[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31668-31730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14597]
[[Page 31667]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act, Section 112(r)(7); List of Regulated
Substances and Thresholds for Accidental Release Prevention, Stay of
Effectiveness; and Accidental Release Prevention Requirements: Risk
Management Programs Under Section 112(r)(7) of the Clean Air Act as
Amended, Guidelines; Final Rules and Notice
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules
and Regulations
[[Page 31668]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5516-5]
RIN 2050-AD26
Accidental Release Prevention Requirements: Risk Management
Programs Under Clean Air Act Section 112(r)(7)
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Clean Air Act requires EPA to promulgate regulations to
prevent accidental releases of regulated substances and reduce the
severity of those releases that do occur. EPA is promulgating rules
that apply to all stationary sources with processes that contain more
than a threshold quantity of a regulated substance. Processes will be
divided into three categories based on: the potential for offsite
consequences associated with a worst-case accidental release; accident
history; or compliance with the prevention requirements under OSHA's
Process Safety Management Standard. Processes that have no potential
impact on the public in the case of an accidental release will have
minimal requirements. For other processes, sources will implement a
risk management program that includes more detailed requirements for
hazard assessment, prevention, and emergency response. Processes in
industry categories with a history of accidental releases and processes
already complying with OSHA's Process Safety Management Standard will
be subject to a prevention program that is identical to parallel
elements of the OSHA Standard. All other processes will be subject to
streamlined prevention requirements. All sources must prepare a risk
management plan based on the risk management programs established at
the source. The source must submit the plan to a central point
specified by EPA; the plan will be available to state and local
governments and the public. These regulations will encourage sources to
reduce the probability of accidental releases of substances that have
the potential to cause immediate harm to public health and the
environment and will stimulate the dialogue between industry and the
public to improve accident prevention and emergency response practices.
DATES: The rule is effective August 19, 1996.
ADDRESSES: Supporting material used in developing the proposed rule,
supplemental notice, and final rule is contained in Docket No. A-91-73.
The docket is available for public inspection and copying between 8:00
a.m. and 5:30 p.m., Monday through Friday (except government holidays)
at Room 1500, 401 M St. SW, Washington, DC 20460. A reasonable fee may
charged for copying.
FOR FURTHER INFORMATION CONTACT: Craig Matthiessen at (202) 260-8600,
Chemical Emergency Preparedness and Prevention Office, U.S.
Environmental Protection Agency, 401 M St. SW, Washington, DC 20460, or
the Emergency Planning and Community Right-to-Know Hotline at 1-800-
424-9346 (in the Washington, DC, metropolitan area, (703) 412-9810).
SUPPLEMENTARY INFORMATION: Judicial Review. Accidental Release
Prevention Requirements: Risk Management Programs Under Clean Air Act
Section 112(r)(7) were proposed in the Federal Register on October 20,
1993 (58 FR 54190). A supplemental notice was issued on March 13, 1995
(60 FR 13526). This Federal Register action announces the EPA's final
decisions on the rule. Under section 307(b)(1) of the Act, judicial
review of the Accidental Release Prevention Requirements: Risk
Management Programs is available only by the petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit within 60
days of today's publication of this final rule. Under section 307(b)(2)
of the Act, the requirements that are the subject of today's notice may
not be challenged later in civil or criminal proceedings brought by the
EPA to enforce these requirements.
