audits for the settlement of some RMP
civil enforcement cases. Facilities in those cases are often required
to also comply with the OSHA PSM standard, and conflicts between the
third-party audit provisions of settlement agreements and the
compliance self-auditing requirements of the PSM standard have not
arisen with OSHA.182 183 184 The Agency now recognizes that
there are some impracticalities of relying on EPA inspections,
particularly in the wake of the COVID-19 pandemic and in consideration
of the long time period over which some enforcement matters are
settled. EPA realizes that a better approach is to be more proactive
with respect to prevention and aim to prevent further accidents at
facilities, particularly facilities that have proven to be accident-
prone.
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\182\ United States of America v. Harcros Chemicals Inc, No.
2:17-cv-02432, Document 3-1 (January 31, 2017), https://www.justice.gov/enrd/consent-decree/file/1280071/download.
\183\ United States of America and the State of Kansas, ex rel.
Kansas Department of Health and Environment v. HollyFrontier El
Dorado Refining LLC, No. 2:20-cv-02270, Document 1 (May 28, 2020),
https://www.justice.gov/opa/press-release/file/985591/download.
\184\ United States of America v. Formosa Plastics Corporation,
Texas, No. 6:21-cv-00043, Document 2-1 (September 13, 2021), https://www.justice.gov/opa/press-release/file/1432401/download.
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ii. Recent Public Input on Third-Party Compliance Audits
Commenters provided feedback on third-party audits during the two
2021 listening sessions and in written comments submitted in response
to an associated request for comments.
Several commenters expressed general support for the third-party
audit requirement of the 2017 amendments
[[Page 53586]]
rule.\185\ A labor organization expressed support for requiring third-
party audits after an accidental release or discovery of significant
non-compliance. The commenter stated that these audits are critical to
protecting high-risk facilities and suggested that EPA ensure these
audits are not used to merely satisfy a requirement. The commenter also
suggested that EPA require auditors to be accredited by an auditing
accreditation organization and prohibit auditors from developing
relationships with facilities.\186\ Another individual commenter
supported including a requirement for third-party audits in the RMP
rule and said that auditors should engage with employees and their
representatives to become more familiar with the facilities; this
commenter also suggested that auditors should include comments provided
by employee representatives in the draft and final audit report.\187\
Another commenter suggested that it is feasible to train engineers and
chemists to be auditors so that they ensure industry standard practices
are being followed, but noted that there should not be a ``revolving
door'' between auditors and industry employees.\188\
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\185\ EPA-HQ-OLEM-2021-0312-0170; 0057, 0076.
\186\ EPA-HQ-OLEM-2021-0312-0057.
\187\ EPA-HQ-OLEM-2021-0312-0076.
\188\ EPA-HQ-OLEM-2021-0312-0383-2.
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Several commenters expressed opposition to the third-party audit
requirement of the 2017 amendments rule. An industry trade association
stated that the third-party audit requirement is not realistic, would
not support better audits of RMP facilities, and would potentially
``degrade rather than improve safety.'' \189\ This commenter and others
expressed concern about the potential costs and availability of third-
party auditors.\190\ One commenter stated that the industry would be
subject to third-party consultant pricing demands, as well as
administrative and recordkeeping burdens. The commenter stressed that
third-party auditors may be unacquainted with certain processes,
industries, or businesses, and argued that the 3-year disqualifier for
auditors who have conducted past research, development, or consulting
with the owner or operator of a facility is unrealistic, overly
restrictive, and especially difficult for facilities in more rural
areas.\191\
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\189\ EPA-HQ-OLEM-2021-0312-0037.
\190\ EPA-HQ-OLEM-2021-0312-0037; 0077.
\191\ EPA-HQ-OLEM-2021-0312-0037.
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Other commenters, including industry trade associations and an
individual commenter, expressed concerns about the auditors' lack of
industry and process knowledge.\192\ An industry trade association said
that the audit teams at facilities are highly trained and report
directly to a chief executive officer. These teams visit different
facilities under one company and transfer safety knowledge from one
facility to another without concerns about disclosing confidential
information. The commenter explained that the potential disclosure of
confidential information would be a concern with independent third-
party auditors who observe production processes at many
facilities.\193\ Another industry trade association expressed
agreement, saying that independent auditors do not hold certain
industry knowledge and cannot be trusted.\194\ Another industry trade
association said that because the audit mandate would not enhance
chemical safety at facilities, it supported EPA's decision to rescind
this provision in 2019. This commenter suggested that EPA use its own
inspection powers to better enforce auditing practices at facilities,
focusing on facilities responsible for the majority of the
accidents.\195\ Another industry trade association stated that
requiring a third-party audit after a release would be redundant due to
the current requirement to perform a root cause analysis.\196\ The
industry trade association further commented that requiring a
compliance audit for each covered process every 3 years under Program 2
and Program 3 would impose substantial burdens and cause inefficiencies
and operation disruptions.
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\192\ EPA-HQ-OLEM-2021-0312-0077; 0045, 0050, 0071.
\193\ EPA-HQ-OLEM-2021-0312-0045.
\194\ EPA-HQ-OLEM-2021-0312-0071.
\195\ EPA-HQ-OLEM-2021-0312-0077.
\196\ EPA-HQ-OLEM-2021-0312-0078.
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iii. Proposed Third-Party Compliance Audit Requirements
2017 provisions. EPA is proposing to adopt the independent third-
party compliance audit provisions as outlined in the 2017 amendments
rule with modifications to account for EPA's recent review of the
current RMP rule, which included data analyses and solicitation of
comments. The proposed provisions for this action reflect that the most
accident-prone facilities have not been able to properly evaluate and
apply appropriate prevention program measures to regulated processes to
stop accidents from occurring and that the availability of some
qualified third-party auditors may be limited.
EPA is proposing to use the same definition of ``third-party
audit'' as in 40 CFR 68.3 in the 2017 amendments rule. Regarding when a
third-party audit must be performed, EPA is proposing to modify the
first condition from the 2017 amendments rule (at 40 CFR 68.58 and
68.79) that requires a third-party audit after one accidental release
meeting the criteria in 68.42, instead requiring it after two
accidental releases within a 5-year period. Based on RMP-reportable
accidents from 2016 to 2020, EPA estimates this will apply to an
average of 70 facilities. Additionally, EPA is proposing to require all
facilities with regulated NAICS code 324 and 325 Program 3 processes
that have had one RMP-reportable accident and are located within a 1-
mile radius of another facility with a regulated NAICS code 324 and 325
process to conduct a third-party audit after one accident. EPA
discusses the increased accident severity, frequency, and consequences
for these facilities in the STAA section (IV.A.2.a) of this preamble.
Between 2016 and 2020, 66 accidents occurred among facilities in NAICS
codes 324 and 325 located within 1 mile of another 324 or 325
facility.\197\
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\197\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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Regarding requirements for third-party auditors and third-party
audits in new sections 68.59 and 68.80, EPA is proposing to restore the
provisions from the 2017 amendments rule but remove the following
auditor independence requirements contained in 40 CFR 68.59 and
68.80(c)(2)(iii) and (iv) to allow more flexibility in choosing
auditors:
Auditors cannot have conducted past research, development,
design, construction services, or consulting for the owner or operator
within the last 2 years.
Auditors cannot provide other business or consulting
services to the owner or operator, including advice or assistance to
implement the findings or recommendations of an audit report, for a
period of at least 2 years following submission of the final audit
report.
As noted earlier in this section, several trade associations in the
chemical manufacturing and petroleum refining industries have third-
party auditing as part of their industry programs on process safety
(NACD, ACC, API, SOCMA). For owners and operators with processes in
NAICS codes 324 and 325, the Agency expects that there would be ample
auditors experienced in the relevant industries and knowledgeable of
the processes available for sources in these particular NAICS codes.
The 2017 final RMP
[[Page 53587]]
amendments approach to the independence criteria assumed that the RMP
rule would establish a market for parties meeting the more stringent
independence criteria, but the Agency's approach now is to be more
flexible and take the market as it is and to better recognize within
the rule structure the voluntary measures of industry. EPA solicits
comment on this proposed independence criterion modified from the 2017
rule. EPA also seeks comment on whether the selected auditor should be
mutually approved by the owner or operator and employees and their
representatives, and if direct participation from employees and their
representative should be required when the third party conducts the
audit.
EPA contends that the remaining third-party compliance audit
provisions, when restored, will help ensure that owners and operators
of RMP facilities without strong prevention programs objectively and
adequately explore all opportunities to prevent or minimize accidental
releases of regulated substances to protect human health and the
environment.
Third-Party-Issued Compliance Audit Findings Information
Availability. As discussed in section IV.A.1.e of this preamble,
ensuring that communities, local planners, local first responders, and
the public have appropriate chemical facility hazard-related
information is critical to the health and safety of responders and the
local community. EPA is proposing ways to enhance information sharing
and collaboration between chemical facility owners and operators,
LEPCs/TEPCs, first responders, and the public in a manner that EPA
believes balances security and proprietary considerations with the need
for public and local responder information availability. In addition to
the information availability provisions in section IV.C of this
preamble, EPA is proposing to require facilities conducting third-party
compliance audits for the proposed provisions under 40 CFR 68.58,
68.79, 68.59 and 68.80 to list in section 7 (Program 3) and section 8
(Program 2) of their risk management plans, for each process, findings
resulting from the audit that the owner or operator chooses to decline.
EPA realizes that the number of third-party-issued findings may vary
widely, depending on the complexity of the process or facility.
Therefore, as in section IV.A.1.e of this preamble, EPA seeks comments
on the format of listing the findings--whether EPA should require
findings to be included in narrative form, or whether the Agency should
provide specific categories of findings for facilities to choose from
when reporting. Another option would be to allow the owner or operator
to post this information online and provide a link to the information
within their risk management plan.
EPA is also proposing to adopt the same categories outlined in
section IV.A.1.e of this preamble for owners and operators to justify
declined third-party-issued compliance audit findings. EPA seeks public
comment on this approach and on alternative categories or methods for
providing justification for declining relevant findings. EPA wants to
ensure a balanced approach to providing beneficial data to the public
as well as a straightforward method of reporting for facility owners
and operators.
d. Employee Participation
i. Introduction
Employees directly involved in operating and maintaining a process
are most exposed to its hazards. These same employees are typically the
most knowledgeable about the daily requirements for safely operating
the process and maintaining process equipment; they may sometimes be
the only source of process-specific knowledge--knowledge that has been
gained through their unique experiences. Their direct participation and
involvement in ensuring and enhancing the safety of process operations
are often essential to protecting their own welfare.198 199
Such actions help keep communities safe as well. A long-standing
premise of the RMP rule is that actions that promote worker safety as
part of a well-designed process safety system generally help protect
the public and the environment.\200\
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\198\ CCPS, ``Introduction to Workforce Involvement,'' accessed
February 3, 2022, https://www.aiche.org/ccps/introduction-workforce-involvement.
\199\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety, p. 47.
\200\ See EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under Clean Air Act Section 112(r)(7), 61 FR
31687 (June 20, 1996).
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Employee participation is a key element of a company's commitment
to process safety. The CCPS's ``Guidelines for Risk Based Process
Safety'' \201\ outlines how to design and implement--or further correct
and improve--effective PSM practices to prevent accidents based on
process risks. It identifies essential characteristics of strong
commitment to employee participation such as:
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\201\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
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Empowering individuals to successfully fulfill their
safety responsibilities.
Deferring to expertise.
Ensuring open and effective communication.
Fostering mutual trust.
Providing timely responses to process safety issues and
concerns.
Employee participation and a company's commitment to process safety
can be critical to preventing accidents. CSB recently identified
ineffective worker participation as a contributing factor to certain
catastrophic accidents because workers and their representatives were
not properly engaged in process operations to help identify and
mitigate hazards and reduce risks. To highlight this issue, in
September 2019, CSB published ``Safety Digest: The Importance of Worker
Participation.'' \202\ The digest discusses four catastrophic incidents
that led to 13 employee deaths, 179 employee injuries, and, in one
case, 15,000 residents living near the facility having to seek medical
evaluation. The incidents took place at an explosives manufacturing
site in Nevada, a chemical production facility in Louisiana, and oil
refineries in Washington and California. The digest concludes that
workers and their representatives play a critical role in hazard
identification, risk reduction, and incident prevention. Each of these
CSB investigations found that employee participation programs were
inadequate, despite the existence of current Federal regulations and
industry standards.\203\ Recommendations from CSB to create an
effective worker participation program include:
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\202\ CSB, Safety Digest: The Importance of Worker Participation
(n.d.), https://www.csb.gov/assets/1/6/worker_safety_digest.pdf.
\203\ The CSB Safety Digest identifies applicable regulations
and industry standards including OSHA PSM, EPA RMP, Bureau of Safety
and Environmental Enforcement's Safety and Environmental Management
Systems rule, and the American National Standard-Occupational Safety
and Health management Systems, ANSI/AIHA Z10.
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Creating or improving opportunities for workers to
participate directly in matters involving PSM and major incident
prevention.
Empowering workers to provide input on how work is
performed, whether through safety-related committees, special projects,
inspections and audits, hazard analyses, and/or other specific
measures.
Sharing safety information or communicating safety
improvements as a part of strengthening a company's or
[[Page 53588]]
facility's overall safety management system.
Enabling workers to bring safety issues to the attention
of management without fear of retaliation or reprisal.
Collecting data to help ensure critical information is
retained and used to continuously improve safety.
Worker training opportunities and information sharing
regarding the nature of hazards present in the workplace, lessons
learned from other sites, the outcomes of incident investigations, and
exposure to both established industry best practices and the results of
safety-related research relevant to a company's or facility's
operations.
Strengthened worker participation requirements in industry
standards and State and Federal regulations.
Although process industries are aware of the value of worker
participation programs, opportunities exist to strengthen these
programs and requirements for RMP-regulated facilities in a way that
will protect human health and the environment. A 2017 study by Dupont
Sustainable Solutions of 80 executives in high-hazard industries, such
oil and gas, chemical and petrochemical, utilities, metals and mining,
and manufacturing, found that employee participation to reduce
catastrophic accidents that threaten their businesses could be
improved. The study found that ``executives acknowledge there is an
organizational disconnect and misalignment among leadership and
employees with respect to risk management, which greatly contributes to
the likelihood of a catastrophic event.'' One of the most notable
discoveries of the study was that 88 percent of company executives felt
workforce engagement was important to risk management, but only 35
percent believed it to be a strong part of their organization.\204\
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\204\ DuPont Sustainable Solutions, ``Lack of Internal Alignment
and Commitment of Resources to Manage Risk Threaten Corporate
Business Performance,'' last modified 2017, https://
www.consultdss.com/global-operational-risk-management-survey-report/
#:~:text=Lack%20of%20Internal%20Alignment%20and,Risk%20Threaten%20Cor
porate%20Business%20Performance&text=Instead%2C%20better%20understand
ing%20operational%20risks,new%20value%20from%20emerging%20opportuniti
es.
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Many commenters, including labor unions, advocacy groups, and
individual commenters from the 2021 listening sessions, stated that EPA
must strengthen the RMP rules to support and facilitate effective
participation by workers and their representatives, arguing that worker
participation is an essential component of incident prevention and
safety management systems.\205\ One advocacy group remarked that doing
so would be essential to protecting public health and safety.\206\ A
labor union asserted that genuine worker involvement in RMP
development, program enforcement, and corrective actions would
translate to better communication and engagement with local communities
and more effective response plans.\207\ In discussing the need for
updated regulations relating to worker participation, an individual
commenter pointed out that the current RMP rule provides opportunities
for employee participation, but these elements have not been updated
since the regulations were first issued.\208\
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\205\ EPA-HQ-OLEM-2021-0312-0079; 0170, 0151, 0058, 0032, 0057.
\206\ EPA-HQ-OLEM-2021-0312-0094.
\207\ EPA-HQ-OLEM-2021-0312-0044.
\208\ EPA-HQ-OLEM-2021-0312-0076.
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The existing RMP rule already requires owners or operators of
regulated facilities to include employees in RMP-regulated process
operations. At 40 CFR 68.83, owners or operators with Program 3
processes are required to: (1) Develop a written plan of action
regarding the implementation of employee participation requirements;
(2) consult with employees and their representatives about the conduct
and development of process hazards analyses and the development of the
other elements of PSM; and (3) provide employees and their
representatives with access to PHAs and all other information required
to be developed under the rule.
In development of the initial 1996 RMP rule, the Agency recognized
that many workplace hazards also threaten public receptors and that
most accident prevention steps taken to protect workers also protect
the public and the environment. Therefore, EPA adopted and built on
much of the existing accident prevention language from OSHA's PSM
standard, including the employee participation language in 29 CFR
1910.119(c). EPA considers these employee participation requirements to
be a good basis for promoting a commitment to process safety because
workers who are intimately familiar with the process, equipment
operation, and possible failure modes and consequences of deviations
serve as a mechanism for greater communication and understanding of
specific process hazards (as opposed to general chemical hazards).\209\
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\209\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under Clean Air Act Section 112(r)(7), (June 20,
1996), 61 FR 31697.
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Taking into account lessons learned from accidents, current
guidance, and recent discussions within regulated industry sectors
indicating there is room for improvement in this area, EPA believes
that further worker involvement in process safety could help prevent
and mitigate accidents. Therefore, EPA is proposing to add additional
regulatory provisions to the employee participation requirements for
owners and operators of regulated facilities with Program 2 and Program
3 processes. EPA is specifically proposing to require employers to
consult with employees when making decisions on implementing
recommendations from PHAs, compliance audits, and incident
investigations; provide employees the opportunity to stop work under
certain circumstances; and provide opportunities for employees to
report late or unreported accidents and other areas of RMP non-
compliance to EPA and other relevant authorities. EPA is proposing
these provisions so that owners and operators without strong employee
participation programs will have further measures in place to ensure
process safety and to prevent or minimize accidental releases of
hazardous substances. EPA does not expect these new provisions to be a
burden to owners and operators that already have made this commitment.
ii. Recommendation Decisions
Although employees may be involved in the development of plans and
procedures (through 40 CFR 68.83 or otherwise), they may not be
guaranteed ``a seat at the table'' when final decisions are made about
process operations they are directly involved in that could threaten
their health and safety. EPA realizes that practicable recommendations
from hazard evaluations, incident investigations, and compliance audits
that may reduce hazards at RMP facilities are not always implemented,
for various reasons. The Agency believes that involving directly
affected employees in these discussions and decisions will help ensure
that the most effective recommendations for reducing hazards and
mitigating risks to employees and the public are given the proper
consideration.
In 2019, CCPS published its ``Guide for Making Acute Risk Decisions
(GMARD)'' \210\ to complement its Risk Based Process Safety (RBPS)
guidelines. The GMARD is a source for recognized
[[Page 53589]]
good industry practices on how to conduct risk decision-making in the
chemical industry. This publication aims to guide the decision process
of common and practical risk evaluation and risk analysis tools to
analyze decisions. The guidance outlines specific considerations when
making decisions in chemical process safety regarding implementation of
hazard assessments, audits, and incident investigation recommendations.
The GMARD indicates that selection of members to analyze decisions--
like a PHA team--should be based on the skills needed to analyze the
problem and define solutions and the level of responsibility required
to authorize the decision team's recommendations. Stakeholders who may
be affected by the risk decision should also be represented. These
groups may include production and plant stakeholders such as those in
engineering, operations, maintenance, safety, and health; and
environmental managers. Ultimately, the team composition should be
appropriate to the level of risk and the complexity of the potential
resolution actions.
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\210\ CCPS, Guide for Making Acute Risk Decisions (October
2019), https://www.aiche.org/ccps/resources/publications/books/guide-making-acute-risk-decisions.
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The American National Standards Institute (ANSI)/American Society
of Safety Professionals (ASSP) Z10.0-2019 standard \211\ offers
additional guidance on health and safety management systems for
different types of organizations and risks. It explains that
organizations must establish a process to ensure effective worker
participation by those most threatened by hazards. Worker involvement
helps determine and validate acceptable levels of risks and provides
transparency when alternate decisions are made. This standard reflects
industry consensus and was in part developed by the ACC and API--both
major stakeholders representing RMP-regulated facilities.
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\211\ ANSI and ASSP, ANSI/ASSP Z10.0--2019 Occupational Health
and Safety Management Systems (2019), https://store.assp.org/PersonifyEbusiness/Store/Product-Details/productId/197785872.
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In 2017, the California Department of Industrial Relations (DIR)
formalized including employees in all phases of PSM by making additions
and modifications to its regulations on ``Process Safety Management for
Petroleum Refineries.'' \212\ Specifically, in the employee
participation section of the rule, it added that employee participation
shall occur ``throughout all phases'' and required involvement of
affected operating and maintenance employees and employee
representatives in developing, training, implementing, maintaining, and
performing various process safety elements. DIR indicated that this
modification would ensure meaningful participation and decision-making
for employees and employee representatives from all program teams for
all analyses required by their PSM regulations.\213\
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\212\ DIR, Process Safety Management for Petroleum Refineries,
CCR Title 8: section 5189.1 (July 27, 2017), https://www.dir.ca.gov/title8/5189_1.html.
\213\ DIR, Final Statement of Reasons, CCR Title 8: new section
5189.1 (September 15, 2016), https://www.dir.ca.gov/oshsb/documents/Process-Safety-Management-for-Petroleum-Refineries-FSOR.pdf.
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Additionally, the United Kingdom has had regulations in place since
1996 that address consulting employees on matters that affect their
health and safety. The Health and Safety (Consultation with Employees)
Regulations of 1996,\214\ specifically Regulation 4A, require employers
to consult their health and safety representatives before making
decisions involving work equipment, processes, or the organization that
could have health and safety consequences for employees.\215\
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\214\ John Selwyn Gummer, The Health and Safety (Consultation
with Employees) Regulations 1996, 1996 No. 1513 (June 10, 1996),
https://www.legislation.gov.uk/uksi/1996/1513/made.
\215\ Health and Safety Executive, Consulting Workers on Health
and Safety, L146 (Second edition with amendments) (2014), https://www.hse.gov.uk/pubns/priced/l146.pdf.
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One of the accident investigations from the CSB safety digest
highlights the severe consequences of a lack of an effective employee
participation program. On April 2, 2010, the Tesoro Refining and
Marketing Company LLC (Tesoro) petroleum refinery in Anacortes,
Washington, experienced a catastrophic rupture of a heat exchanger.
Hydrocarbons released from the ruptured heat exchanger ignited, causing
an explosion and an intense fire that burned for more than 3 hours. The
rupture fatally injured seven Tesoro employees who were working in the
immediate vicinity of the heat exchanger at the time of the incident.
Prior to the incident, workers had repeatedly provided input on how to
improve the safety of the process. During a 2006 PHA revalidation on
the unit involved in the accident, workers noted 31 near misses in the
unit during the previous 5 years. The PHA team requested a review of
experience and training for relevant operators to address their safety
concerns. \216\ The action item was closed without resolution of the
concerns expressed by the Tesoro workers on the PHA team. The Tesoro
accident highlights what can happen when employees' views are not
considered when making comprehensive decisions about process hazards
and risks.
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\216\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
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EPA analyzed OSHA PSM violations from 2018 to 2020 to better
understand the breadth of unresolved or improper closure of
recommendations from PHAs, compliance audits, and incident
investigations.\217\ In these 3 years, there were 70 violations of non-
compliance where PHA, incident investigation, or compliance audit
recommendations were not addressed, resolved, completed, documented, or
communicated to employees. Of these violations, the majority (56
percent) were violations associated with PHA recommendations, 38
percent were from compliance audits, and 6 percent were from incident
investigations. Some of these violations were associated with RMP-
reportable accidents, which suggests that worker involvement may have
been useful in making sure options were appropriately considered.\218\
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\217\ EPA did not use EPA RMP enforcement information because
statistical data on enforcement under the 1996 RMP rule is not
available at this level of detail.
\218\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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During the 2021 listening sessions, some commenters recommended
allowing workers to be involved in making decisions about process
safety. One idea was for EPA to issue specific provisions that enable
workers and their unions to participate in the prevention of chemical
releases by requiring the facility owner and operator to provide for
meaningful employee participation when developing, implementing,
maintaining, and evaluating all RMP activities--including hazard
assessments, the prevention program, and emergency response
activities--and to keep current a written plan that describes such
opportunities.\219\ A commenter stated that effective worker
participation includes having an employee representative with veto
power. This representative--chosen by employees--would participate in
all stages of developing and implementing a risk management program and
have access to all documents or information pertaining to the
facility's RMP.220 221 A
[[Page 53590]]
few commenters stated that increased worker participation would reduce
the occurrence of catastrophic incidents at RMP facilities because
workers are an excellent source of knowledge for reducing hazards in
collaboration with plant engineers.\222\
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\219\ EPA-HQ-OLEM-2021-0312-0079; 0149, 0058, 0148, 0076.
\220\ EPA-HQ-OLEM-2021-0312-0079.
\221\ Note that the current 1996 RMP rule requires the owner or
the operator of a Program 3 process to ``provide to employees or
their representatives access to [PHAs] and to all other information
required to be developed under this rule''--that is, the current
1996 RMP rule (40 CFR 68.83(c)).
\222\ EPA-HQ-OLEM-2021-0312-0032.
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As a result of this concern and need for employees to be involved
in decision-making, EPA is proposing to require in 40 CFR 68.83(c) that
the written plan of action include consultation of employees and their
representatives on addressing, correcting, resolving, documenting, and
implementing recommendations of PHAs, incident investigations, and
compliance audits, at a minimum. EPA expects this would be similar to
involving employees in the hazard evaluations under 40 CFR 68.83(b) but
would go a step further to offer suggestions and concerns about why a
recommendation should be adopted or declined or whether other
alternatives should be taken. EPA expects this would address safety
concerns that threaten the lives of workers and potentially others if a
major chemical accident were to occur, as well as involving workers in
ensuring items are completed in a timely manner. EPA seeks comment on
whether there should be a representative number or percentage of
employees and their representatives involved in these recommendations
decision teams as well as the development of other process safety
elements as outlined in 40 CFR 68.83(b). EPA also expects regulated
facilities to use some of the guidance materials referenced in this
section (e.g., CCPS' RBPS and GMARD guidelines and ANSI/ASSP Z.10) to
comply with the requirement to effectively involve employees in
decision-making processes. EPA seeks comment on other relevant sources
that have provided useful guidance in making risk decisions.
iii. Stop Work Authority
Allowing process operation employees to stop work when witnessing a
dangerous activity could help better protect human health and the
environment.
In the 2014 RMP RFI, EPA requested comments on whether it should
add provisions to the RMP rule giving workers the ability to stop work
if they believe a situation is dangerous--an authority similar to the
one that BSEE had recently provided for workers in the offshore oil
industry. BSEE promulgated revisions to their SEMS II requirements to
help ensure the safe operation of their regulated facilities.\223\ The
revisions included several management system elements not addressed in
the RMP regulation. In its SEMS II fact sheet, BSEE describes the stop
work authority as an authority that creates procedures and authorizes
offshore industry personnel who witness an imminent risk or dangerous
activity to stop work.\224\ While the requirements of SEMS II focus on
offshore facilities under the jurisdiction of BSEE, the same concept
could be applied to facilities subject to RMP regulation. EPA chose not
to pursue proposing stop work regulations in the 2017 amendments rule,
but it is revisiting this idea to address an area that may help reduce
accidents, particularly for those facilities that have not fully
developed a strong prevention program.
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\223\ Bureau of Safety and Environmental Enforcement (BSEE), Oil
and Gas and Sulphur Operations in the Outer Continental Shelf-
Revisions to Safety and Environmental Management Systems, 78 FR
20423-20443 (April 5, 2013).
\224\ BSEE, Safety and Environmental Management Systems (SEMS)
Fact Sheet (n.d.), https://www.bsee.gov/fact-sheet/safety/sems-ii-fact-sheet.
---------------------------------------------------------------------------
Various commenters from the 2014 RFI, including a consultant, the
Mary Kay O'Connor Process Safety Center, and CCPS, supported adding
this provision.\225\ The Mary Kay O'Connor Process Safety Center
suggested adding a stop work authority to the RMP employee
participation provision (40 CFR 68.83). While CSB supported EPA's
consideration of a stop work authority, it asserted that a stop work
authority is a less effective measure for incident prevention than good
planning and noted that its success is contingent upon the existence of
a ``culture of safety'' wherein workers are encouraged and empowered to
advocate for their safety on the job. CSB argued that any program that
does not appropriately enable stop work authority permits risks to
occur and accumulate.\226\
---------------------------------------------------------------------------
\225\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546.
\226\ EPA-HQ-OEM-2014-0328-0689.
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Industry commenters generally opposed adding this authority to the
RMP rule.\227\ API and other associations noted that employees already
have the right to refuse work in light of a hazardous condition that
could cause serious bodily injury or death.\228\ API stated that stop
work authority is an inherent part of the oil and gas industry and
pointed to training programs and API standards that outline this
authority.\229\ API indicated that their standards inform employees
that:
---------------------------------------------------------------------------
\227\ EPA-HQ-OEM-2014-0328-0560; 0605, 0619, 0624, 0643, 0645,
0665, 0676.
\228\ EPA-HQ-OEM-2014-0328-0624; 0626, 0640, 0643, 0665.
\229\ API, ``Stop Work Authority,'' accessed February 3, 2022,
https://www.api.org/oil-and-natural-gas/health-and-safety/worker-and-worksite-safety-resources/worker-safety-rules-to-live-by/stop-work-authority.
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Safety is and will always be the industry's primary focus.
As part of the oil and gas industry, workers have a duty
to work in a safe manner.
Workers have a personal responsibility to assure the
safety of themselves and those around them.
Safety and safe practices should always be at the
forefront when carrying out job functions.
All workers have stop work authority.
Workers should stop and ask questions when in doubt about
the safety of any operations.
Workers should stop work at the jobsite if the working
conditions or behaviors are considered unsafe.
If a worker is discouraged from exercising their stop work
authority or is penalized for doing so, they should report this action
to management immediately.
After the 2012 Chevron Refinery fire in Richmond, California,\230\
CSB recommended that the California State Legislature/Governor of
California, in its PSM regulations, should provide workers and their
representatives with the authority to stop work that is perceived to be
unsafe until the employer resolves the matter or the regulator
intervenes. As a result, in DIR's modifications to their Process Safety
Management for Petroleum Refineries rule,\231\ they included stop work
procedures. In the employee participation section, the rule indicates
that the employer, in consultation with employees, must develop and
implement stop work procedures that ensure there is authority for
employees to refuse to perform a task or recommend an operation or
process be partially or completely shut down. It also provides
authority for a qualified operator in charge of a unit to partially or
completely shut down an operation or process based on process safety
hazards.\232\ In addition, the regulation
[[Page 53591]]
requires that employers document and respond in writing to employee
reports of hazards or requests to shut down a process. CSB also made a
similar recommendation to the State of Washington to address related
issues after the fatal explosion and fire at Tesoro Refinery.\233\ The
State of Washington is currently considering changes to its PSM rule
for refineries.\234\
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\230\ CSB, ``Chevron Refinery Fire,'' last modified January 28,
2015, https://www.csb.gov/chevron-refinery-fire/.
\231\ DIR, Process Safety Management for Petroleum Refineries,
CCR Title 8: section 5189.1 (September 26, 2017), https://www.dir.ca.gov/title8/5189_1.html.
\232\ DIR, Process Safety Management of Acutely Hazardous
Materials, CCR Title 8: section 5189, https://www.dir.ca.gov/title8/
5189.html#:~:text=%C2%A75189.,Management%20of%20Acutely%20Hazardous%2
0Materials.&text=The%20establishment%20of%20process%20safety,(b)%20Ap
plication.
\233\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/.
\234\ Washington State Department of Labor & Industries, ``Semi-
Annual Rules Development Agenda: January 1, 2022-June 30, 2022''
(January 31, 2022), https://lni.wa.gov/dA/ad667425ad/RulesAgenda.pdf.
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Recent articles and studies have attempted to examine stop work
authority, how it is applied, and the perception of its usefulness. A
2018 article in Safety+Health magazine indicated that while specific
stop work authorities are not mandatory, safety professionals insist on
their use. According to the article, key elements of a successful stop
work authority policy include employee recognition, empowering
employees in the stop work authority process, ensuring leadership
supports the program, identifying expectations, promoting positive
outcomes and correct application, and publishing effective stop work
authority efforts as examples for employees.\235\
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\235\ Bush, J., ``Stop-Work Authority,'' last modified July 26,
2018, https://www.safetyandhealthmagazine.com/articles/17242-stop-
work-
authority#:~:text=Stop%2Dwork%20authority%20permits%20any,Health%20in
sist%20on%20its%20use.
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In a 2018 study, Weber et al. examined the factors that support or
hinder stopping work for safety.\236\ Thirty-four workers from
different roles in the LPG industry in Australia were interviewed in
focus groups. The study found that having a stop work policy supports
stopping work for safety and that support from management positively
affects its use. It also found that the training, experience, and
seniority of employees were factors in employees choosing whether to
use the stop work authority. The study concluded that a stop work
authority is a starting point. To encourage, promote, and alleviate
drawbacks to stopping work, a stop work authority has to be embedded in
and supported by a work environment that provides the necessary
conditions for people to discontinue work. The authors believe this can
only be achieved when company leadership collaborates with its
workforce to identify hazards and help resolve the challenges of
everyday work.
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\236\ David E. Weber et al., ``We Can Stop Work, but then
Nothing Gets Done.' Factors that Support and Hinder a Workforce to
Discontinue Work for Safety,'' Safety Science 108 (2018): 149-160,
doi: 10.1016/j.ssci.2018.04.032.
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In a 2021 study, Havinga et al. continued the conversation about
factors that influence stopping work.\237\ Taking an ethnographic
approach, the researchers followed 10 employees of a municipal water
provider over 3 months. The aim of the study was to understand how
decisions to stop work were made and when work was expected to be
stopped based on procedures. The study concluded that these employees
did not generally find stop work decisions to be important or
difficult, as they often found an alternative method for completing
work, rather than stopping work completely. Procedures were linked to
considerations of stopping work, but they were unlikely to lead to a
decision to stop work. These findings challenge the idea that stop work
decisions are best supported through procedures, training, and
policies, as these interventions suggest that workers consider stop
work decisions difficult and significant. An alternative strategy to
encourage workers to stop work in dangerous situations would be for
organizations to provide alternative methods for workers to complete a
job.
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\237\ Jop Havinga, Kym Bancroft, and Andrew Rae, ``Deciding to
Stop Work or Deciding How Work Is Done?'' Safety Science 141 (2021):
105334, doi: 10.1016/j.ssci.2021.105334.
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EPA recognizes, and other industry commenters in the past have
concluded,\238\ that the current RMP rule, although not containing
explicit requirements for stop work, already addresses many aspects of
a stop work authority that provides means to identify and resolve
imminent operational risks before they occur. For example, operating
procedures developed under the RMP rule (40 CFR 68.69) address how and
under what circumstances a facility should conduct normal and temporary
operations, emergency shutdown (including the assignment of a
responsible qualified operator to do so), emergency operations, and
normal shutdown. Operating procedures should also address when process
operations deviate from operating limits, steps to correct and avoid
deviation, safety and health conditions to consider, and safety systems
and their functions. Mechanical integrity requirements (40 CFR
68.73(e)) ensure equipment deficiencies that are outside acceptable
limits are corrected in a safe and timely manner or before further use
to assure safe operation. The associated trainings for operating
procedures (40 CFR 68.71) and maintenance (40 CFR 68.73(c)) are key to
ensuring that those processes are well understood. EPA believes all
these components create a stop work authority as they address the
circumstances and procedures to identify unsafe operations.
Furthermore, EPA believes each facility's individual operating
procedures and approach to correcting equipment deficiencies give
owners and operators the flexibility to design a stop work authority
for their process operations that remains adaptable to the procedures
already in place.
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\238\ EPA-HQ-OEM-2014-0328-0605.
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With the current provisions in the RMP rule, EPA believes many
facilities with RMP processes already have the appropriate measures to
identify, reduce, and mitigate the threat of an accidental release
before it happens. The fact that only a small number of facilities have
RMP accidents further supports this. However, RMP accidents do still
occur. According to the Agency's RMP accident data, among the most
commonly instituted changes after RMP-reportable accidents were
improved or upgraded equipment, revised training, and revised operating
procedures.\239\ Rather than make significant changes to these specific
prevention program areas, EPA believes a better approach would be to
ensure facilities' employees are aware of authorities to manage unsafe
work, one of the last lines of defense to protect human health and the
environment from a catastrophic release.
---------------------------------------------------------------------------
\239\ EPA Office of Land and Emergency Management, Risk
Management Plan RMP*eSubmit User's Manual (August 2019), https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf.
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Therefore, EPA is proposing to require at 40 CFR 68.83(d) that the
written plan of action regarding the implementation of the employee
participation for Program 3 processes include and ensure effective
methods are in place so that employees and their representatives have
authority to:
Refuse to perform a task when doing so could reasonably
result in a catastrophic release.
Recommend to the operator in charge of a unit that an
operation or process be partially or completely shut down, in
accordance with procedures established in 40 CFR 68.69(a), based on the
potential for a catastrophic release.
Allow a qualified operator in charge of a unit to
partially or completely shut down an operation or process, in
accordance with procedures established in 40 CFR 68.69(a), based on the
potential for a catastrophic release.
[[Page 53592]]
Additionally, EPA is proposing to require that stop work authority
processes within employee participation plans outline how employers
should document and respond, in writing and within 30 days, to employee
reports of hazards or employee recommendations to shut down or
partially shut down a process.
iv. Accident and Non-Compliance Reporting
Accident history reporting provides an avenue for disseminating
valuable information about potential hazards and steps needed to
prevent future accidents. Accident information submitted within a risk
management plan, as required by the 5-year accident history provisions,
includes information that could help states and EPA learn which types
of sources are having problems, understand more about accident causes,
track trends in chemical accidents and prevention activities, monitor
the progress of risk management programs, focus future prevention
activities, and avoid overregulation of industry sectors or substances.
These important activities depend on accurate and timely information
provided by accident reports.
Current accident reporting provisions in the RMP rule (40 CFR
68.42(a)) require that 5-year accident histories include all accidental
releases from covered processes that resulted in deaths, injuries, and
significant property damage onsite, and known offsite deaths, injuries,
evacuations, sheltering in place, property damage, and environmental
damage.
When the RMP rule was first promulgated, it required that when a
risk management plan was updated per 40 CFR 68.190, it had to contain
an updated 5-year accident history, including all the accidents that
met the 40 CFR 68.42 reporting criteria and those that occurred within
5 years of the date on which the updated risk management plan was
submitted. On April 9, 2004, EPA published a final rule that amended
the accident history reporting requirement and certain other provisions
of the Risk Management Program.\240\ From that date, if an accident
occurs that meets the reporting criteria, it must be reported in the
RMP 5-year accident history within 6 months of the accident (as
required by 40 CFR 68.195) unless it is included in a risk management
plan update prior to that time. EPA took this action so that
government, industry, and the public would be more quickly alerted to
the possibility of similar accidents occurring elsewhere.\241\
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\240\ EPA, Accidental Release Prevention Requirements: Risk
Management Program Requirements Under Clean Air Act Section
112(r)(7); Amendments to the Submission Schedule and Data
Requirements, 40 CFR part 68 (69 FR 18819; April 9, 2004), https://www.govinfo.gov/content/pkg/FR-2004-04-09/pdf/04-7777.pdf.
\241\ EPA Office of Solid Waste and Emergency Response,
``Chapter 3: Five-Year Accident History,'' General Guidance on Risk
Management Programs for Chemical Accident Prevention (March 2009),
https://www.epa.gov/sites/default/files/2013-10/documents/chap-03-final.pdf.
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Commenters from the 2021 listening sessions drew attention to the
issue of RMP-reportable accidents that have not been reported or have
been reported late. One commentor specifically provided a data analysis
showing the lag in reporting.\242\ In recognition of these comments,
EPA further examined RMP accident history reporting from 2004 to 2020,
analyzing accidents where either the risk management plan correction
date or the full risk management plan submission date was more than 6
months from the date of the accident. This analysis found 163 RMP
accidents reported late out of a total of 2,436 total accidents
reported over this period (i.e., a 6.7 percent late accident reporting
rate). One commentor indicated that there seems to be little or no
consequence for failures and delays in accident reporting. This may
prevent EPA from performing relevant inspections and requiring
corrective action to prevent serious harm.\243\
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\242\ EPA-HQ-OLEM-2021-0312-0058.
\243\ EPA-HQ-OLEM-2021-0312-0149.
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Other commenters from the 2021 listening sessions, including
advocacy groups and individual commenters, recommended specific changes
to the RMP rule addressing worker involvement in reporting areas of RMP
non-compliance. For example, an individual commenter stated that EPA
must strengthen worker participation, encourage workers to take action
to protect safety and avoid incidents, ensure fast compliance deadlines
for all requirements, and require more reporting to EPA on compliance.
Some commenters, including advocacy groups and an individual commenter,
emphasized that an updated RMP rule must address near-miss reporting by
workers at RMP facilities.\244\ A few of these commenters added that
near-miss reporting must be anonymous.\245\ One of these advocacy
groups and an individual commenter suggested that EPA provide a hotline
that allows workers, contractors, and anyone else with relevant
information to report anonymous near-miss and safety information
directly to the Agency, remarking that this would be a valuable service
that would help ensure that EPA gets important information
quickly.\246\
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\244\ EPA-HQ-OLEM-2021-0312-0035; 0032, 0020, 0170.
\245\ EPA-HQ-OLEM-2021-0312-0035; 0035, 0170, 0032.
\246\ EPA-HQ-OLEM-2021-0312-0076.
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EPA is also concerned about other areas of RMP non-compliance, as
compliance with the regulations helps facilities operate and maintain a
safe facility and consistently implement recognized good engineering
practices that prevent accidents from occurring. EPA inspections have
revealed significant non-compliance and an ongoing need for additional
compliance assistance to decrease the likelihood of chemical accidents
and reduce the risk to human health and the environment. Over the last
5 fiscal years (October 2017 to September 2021), RMP and General Duty
Clause (GDC) inspections resulted in a 71 percent rate of action taken
by facilities to address issues of non-compliance with the RMP rule and
GDC.247 248
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\247\ EPA, ``General Duty Clause Under the Clean Air Act Section
112(r)(1),'' last modified December 21, 2021, https://www.epa.gov/rmp/general-duty-clause-under-clean-air-act-section-112r1.
\248\ EPA, ``National Compliance Initiative: Reducing Accidental
Releases at Industrial and Chemical Facilities,'' last modified May
18, 2021, https://www.epa.gov/enforcement/national-compliance-initiative-reducing-accidental-releases-industrial-and-chemical.
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Further, EPA recognizes the right workers have to participate in
implementing agency inspections. On February 11, 2011, EPA issued a
memo that outlined EPA's policy on involvement of facility employees
and employee representatives in onsite compliance inspections as
provided by CAA section 112(r)(6)(L). \249\ This section states that
when EPA or another authorized agency conducts an inspection of a
facility, employees and their representatives shall have the same
rights to participate in the inspection, as provided in the
Occupational Safety and Health Act [29 U.S.C. 651 et seq.] \250\ CSB
also recently highlighted this authority of employees in a board
addendum on October 24, 2018.\251\ The policy sets out to ensure
opportunities for the participation of workers in the agency's
investigative process.
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\249\ EPA, Involvement of Employees and Employee Representatives
in Clean Air Act (CAA) Section 112(r) On-Site Compliance
Inspections--Final Guidance (February 11, 2021), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_memo.pdf.
\250\ OSHA, Representatives of Employers and Employees, 1903.8
(n.d.), https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.8.
\251\ CSB, Worker Participation in Investigations--Board Order
Addendum 40a (October 24, 2018), https://www.csb.gov/assets/record/bo40a.pdf.
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[[Page 53593]]
After considering the issues of late reporting of accidents, non-
reporting of other compliance issues, and the role workers could plan
in promoting compliance, EPA is proposing to require that facilities
with Program 3 processes include in their employee participation plans
explicit language addressing worker participation and reporting, along
with information for how to report RMP-reportable accidents or related
RMP non-compliance issues. Specifically, EPA is proposing to add
additional language at 40 CFR 68.83 to indicate that written plans
should include information for anonymously reporting unaddressed
hazards that could lead to a catastrophic release, unreported RMP-
reportable accidents, or any other issue of non-compliance with 40 CFR
part 68. EPA is also proposing to add an additional section under
subpart C for owners and operators of Program 2 processes to implement
an employee participation plan that addresses these issues. Although
facilities with Program 2 processes account for only approximately 15
percent (n = 357 out of 2,436) of all RMP-reportable accidents (83
percent (n = 2,011 out of 2,436) are Program 3; 3 percent (n = 68 out
of 2,436) are Program 1)), their accidents still have the potential to
affect public receptors.\252\ In 2017, for example, a chlorine release
from a Program 2 process in Texas caused 20 people to require medical
treatment and 125 people to evacuate.\253\ In 2018, a facility with a
Program 2 process in Iowa had an ammonia release that caused 500
members of the public to evacuate and 45 people to shelter in
place.\254\
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\252\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
\253\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
\254\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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EPA expects facilities to use available resources for their
specific process operations and other appropriate RMP rule guidance to
include the new anonymous reporting provisions in employee
participation plans. EPA resources to help owners and operators
understand what is required and how to enforce provisions include:
EPA's Report Environmental Violations--an online portal
for reporting possible violations of environmental laws and
regulations.\255\
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\255\ EPA, ``Report Environmental Violations,'' last modified
January 26, 2022, https://echo.epa.gov/report-environmental-violations.
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Guidance for Facilities on Risk Management Programs--an
online resource hub for helping the regulated community understand the
RMP rule.\256\
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\256\ EPA, ``Guidance for Facilities on Risk Management Programs
(RMP),'' last modified December 20, 2021, https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp.
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Region 7 Risk Management Program Webinars--webinar slides
that discuss the requirements of CAA 112(r)(7), common compliance
pitfalls, preparing for inspections, and case studies. \257\
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\257\ EPA, ``Region 7 Risk Management Program Webinars,'' last
modified February 24, 2021, https://www.epa.gov/rmp/region-7-risk-management-program-webinars.
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``Guidance for Conducting Risk Management Program
Inspections under Clean Air Act Section 112(r)''--guidance for
implementing agencies explaining how to conduct inspections of
facilities subject to RMP.\258\
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\258\ EPA Office of Solid Waste and Emergency Response and EPA
Office of Enforcement and Compliance Assurance, Guidance for
Conducting Risk Management Program Inspections under Clean Air Act
Section 112(r) (January 2011), https://www.epa.gov/sites/default/files/2013-10/documents/clean_air_guidance.pdf.
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``Final Combined Enforcement Policy for Clean Air Action
Sections 112(r)(1), 112(r)(7) and 40 CFR part 68, 2012''--guidance for
determining the appropriate enforcement response and penalty amount for
violations in failing to comply with RMP and GDC.\259\
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\259\ EPA, Transmittal of the Final Combined Enforcement Policy
for Clean Air Act Sections 112(2)(1), 112(r)(7) and 40 C.F. R. Part
68 (June 20, 2012), https://www.epa.gov/sites/default/files/documents/112rcep062012.pdf.
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EPA chemical accident prevention publications--
publications that address the specific need for safety and chemical
emergency and preparedness measures based on enforcement and lessons
learned from accidents.\260\
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\260\ EPA, ``Chemical Accident Prevention Publications,'' last
modified November 16, 2021, https://www.epa.gov/rmp/chemical-accident-prevention-publications#advisories.
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EPA recognizes that workers may often overlook hazards or areas
that they know are non-compliant with standards for fear that it will
affect their employment. This may particularly be the case for the stop
work and accident reporting provisions. The Agency reminds owners and
operators that OSHA enforces whistleblower protections provided under
the CAA, the Occupational Safety and Health Act, and other Federal
laws. Further information about those rights can be found at https://www.whistleblowers.gov.
In addition to employee participation, CCPS' RBPS guidance
identifies compliance with standards as a key element in committing to
process safety. It indicates that this element helps identify, develop,
acquire, evaluate, disseminate, and provide access to applicable
standards, codes, regulations, and laws that affect a facility and the
process safety requirements applicable to a facility.\261\ As with the
other new provisions proposed in this employee participation section,
EPA is proposing these RMP accident and non-compliance employee
participation provisions because it wants to ensure that owners and
operators who have not fully developed strong employee participation
programs have further measures in place to ensure their commitment to
process safety in order to prevent and minimize accidental releases of
hazardous substances. EPA seeks comment on these proposed RMP accident
and non-compliance employee participation provisions. EPA also seeks
comments on whether owners and operators should distribute an annual
written or electronic notice to employees that employee participation
plans and other RMP information is readily accessible upon request and
provide training for those plans and how to access the information.
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\261\ CCPS, Guidelines for Risk Based Process Safety (March
2007), https://www.aiche.org/resources/publications/books/guidelines-risk-based-process-safety.
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B. Emergency Response
1. Review of Emergency Response Notification, Detection, and Response
Subpart E of the RMP rule, the emergency response provisions,
applies to facilities with Program 2 or 3 processes. These provisions
require owners or operators of regulated facilities with Program 2 or 3
processes to coordinate with local response authorities and, in some
cases, develop an emergency response program in accordance with 40 CFR
68.95 to address how the owner or operator of the facility will respond
to accidental releases. The rule requires the owner or operator to
prepare and implement an emergency response program to protect public
health and the environment, unless the stationary source is a ``non-
responding'' facility included in the community emergency response plan
developed under section 303 of the Emergency Planning and Community
Right-to-Know Act (EPCRA) (for sources with regulated toxic substances)
and has coordinated response actions with the local fire department
(for sources with only regulated flammable substances).
[[Page 53594]]
An owner or operator who needs to develop an emergency response program
(i.e., be a ``responding'' facility) will need to include the following
elements in that program:
An emergency response plan that includes procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases; documentation of
proper first aid and emergency medical treatment necessary to treat
accidental human exposures; and procedures and measures for emergency
response after an accidental release of a regulated substance.
Procedures for the use of emergency response equipment and
for its inspection, testing, and maintenance.
Training for employees.
Procedures to review and update the emergency response
plan to reflect changes at the stationary source and ensure that
employees are informed of changes.
The owner or operator must also coordinate with local response
authorities on the emergency response plan.
Facility owners or operators who rely on local responders to
respond to an accidental release (i.e., a ``non-responding'' facility)
when the stationary source has been included in the community emergency
response plan developed under section 303 of EPCRA (for sources with
regulated toxic substances) or who have coordinated response actions
with the local fire department (for sources with only regulated
flammable substances and without regulated toxic substances) are not
required to develop an emergency response program. However, owners or
operators must also ensure that appropriate notification mechanisms are
in place to notify emergency responders when there is a need for a
response and must perform annual emergency response coordination and
notification activities.
An RMP-regulated facility must indicate in its risk management plan
whether it is a non-responding facility (i.e., by indicating compliance
with mandatory elements of emergency response plans required in 40 CFR
68.95(a)(1)) and identify the plans and procedures in place should an
accidental release occur. EPA's review of the RMP database has shown
that approximately 47 percent of RMP facilities claim to be non-
responding facilities. However, during facility inspections, EPA has
often found that facilities either are not included in the community
emergency plan or have not properly coordinated response actions with
local authorities. State and local response officials echoed this
concern during the 2013 to 2014 listening sessions conducted under E.O.
13650, in responses to the 2014 RMP RFI,\262\ and again in the 2021
listening sessions.\263\
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\262\ EPA-HQ-OEM-2014-0328-0679; 0641.
\263\ EPA-HQ-OLEM-2021-0312-0072.
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New emergency response requirements added in the 2017 amendments
rule and the 2019 reconsideration rule offer opportunities to address
some of these concerns, such as coordination meetings with local
responders and notification, tabletop, and field exercises.\264\ In
particular, EPA believes the annual coordination meeting and
notification exercises will provide a wide range of useful outcomes,
including information sharing and evaluation of the effectiveness of
notification, evacuation, and sheltering systems and procedures. The
annual coordination requirement is expected to help make continual
improvements to emergency response systems and procedures, as
appropriate.
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\264\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, 84 FR 69893-69906
(December 19, 2019).
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Nevertheless, in reviewing opportunities to continually improve the
effectiveness of emergency responses for RMP accidents, EPA reviewed
additional data points from the RMP database and carefully considered
comments from the 2021 listening sessions. After reviewing the data,
EPA believes that more can be done to improve emergency responses,
particularly in the field of timely notification of releases to the
public and detection of those releases. The following three sections
provide an overview of the RMP regulations and includes background
information on accidental release notifications to both the surrounding
community and local emergency response agencies. These sections serve
to support EPA's proposed amendments to the emergency response
requirements.
a. Concerns About Notification of Accidents
Communities surrounding RMP facilities need information to
appropriately prepare for and respond to potential emergencies related
to the facilities. Yet commentors from the 2021 listening sessions
pointed out that they were first notified of chemical releases
impacting their homes and families hours after the release via
television news or social media; this delay in notification has created
fear among the public.\265\
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\265\ EPA-HQ-OLEM-2021-0312-0072; 0020.
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During the 2021 listening sessions, the National Association of
SARA (Superfund Amendments and Reauthorization Act) Title III Program
Officials (NASTTPO) provided comments containing recommendations to
remedy this, urging EPA to require facilities to provide community
notification for releases that have the potential to cross a facility's
fenceline. NASTTPO argued that communities must receive more timely
notification of chemical releases and accidents if they are to act in
the ways LEPCs, emergency planners, and responders emphasize through
public outreach and education. While only local response authorities
can officially call for evacuations or shelter-in-place responses, the
fundamental obligation to inform the public about whether a release has
occurred--and about the magnitude of the release--falls upon the
facility owner or operator, as they will have the best information
available. NASTTPO also stated that education and awareness programs by
LEPCs and others on protective actions for chemical release events
cannot be successful unless the people who are expected to act receive
timely and adequate warning information; the facility owner or operator
must be the source of this information.\266\
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\266\ EPA-HQ-OLEM-2021-0312-0072.
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While EPA acknowledges that the accident rate from RMP facilities
has declined, EPA also recognizes that approximately 39 percent (n =
962) of reported accidents from 2004 to 2020 had offsite impacts.
Further analysis shows that no offsite responders were notified in 192
of the 962 accidents with offsite impacts (19 percent). Furthermore,
approximately 19 percent (n = 36) of the facilities with the 192
accidents self-identified as non-responders and relied on local
responders to handle the release and public communication efforts. To
be clear, that means that in these 36 incidents, there was no
notification by the facilities to the entities they had designated
would respond to incidents per the submitted risk management plans.
Moreover, only 10 of these 192 accident investigations indicated that
there was a revised emergency response plan because of the accident.
These data points suggest that there is still a disconnect between the
roles of regulated facilities and local responders, particularly when
there are offsite impacts or the threat of such impacts.\267\
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\267\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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[[Page 53595]]
Responding facilities also had problems notifying the public of
releases, even though they are required to develop procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies. Eighty-one percent (n = 156) of responding
facilities still did not notify local responders when there were
offsite impacts.\268\ Per 40 CFR 68.95(c), responding facilities are
required to promptly provide local emergency response officials with
information necessary for developing and implementing the community
emergency response plan.\269\
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\268\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
\269\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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When local responders are not notified, they cannot implement the
community response plan that communities rely on for their safety. For
example, on June 10, 2014, in St. David, Cochise County, Arizona,
Apache Nitrogen Products Inc. (ANPI) released 52,000 pounds of
anhydrous ammonia from a rail car when a sight glass in the ammonia
piping broke. The community alarm process identified in the facility's
emergency response program required the deployment of an employee to
drive to the facility's fenceline and use a handheld ammonia monitor to
determine if the alarm should be activated. However, the facility did
not carry out the employee deployment and fenceline ammonia monitoring
needed for action, so appropriate notification did not occur. This
facility's emergency response program exemplifies that current
compliance to the RMP rule's existing public notification provision can
be ineffective and that notifications can improve. In a subsequent
enforcement action, in addition to requiring upgraded ammonia detection
devices, EPA had the facility owner develop response procedures and
training. The procedures require relevant ANPI employees and
contractors to request that Cochise County send an alert to mobile
phones in areas where a release of anhydrous ammonia may reach public
receptors. This community notification system must also provide
appropriate instructions to the public, such as shelter-in-place or
evacuation warnings.\270\
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\270\ Plaintiff v. Apache Nitrogen Products, Inc., an Arizona
Corporation, No. 4:20-cv-00463-BGM, Document 3-1 (October 28, 2020),
https://www.justice.gov/enrd/consent-decree/file/1332206/download.
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CSB also highlighted these emergency response concerns in a 2018
safety digest: ``Emergency Planning and Response--The Importance of
Preparation, Training and Communication.'' \271\ The digest gives
examples from four major catastrophic accidents: the Bayer Crop Science
pesticide waste tank explosion in Institute, West Virginia in 2008;
\272\ the West Fertilizer explosion and fire in West, Texas, in 2013;
\273\ the MGPI Processing, Inc., toxic chemical release in Atchison,
Kansas, in 2016; \274\ and the Arkema Inc. chemical plant fire in
Crosby, Texas, in 2017.\275\ These examples highlight the importance of
an effective emergency response to prevent injuries and fatalities from
chemical accidents. The digest further highlights lessons learned from
at least 16 CSB accident investigations from 2010 to 2018 wherein there
was ineffective emergency response training, planning, and
communication between companies, emergency responders, and the
community. Among others, some of the key lessons were:
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\271\ CSB, Safety Digest: Emergency Planning and Response
(2018), https://www.csb.gov/assets/1/17/csb_emerg_resp_safety_digest.pdf?16429.
\272\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,''
last modified January 20, 2011, https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/.
\273\ CSB, ``West Fertilizer Explosion and Fire,'' last modified
January 28, 2016, https://www.csb.gov/west-fertilizer-explosion-and-fire-/.
\274\ CSB, ``MGPI Processing, Inc. Toxic Chemical Release,''
last modified January 3, 2018, https://www.csb.gov/mgpi-processing-inc-toxic-chemical-release-/.
\275\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified
May 24, 2018, https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
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There must be effective communications and information
sharing between facilities with hazardous chemicals, emergency
responders, and community members before, during, and after
emergencies.
Communities should have redundant communication systems in
place to notify residents of a chemical emergency.
b. Release Detection
CAA section 112(r)(7)(B)(ii) clearly anticipated a potential
regulatory requirement for facilities to detect accidental releases of
their substances to protect human health and the environment.
Conforming to the performance-based nature of the RMP rule, the
existing regulations allow facility owners or operators to develop
mechanisms to detect releases and notify local authorities and the
public--either directly or through local authorities--of releases at
their facility.
Currently, RMP facilities are required to collect information and
evaluate how they will detect releases at their facility. For example,
facilities with Program 2 processes are required in their hazard review
to identify any steps used or needed to detect or monitor releases (40
CFR 68.50(a)(4)). Facilities with Program 3 processes are required to
identify detection systems when compiling their process safety
information (40 CFR 68.65(d)(1)(viii)) and address appropriate
application of detection methodologies to provide early warning of
releases in their PHA (40 CFR 68.67(c)(3)).
RMP facilities with Program 2 and 3 processes are also required to
report in their risk management plans, the monitoring and detection
systems in use for their regulated processes (40 CFR 68.170(e)(5) and
68.175(e)(5)). When reporting in their risk management plans, owners
and operators can select up to four categories that apply to how
releases are detected from their processes: ``process area detectors'',
``perimeter monitors'', ``none'', or ``other monitoring/detection
system in use''. When process area detectors or perimeter monitors are
selected, no further information is collected. To better understand
electronic detection methodologies available and in use among RMP
facilities, EPA is proposing to require owners and operators to input,
in an open text field in the risk management plan, specific information
on their process area detectors and perimeter monitor technologies and
models in use to detect RMP-regulated substances.
Due to the numerous RMP-regulated substances--and different
technologies and methods available of accurately detecting those
substances--EPA expects facilities to identify the most effective
method of detecting releases of their specific substances, from their
specific process operations, based on RAGAGEP. For example, EPA would
expect facilities with anhydrous ammonia in ammonia refrigeration
systems to adopt IIAR 9-2020, ``Minimum System Safety Requirements for
Existing Closed-Circuit Ammonia Refrigeration Systems'' \276\
(specifically, section 7.3.12), to address the specific requirements
for ammonia detection and alarms in machinery rooms. For water and
wastewater treatment facilities using gaseous chlorine, EPA would
expect adoption of the Chlorine Institute's ``Pamphlet 73, Atmospheric
Monitoring Equipment for Chlorine
[[Page 53596]]
(2021)'' \277\ to ensure best practices for detecting chorine. For
petroleum refineries using HF in alkylation units, an appropriate
guideline is API's ``Safe Operation of Hydrofluoric Acid Alkylation
Units (2021)'' \278\ (section K.3.2), which covers how to provide early
and reliable HF detection.
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\276\ IIAR, ANSI/IIAR Standard 9-2020 (2020).
\277\ The Chlorine Institute, Pamphlet 73) Atmospheric
Monitoring Equipment for Chlorine (2021), https://bookstore.chlorineinstitute.org/pamphlet-73-atmospheric-monitoring-equipment-for-chlorine.html?Session_ID=66da3abed669d2ecb4448e5c1c17ba5e.
\278\ API, Recommended Practice 751 (2021), https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-751.
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c. Emergency Response Guidance
Current widely accepted industry guidance indicates that timely
notification is necessary during hazardous chemical release events and
that relying only on emergency responders, particularly those with
inadequate resources, may not be enough to protect the public.
The NFPA 1600[supreg], ``Standard on Continuity, Emergency, and
Crisis Management (2019),'' \279\ indicates that entities shall develop
a plan and procedures to disseminate information to--and respond to
requests for information from--both internal and external audiences. It
states that the entity should determine its warning, notification, and
communication needs; in addition, the systems must be reliable, undergo
testing, and include issuing warnings through authorized agencies. It
also states that facilities should establish and implement a process
whereby all appropriate stakeholders have a common reference for the
types of incidents that could adversely affect people, property,
operations, or the environment and are able to warn, notify, and report
on the circumstances.
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\279\ NFPA, NFPA 1600: Standard on Continuity, Emergency, and
Crisis Management (2019), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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The American Society for Testing and Materials (ASTM)
International's 2020 ``Standard Guide for Coordination and Cooperation
between Facilities, Local Emergency Planning Committees, and Emergency
Responders'' (ASTM E3241-20) \280\ aims to provide increased
coordination and cooperation among stakeholders to develop better
community preparedness for accidents involving hazardous chemicals. The
standard indicates that facilities must be part of the preparedness
effort because of their greater expertise on the properties of the
hazardous chemicals present, as well as their knowledge of operating
systems and procedures, hazard assessments, and their emergency
response capabilities. ASTM E3241-20 specifically indicates that
facilities must participate in the development of public warning and
evacuation procedures and that they must collaborate with local
emergency responders to mutually develop protocols for public warning
and orders to shelter or evacuate.
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\280\ ASTM International, ``Standard Guide for Coordination and
Cooperation Between Facilities, Local Emergency Planning Committees,
and Emergency Responders,'' last modified May 25, 2020, https://www.astm.org/e3241-20.html.
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The United Nations Environment Programme's 2015 ``Awareness and
Preparedness for Emergencies at the Local Level'' handbook \281\ offers
processes to improve community awareness and preparedness for
technological hazards and environmental emergencies. The handbook
indicates that facility owners and operators are fully responsible for
accident prevention and emergency response procedures for their
operations. The handbook also states that the facility will best
understand the hazards and risks, protective measures, and response
procedures--and that these must be shared both during preparedness
planning and during the response to any accident.
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\281\ United Nations Environment Programme, Awareness and
Preparedness for Emergencies at Local Level (2015), https://www.preventionweb.net/files/45469_unepawarenesspreparednessemergencie.pdf.
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These guidance documents outline the importance of having a
coordinated effort to ensure public notification of accidental
releases. They also encourage facility owners and operators to be
accountable in their role for providing accurate information to the
necessary authorities to ensure appropriate data are shared with the
people who are affected by the release.
2. Proposed Modification and Amplifications of Emergency Response
Requirements
a. Proposed Regulations To Address Community Notification of RMP
Accidents
EPA is proposing to amend 40 CFR 68.90(b) by adding a requirement
necessary for RMP facility owners and operators to designate their
facility as a non-responding facility. The proposed provision would
require facilities to develop and implement, as necessary, procedures
for informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases of RMP-regulated
substances and ensure that a community notification system is in place
to warn the public within the area threatened by a release. Expanding
the recordkeeping and implementation aspect of this provision to non-
responding facilities would help ensure that all facilities subject to
subpart E, have documented knowledge of the public notification process
that would occur when there is an accidental release at the facility.
Consistent with the overall performance-based nature of the RMP rule,
the owner or operator of a facility has some flexibilities in the
development of its procedures so long as the procedures meet the
performance-based requirement to inform and notify the public and
response agencies. This provides facilities with flexibility in the
design of the procedures so long as the procedures are implemented in
the event of an accidental release.
The proposed amendment would also help clarify the facility's role
in the implementation of that notification process by requiring the
owner or operator to provide the information needed to initiate a
public release notification. EPA anticipates that in most cases, these
notification procedures may be identical to those coordinated with and
relied upon by local public responders. EPA expects that this proposed
provision, in combination with the required annual emergency
coordination meetings and notification exercises, would enhance
coordinated notification to the public and improve documented
accountability for the notification process. EPA is also proposing that
these notification procedures be available by the facility upon request
to the public living in close proximity (approximately within 6 miles)
to RMP facilities, to help ensure that members of the public are aware
of the steps the facility has taken to notify them when a release
occurs. Further details pertaining to information available to the
public is discussed in section IV.C of this preamble.
EPA is also proposing to amend 40 CFR 68.95(a)(1)(i), which
currently requires responding facilities to have procedures for
informing the public and the appropriate Federal, State, and local
emergency response agencies about accidental releases. This proposed
amendment would ensure that a community notification system is in place
in order to quickly and efficiently warn the public within the area
that could be threatened by a release.
EPA can expect facilities to ensure that a community notification
system is available because the Federal Emergency Management Agency
(FEMA) has established the Integrated
[[Page 53597]]
Public Alert & Warning System (IPAWS) for community notification.\282\
This system provides authenticated emergency and life-saving
information to the public through mobile phones using wireless
emergency alerts. It also provides alerts to radio and television via
the Emergency Alert System and on the National Oceanic and Atmospheric
Administration's Weather Radio. The Emergency Alert System devices
found at radio, TV and cable stations can support multiple languages
and wireless Emergency Alerts can support both English and
Spanish.\283\ EPA believes that the presence of State and/or local
IPAWS alerting authorities--with the designated authority to alert and
warn the public when there is an impending natural or human-made
disaster, threat, or dangerous or missing person \284\--in all 50
states provides the necessary infrastructure for facilities to ensure
that a community notification system is operational within any impact
zones of releases that occur from their facility. The most applicable
alerts through this system would be the imminent threat and public
safety alerts. Imminent threat alerts include natural or human-made
disasters, extreme weather, active shooters, and other threatening
emergencies that are current or emerging. Public safety alerts contain
information about a threat that may not be imminent, or about an
imminent threat that has occurred.\285\
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\282\ FEMA, ``Integrated Public Alert & Warning System,'' last
modified January 27, 2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system.
\283\ FEMA, ``Alerting People with Disabilities and Access and
Functional Needs,'' accessed March 17, 2022, https://www.fema.gov/es/emergency-managers/practitioners/integrated-public-alert-warning-system/public/alerting-people-disabilities.
\284\ FEMA, ``Alerting Authorities,'' last modified January 6,
2022, https://www.fema.gov/emergency-managers/practitioners/integrated-public-alert-warning-system/public-safety-officials/alerting-authorities.
\285\ FEMA, TIP 38: Imminent Threat vs. Public Safety (2021),
https://www.fema.gov/sites/default/files/documents/fema_ipaws-tip-38-it-vs-ps.pdf.
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EPA expects local responding authorities to notify the community as
authorized through IPAWS. In the RMP General Guidance, EPA states that
although a non-responding facility is not responsible for developing
emergency response capabilities, it is responsible for ensuring
effective emergency response to any releases at the facility. If local
public responders are not capable of providing such response, EPA
guidance urges facilities to take steps to ensure that effective
response is available.\286\ Therefore, EPA expects facilities to work
with the local responders to ensure that, during a release, all
necessary resources are in place for a community notification system to
function and operate as expected.
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\286\ EPA, General Guidance on Risk Management Programs Chapter
8: Emergency Response (2021), p. 8-6, https://www.epa.gov/sites/default/files/2013-11/documents/chap-08-final.pdf?VersionId=vLaBwe1S2zXXrwsxM3HfR0Ko4ZvYXvWD.
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EPA is also proposing to amend 40 CFR 68.90(b)(3) and 68.95(c) to
require facilities to provide necessary entities with initial RMP
accidental release information during releases of regulated substances
in order to ensure that information is available to the public and the
appropriate Federal, State, and local emergency response agencies.
Specifically, EPA is proposing that whichever method is used to detect
accidental releases,\287\ the facility--regardless of responding
status--must ensure that the public is promptly notified by the method
outlined in the facility's emergency response plan in coordination with
local responders. Facilities should do this by providing appropriate,
timely data and information to local responders, and detailing the
current understanding and best estimates of the nature of the release.
This should include the regulated substance released, estimated time
the release began, estimated quantity already released and potential
quantity to be released, and potential consequences of the release to
human health and the environment. EPA realizes that when facility
owners and operators first detect a release, they may not have all the
details of the situation. However, EPA expects RMP facility owners and
operators to be familiar enough with their regulated substances,
processes, and potential release scenarios to promptly notify the
public to support timely protective actions. EPA would also expect
owners and operators to provide follow-up information about the release
to local responders as soon as possible, to either provide more
accurate data or to correct erroneous data that had been previously
relayed. EPA expects that the annual emergency response coordination
meetings (40 CFR 68.93) and notification exercises (40 CFR 68.96(a))
will help to ensure that these plans and procedures are discussed and
practiced.
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\287\ EPA acknowledges the multiple comments received regarding
fence-line monitoring of RMP releases and seeks additional comment
to gather further information on the consideration of fenceline
monitoring for the RMP rule. Information sought per this issue is
outlined in the Technical Background Document.
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The Agency recognizes the possible tradeoff between early
notification and accuracy. In some cases, a potential or actual release
may be averted or mitigated within the facility well before any
exposure to toxic fumes, intense heat, or blast overpressure occurs to
the community. Early notification, or even ``false positives'' have the
potential to disrupt communities and divert public response resources.
Nevertheless, given the gravity of potential accidental releases of
regulated substances from processes subject to the RMP rule--and in
light of repeated expressions of concern heard at the 2021 listening
sessions--EPA believes its proposed amendments will provide a greater
level of comfort and overall safety to communities surrounding RMP
facilities. EPA requests public comment on the Agency's proposed
approach.
While responding and non-responding facilities should have
mechanisms and procedures in place to notify the public through
emergency response plans at 40 CFR 68.90(b)(3) and 68.95(a)(1)(i),
amending the current requirements to explicitly include the current
understanding and best estimates of data and information pertaining to
the release would help ensure timely decisions about notification of
those releases, particularly those with offsite impacts. EPA expects
that the requirement to provide this information will help ensure that
local responders have sufficient information to make the best decision
on whether community notification is appropriate. Through this proposed
provision, along with the recently promulgated requirements for annual
coordination meetings and notification exercises, EPA expects that
emergency response efforts and communications will be practiced and
refined. EPA also seeks comment on what additional information would be
useful to share in these scenarios.
b. Community Emergency Response Plan Amplifications
According to 40 CFR 68.90(b)(1) and 40 CFR 68.95(c), respective
non-responding and responding facilities are currently required to be
coordinated with the community emergency response plan developed under
EPCRA Section 303, 42 U.S.C. 11003, ``Comprehensive Emergency Response
Plans.'' \288\ The plan is prepared by LEPCs/TEPCs to evaluate the need
for resources necessary to develop, implement, and exercise the
emergency plan. The plan must include at least the following:
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\288\ Comprehensive Emergency Response Plans, 42 U.S.C. 11003,
(October 17, 1986), https://www.govinfo.gov/content/pkg/USCODE-2020-title42/pdf/USCODE-2020-title42-chap116-subchapI-sec11003.pdf.
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[[Page 53598]]
Identification of facilities within the emergency planning
district, identification of routes likely to be used for the
transportation of substances on the list of extremely hazardous
substances, and identification of additional facilities contributing or
subjected to additional risk due to their proximity to facilities
subject to the requirements of EPCRA subchapter I under Title 42,
Chapter 116, such as hospitals or natural gas facilities.
Methods and procedures to be followed by facility owners
and operators and local emergency and medical personnel to respond to
any release of such substances.
Designation of a community emergency coordinator and
facility emergency coordinators, who shall make determinations
necessary to implement the plan.
Procedures providing reliable, effective, and timely
notification by the facility emergency coordinators and the community
emergency coordinator to persons designated in the emergency plan, and
to the public, that a release has occurred.
Methods for determining the occurrence of a release, and
the area or population likely to be affected by such release.
Description of emergency equipment and facilities in the
community and at each facility in the community subject to the
requirements of EPCRA subchapter I under Title 42, Chapter 116, and an
identification of the persons responsible for such equipment and
facilities.
Evacuation plans, including provisions for a precautionary
evacuation and alternative traffic routes.
Training programs, including schedules for training of
local emergency response and medical personnel.
Methods and schedules for exercising the emergency plan.
EPA wants to ensure RMP-regulated facilities understand how their
facility's processes could impact the larger community emergency
response plan, and the facility's role in coordination on the required
plan provisions. Therefore, EPA is proposing to explicitly state the
required provisions of the community response plan in the RMP
regulatory text. EPA would expect the facility to discuss the community
plan with appropriate LEPC officials as part of the facility's
coordination activities. Only if the LEPC plan was clearly deficient
would EPA consider any action against the facility for relying on it
for response.
Additionally, the Agency realizes community emergency response
plans contain useful information for the public to learn how RMP
facility processes are accounted and planned for if there is an RMP-
regulated accidental release. EPA seeks comment about impediments to
accessing community emergency response plans and potential solutions to
having the plans more accessible within the scope of the RMP
regulations.
3. Emergency Response Exercises
a. Proposed Amendments to the Emergency Response Requirements
EPA is proposing to revise 40 CFR 68.96(b)(1)(i) to require all
facilities with Program 2 and Program 3 processes and subject to the
emergency response program requirements of subpart E (i.e., the
responding stationary source), at a minimum, conduct field exercises
involving a simulated accidental release of a regulated substance once
every 10 years, unless local responders indicate that frequency is
infeasible. EPA is also proposing to amend 40 CFR 68.96(b)(3) to
require that the current recommended field and tabletop exercise
evaluation report components be mandatory.
b. Field Exercise Frequency
The 2017 amendments rule added the field exercise provision to
support reducing accident impacts by ensuring that emergency response
personnel understood their roles in the event of an incident, that
local responders were familiar with the hazards at a facility, and that
the emergency response plans were up to date. The Agency believed that
even the smallest sources would be able to hold field exercises at
least once each decade and, in many cases, it expected sources would
hold field exercises more often.\289\
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\289\ EPA, 2017 Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act 82 FR 4594 (January 13,
2017).
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In the 2019 reconsideration rule, EPA modified the frequency of
field exercises by removing the minimum frequency requirement of at
least every 10 years. The Agency removed the 10-year field exercise
frequency to reduce burden on local emergency responders with multiple
RMP-covered facilities and on small counties with limited resources--
many of which are rural and rely on volunteers.\290\ The final rule was
therefore modified to require the owner or operator to consult with
local emergency response officials to establish an appropriate
frequency.
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\290\ EPA, 2019 Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, 84 FR 69834 (December
19, 2019).
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Emergency response field exercise frequency was the theme of
multiple comments submitted during the 2021 listening sessions. Labor
unions, multiple advocacy groups, and an individual commenter all
submitted comments requesting EPA to not only require emergency
response exercises, but to also set deadlines for their
completion.\291\ Further, a State regulatory agency suggested that EPA
require RMP facilities to complete an annual full-scale emergency
response exercise that would include testing containment, mitigation,
and monitoring equipment. The commenter indicated that regular, hands-
on practice is important due to the frequent turnover of RMP facility
personnel.\292\ In contrast, an industry trade association argued that
the emergency response exercises under the current regulations work
well and that flexibility regarding the timing of the exercises
benefits both RMP facilities and emergency response organizations.\293\
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\291\ EPA-HQ-OLEM-2021-0312-0057; 0058, 0079, 0149, 0032, 0170.
\292\ EPA-HQ-OLEM-2021-0312-0039.
\293\ EPA-HQ-OLEM-2021-0312-0071.
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EPA is cognizant of the resources (e.g., staff, experts, funds)
that field exercises demand, particularly in small rural communities
and those with multiple RMP facilities. However, EPA maintains that
exercising emergency response plans within a reasonable, frequent time
frame is vital to ensuring that emergency response programs will work
well in the event of an accidental release. The NFPA 1600[supreg]
Standard on Continuity, Emergency, and Crisis Management takes a
similar position, indicating that exercises and tests should be
conducted at the frequency needed to establish and maintain required
capabilities.\294\
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\294\ NFPA, ``NFPA 1600[supreg] Standard on Continuity,
Emergency, and Crisis Management,'' accessed March 1, 2022, https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600.
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A 2016 NASTTPO survey, which aimed to gather information about
levels of activity of LEPCs and identify areas for improvement, found
that the number of LEPCs had decreased nationwide due to complacency,
time, interest, and funding.295 296 While 87 percent of
LEPCs indicated that they had participated in emergency response
[[Page 53599]]
exercises, over 50 percent reported that conducting drills/exercises
was an area where they felt additional assistance could be provided.
EPA wants to ensure that facilities are accountable to the communities
in which they are located. One way to do this is to make sure that
communities have mechanisms to evaluate the resources and capabilities
needed to assist in a response to an accidental release and that they
can perform field exercises involving actual emergency response
functions to simulated release events.
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\295\ NASTTPO, 2016 Local Emergency Planning Committee (LEPC)
Survey: Final Report (2016), https://webcms.pima.gov/UserFiles/Servers/Server_6/File/Government/Local%20Emergency%20Planning%20Committee/Meetings%20Agendas%20and%20Minutes/2016/2016%20LEPC%20Survey%20Final%20Report%20-%20FInal.pdf.
\296\ EPA, 2008 Nationwide Survey of Local Emergency Planning
Committees (LEPCs): Final Report (2008), https://www.epa.gov/sites/default/files/2013-08/documents/2008_lepcsurv.pdf.
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EPA believes many responding facilities with RMP processes are
making plans and intending to conduct field exercises on a timeline
that is appropriate for establishing and maintaining required emergency
response capabilities. However, EPA is concerned that some responding
sources may use the flexibility in the current regulation to never hold
field exercises with local responders or to hold them so infrequently
that the owner or operator's response to an accidental release would be
ineffective. One listening session commentor in support of setting
deadlines for field exercises indicated that without a compliance
frequency, the provision to conduct emergency field exercises is purely
symbolic and is an empty requirement.\297\ EPA wants to ensure all
facilities conduct regular field exercises if they have the resources
and capabilities to do so. The Agency hopes to avoid a scenario where
responding sources impose a schedule that practically exempts them from
the exercise program requirements, particularly if the local responders
know that conducting exercises would be beneficial for response
efforts.
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\297\ EPA-HQ-OLEM-2021-0312-0170.
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Therefore, EPA is proposing to amend 40 CFR 68.96(b)(1)(i) to
require all facilities with Program 2 and Program 3 processes and
subject to the emergency response program requirements of subpart E
(i.e., the responding stationary source) to, at a minimum, conduct
field exercises involving a simulated accidental release of a regulated
substance once every 10 years unless local responders indicate that
frequency is impractical. EPA expects assigning this frequency to the
provision, but providing for relief in specific circumstances, will
work for all organizations and communities to prepare for or further
assess the ability to respond to accidental releases. Because
facilities have always had a requirement to do a field exercise, an
added provision with a 10-year phase in should have minimal impact on
sources who may have relied upon the 2019 provision, which has been in
place for only three years. Moreover, local responders continue to have
the option not to participate, which also diminishes any possible
reliance interests. EPA expects that the frequency of field exercises
and any justification for not being able to conduct them on a 10-year
schedule will be discussed through annual coordination meetings.
Although written justification from local responders will allow
facilities with relief from this proposed provision, EPA expects this
dialogue will address supposed barriers to carrying out field exercises
with some frequency and result in creative solutions such as focusing
the scope of exercises or conducting joint exercises with neighboring
facilities. This proposed amendment will help ensure the safety of
communities by more frequently confirming that local responders are
prepared for an accidental release.
c. Exercise Evaluation Reports
The 2017 amendments rule added the field and tabletop exercise
evaluation report provision. This provision required either the
preparation of a report within 90 days of each field and tabletop
exercise (40 CFR 68.96(b)(3)) or, an after-action report comparable to
the exercise evaluation report required when owners or operators use a
response to an accidental release to meet their field exercise
requirement (40 CFR 68.96(c)(2)). The report in either situation would
be required within 90 days of the exercise or accident and must include
a description of the scenario, names and organizations of each
participant, an evaluation of the exercise results including lessons
learned, recommendations for improvement or revisions to the emergency
response exercise program and emergency response program, and a
schedule to promptly address and resolve recommendations. EPA believed
that maintaining a written record including, among other things, the
identification and affiliation of exercise participants, would be
useful in planning future exercises.
The 2019 reconsideration rule scaled back the exercise reporting
requirements, making the exercise report elements recommended rather
than mandatory. The Agency indicated that making the reporting
requirements non-mandatory would reduce the regulatory burden and allow
emergency response personnel the flexibility to decide which exercise
documentation would be most appropriate for the facility and community.
EPA now recognizes there may be an inconsistency between the
recommended exercise evaluation and mandatory incident investigation
documentation requirements, as one provision can be used to satisfy the
other. Current incident investigation regulations under 40 CFR 68.60
and 68.81 require incident investigation reports to include specific
elements: the date of incident, the date the investigation began, a
description of the incident, the factors that contributed to the
incident, and any recommendations resulting from the investigation.
Under the current field and tabletop documentation provisions,
facilities would be allowed to satisfy the documentation requirement
for field and tabletop exercises through an after-action report
following an accidental release. EPA believes that, in most cases,
these accidental releases would be those that need to be investigated
per 40 CFR 68.60 and 68.81. Many of the incident investigation and
exercise evaluation reporting requirements are similar. EPA believes it
should be consistent in its requirements to ensure there is no
confusion related to reports that can be used interchangeably.
Therefore, EPA is proposing to amend 40 CFR 68.96(b)(3) to require
that the current recommended exercise evaluation report elements be
mandatory rather than recommended. EPA contends that making these
exercise report components mandatory will help not only to eliminate
confusion about what is required when evaluating an actual or simulated
response, but also provide consistency on elements that are crucial to
the exercise improvement planning process.
C. Information Availability
EPA is proposing to amend 40 CFR 68.210 to allow the public to
request specific chemical hazard information if they reside within 6
miles of a facility. As discussed below, the 6-mile restriction would
allow access to information for the vast majority of the public that
are within worst case scenario impact zones. Having received such a
request, the facility would be required to provide certain chemical
hazard information and access to community emergency preparedness
information. This proposal is similar to the 2017 amendments rule, with
the added modification that information be restricted to those persons
within 6 miles of the facility.
1. Recent Public Input on Information Availability
During EPA's 2021 listening sessions, approximately 210 commenters
[[Page 53600]]
provided feedback on information availability requirements. Multiple
commenters, including advocacy groups, individual commenters, and labor
unions, expressed support for expanding information availability to
improve the safety of first responders and community members.\298\ An
association of government agencies said that LEPCs' access to
information is vital and suggested that EPA grant LEPCs the ability to
request relevant information from RMP facilities, similar to the level
of access under EPCRA for facilities with extremely hazardous
substances.\299\ Multiple advocacy groups, via a joint submission, and
an individual wrote that EPA's Chemical Emergency Preparedness and
Prevention Office and CSB agreed that ``transparency between industry
and the public improves community safety.'' \300\ An advocacy group
said that many residents near RMP facilities are not aware that they
are located near these facilities, as EPA has not shared a list of
where the communities most at risk are located.\301\ Multiple advocacy
groups and an individual commenter said that risk management plans
should be available online--for example, through EPA's website, the RMP
facility's corporate website, and public libraries.\302\ A State
elected official suggested that EPA create an online database through
which the public can read summaries of risk management plans; this
would avoid releasing sensitive security information about RMP
facilities while also informing the public of relevant community safety
concerns.\303\
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\298\ EPA-HQ-OLEM-2021-0312-0016; 0020, 0025, 0026, 0035, 0036,
0040, 0042, 0051, 0057, 0058, 0060, 0072, 0358, 0387.
\299\ EPA-HQ-OLEM-2021-0312-0072.
\300\ EPA-HQ-OLEM-2021-0312-0151; 0149.
\301\ EPA-HQ-OLEM-2021-0312-0170.
\302\ EPA-HQ-OLEM-2021-0312-0035; 0042, 0036, 0060, 0149.
\303\ EPA-HQ-OLEM-2021-0312-0043.
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2. Information Availability in the 2017 Amendments and the 2019
Reconsideration Rule
The 2017 amendments rule added new information availability
requirements, including the requirement for the owner or operator to
provide--within 45 days of receiving a request by any member of the
public--specified chemical hazard information for all RMP-regulated
processes. The provision required the owner or operator to provide
ongoing notification on a company website, on social media platforms,
or through other publicly accessible means such that the information is
available to the public upon request, along with the information
elements that may be requested and instructions for how to request the
information. In the 2019 reconsideration rule, EPA removed these
elements because of a benefit versus risk calculation, observing that
much RMP information was available through other means while widespread
anonymous access to the consolidated information posed potential
security risks.
EPA stated in its 2019 reconsideration rule that part of its
rationale for rescinding information availability provisions was that
the 2017 amendments rule ``underweighted security concerns in balancing
the positive effects of information availability on accident prevention
and the negative effects on public safety from the utility to
terrorists and criminals of the newly available information and
dissemination methods.'' In its rationale for the 2019 reconsideration,
EPA cited the Department of Justice (DOJ) report ``Assessment of the
Increased Risk of Terrorist or Other Criminal Activity Associated with
Posting Off-Site Consequence Analysis Information on the internet,''
\304\ which found that assembling the otherwise-public data is valuable
in identifying and focusing on sources that have conducted criminal
acts. The goal of DOJ's assessment was to determine which variables and
forms of dissemination would create vulnerabilities enabling a
terrorist attack. In the 2019 reconsideration rule, EPA stated the 2017
provisions would make otherwise-public information newly anonymously
accessible via the web and other means in a more consolidated fashion.
EPA observed that this consolidated information ``may present a more
comprehensive picture of the vulnerabilities of a facility than would
be apparent'' otherwise, and thus potentially increasing terrorist risk
(84 FR 69887, December 19, 2019).
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\304\ DOJ, Assessment of the Increased Risk of Terrorist or
Other Criminal Activity Associated with Posting Off-Site Consequence
Analysis Information on the internet (2000), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-2003, EPA-HQ-OEM-
2015-0725-2003.
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EPA is proposing a provision to increase information availability
to communities that balances information availability to communities
with the previously identified security concerns. EPA believes the
proposed amendment to add a 6-mile radius ensures that even if
community members obtain information related to offsite consequences
analysis (OCA) data, it would require a difficult nationwide-
coordinated effort among people within 6 miles of each facility to
create the type of online database described in DOJ's report. The
proposed provisions simply require RMP facilities to provide their
chemical hazard information to communities within a 6-mile radius of
the facility, when previously they were not required to. Because RMP
facilities were, and will continue to be, in possession of this
information, it is unlikely that such a change would result in any
possible prejudice to the facilities based on their reliance on the
2019 reconsideration rule provisions, which have only been in place for
3 years.
In its 2019 reconsideration rule, EPA mentioned that members of the
public can view risk management plans at Federal Government reading
rooms, obtain risk management plan information from State or local
government officials with risk management plan data access, or submit a
request to EPA under the FOIA (for non-OCA risk management plan
information). EPA also mentioned that owners and operators of regulated
facilities may disclose risk management plan information for their own
facilities if they so choose. While current OCA provisions allow for a
person visiting a reading room to request information of up to 10
facilities per year regardless of location as well as the OCA
information for all facilities with a vulnerable zone that extends into
the jurisdiction of the LEPC/TEPC where the person lives or works,
there are a limited number of reading rooms even in large states, and
these reading rooms generally are not located close to the communities
potentially impacted by process safety at particular facilities. While
the reading room restrictions are necessary for OCA information, the
restrictions in locations and access make them an inefficient way to
access information in the risk management plans that Congress chose not
to restrict when it enacted the Chemical Safety Information, Site
Security and Fuels Regulatory Relief Act 42 U.S.C. 7412(r)(7)(H)(ii).
By creating a 6-mile radius, EPA allows communities with more than one
facility to request information on all the sources to which they may be
potentially exposed in the event of a release.
The 2019 reconsideration rule mentioned that community members may
request information from their LEPCs; however, subsequent analysis of
active facility risk management plan submissions demonstrates that 10
percent of active facilities have not provided information on the names
of their LEPCs.\305\ Without further
[[Page 53601]]
information as to why facilities left this portion of the risk
management plan submission blank, it is possible that LEPCs may not
exist for those facilities, that the LEPC may have existed but is
inactive, or that the facility is not in communication with its LEPC.
EPA routinely receives FOIA requests for OCA and non-OCA versions of
the risk management plan database from local and State emergency
response entities, which may indicate that local emergency response
entities also have difficulty in obtaining this information from
facilities.
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\305\ 40 CFR 68.160(b)(18).
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EPA also conducted a parallel benefits assessment in 2000,
describing the benefits of providing community access to risk
management plan information.\306\ EPA found that public disclosure of
risk management plan information would likely lead to a reduction in
the number and severity of accidents. It also found that comparisons
between facilities, processes and industries would likely lead industry
to make changes and would stimulate dialogue among facilities, the
public, and local officials to reduce chemical accident risks. EPA also
concluded that given the opportunity, the public would use hazard
information to take action, thus lead to risk reduction, citing the
reduction in emissions following publicly available TRI information.
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\306\ EPA. April 18, 2000. Assessment of the incentives created
by public disclosure of off-site consequence analysis information
for reduction in risk of accidental releases.
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EPA is proposing individuals within a 6-mile radius of RMP
facilities be able to obtain specific chemical hazard information. EPA
believes this distance to be reasonable as 90 percent of all toxic
worst-case distances to endpoints are 6 miles or less, and almost all
flammable worst-case distances are less than 1 mile. The 6-mile radius
for being able to request information from facilities allows people in
most areas potentially impacted by a WCS to have access to information
while also providing a limit on widespread access to nationwide
assembly of data. The proposed approach uses aggregate worst case
scenario data and does not rely on individual worst cases for each
facility because EPA cannot by rule force disclosure of OCA information
to the public. EPA notes that 5 percent of worst-case distances for
toxics are more than10 miles, while 67 percent of scenarios are under 3
miles. EPA seeks comment on whether the 6-mile radius is appropriate
and provides the information on 10 miles and 3 miles as potential
alternatives. For alternative distances supported by commenters, EPA
requests information on the justification for these alternative
distances.
3. Proposed Regulatory Revisions
In the 2017 amendments rule, EPA added several new provisions to 40
CFR 68.210, ``Availability of Information to the Public.'' These
included:
A requirement for the owner or operator to provide, upon
request by any member of the public, specified chemical hazard
information for all regulated processes, as applicable, including names
of regulated substances held in a process; Safety Data Sheets (SDSs)
for all regulated substances located at the facility; accident history
information required to be reported under 40 CFR 68.42; and emergency
response program information, including whether or not the source
responds to releases of regulated substances, name and phone number of
local emergency response organizations, and procedures for informing
the public and local emergency response agencies about accidental
releases.
A requirement for the owner or operator to provide ongoing
notification on a company website, on social media platforms, or
through other publicly accessible means that the above information is
available to the public upon request, along with the information
elements that may be requested and instructions for how to request the
information, as well as information on where members of the public may
access information on community preparedness, including shelter-in-
place and evacuation procedures.
A requirement for the owner or operator to provide the
requested chemical hazard information within 45 days of receiving a
request from any member of the public.
EPA is proposing to restore these provisions for community members
living within 6 miles of a facility. EPA contends this will allow
affected communities to obtain information from RMP facilities.
Allowing all community members demonstrating residence within 6 miles
of the facility to request this information would ensure information
availability in areas without LEPCs/TEPCs. The proposed 6-mile
limitation seeks to limit the potential security risk of allowing
anonymous confidential access of this information to the entire public
that was of concern to EPA in the 2019 reconsideration rule. The
proposed approach strikes a better balance between those security
concerns and the interests of people living near facilities who could
benefit from the information: personal preparedness in the event of an
accident, knowledge of safety conditions where one lives, and more
informed participation in community safety planning. EPA seeks comment
on the 6-mile limitation and whether it balances security concerns and
community access to information. While much, if not all, of the
information to be disclosed upon request to facilities under this
proposed provision is otherwise publicly available with little
geographic limitation, the additional method of access EPA is proposing
make access simpler for people who are near facilities.
a. Request for Comment on Potential Non-Rule RMP Access Policy Changes
While these proposed regulatory changes will improve information
sharing within communities, they do not resolve concern that fenceline
communities are often unaware of RMP facilities near them. To request
facility information, a member of the public would need to know how to
access it, have the means to access it, and know that the facility
exists in their community in order to determine how to access and
request the information. These barriers do not appropriately facilitate
community right-to-know or equitable distribution of knowledge on
fenceline community risks to those most affected by potential releases.
In the 2019 proposed rule comment period, commenters pointed out that
reading rooms are not a realistic avenue for public access to
information.\307\ EPA also recognizes the additional impracticalities
that the COVID-19 pandemic has imposed on reading room options. Many
commenters mentioned delays in accessing information and limitations on
data requests from reading rooms. Further, most states only have one
reading room, which complicates public access to information from that
source. Commenters also mentioned equity issues given the expertise and
language issues required to access information. In its 2000 benefits
assessment,\308\ EPA also noted that obtaining information from LEPCs
is difficult and a central repository would improve ease of information
access. EPA's past experience in implementing EPCRA had shown that many
State and local officials needed assistance in managing the chemical
information submitted to them on paper by industry under that
[[Page 53602]]
law, and that the public often did not take advantage of this
information since it was not conveniently available. Additionally,
information on multiple RMP facilities is needed as it allows
communities to compare risks between facilities, as well as potential
cumulative risks owing to multiple facilities within a community. For
communities with more than one facility, e.g., communities like Harris
County, Texas with large numbers of facilities, residents should not be
expected to request information from each of these facilities, but
rather, EPA should aggregate this information in a central location.
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\307\ EPA-HQ-OEM-2015-0725-1598; 1869, 1925, 1969.
\308\ EPA. April 18, 2000. Assessment of the incentives created
by public disclosure of off-site consequence analysis information
for reduction in risk of accidental releases.
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By policy, EPA has restricted access to the RMP database even
though only a portion of the database is restricted by CAA 112(r)(7)(H)
and its implementing regulations in 40 CFR part 1400. Other programs
within EPA have demonstrated that facility and chemical information can
be made publicly available, in a readily accessible format. EPA intends
to, at a prospective date, begin publishing non-OCA risk management
plan data annually, less any CAA 112(r)(7)(H) protected sensitive
information. EPA has received comments in the past with concerns
regarding confidential business information and directs these
commenters to the requirements in 40 CFR 68.152 for substantive
criteria set forth in 40 CFR 2.301. EPA notes that 40 CFR 1400.5 allows
for the Administrator to include only the following OCA data elements
in a database on the internet: (a) the concentration of the chemical;
(b) the physical state of the chemical; (c) the statistical model used;
(d) the endpoint used for the flammables in the worst-case scenario;
(e) the duration of the chemical release for the worst-case scenario;
(f) the wind speed during the chemical release; (g) the atmospheric
stability; (h) the topography of the surrounding area; (i) the passive
mitigation systems considered; and (j) the active mitigation systems
considered. This initiative is in line with other hazardous substance
reporting programs that have been long established at EPA. Further, EPA
believes it can no longer not make this information available, as 5
U.S.C. 552(a)(2)(D)(ii)(II) requires that information that has been
requested via FOIA three or more times be made ``available for public
inspection in an electronic format'' when the information is likely to
be requested again in the same format and is not otherwise privileged
from disclosure. EPA is requesting comment on the variables provided in
the Technical Background Document (Section 10), most of which are for
public availability, and which (or combination of which) pose potential
significant security risks.
b. Current Data Availability of Risk Management Plan Information
Currently, with few exceptions as indicated below, EPA does not
make any of its OCA or non-OCA data available to the public online. The
public can access or request risk management plan information through
the methods described below. Based on these methods, EPA contends that
current, publicly available information on the risk management plan
national database is insufficient for informing communities about RMP-
regulated facilities.
Facility Registry Service (FRS) and Envirofacts.\309\
EPA's FRS provides information about facilities regulated by a large
number of EPA regulations under various statutes. Currently, the only
information provided in the FRS for RMP-regulated facilities is the EPA
Facility ID, EPA's unique identifier for RMP-regulated facilities.
Because Envirofacts provides a multi-system search of facilities,
including FRS, RMP EPA Facility IDs are also available in Envirofacts.
Currently, neither public-facing version of the databases provides
additional information or allows users to export information on more
than one RMP facility.
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\309\ Facility Registry Service, https://www.epa.gov/frs.
Envirofacts, https://enviro.epa.gov/.
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FOIA requests. EPA has processed FOIA requests for non-OCA
data 242 times since 2015, an average of 35 times a year. Because the
database is provided in Microsoft Access format and requires some
technical background to examine results, most requestors tend not to be
individuals or nonprofit environmental groups, but rather other
government entities (both Federal and State), as well as consulting
groups and government contractors.
Federal reading rooms. 40 CFR part 1400 requires the
Federal Government to allow any member of the public to obtain access
to OCA information for up to 10 facilities per calendar month located
anywhere in the country, without geographical restrictions, as well as
any stationary sources in the jurisdiction of the LEPC where the person
lives or works and for any other stationary source that has a
vulnerable zone that extends into that LEPC's jurisdiction. Although
EPA does not have plans to release protected OCA information on the
internet, EPA hopes that making non-OCA risk management plan data
publicly available will reduce the need for the public to access risk
management plan data only through Federal reading rooms.
Other information already publicly available. EPA notes
that it appears information from the risk management plan database,
less OCA sections, has been publicly available on the internet for over
20 years.\310\ EPA is aware of other sources of information online for
risk management plan data, however, these data are often outdated. The
dataset provides information on location, amount of chemical stored,
emergency response capabilities (i.e., responding versus non-responding
facility status), contact information, executive summary, and 5-year
accident history.
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\310\ The Right-to-Know Network, ``Risk Management Plans
(RMP),'' last modified March 14, 2019, https://rtk.rjifuture.org/rmp/.
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c. Other EPA Facility Hazardous Substance Registries
EPA makes information available for several other Federal hazardous
substances programs, such as the Toxics Release Inventory \311\ under
EPCRA and Chemical Data Reporting (CDR) \312\ under the Toxic
Substances Control Act, both of which have readily downloadable
information (in Microsoft Excel format) \313\ on facility quantity and
location for facilities with regulated, threshold quantities of listed
hazardous substances. EPA likewise seeks to make its non-OCA risk
management plan information available in a readily accessible manner,
akin to these two programs, and will coordinate with these two long-
standing programs to consider relevant data quality and security
concerns.
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\311\ EPA, ``Toxics Release Inventory (TRI) Program,'' last
modified January 20, 2022, https://www.epa.gov/toxics-release-inventory-tri-program.
\312\ EPA, ``Chemical Data Reporting Under the Toxic Substances
Control Act,'' last modified August 25, 2021, https://www.epa.gov/chemical-data-reporting.
\313\ EPA, ``Access CDR Data,'' last modified November 9, 2021,
https://www.epa.gov/chemical-data-reporting/access-cdr-data#2020.
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d. Balancing Security Risks and Community Right-To-Know
EPA maintains that public disclosure of risk management plan
information would likely lead to a reduction in the number and severity
of accidents.\314\ Although EPA does intend to make its risk management
plan data publicly available, it seeks comment on an approach that
balances community
[[Page 53603]]
right-to-know and security concerns that arise by making such data
publicly available in an easily accessible, consolidated location. EPA
requests public comment on which specific information would be of most
benefit and most concern.
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\314\ EPA, Assessment of the Incentives Created by Public
Disclosure of Off-Site Consequence Analysis Information for
Reduction in Risk of Accidental Releases (April 18, 2000).
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EPA has long received comments on the potential security concerns
in releasing risk management plan information. For example, in EPA's
recent 2021 listening sessions, some commenters, including several
industry trade associations, expressed opposition to expanding risk
management plan information availability due to increased risks of
terrorist attacks, cyberattacks, or other intentional acts of
harm.\315\ One industry trade association argued that certain
information about RMP facilities needs to be kept confidential, such as
the information deemed ``Chemical-terrorism Vulnerability Information''
or ``Sensitive Security Information'' under the Department of Homeland
Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) and
the Maritime Transportation Security Act, respectively.\316\ However,
these comments did not specifically explain how releasing risk
management plan data would increase particular security risks. EPA
already protects OCA information as required by the CAA and will ensure
that this action does not violate the CAA.
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\315\ EPA-HQ-OLEM-2021-0312-0005; 0020, 0031, 0045, 0053, 0071,
0077.
\316\ EPA-HQ-OLEM-2021-0312-0031.
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There exists no publicly available database of intentional acts
upon the chemical process industries in the United States. In a 2021
study, researchers attempted to compile a database of such incidents,
finding documentation of 84 incidents in the chemical and petrochemical
industries.317 318 Root cause data on these incidents, which
are not available, would be needed to determine if availability of
information on the facility contributed to terrorist incidents, which
were second to cybersecurity incidents as the most frequent overall
cause. According to the database, no terrorist event in the process
industries (excluding transportation and pipelines) has occurred in
North America after the 1970s.\319\ However, a lack of incidents may
result from the safeguards currently in place. DHS promulgated CFATS in
accordance with the Homeland Security Appropriations Act of 2007, owing
to insufficient security at industrial facilities. In promulgating
CFATS, DHS did not intend for information created under CAA 112(r) to
constitute ``Chemical-terrorism Vulnerability Information,'' which is
sensitive information pursuant to CFATS requirements (72 FR 17714). EPA
routinely coordinates with DHS as part of the Chemical Facility
Security and Safety Working Group and commits to working with DHS to
find regulatory solutions that balance community right-to-know with
security concerns.
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\317\ Valeria Casson Moreno et al., ``Analysis of Physical and
Cyber Security-Related Events in the Chemical and Process
Industry,'' Process Safety and Environmental Protection 116 (2018),
621-31, doi:10.1016/j.psep.2018.03.026.
\318\ Matteo Iaiani et al., ``Analysis of Events Involving the
Intentional Release of Hazardous Substances from Industrial
Facilities,'' Reliability Engineering & System Safety 212 (2021),
107593, doi:10.1016/j.ress.2021.107593.
\319\ This is not a complete dataset, because it was developed
based on publicly available information. Available in the
supplemental material of Matteo Iaiani et al., ``Analysis of Events
Involving the Intentional Release of Hazardous Substances from
Industrial Facilities,'' Reliability Engineering & System Safety 212
(2021), 107593, doi:10.1016/j.ress.2021.107593.
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Accidental releases occur much more often than intentional events
(about 100 per year using EPA RMP-reportable accidents). Pre-incident
information, such as the locations of facilities and potential
disasters, allows communities to be more prepared for disasters,\320\
which DOJ also recognized in its 2000 risk assessment.\321\ With over
20 years of data now, EPA has based many of the proposed provisions on
prior accident information.
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\320\ Holly Carter, John Drury, and Richard Aml[ocirc]t,
``Recommendations for Improving Public Engagement with Pre-incident
Information Materials for Initial Response to a Chemical,
Biological, Radiological or Nuclear (CBRN) Incident: A Systematic
Review,'' International Journal of Disaster Risk Reduction 51
(2020), 101796, doi:10.1016/j.ijdrr.2020.101796.
\321\ DOJ, Assessment of the Increased Risk of Terrorist or
Other Criminal Activity Associated with Posting Off-Site Consequence
Analysis Information on the internet (2000), https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-2003, EPA-HQ-OEM-
2015-0725-2003.
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EPA acknowledges that the Agency must consider whether some non-OCA
data elements, or combinations of elements, may not be suitable for
public release and should be restricted based on potential security
risks. EPA has been and will continue to work with DHS, DOJ, and other
Federal partners on identifying these risks. EPA is also involving the
public through seeking comment. EPA requests comments on which
elements, or combinations of elements, may pose a security risk if
released to the public. EPA also notes that, while several commenters
offered support in the 2019 reconsideration comment period for
rescinding information availability requirements on the part of the
facility, no commenters provided additional information to support
security concerns.\322\ For each element or combination of elements
identified, EPA requests: (1) Specific comments on why the element or
combination of elements presents a security risk and (2) documentation
or basis for these security claims, such as risk or intelligence
analysis, a prior incident, security threat, or near miss incident.
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\322\ EPA-HQ-OEM-2015-0725-1461; 1867, 1904, 1909.
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D. Other Areas of Technical Clarification
EPA has provided compliance assistance, conducted inspections, and
undertaken enforcement of the RMP program since 1996. During that time,
the Agency developed guidance documents, model RMPs, and answers to
frequently asked questions to help facilities implement the RMP rule.
Based on experience, EPA has identified various aspects of the RMP rule
that use different terminology for the same requirement, have outdated
definitions, or would be simpler for sources to implement with more
discussion in the text of the regulation. The intent of the proposed
changes to the regulatory text discussed in this section is to simplify
implementation for facilities as well as oversight, thereby improving
chemical safety. The proposed amendments do not change the meaning of
the RMP rule. These points are raised below.
1. Process Safety Information
RMP regulations require that facilities keep process safety
information up to date. For processes subject to Program 2
requirements, RMP regulatory text explicitly states in 40 CFR 68.48(a)
that ``[t]he owner or operator shall compile and maintain the following
up-to-date safety information related to the regulated substances,
processes, and equipment.'' This is also addressed in 40 CFR 68.48(c),
which states: ``The owner or operator shall update the safety
information if a major change occurs that makes the information
inaccurate.''
For processes subject to Program 3 requirements, the process safety
information requirements within 40 CFR 68.54 do not explicitly address
updating process safety information. Instead, that subject is addressed
in several other parts of the Program 3 requirements, including the
management of change requirements in 40 CFR 68.75, the pre-startup
review requirements in 40 CFR 68.77, and the requirement to document
that
[[Page 53604]]
equipment complies with RAGAGEP in 40 CFR 68.65(d)(2).
Management of change requirements only apply to processes subject
to Program 3 requirements, because there are no corresponding
requirements for Program 2 processes. The management of change
requirements address changes to process chemicals, technology,
equipment, and procedures, as well as changes to stationary sources
that affect covered processes. Pursuant to 40 CFR 68.75(d), process
safety information is required to be kept up to date ``If a change
covered by this paragraph results in a change in the process safety
information required by Sec. 68.65 of this part, such information
shall be updated accordingly.''
The pre-startup review requirements in 40 CFR 68.77(a) apply to new
stationary sources and modified stationary sources when the
modification is significant enough to require a change in process
safety information. Pursuant to 40 CFR 68.77(b), the pre-startup safety
review must confirm that construction and equipment meets design
specifications.
Therefore, in order to make the regulation more consistent
throughout, EPA is proposing to clarify that the requirement to keep
process safety information up to date also explicitly applies to
Program 3 processes. 40 CFR 68.65 states that ``[t]he owner or operator
shall complete a compilation of written process safety information
before conducting any process hazard analysis required by the rule.''
Refining the language of 40 CFR 68.65 to reflect existing requirements
would clarify that such process safety information is required to be up
to date for Program 3 processes--just as for Program 2 processes--
without the need for evaluating compliance with management of change,
conducting a pre-startup safety review, or meeting PHA requirements.
2. Program 2 and 3 Requirements for Compliance With RAGAGEP
The current RMP regulations outline two different, albeit similar,
ways to comply with RAGAGEP. First, the requirement for Program 2
processes at 68.48(b) states: ``The owner or operator shall ensure that
the process is designed in compliance with recognized and generally
accepted good engineering practices. Compliance with Federal or State
regulations that address industry-specific safe design or with
industry-specific design codes and standards may be used to demonstrate
compliance with this paragraph.'' Second, the requirement for Program 3
processes at 40 CFR 68.65(d)(2) states: ``The owner or operator shall
document that equipment complies with recognized and generally accepted
good engineering practices.''
EPA is therefore proposing to harmonize these two provisions so
that the requirements are identical. EPA has found that the distinction
between ``ensure'' for Program 2 processes and ``document'' for Program
3 processes creates confusion. Additionally, the language for Program 3
refers to ``equipment,'' while the language of Program 2 refers to the
``process.'' Requiring facilities to document compliance, rather than
merely ``ensure'' compliance, removes this ambiguity. EPA is also
proposing to remove the sentence ``Compliance with Federal or State
regulations that address industry-specific safe design or with
industry-specific design codes and standards may be used to demonstrate
compliance with this paragraph.'' In some cases, Federal or State
regulations lag behind current RAGAGEP and thus do not provide the same
level of protection. For example, OSHA recognized that OSHA's flammable
liquid standard at 49 CFR 1910.106 is not as up to date as NFPA or
International Fire Code standards for flammable liquids.\323\ EPA
therefore proposes to replace both provisions to indicate that the
owner or operator shall ensure and document that the process is
designed in compliance with RAGAGEP.
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\323\ https://www.osha.gov/laws-regs/standardinterpretations/2001-08-27.
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3. Retention of Hot Work Permits
The requirement to issue a hot work permit,\324\ including
documentation of necessary fire protection and prevention measures, is
currently in the RMP regulation only for Program 3 processes. Pursuant
to 40 CFR 68.85(b), ``The permit shall be kept on file until completion
of the hot work operations.''
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\324\ 40 CFR 68.3: ``Hot work means work involving electric or
gas welding, cutting, brazing, or similar flame or spark-producing
operations.''
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Under the existing RMP regulations, it can be difficult for
implementing agencies to determine if the facility has been conducting
hot work in compliance with the requirements of 40 CFR 68.85, unless
the facility is conducting hot work at the time of the inspection and
has hot work permits on file. Adding a requirement to retain hot work
permits after the completion of operations would address this issue.
Therefore, EPA is proposing to require retention of hot work
permits for 5 years, in accordance with the recordkeeping requirements
in 40 CFR 68.200.\325\ Implementing agencies would be able to determine
whether: (1) The owner or operator of the facility had any hot work
permits, and (2) the hot work permits are in compliance with the
documentation requirements of 40 CFR 68.85(b).\326\ EPA seeks comment
on this proposed hot work provision amendment.
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\325\ 40 CFR 68.200: ``The owner or operator shall maintain
records supporting the implementation of this part at the stationary
source for five years, unless otherwise provided in subpart D of
this part.''
\326\ 40 CFR 68.85(b): ``The permit shall document that the fire
prevention and protection requirements in 29 CFR 1910.252(a) have
been implemented prior to beginning the hot work operations; it
shall indicate the date(s) authorized for hot work; and identify the
object on which hot work is to be performed. The permit shall be
kept on file until completion of the hot work operations.''
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4. Storage Incident to Transportation
Currently, under 40 CFR 68.3, the term ``stationary source'' does
not apply to transportation activities, including storage incident to
transportation for any regulated substance or any other extremely
hazardous substance.\327\ A stationary source does include
transportation containers connected to loading/unloading equipment or
used for storage not incident to transportation, but the term ``storage
not incident to transportation'' is not defined in the RMP regulations.
Preamble language and responses to frequently asked questions posted on
the Agency's website clarify that a container is considered to be in
transportation as long as it is attached to the motive power (e.g.,
truck or locomotive) that delivered it to the site.328 329
If the tank car is detached
[[Page 53605]]
from the motive power, and therefore no longer in transportation, the
contents of the tank car must be considered in the threshold
determination.
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\327\ ``Stationary source'' is defined at 40 CFR 68.3 as
follows: ``Stationary source means any buildings, structures,
equipment, installations, or substance emitting stationary
activities which belong to the same industrial group, which are
located on one or more contiguous properties, which are under the
control of the same person (or persons under common control), and
from which an accidental release may occur. The term stationary
source does not apply to transportation, including storage incident
to transportation, of any regulated substance or any other extremely
hazardous substance under the provisions of this part. A stationary
source includes transportation containers used for storage not
incident to transportation and transportation containers connected
to equipment at a stationary source for loading or unloading.
Transportation includes, but is not limited to, transportation
subject to oversight or regulation under 49 CFR parts 192, 193, or
195, or a State natural gas or hazardous liquid program for which
the State has in effect a certification to DOT under 49 U.S.C.
60105. A stationary source does not include naturally occurring
hydrocarbon reservoirs. Properties shall not be considered
contiguous solely because of a railroad or pipeline right-of-way.''
\328\ EPA, List of Regulated Substances and Thresholds for
Accidental Release Prevention; Amendments, 40 CFR part 68 (January
6, 1998).
\329\ EPA, ``Are Chemicals in a Tank Car Exempt from Threshold
Determinations Under 40 CFR part 68?'' last modified September 1,
2021, https://www.epa.gov/rmp/are-chemicals-tank-car-exempt-threshold-determinations-under-40-cfr-part-68.
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EPA is proposing additional regulatory language that includes a
specified number of hours that a transportation container may be
disconnected from the motive power that delivered it to the site before
being considered part of the stationary source. EPA believes that this
provision would provide clarity for regulated parties and implementing
agencies on whether a transportation container used for onsite storage
must be incorporated into a facility's risk management plan. EPA is
proposing to apply a 48-hour time frame to this term based on the
Department of Transportation (DOT), Pipeline and Hazardous Materials
Safety Administration, Carriage by Rail regulations at 49 CFR
174.14(a), that indicate rail carriers must forward each shipment of
hazardous materials promptly within 48 hours after acceptance or
receipt. EPA seeks comment on this 48-hour time frame, suggestions for
other appropriate time frames, and any safety concerns that may arise
from transportation containers being exempt from the RMP regulations
when disconnected for less than 48 hours. The 48 hours would be the
total amount of time, such that a railyard could not move a rail car
around in the railyard using a mobile railcar mover to start the clock
again.
EPA is also proposing to modify the definition of stationary source
to further clarify ``storage incident to transportation'' in 40 CFR
68.3 by adding an explanation to the transportation container language
in the stationary source definition. The proposed regulatory text would
add examples of what a transportation container could be, such as a
truck or railcar, and that for RMP purposes, railyards and other
stationary sources actively engaged in transloading activities may
store regulated substances up to 48 hours total in a disconnected
transportation container without counting the regulated substances
contained in that transportation container toward the regulatory
threshold.
5. Retail Facility Exemption
The current definition of ``retail facility'' at 40 CFR 68.3 is ``a
stationary source at which more than one-half of the income is obtained
from direct sales to end users or at which more than one-half of the
fuel sold, by volume, is sold through a cylinder exchange program.''
The period of sales to end users is unclear; it lacks a definite
time frame in which to calculate whether more than one-half of the
facility's direct sales are to end users. Specifying a definite period
of time would eliminate this uncertainty and allow owners and operators
to determine more accurately whether regulated substances in a process
are subject to the RMP provisions. It also may reduce the amount of
sales documentation that the owner or operator of a regulated facility
must provide to establish its status as a retail facility.
EPA is therefore proposing to adjust the regulatory text to clarify
that the definition of ``retail facility'' is one in which more than
one-half of the ``annual'' income ``in the previous calendar year'' is
obtained from direct sales to end users or at which more than one-half
of the fuel sold over that period, by volume, is sold through a
cylinder exchange program. EPA is proposing one year of sales activity
because the Agency believes it captures the seasonality of propane
sales at propane distribution facilities. EPA seeks comment on the
proposed annual time frame for sales documentation.
6. RAGAGEP
EPA initially looks to the latest version of industry codes,
standards, and guidelines to determine whether an owner or operator has
documented compliance with RAGAGEP under 40 CFR 68.65(d)(2), given that
40 CFR part 68 does not define the phrase ``recognized and generally
accepted good engineering practices.'' EPA believes this application
makes sense, because the plain meaning of the phrase is that practices
should be ``recognized,'' ``good,'' and ``generally accepted'' and the
latest version of RAGAGEP contains industry's most up-to-date
assessment of practices that meet these criteria. Also, under the
structure of the CAA, stationary sources subject to 40 CFR part 68 are
also subject to the GDC in 42 U.S.C. 7412(r)(1).\330\ Neither the text
nor the legislative history of the GDC mentions locking obsolete
industry standards into place. EPA also believes there is no practical
reason to have a stricter standard for facilities that are subject to
the GDC, but not to 40 CFR part 68.\331\ Further, a facility subject to
the GDC may have RMP-regulated substances in amounts lower than the RMP
regulatory threshold.
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\330\ See 40 CFR 68.1.
\331\ For example, subjecting facilities with 5,000 lbs. of
anhydrous ammonia, which are subject only to the GDC, to higher
standards than a facility with 50,000 pounds, which would be subject
to 40 CFR part 68.
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To address these concerns, EPA is proposing that the RMP
regulations clarify that PHAs must include an analysis of the most
recently promulgated RAGAGEP in order to identify any gaps between
practices related to the facility's design, maintenance, and operation
and the most current version of RAGAGEP.
EPA is also proposing to require owners or operators to specify in
their risk management plans why PHA recommendations associated with
adopting practices from the most recent version of RAGAGEP are not
implemented. EPA is proposing to adopt three of the four rationales
identified in section IV.A.1.e of this preamble.\332\ EPA is not
proposing to adopt the rationale that ``[t]he recommendation is not
necessary to protect public receptors,'' because there are many safety
measures such as pipe labeling, training, and some standard operating
procedures that do not directly affect public receptors, but that can
have indirect or secondary effects on responders or public receptors.
By allowing owners or operators to screen out recommendations that do
not directly affect public receptors, the Agency is concerned that
facilities may discount important recommendations. For this provision,
the Agency is also proposing to modify the rationale that ``[a]n
alternative measure would provide a sufficient level of protection'' by
adding that the safety measures adopted in lieu of the ones recommended
by the PHA team must be recognized and generally accepted. This will
help ensure that facilities do not ignore updated RAGAGEP when making
decisions about which PHA recommendations to accept or reject. EPA
seeks comment on the proposed rationales for not adopting practices
from the most recent version of RAGAGEP.
---------------------------------------------------------------------------
\332\ The four rationales are: 1. The analysis upon which the
recommendation is based contains material factual errors. 2. The
recommendation is not necessary to protect to protect public
receptors. 3. An alternative measure would provide a sufficient
level of protection. 4. The recommendation is infeasible.
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E. Compliance Dates
The initial 1996 RMP rule was applied 3 years after promulgation of
the rule on June 20, 1996, which is consistent with the last sentence
of CAA section 112(r)(7)(B)(i). The statute does not directly address
when amendments should become applicable. The provisions of this
proposal modify terms of the existing rule, and, in some cases,
[[Page 53606]]
amplify or clarify existing requirements. Therefore, in modifications
to 40 CFR 68.10, EPA is proposing to:
Require regulated sources to comply with new STAA,
incident investigation root cause analysis, third-party compliance
audit, employee participation, emergency response public notification
and exercise evaluation reports, and information availability
provisions, unless otherwise stated, 3 years after the effective date
of the final rule (i.e., FR publication date).
Require regulated sources to comply with the revised
emergency response field exercise frequency provision by March 15,
2027, or within 10 years of the date of an emergency response field
exercise conducted between March 15, 2017, and August 31, 2022 in
accordance with 40 CFR 68.96(b)(1)(ii).
Allow regulated sources 1 additional year (i.e., 4 years
after the effective date of the final rule) to update and resubmit risk
management plans to reflect new and revised data elements.
For STAA, this means that by 3 years after the effective date of
the final rule, the owner or operator of a source with a regulated RMP
process involving HF alkylation, or a source with a process in NAICS
code 324 or 325, located within 1 mile of another NAICS code 324 or 325
RMP facility process, must have completed or updated their PHA to
include an STAA. Recognizing that some facilities may have performed
PHAs recently or may be due to perform PHAs shortly after EPA issues a
final rule, the Agency seeks comment on a second option for STAA
compliance, which would require any stationary source that must perform
STAA as part of its PHA to comply with the STAA requirement for PHAs
performed after 1 year from the date of the final rule.
For incident investigation root cause analysis, this means that the
owner or operator of a source that experiences any RMP-reportable
accident more than 3 years after the effective date of the rule must
conduct a root cause analysis for their incident investigation of the
accident.
For third-party compliance audits, this means that the owner or
operator of a source where a second RMP-reportable accident occurs
within 5 years--or of a source where one reportable accident in an RMP-
regulated process in NAICS code 324 or 325, located within 1 mile of
another source's RMP-regulated NAICS code 324 or 325 process, occurs
after 3 years of the effective date of the final rule--must obtain a
third-party audit for their next required compliance audit.
For employee participation, this means that by 3 years after the
effective date of the final rule, the owner or operator of a source
must have updated or developed--and begun implementing--an employee
participation plan that addresses employee consultation when resolving
PHA, compliance audit, and incident investigation recommendations and
decisions; stop work authorities; and RMP accident and non-compliance
reporting.
For emergency response, the proposed provisions means that by 3
years after the effective date of the final rule, the owner or operator
of a non-responding source must have onsite documentation of emergency
response public notification procedures. It also means that by 3 years
after the effective date of the final rule, owners or operators of non-
responding and responding sources must have the means to ensure that a
community notification system is in place to warn the public of
releases. It also means that for any RMP-reportable accident occurring
more than 3 years after the effective date of the final rule, sources
must provide appropriate and timely data and information to local
responders detailing their current understanding and best estimates of
the nature of the release. It also means that by 3 years after the
effective date of the rule, emergency exercise evaluation reports must
include documentation of specific exercise elements.
For information availability, this means that by 3 years after the
effective date of the final rule, the owner or operator must make the
required chemical hazard information available to the public upon
request and provide notification to the public that the information is
available.
EPA is proposing to provide this 3-year phase-in for several
reasons. First, the initial 1996 RMP rule required compliance per the
statute within 3 years. EPA believes the proposed provisions outlined
today are not as extensive as developing a full RMP program. While some
may argue that some sources already had an accident prevention program
in place due to the OSHA PSM standard, some facilities did not, yet the
rule still required development and compliance within 3 years.
Therefore, EPA does not believe compliance with these proposed
provisions should require a longer time frame than compliance with the
initial rule. Second, while EPA believes that for most sources,
activities associated with these proposed provisions may reasonably
require significant time to complete, the 3-year phase-in is as
expeditious as practicable considering the circumstances. For example,
the new incident investigation root cause analysis, employee
participation, emergency response, and information availability
requirements will involve training and program development activities.
For the third-party audit provisions, the extended compliance timeframe
will allow potential auditors enough time to meet the competency and
independence criteria necessary to serve as a third-party auditor. EPA
believes that in many cases, sources subject to the STAA provisions
will prefer to perform a full PHA update when implementing the STAA
requirements. Sources subject to STAA provisions are among the largest
and most complex sources regulated under 40 CFR part 68, and therefore,
PHAs and PHA updates at these sources typically require a significant
level of effort. Since PHA updates are normally done at 5-year
intervals, EPA believes it would be appropriate to allow most sources
to adopt these provisions in their normal PHA update cycle if they so
choose. For the emergency response provisions, evaluating and securing
resources for public notification systems and the associated training
with local responders will take time to be coordinated. Lastly, EPA
intends to publish guidance for certain provisions, such as STAA,
incident investigation root cause analysis, third-party audits,
employee participation, and emergency response. Once these materials
are complete, owners and operators will need time to familiarize
themselves with the new materials and incorporate them into their risk
management programs.
For field exercises, EPA is proposing to require the owners or
operators of sources to have planned, scheduled, and conducted their
first field exercise by March 15, 2027. For this provision, EPA is
proposing to revert to the original timeframe in the 2017 amendments
rule, based on the Agency's view that this change will allow local
authorities to set longer time periods to address the major concern
that the 2019 reconsideration rule identified with the practicability
of the 2017 date, which was the potential inability of local
authorities to voluntarily participate in the exercises when they had
multiple facilities in their jurisdiction.
EPA is also proposing to provide 1 additional year for owners or
operators to update risk management plans to reflect proposed new or
revised data elements in subpart G of the regulations. The additional
year will allow owners and operators an opportunity to begin to comply
with the new or revised regulatory provisions prior to certifying
[[Page 53607]]
compliance in the risk management plan. Additionally, the Agency will
need to make significant revisions to its online risk management plan
submission system, RMP*eSubmit, to accommodate the newly required and
revised data elements, and sources will not be able to update risk
management plans with new or revised data elements until the submission
system is ready. Also, once it is ready, allowing an additional year
for sources to update risk management plans will prevent potential
problems with thousands of sources submitting updated risk management
plans on the same day.
V. Additional Considerations
EPA acknowledges the need for reviewing the list of RMP-regulated
substances. Section 112(r)(3) requires periodic review of the RMP
regulated substance list. A priority chemical for EPA's upcoming review
will be ammonium nitrate. EPA also acknowledges the need for
considering expanding fenceline monitoring for RMP-regulated
facilities. While EPA is considering both of these issues for a future
action, they are beyond the scope of this NPRM. EPA welcomes comment on
these issues which are further discussed in the Technical Background
Document.\333\
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\333\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------
VI. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket. The EPA prepared a Regulatory Impact Analysis
(RIA) of the potential costs and benefits associated with this action.
This RIA is available in the docket (Docket ID Number EPA-HQ-OLEM-2022-
0174). Chapters 4-6 of the RIA developed for this proposed action
provide additional details on costs and benefits.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule will be
submitted for approval to the OMB under the PRA. The Information
Collection Request (ICR) document that the EPA prepared has been
assigned EPA ICR number 2725.01. A copy of the ICR is available in the
docket for this rule, and it is briefly summarized here.
This new ICR adds new information collection activities related to
a previously approved ICR (1656.18), OMB Control No. 2050-0144. That
ICR covers the Risk Management Program rule, originally promulgated on
June 20, 1996; and the current rule, including previous amendments,
codified as 40 CFR part 68. This ICR addresses the proposed information
requirements that are part of the proposed revision to the rule.
EPA believes that the Risk Management Program regulations have been
effective in preventing and mitigating chemical accidents in the United
States. However, EPA believes that revisions could further protect
human health and the environment from chemical hazards through
advancement of process safety management based on lessons learned.
These revisions are a result of review of the existing Risk Management
Program and information gathered from the 2021 listening sessions.
State and local authorities will use the information in RMPs to modify
and enhance their community response plans. The agencies implementing
the RMP rule will use RMPs to evaluate compliance with part 68 and to
identify sources for inspection because they may pose significant risks
to the community. Citizens may use the information to assess and
address chemical hazards in their communities and to respond
appropriately in the event of a release of a regulated substance. These
revisions are a result of a review of the existing Risk Management
Program and are proposed under the statutory authority provided by
section 112(r) of the CAA as amended (42 U.S.C. 7412(r)).
Respondents/affected entities: The industries that are likely to be
affected by the requirements in the proposed regulation fall into
numerous NAICS codes. The types of stationary sources affected by the
proposed rule range from petroleum refineries and large chemical
manufacturers to water and wastewater treatment systems; chemical and
petroleum wholesalers and terminals; food manufacturers, packing
plants, and other cold storage facilities with ammonia refrigeration
systems; agricultural chemical distributors; midstream gas plants; and
a limited number of other sources that use RMP-regulated substances.
Among the stationary sources potentially affected, the Agency has
determined that 2,911 are regulated private sector small entities and
630 are small government entities.
Respondent's obligation to respond: Mandatory ((CAA sections
112(r)(7)(B)(i) and (ii), CAA section 112(r)(7)(B)(iii), 114(c), CAA
114(a)(1))).
Estimated number of respondents: 14,226.
Frequency of response: On occasion.
Total estimated burden: 797,642 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $79,248,522 (per year); includes $2,817,907
annual operations and maintenance costs and $78,400 annual capital
costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden to the EPA using the docket identified
at the beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. OMB must receive
comments no later than October 31, 2022.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities subject to the requirements of this action include small
businesses and small governmental entities. The Agency has determined
that among the 2,911 potentially regulated private sector small
entities so impacted, 2,822, or 96.9 percent, may experience an impact
of less than one percent with an average small entity cost of $10,618;
and 84, or 2.9 percent, may experience an impact of between one and
three percent of revenues with an average small cost entity of
$108,921. The industry sectors of Farm Product Warehousing and Storage,
and All Other
[[Page 53608]]
Miscellaneous Chemical Product and Preparations Manufacturing had the
most entities potentially affected between one and three percent of
revenues, with 5 and 6 entities, respectively. For detailed costs by
provision and NAICS code see Chapter 8 of the RIA.
Among the 630 small government entities potentially affected, 488,
or 77 percent would incur costs of less than $1,000; 109, or 17 percent
costs ranging from $1,000 to $2,000; 18, or 3 percent costs ranging
from $2,000 to $3,000; and only one would incur costs greater than
$10,000, and EPA estimated that for the rule to have a larger than one
percent impact on this entity, it would need to have revenue of less
than $103 per resident.
EPA solicits comment on the number of small entities affected and
the estimated cost impacts on small entities. Details of these analyses
are presented in Chapter 8 of the proposed rule RIA, available in the
docket.
D. Unfunded Mandates Reform Act (UMRA)
This action does not include any Federal mandate that may result in
the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
for inflation) in any one year and does not significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1531-1538).
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has Tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
Tribal governments, nor preempt Tribal law. There are approximately 260
RMP facilities located on Tribal lands. Tribes could be impacted by the
final rule either as an owner or operator of an RMP-regulated facility
or as a Tribal government when the Tribal government conducts emergency
response or emergency preparedness activities under EPCRA.
EPA consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes on previous RMP
rulemakings. EPA will consult again with Tribal officials as it
develops this regulation to permit them to have meaningful and timely
input into its development. Consultation will include conference calls,
webinars, and meetings with interested Tribal representatives to ensure
that their concerns are addressed before the rule is finalized. In the
spirit of E.O. 13175 and consistent with EPA policy to promote
communications between EPA and Tribal governments, EPA specifically
solicits comment on this proposed rule from Tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to E.O. 13045 because EPA does not
believe the environmental health risks or safety risks addressed by
this action present a disproportionate risk to children. This action's
health and risk assessments are contained in the Chapter 9 of the RIA
for this rule, available in the docket.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action is not anticipated to have
notable impacts on emissions, costs or energy supply decisions for the
affected electric utility industry.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in E.O. 12898 (59 FR 7629, February 16, 1994). To the extent
that populations living closer to facilities are more likely to be
exposed if an accidental release at an RMP facility occurs, these
releases pose a greater risk to these key demographic groups.
Therefore, the benefits of this regulation would reduce risk for
historically underserved and overburdened populations.
E.O. 12898 directs Federal agencies, to the greatest extent
practicable and permitted by law, to make EJ part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States. The consideration of EJ into EPA
rulemaking is guided by two EPA documents: (1) ``Technical Guidance for
Assessing Environmental Justice in Regulatory Analysis'' \334\ and (2)
``Guidance on Considering Environmental Justice During the Development
of Regulatory Action.'' \335\ The first of these documents \336\
establishes the expectation that analysts conduct the highest quality
EJ analysis feasible in support of rulemakings, recognizing that what
is possible will be context specific. One method recommended by the
guidance documents includes screening for potential EJ concerns by
identifying the proximity of regulated sources to historically
underserved and overburdened communities. E.O. 12898 places a
responsibility on Federal agencies for ``identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations in the United States.''
---------------------------------------------------------------------------
\334\ EPA. (2016). Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
\335\ EPA. (2018). Guidance on Considering Environmental Justice
During the Development of Regulatory Actions. https://www.epa.gov/sites/default/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf.
\336\ EPA. (2016). Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis. https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
---------------------------------------------------------------------------
EPA conducted an EJ analysis using the Agency's EJ screening tool,
EJSCREEN.\337\ The EJ analysis shows that historically underserved and
overburdened populations live within proximity to those facilities (and
thus at greater risk) than other populations. The analysis also found
evidence that included facilities are disproportionately located within
historically underserved and overburdened communities. Thus, EPA
recognizes that accidental releases of regulated chemicals from
facilities regulated by this action would likely pose disproportionate
risks to historically marginalized communities. However, EPA has
concluded that the regulatory requirements will advance
[[Page 53609]]
fair treatment of those populations by reducing the disproportionate
damages from accidental releases from RMP-regulated facilities might
otherwise inflict on those populations. EPA's full EJ analysis is
documented in the RIA, which is available in the docket for this
action.
---------------------------------------------------------------------------
\337\ https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------
List of Subjects in 40 CFR Part 68
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, Title 40, chapter I, part
68, of the Code of Federal Regulations is proposed to be amended as
follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
0
1. The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
0
2. Amend Sec. 68.3 by
0
a. Adding in alphabetical order definitions for ``Active measures,''
``Inherently safer technology or design'', ``Natural hazard'',
``Passive measures'', ``Practicability'', and ``Procedural measures'';
0
b. Revising the definition of ``Retail facility'';
0
c. Adding in alphabetical order a definition for ``Root cause'';
0
d. Revising the definition of ``Stationary source''; and
0
e. Adding in alphabetical order a definition for ``Third-party audit''.
The additions and revisions read as follows:
Sec. 68.3 Definitions.
* * * * *
Active measures mean risk management measures or engineering
controls that rely on mechanical, or other energy input to detect and
respond to process deviations. Examples of active measures include
alarms, safety instrumented systems, and detection hardware (such as
hydrocarbon sensors).
* * * * *
Inherently safer technology or design means risk management
measures that minimize the use of regulated substances, substitute less
hazardous substances, moderate the use of regulated substances, or
simplify covered processes in order to make accidental releases less
likely, or the impacts of such releases less severe.
* * * * *
Natural hazard means naturally occurring events that have the
potential for negative impact including meteorological or geologic
hazards. Meteorological hazards include those that naturally occur due
to the weather cycle or climatic cycles, and include flooding,
temperature extremes, snow/ice storms, wildfire, tornado, tropical
cyclones, hurricanes, storm surge, wind, lightening, hailstorms,
drought, etc. Geologic hazards are those occurring due to the movement
of the earth and the internal earth forces, and include seismic events,
earthquakes, landslides, tsunami, volcanic eruptions, and dam rupture.
* * * * *
Passive measures mean risk management measures that use design
features that reduce either the frequency or consequence of the hazard
without human, mechanical, or other energy input. Examples of passive
measures include pressure vessel designs, dikes, berms, and blast
walls.
* * * * *
Practicability means the capability of being successfully
accomplished within a reasonable time, accounting for environmental,
legal, social, technological and economic factors. Environmental
factors would include consideration of potential transferred risks for
new risk reduction measures.
Procedural measures mean risk management measures such as policies,
operating procedures, training, administrative controls, and emergency
response actions to prevent or minimize incidents.
* * * * *
Retail facility means a stationary source at which more than one-
half of the annual income (in the previous calendar year) is obtained
from direct sales to end users or at which more than one-half of the
fuel sold, by volume, is sold through a cylinder exchange program.
* * * * *
Root cause means a fundamental, underlying, system-related reason
why an incident occurred.
* * * * *
Stationary source means any buildings, structures, equipment,
installations, or substance-emitting stationary activities which belong
to the same industrial group, which are located on one or more
contiguous properties, which are under the control of the same person
(or persons under common control), and from which an accidental release
may occur. The term stationary source does not apply to transportation,
including storage incident to transportation, of any regulated
substance or any other extremely hazardous substance under the
provisions of this part. A stationary source includes transportation
containers used for storage not incident to transportation and
transportation containers connected to equipment at a stationary source
for loading or unloading. A transportation container is in storage
incident to transportation as long as it is attached to the motive
power that delivered it to the site (e.g., a truck or locomotive);
however, railyards and other stationary sources actively engaged in
transloading activities may store regulated substances up to 48 hours
total in a disconnected transportation container without counting the
regulated substances contained in that transportation container toward
the regulatory threshold. Transportation includes, but is not limited
to, transportation subject to oversight or regulation under 49 CFR part
192, 193, or 195, or a State natural gas or hazardous liquid program
for which the State has in effect a certification to DOT under 49
U.S.C. 60105. A stationary source does not include naturally occurring
hydrocarbon reservoirs. Properties shall not be considered contiguous
solely because of a railroad or pipeline right-of-way.
Third-party audit means a compliance audit conducted pursuant to
the requirements of Sec. 68.59 and/or Sec. 68.80, performed or led by
an entity (individual or firm) meeting the competency and independence
requirements described in Sec. 68.59(c) or Sec. 68.80(c).
* * * * *
0
3. Amend Sec. 68.10 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (g) through (k) as paragraphs (j) through
(n); and
0
c. Adding new paragraphs (g) through (i).
The revisions and additions read as follows:
Sec. 68.10 Applicability.
(a) Except as provided in paragraphs (b) through (i) of this
section, an owner or operator of a stationary source that has more than
a threshold quantity of a regulated substance in a process, as
determined under Sec. 68.115, shall comply with the requirements of
this part no later than the latest of the following dates:
(1) June 21, 1999;
[[Page 53610]]
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130;
(3) The date on which a regulated substance is first present above
a threshold quantity in a process; or
(4) For any revisions to this part, the effective date of the final
rule.
* * * * *
(g) By [DATE 3 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner
or operator shall comply with the following provisions promulgated on
[EFFECTIVE DATE OF FINAL RULE]:
(1) Third-party audit provisions in Sec. Sec. 68.58(f) through
(h), 68.59, 68.79(f) through (h), and 68.80;
(2) Incident investigation root cause analysis provisions in
Sec. Sec. 68.60(d)(7) and 68.81(d)(7);
(3) Safer technology and alternatives analysis provisions in Sec.
68.67(c)(8);
(4) Employee participation provisions in Sec. Sec. 68.62(d)(7) and
68.82(d)(7);
(5) Emergency response provisions in Sec. Sec. 68.90(b) and
68.95(a).
(6) Availability of information provisions in Sec. 68.210(d)
through (f).
(h) By March 15, 2027, or within 10 years of the date of an
emergency response field exercise conducted between March 15, 2017, and
August 31, 2022 in accordance with Sec. 68.96(b)(1)(ii).
(i) By [DATE 4 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the owner
or operator shall comply with the risk management plan provisions of
subpart G of this part promulgated on [EFFECTIVE DATE OF FINAL RULUE].
Subpart C--Program 2 Prevention Program
0
4. Amend Sec. 68.48 by revising paragraph (b) to read as follows:
Sec. 68.48 Safety information.
* * * * *
(b) The owner or operator shall ensure and document that the
process is designed in compliance with recognized and generally
accepted good engineering practices.
* * * * *
0
5. Amend Sec. 68.50 by revising paragraph (a)(3) and adding paragraphs
(a)(5) and (6) to read as follows:
Sec. 68.50 Hazard review.
(a) * * *
(3) The safeguards used or needed to control the hazards or prevent
equipment malfunction or human error including standby or emergency
power systems;
* * * * *
(5) External events such as natural hazards, including those caused
by climate change or other triggering events that could lead to an
accidental release; and
(6) Stationary source siting, including the placement of processes,
equipment, buildings within the facility, and hazards posed by
proximate facilities, and accidental release consequences posed by
proximity to the public and public receptors.
* * * * *
0
6. Amend Sec. 68.58 by revising paragraph (a) and adding paragraphs
(f) through (h) to read as follows:
Sec. 68.58 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart for each covered
process, at least every three years to verify that the procedures and
practices developed under this subpart are adequate and are being
followed. When required as set forth in paragraph (f) of this section,
the compliance audit shall be a third-party audit.
* * * * *
(f) Third-party audit applicability. The next required compliance
audit shall be a third-party audit when one of the following conditions
applies:
(1) Two accidental releases within five years meeting the criteria
in Sec. 68.42(a) from a covered process at a stationary source have
occurred; or
(2) One accidental release within five years meeting the criteria
in Sec. 68.42(a) from a covered process at a stationary source in
NAICS code 324 or 325, located within 1 mile of another stationary
source having a process in NAICS code 324 or 325, has occurred; or
(3) An implementing agency requires a third-party audit due to
conditions at the stationary source that could lead to an accidental
release of a regulated substance, or when a previous third-party audit
failed to meet the competency or independence criteria of Sec.
68.59(c).
(g) Implementing agency notification and appeals. (1) If an
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(3) of this section,
the implementing agency will provide written notice to the owner or
operator that describes the basis for this determination.
(2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
(3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec. 68.59,
pursuant to the schedule in paragraph (h) of this section.
(4) Appeals. The owner or operator may appeal a final determination
made by an implementing agency under paragraph (g)(3) of this section
within 30 days of receipt of the final determination. The appeal shall
be made to the EPA Regional Administrator or, for determinations made
by other implementing agencies, the administrator or director of such
implementing agency. The appeal shall contain a clear and concise
statement of the issues, facts in the case, and any relevant additional
information. In reviewing the appeal, the implementing agency may
request additional information from the owner or operator. The
implementing agency will provide a written, final decision on the
appeal to the owner or operator.
(h) Schedule for conducting a third-party audit. The audit and
audit report shall be completed as follows, unless a different
timeframe is specified by the implementing agency:
(1) For third-party audits required pursuant to paragraph (f)(1) of
this section, within 12 months of the second of two releases within
five years; or
(2) For third-party audits required pursuant to paragraph (f)(2) of
this section, within 12 months of the release; or
(3) For third-party audits required pursuant to paragraph (f)(3) of
this section, within 12 months of the date of the final determination
pursuant to paragraph (g)(3) of this section. However, if the final
determination is appealed pursuant to paragraph (g)(4) of this section,
within 12 months of the date of the final decision on the appeal.
0
7. Section 68.59 is added to read as follows:
Sec. 68.59 Third-party audits.
(a) Applicability. The owner or operator shall engage a third party
to conduct an audit that evaluates compliance with the provisions of
this subpart in accordance with the requirements of this section when
any criterion of Sec. 68.58(f) is met.
(b) Third-party auditors and auditing teams. The owner or operator
shall either:
(1) Engage a third-party auditor meeting all of the competency and
independence criteria in paragraph (c) of this section; or
[[Page 53611]]
(2) Assemble an auditing team, led by a third-party auditor meeting
all of the competency and independence criteria in paragraph (c) of
this section. The team may include:
(i) Other employees of the third-party auditor firm meeting the
independence criteria of paragraph (c)(2) of this section; and
(ii) Other personnel not employed by the third-party auditor firm,
including facility personnel.
(c) Third-party auditor qualifications. The owner or operator shall
determine and document that the third-party auditor(s) meet the
following competency and independence requirements:
(1) Competency requirements. The third-party auditor(s) shall be:
(i) Knowledgeable with the requirements of this part;
(ii) Experienced with the stationary source type and processes
being audited and applicable recognized and generally accepted good
engineering practices; and
(iii) Trained and/or certified in proper auditing techniques.
(2) Independence requirements. The third-party auditor(s) shall:
(i) Act impartially when performing all activities under this
section;
(ii) Receive no financial benefit from the outcome of the audit,
apart from payment for auditing services. For purposes of this
paragraph, retired employees who otherwise satisfy the third-party
auditor independence criteria in this section may qualify as
independent if their sole continuing financial attachments to the owner
or operator are employer-financed or managed retirement and/or health
plans;
(iii) Ensure that all third-party personnel involved in the audit
sign and date a conflict of interest statement documenting that they
meet the independence criteria of this paragraph (c)(2); and
(iv) Ensure that all third-party personnel involved in the audit do
not accept future employment with the owner or operator of the
stationary source for a period of at least two years following
submission of the final audit report. For purposes of this requirement,
employment does not include performing or participating in third-party
audits pursuant to Sec. 68.59 or Sec. 68.80.
(3) The auditor shall have written policies and procedures to
ensure that all personnel comply with the competency and independence
requirements of this section.
(d) Third-party auditor responsibilities. The owner or operator
shall ensure that the third-party auditor:
(1) Manages the audit and participates in audit initiation, design,
implementation, and reporting;
(2) Determines appropriate roles and responsibilities for the audit
team members based on the qualifications of each team member;
(3) Prepares the audit report and where there is a team, documents
the full audit team's views in the final audit report;
(4) Certifies the final audit report and its contents as meeting
the requirements of this section; and
(5) Provides a copy of the audit report to the owner or operator.
(e) Audit report. The audit report shall:
(1) Identify all persons participating on the audit team, including
names, titles, employers and/or affiliations, and summaries of
qualifications. For third-party auditors, include information
demonstrating that the competency requirements in paragraph (c)(1) of
this section are met;
(2) Describe or incorporate by reference the policies and
procedures required under paragraph (c)(3) of this section;
(3) Document the auditor's evaluation, for each covered process, of
the owner or operator's compliance with the provisions of this subpart
to determine whether the procedures and practices developed by the
owner or operator under this rule are adequate and being followed;
(4) Document the findings of the audit, including any identified
compliance or performance deficiencies;
(5) Summarize any significant revisions (if any) between draft and
final versions of the report; and
(6) Include the following certification, signed and dated by the
third-party auditor or third-party audit team member leading the audit:
``I certify that this RMP compliance audit report was prepared
under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and
evaluate the information upon which the audit is based. I further
certify that the audit was conducted and this report was prepared
pursuant to the requirements of subpart C of 40 CFR part 68 and all
other applicable auditing, competency, independence, impartiality,
and conflict of interest standards and protocols. Based on my
personal knowledge and experience, and inquiry of personnel involved
in the audit, the information submitted herein is true, accurate,
and complete.''
(f) Third-party audit findings--(1) Findings response report. As
soon as possible, but no later than 90 days after receiving the final
audit report, the owner or operator shall determine an appropriate
response to each of the findings in the audit report, and develop a
findings response report that includes:
(i) A copy of the final audit report;
(ii) An appropriate response to each of the audit report findings;
(iii) A schedule for promptly addressing deficiencies; and
(iv) A certification, signed and dated by a senior corporate
officer, or an official in an equivalent position, of the owner or
operator of the stationary source, stating:
``I certify under penalty of law that I have engaged a third
party to perform or lead an audit team to conduct a third-party
audit in accordance with the requirements of 40 CFR 68.59 and that
the attached RMP compliance audit report was received, reviewed, and
responded to under my direction or supervision by qualified
personnel. I further certify that appropriate responses to the
findings have been identified and deficiencies were corrected, or
are being corrected, consistent with the requirements of subpart C
of 40 CFR part 68, as documented herein. Based on my personal
knowledge and experience, or inquiry of personnel involved in
evaluating the report findings and determining appropriate responses
to the findings, the information submitted herein is true, accurate,
and complete. I am aware that there are significant penalties for
making false material statements, representations, or
certifications, including the possibility of fines and imprisonment
for knowing violations.''
(2) Schedule implementation. The owner or operator shall implement
the schedule to address deficiencies identified in the audit findings
response report in paragraph (f)(1)(iii) of this section and document
the action taken to address each deficiency, along with the date
completed.
(3) Submission to Board of Directors. The owner or operator shall
immediately provide a copy of each document required under paragraphs
(f)(1) and (2) of this section, when completed, to the owner or
operator's audit committee of the Board of Directors, or other
comparable committee or individual, if applicable.
(g) Recordkeeping. The owner or operator shall retain at the
stationary source, the two most recent final third-party audit reports,
related findings response reports, documentation of actions taken to
address deficiencies, and related records. This requirement does not
apply to any document that is more than five years old.
0
8. Amend Sec. 68.60 by adding paragraph (h) to read as follows:
Sec. 68.60 Incident investigation.
* * * * *
[[Page 53612]]
(h) The owner or operator shall ensure the following are addressed
when the incident in Sec. 68.60(a) meets the accident history
reporting requirements under Sec. 68.42:
(1) The report shall be completed within 12 months of the incident,
unless the implementing agency approves, in writing, to an extension of
time.
(2) The report in paragraph (d) of this section shall include
factors that contributed to the incident including the initiating
event, direct and indirect contributing factors, and root causes. Root
causes shall be determined by conducting an analysis for each incident
using a recognized method.
0
9. Section 68.62 is added to subpart C to read as follows:
Sec. 68.62 Employee participation.
(a) The owner or operator shall develop a written plan of action
regarding the implementation of the employee participation required by
this section.
(b) The owner or operator shall develop and implement a process to
allow employees and their representatives to anonymously report
unaddressed hazards that could lead to a catastrophic release,
unreported RMP-reportable accidents, or any other noncompliance with
this part.
(c) The owner or operator shall provide to employees and their
representatives access to hazard reviews and to all other information
required to be developed under this rule.
Subpart D--Program 3 Prevention Program
0
10. Amend Sec. 68.65 by revising paragraphs (a) and (d)(2) to read as
follows:
Sec. 68.65 Process safety information.
(a) The owner or operator shall complete a compilation of written
process safety information before conducting any process hazard
analysis required by the rule and shall keep process safety information
up to date. The compilation of written process safety information is to
enable the owner or operator and the employees involved in operating
the process to identify and understand the hazards posed by those
processes involving regulated substances. This process safety
information shall include information pertaining to the hazards of the
regulated substances used or produced by the process, information
pertaining to the technology of the process, and information pertaining
to the equipment in the process.
* * * * *
(d) * * *
(2) The owner or operator shall ensure and document that the
process is designed and maintained in compliance with recognized and
generally accepted good engineering practices.
* * * * *
0
11. Amend Sec. 68.67 by revising paragraphs (c)(3) and (5) and adding
paragraph (c)(8) through (10) to read as follows:
Sec. 68.67 Process hazard analysis.
* * * * *
(c) * * *
(3) Engineering and administrative controls applicable to the
hazards and their interrelationships such as appropriate application of
detection methodologies to provide early warning of releases and
standby or emergency power systems.
* * * * *
(5) Stationary source siting, including the placement of processes,
equipment, and buildings within the facility, hazards posed by
proximate facilities, and potential accidental release consequences to
nearby public and environmental receptors;
* * * * *
(8) External events such as natural hazards, including those caused
by climate change or other triggering events that could lead to an
accidental release;
(9) For processes in NAICS codes 324 and 325, located within 1 mile
of another stationary source having a process in NAICS codes 324 or 325
and for processes in NAICS 324 with hydrofluoric acid alkylation
processes, safer technology and alternative risk management measures
applicable to eliminating or reducing risk from process hazards.
(i) The owner or operator shall consider and document, in the
following order of preference inherently safer technology or design,
passive measures, active measures, and procedural measures. A
combination of risk management measures may be used to achieve the
desired risk reduction.
(ii) The owner or operator shall determine and document the
practicability of the inherently safer technologies and designs
considered. The owner or operator shall include in documentation any
methods used to determine practicability. For any inherently safer
technologies and designs implemented, the owner or operator shall
document and submit to EPA a description of the technology implemented.
(iii) The analysis shall be performed by a team that includes
members with expertise in the process being evaluated, including at
least one member who works in the process. The team members shall be
documented.
(10) Any gaps in safety between the codes, standards, or practices
to which the process was designed and constructed and the most current
version of applicable codes, standards, or practices.
* * * * *
0
12. Amend Sec. 68.79 by revising paragraph (a) and adding paragraphs
(f) through (h) to read as follows:
Sec. 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart for each covered
process, at least every three years to verify that the procedures and
practices developed under the subpart are adequate and are being
followed. When required as set forth in paragraph (f) of this section,
the compliance audit shall be a third-party audit.
* * * * *
(f) Third-party audit applicability. The next required compliance
audit shall be a third-party audit when one or more of the following
conditions applies:
(1) Two accidental releases within five years meeting the criteria
in Sec. 68.42(a) from a covered process at a stationary source has
occurred; or
(2) One accidental release within five years meeting the criteria
in Sec. 68.42(a) from a covered process at a stationary source in
NAICS code 324 or 325, located within 1 mile of another stationary
source having a process in NAICS code 324 or 325; or
(3) An implementing agency requires a third-party audit due to
conditions at the stationary source that could lead to an accidental
release of a regulated substance, or when a previous third-party audit
failed to meet the competency or independence criteria of Sec.
68.80(c).
(g) Implementing agency notification and appeals. (1) If an
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(3) of this section,
the implementing agency will provide written notice to the owner or
operator that describes the basis for this determination.
(2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
[[Page 53613]]
(3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec. 68.80,
pursuant to the schedule in paragraph (h) of this section.
(4) Appeals. The owner or operator may appeal a final determination
made by an implementing agency under paragraph (g)(3) of this section
within 30 days of receipt of the final determination. The appeal shall
be made to the EPA Regional Administrator or, for determinations made
by other implementing agencies, the administrator or director of such
implementing agency. The appeal shall contain a clear and concise
statement of the issues, facts in the case, and any relevant additional
information. In reviewing the appeal, the implementing agency may
request additional information from the owner or operator. The
implementing agency will provide a written, final decision on the
appeal to the owner or operator.
(h) Schedule for conducting a third-party audit. The audit and
audit report shall be completed as follows, unless a different
timeframe is specified by the implementing agency:
(1) For third-party audits required pursuant to paragraph (f)(1) of
this section, within 12 months of the second of two releases within
five years; or
(2) For third-party audits required pursuant to paragraph (f)(2) of
this section, within 12 months of the release; or
(3) For third-party audits required pursuant to paragraph (f)(3) of
this section, within 12 months of the date of the final determination
pursuant to paragraph (g)(3) of this section. However, if the final
determination is appealed pursuant to paragraph (g)(4) of this section,
within 12 months of the date of the final decision on the appeal.
0
13. Section 68.80 is added to read as follows:
Sec. 68.80 Third-party audits.
(a) Applicability. The owner or operator shall engage a third party
to conduct an audit that evaluates compliance with the provisions of
this subpart in accordance with the requirements of this section when
any criterion of Sec. 68.79(f) is met.
(b) Third-party auditors and auditing teams. The owner or operator
shall either:
(1) Engage a third-party auditor meeting all of the competency and
independence criteria in paragraph (c) of this section; or
(2) Assemble an auditing team, led by a third-party auditor meeting
all of the competency and independence criteria in paragraph (c) of
this section. The team may include:
(i) Other employees of the third-party auditor firm meeting the
independence criteria of paragraph (c)(2) of this section; and
(ii) Other personnel not employed by the third-party auditor firm,
including facility personnel.
(c) Third-party auditor qualifications. The owner or operator shall
determine and document that the third-party auditor(s) meet the
following competency and independence requirements:
(1) Competency requirements. The third-party auditor(s) shall be:
(i) Knowledgeable with the requirements of this part;
(ii) Experienced with the stationary source type and processes
being audited and applicable recognized and generally accepted good
engineering practices; and
(iii) Trained and/or certified in proper auditing techniques.
(2) Independence requirements. The third-party auditor(s) shall:
(i) Act impartially when performing all activities under this
section;
(ii) Receive no financial benefit from the outcome of the audit,
apart from payment for auditing services. For purposes of this
paragraph, retired employees who otherwise satisfy the third-party
auditor independence criteria in this section may qualify as
independent if their sole continuing financial attachments to the owner
or operator are employer-financed or managed retirement and/or health
plans;
(iii) Ensure that all third-party personnel involved in the audit
sign and date a conflict of interest statement documenting that they
meet the independence criteria of this paragraph (c)(2); and
(iv) Ensure that all third-party personnel involved in the audit do
not accept future employment with the owner or operator of the
stationary source for a period of at least two years following
submission of the final audit report. For purposes of this requirement,
employment does not include performing or participating in third-party
audits pursuant to Sec. 68.59 or this section.
(3) The auditor shall have written policies and procedures to
ensure that all personnel comply with the competency and independence
requirements of this section.
(d) Third-party auditor responsibilities. The owner or operator
shall ensure that the third-party auditor:
(1) Manages the audit and participates in audit initiation, design,
implementation, and reporting;
(2) Determines appropriate roles and responsibilities for the audit
team members based on the qualifications of each team member;
(3) Prepares the audit report and where there is a team, documents
the full audit team's views in the final audit report;
(4) Certifies the final audit report and its contents as meeting
the requirements of this section; and
(5) Provides a copy of the audit report to the owner or operator.
(e) Audit report. The audit report shall:
(1) Identify all persons participating on the audit team, including
names, titles, employers and/or affiliations, and summaries of
qualifications. For third-party auditors, include information
demonstrating that the competency requirements in paragraph (c)(1) of
this section are met;
(2) Describe or incorporate by reference the policies and
procedures required under paragraph (c)(3) of this section;
(3) Document the auditor's evaluation, for each covered process, of
the owner or operator's compliance with the provisions of this subpart
to determine whether the procedures and practices developed by the
owner or operator under this rule are adequate and being followed;
(4) Document the findings of the audit, including any identified
compliance or performance deficiencies;
(5) Summarize any significant revisions (if any) between draft and
final versions of the report; and
(6) Include the following certification, signed and dated by the
third-party auditor or third-party audit team member leading the audit:
``I certify that this RMP compliance audit report was prepared
under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and
evaluate the information upon which the audit is based. I further
certify that the audit was conducted and this report was prepared
pursuant to the requirements of subpart D of 40 CFR part 68 and all
other applicable auditing, competency, independence, impartiality,
and conflict of interest standards and protocols. Based on my
personal knowledge and experience, and inquiry of personnel involved
in the audit, the information submitted herein is true, accurate,
and complete.''
(f) Third-party audit findings--(1) Findings response report. As
soon as possible, but no later than 90 days after receiving the final
audit report, the owner or operator shall determine an
[[Page 53614]]
appropriate response to each of the findings in the audit report, and
develop a findings response report that includes:
(i) A copy of the final audit report;
(ii) An appropriate response to each of the audit report findings;
(iii) A schedule for promptly addressing deficiencies; and
(iv) A certification, signed and dated by a senior corporate
officer, or an official in an equivalent position, of the owner or
operator of the stationary source, stating:
``I certify under penalty of law that I have engaged a third
party to perform or lead an audit team to conduct a third-party
audit in accordance with the requirements of 40 CFR 68.80 and that
the attached RMP compliance audit report was received, reviewed, and
responded to under my direction or supervision by qualified
personnel. I further certify that appropriate responses to the
findings have been identified and deficiencies were corrected, or
are being corrected, consistent with the requirements of subpart D
of 40 CFR part 68, as documented herein. Based on my personal
knowledge and experience, or inquiry of personnel involved in
evaluating the report findings and determining appropriate responses
to the findings, the information submitted herein is true, accurate,
and complete. I am aware that there are significant penalties for
making false material statements, representations, or
certifications, including the possibility of fines and imprisonment
for knowing violations.''
(2) Schedule implementation. The owner or operator shall implement
the schedule to address deficiencies identified in the audit findings
response report in paragraph (f)(1)(iii) of this section and document
the action taken to address each deficiency, along with the date
completed.
(3) Submission to Board of Directors. The owner or operator shall
immediately provide a copy of each document required under paragraphs
(f)(1) and (2) of this section, when completed, to the owner or
operator's audit committee of the Board of Directors, or other
comparable committee or individual, if applicable.
(g) Recordkeeping. The owner or operator shall retain at the
stationary source the two most recent final third-party audit reports,
related findings response reports, documentation of actions taken to
address deficiencies, and related records.
0
14. Amend Sec. 68.81 by adding paragraph (h) to read as follows:
Sec. 68.81 Incident investigation.
* * * * *
(h) The owner or operator shall ensure the following are addressed
when the incident in Sec. 68.81(a) meets the accident history
reporting requirements under Sec. 68.42:
(1) The report shall be completed within 12 months of the incident,
unless the implementing agency approves, in writing, an extension of
time.
(2) The report in paragraph (d) of this section shall include
factors that contributed to the incident including the initiating
event, direct and indirect contributing factors, and root causes. Root
causes shall be determined by conducting an analysis for each incident
using a recognized method.
0
15. Revise Sec. 68.83 to read as follows:
Sec. 68.83 Employee participation.
(a) The owner or operator shall develop a written plan of action
regarding the implementation of the employee participation required by
this section.
(b) The owner or operator shall consult with employees and their
representatives on the conduct and development of process hazards
analyses, and on the development of the other elements of process
safety management in this rule.
(c) The owner or operator shall consult with employees and their
representatives on addressing, correcting, resolving, documenting, and
implementing recommendations and findings of process hazard analyses
under Sec. 68.67(e), compliance audits under Sec. 68.79(d), and
incident investigations under Sec. 68.81(e).
(d) The owner or operator shall provide the following authorities
to employees and their representatives, and document and respond, in
writing within 30 days of the authority being exercised:
(1) Refuse to perform a task when doing so could reasonably result
in a catastrophic release.
(2) Recommend to the operator in charge of a unit that an operation
or process be partially or completely shut down, in accordance with
procedures established in Sec. 68.69(a), based on the potential for a
catastrophic release.
(3) Allow a qualified operator in charge of a unit to partially or
completely shut down an operation or process, in accordance with
procedures established in Sec. 68.69(a), based on the potential for a
catastrophic release.
(e) The owner or operator shall develop and implement a process to
allow employees and their representatives to anonymously report
unaddressed hazards that could lead to a catastrophic release,
unreported RMP-reportable accidents, or any other noncompliance with
this part.
(f) The owner or operator shall provide to employees and their
representatives access to process hazard analyses and to all other
information required to be developed under this rule.
0
16. Revise Sec. 68.85 by revising paragraph (b) and adding paragraph
(c) to read as follows:
Sec. 68.85 Hot work permit.
* * * * *
(b) The permit shall document that the fire prevention and
protection requirements in 29 CFR 1910.252(a) have been implemented
prior to beginning the hot work operations; it shall indicate the
date(s) authorized for hot work; and identify the object on which hot
work is to be performed.
(c) The permit shall be retained for five years after the
completion of the hot work operations.
Subpart E--Emergency Response
0
17. Amend Sec. 68.90 by revising paragraphs (b)(1) and (3) and adding
paragraph (b)(6) to read as follows:
Sec. 68.90 Applicability.
* * * * *
(b) * * *
(1) For stationary sources with any regulated toxic substance held
in a process above the threshold quantity, the stationary source is
included in the community emergency response plan developed under 42
U.S.C. 11003. The community emergency response plan should include the
following components: identification of facilities within the emergency
planning district, identification of routes likely to be used for the
transportation of substances on the list of extremely hazardous
substances, and identification of additional facilities contributing or
subjected to additional risk due to their proximity to facilities, such
as hospitals or natural gas facilities; methods and procedures to be
followed by facility owners and operators and local emergency and
medical personnel to respond to any release of such substances;
designation of a community emergency coordinator and facility emergency
coordinators, who shall make determinations necessary to implement the
plan; procedures providing reliable, effective, and timely notification
by the facility emergency coordinators and the community emergency
coordinator to persons designated in the emergency plan, and to the
public, that a release has occurred; methods for determining the
occurrence of a release, and the area or population likely to be
affected by such release; description of emergency equipment and
facilities in the community and at each facility in the community, and
an identification of the persons responsible for such equipment
[[Page 53615]]
and facilities; evacuation plans, including provisions for a
precautionary evacuation and alternative traffic routes; training
programs, including schedules for training of local emergency response
and medical personnel; and methods and schedules for exercising the
emergency plan.
* * * * *
(3) Appropriate mechanisms are in place to notify emergency
responders when there is a need for a response, including providing
timely data and information detailing the current understanding and
best estimates of the nature of the release.
* * * * *
(6) The owner or operator maintains and implements, as necessary,
procedures for informing the public and the appropriate Federal, State,
and local emergency response agencies about accidental releases of RMP-
regulated substances and ensure that a community notification system is
in place to warn the public within the area potentially threatened by
the release.
0
18. Amend Sec. 68.95 by revising paragraphs (a)(1)(i) and (c) to read
as follows:
Sec. 68.95 Emergency response program.
(a) * * *
(1) * * *
(i) Procedures for informing the public and the appropriate
Federal, State, and local emergency response agencies about accidental
releases, including assurance that a community notification system is
in place to warn the public within the area threatened by the release;
* * * * *
(c) The emergency response plan developed under paragraph (a)(1) of
this section shall include providing timely data and information
detailing the current understanding and best estimates of the nature of
the release when a release occurs and be coordinated with the community
emergency response plan developed under 42 U.S.C. 11003. The community
emergency response plan should include identification of facilities
within the emergency planning district, identification of routes likely
to be used for the transportation of substances on the list of
extremely hazardous substances, and identification of additional
facilities contributing or subjected to additional risk due to their
proximity to facilities, such as hospitals or natural gas facilities;
methods and procedures to be followed by facility owners and operators
and local emergency and medical personnel to respond to any release of
such substances; designation of a community emergency coordinator and
facility emergency coordinators, who shall make determinations
necessary to implement the plan; procedures providing reliable,
effective, and timely notification by the facility emergency
coordinators and the community emergency coordinator to persons
designated in the emergency plan, and to the public, that a release has
occurred; methods for determining the occurrence of a release, and the
area or population likely to be affected by such release; description
of emergency equipment and facilities in the community and at each
facility in the community, as well as an identification of the persons
responsible for such equipment and facilities; evacuation plans,
including provisions for a precautionary evacuation and alternative
traffic routes; training programs, including schedules for training of
local emergency response and medical personnel; and methods and
schedules for exercising the emergency plan. Upon request of the LEPC
or emergency response officials, the owner or operator shall promptly
provide to the local emergency response officials information necessary
for developing and implementing the community emergency response plan.
0
19. Amend Sec. 68.96 by revising paragraphs (b)(1)(i) and (b)(3) to
read as follows:
Sec. 68.96 Emergency response exercises.
* * * * *
(b) * * *
(1) * * *
(i) As part of coordination with local emergency response officials
required by Sec. 68.93, the owner or operator shall conduct a field
exercise at least once every 10 years unless the appropriate Federal,
State, and local emergency response agencies agree in writing that such
frequency is impractical. If emergency response agencies so agree, the
owner or operator shall consult with emergency response officials to
establish an alternate appropriate frequency for field exercises.
* * * * *
(3) Documentation. The owner or operator shall prepare an
evaluation report within 90 days of each field and tabletop exercise.
The report shall include a description of the exercise scenario, names
and organizations of each participant, an evaluation of the exercise
results including lessons learned, recommendations for improvement or
revisions to the emergency response exercise program and emergency
response program, and a schedule to promptly address and resolve
recommendations.
* * * * *
Subpart G--Risk Management Plan
0
20. Amend Sec. 68.160 by adding paragraph (b)(22) to read as follows:
Sec. 68.160 Registration.
* * * * *
(b) * * *
(22) Method of communication and location of the notification that
chemical hazard information is available to the public residing within
6 miles of the stationary source, pursuant to Sec. 68.210(d).
0
21. Amend Sec. 68.170 by adding paragraph (e)(7) revising paragraph
(i) to read as follows:
Sec. 68.170 Prevention program/Program 2.
* * * * *
(e) * * *
(7) Recommendations declined from natural hazard, power loss, and
siting hazard evaluations and justifications.
* * * * *
(i) The date of the most recent compliance audit; the expected date
of completion of any changes resulting from the compliance audit and
identification of whether the most recent compliance audit was a third-
party audit, pursuant to Sec. Sec. 68.58 and 68.59; and findings
declined from third-party compliance audits and justifications.
* * * * *
0
22. Amend Sec. 68.175 by adding paragraphs (e)(7) through (9) and
revising paragraph (k) to read as follows:
Sec. 68.175 Prevention program/Program 3.
* * * * *
(e) * * *
(7) Inherently safer technology or design measures implemented
since the last PHA, if any, and the technology category (substitution,
minimization, simplification and/or moderation).
(8) Recommendations declined from natural hazard, power loss, and
siting hazard evaluations and justifications.
(9) Recommendations declined from safety gaps between codes,
standards, or practices to which the process was designed and
constructed and the most current version of applicable codes,
standards, or practices.
* * * * *
(k) The date of the most recent compliance audit; the expected date
of completion of any changes resulting from the compliance audit; and
identification of whether the most recent compliance audit was a third-
[[Page 53616]]
party audit, pursuant to Sec. Sec. 68.79 and 68.80.
* * * * *
Subpart H--Other Requirements
0
23. Amend Sec. 68.210 by adding paragraphs (d) through (f) to read as
follows:
Sec. 68.210 Availability of information to the public.
* * * * *
(d) Chemical hazard information. The owner or operator of a
stationary source shall provide, upon request by any member of the
public residing within 6 miles of the stationary source, the following
chemical hazard information for all regulated processes in the language
requested, as applicable:
(1) Regulated substances information. Names of regulated substances
held in a process;
(2) Safety Data Sheets (SDSs). SDSs for all regulated substances
located at the facility;
(3) Accident history information. Provide the five-year accident
history information required to be reported under Sec. 68.42;
(4) Emergency response program. The following summary information
concerning the stationary source's compliance with Sec. 68.10(f)(3)
and the emergency response provisions of subpart E as applicable:
(i) Whether the stationary source is a responding stationary source
or a non-responding stationary source;
(ii) Name and phone number of local emergency response
organizations with which the owner or operator last coordinated
emergency response efforts, pursuant to Sec. 68.180; and
(iii) For stationary sources subject to Sec. 68.95, procedures for
informing the public and local emergency response agencies about
accidental releases;
(5) Exercises. A list of scheduled exercises required under Sec.
68.96; and
(6) LEPC contact information. Include LEPC name, phone number, and
web address as available.
(e) Notification of availability of information. The owner or
operator shall provide ongoing notification on a company website,
social media platforms, or through other publicly accessible means
that:
(1) Information specified in paragraph (d) of this section is
available to the public residing within 6 miles of the stationary
source upon request. The notification shall:
(i) Specify the information elements, identified in paragraph (b)
of this section, that can be requested; and
(ii) Provide instructions for how to request the information (e.g.,
email, mailing address, and/or telephone or website request);
(2) Identify where to access information on community preparedness,
if available, including shelter-in-place and evacuation procedures.
(f) Timeframe to provide requested information. The owner or
operator shall provide the requested information under paragraph (d) of
this section within 45 days of receiving a request.
[FR Doc. 2022-18249 Filed 8-30-22; 8:45 am]
BILLING CODE 6560-50-P