Regulated Entities
Entities potentially regulated by this action are those stationary
sources that have more than a threshold quantity of a regulated
substance in a process. Regulated categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Chemical Manufacturers............ Industrial organics & inorganics,
paints, pharmaceuticals, adhesives,
sealants, fibers
Petrochemical..................... Refineries, industrial gases,
plastics & resins, synthetic rubber
Other Manufacturing............... Electronics, semiconductors, paper,
fabricated metals, industrial
machinery, furniture, textiles
Agriculture....................... Fertilzers, pesticides
Public Sources.................... Drinking and waste water treatment
works
Utilities......................... Electric and Gas Utilities
Others............................ Food and cold storage, propane
retail, warehousing and wholesalers
Federal Sources................... Military and energy installations
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether a
stationary source is regulated by this action, carefully examine the
provisions associated with the list of substances and thresholds under
Sec. 68.130 (59 FR 4478), the proposed modifications (61 FR 16598,
April 15, 1996) and the stay of implementation of the affected
provisions until the proposed modifications are final published
elsewhere in today's Federal Register, and the applicability criteria
in Sec. 68.10 of today's rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
The following outline is provided to aid in reading this preamble:
I. Introduction and Background
A. Statutory Authority
B. Background
II. Discussion of Final Rule
A. Applicability
B. Program Criteria and Requirements
C. Hazard Assessment
D. Prevention Programs
E. Emergency Response
F. Risk Management Plan (RMP)
G. Air Permitting
H. Other Issues
III. Discussion of Comments
A. Tiering
1. Rationale
2. Program 1 vs. Program 2 and Program 3 Criteria
[[Page 31669]]
a. Potential for Offsite Impact
b. Accident History
c. Other
3. Program 2 vs. Program 3 Criteria
a. Number of Employees
b. SIC Code
c. Site-specific, Risk-based Criteria
d. Accident History
e. Other
4. Program 1 Requirements
a. Certification of No Environmental Impact
b. Signs
c. Emergency Response Program
d. Other
5. Program 2 Requirements
a. Streamlined Program
b. Other Regulations
c. Emergency Response Program
B. Offsite Consequence Analysis
1. Worst-Case Release Scenario
2. Mitigation Systems
a. Worst-Case Release Scenario
b. Alternative Scenarios
3. Populations Affected
4. Number of Scenarios
5. Technical Guidance
6. Modeling Parameters
a. Endpoints
b. Meteorology
C. Consideration of Environmental Impact
1. Inclusion of Environmental Impacts
2. Environments to be Considered
3. Level of Analysis Required
D. Program 3 Consistency with OSHA PSM Standard
1. Prevention Program
2. Enforcement
3. Exemptions
E. Relationship to Air Permits
1. General Relationship between the Part 68 and Part 70 programs
2. Impact of EPA's Proposal on Air Permitting Programs
3. Part 68 as an ``Applicable Requirement'' under Part 70
4. Role of the Air Permitting Authority
5. Air Permit Application Contents
6. Air Permit Contents
7. Completeness Review
8. Interaction of the Implementing Agency and the Permitting
Authority
9. Designated Agency
10. Reopening Air Permits to Incorporate Section 112(r)
Requirements
11. Use of Air Funds
12. Other Issues
F. General Definitions
1. Significant Accidental Release
2. Stationary Source
3. Process
4. Offsite
5. Other Definitions
G. Risk Management Plan (RMP)
1. Level of Detail
2. RMP Content
3. Submission
4. Other Issues
H. Prevention Program
I. Accident History
J. Emergency Response Program
K. Registration
L. Model Risk Management Programs
M. Implementing Agency Audits
N. Public Participation
O. Inherently Safer Technologies
P. Coverage by Other Regulations
1. General Issues
2. DOT Transportation Regulations
3. Other EPA Regulations
4. Other Federal Regulations
5. State and Local Regulations
Q. Industry-Specific Issues
1. Oil and Gas Facilities
2. Retail Facilities
a. Propane Retailers
b. Ammonia Retailers
3. Refrigeration Systems
4. Other Operations
R. Implementing Agency Delegation
S. Accident Reporting
T. Other Issues
1. OSHA VPP
2. Qualified Third Party
3. Documentation
IV. Section-by-Section Analysis of the Rule
V. Required Analyses
A. E.O. 12866
B. Regulatory Flexibility Act
C. Unfunded Mandate Reform Act
D. Paperwork Reduction Act
E. Submission to Congress and the General Accounting Office
I. Introduction and Background
A. Statutory Authority
This rule is promulgated under sections 112(r), 301(a)(1), Title V
of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r), 7601(a)(1),
7661-7661f).
B. Background
The CAA Amendments of 1990 amend section 112 and add paragraph (r).
The intent of section 112(r) is to prevent accidental releases to the
air and mitigate the consequences of such releases by focusing
prevention measures on chemicals that pose the greatest risk to the
public and the environment. Section 112(r)(3) mandates that EPA
promulgate a list of regulated substances, with threshold quantities;
this list defines the stationary sources that will be subject to
accident prevention regulations mandated by section 112(r)(7). EPA
promulgated its list of substances on January 31, 1994 (59 FR 4478)
(``List Rule'').
As noted elsewhere in today's Federal Register, EPA has stayed
certain provisions of part 68 that were promulgated as part of the List
Rule. The stayed provisions are being addressed in amendments to the
List Rule, which were proposed in 61 FR 16598 (April 15, 1996).
Therefore, EPA has not taken final action on provisions of the Risk
Management Program rule that apply to regulated substances, mixtures,
and stationary sources addressed by the stayed provisions. Final action
will be deferred until EPA takes final action on the proposed
amendments to the List Rule.
Section 112(r)(7) mandates that EPA promulgate regulations and
develop guidance to prevent, detect, and respond to accidental
releases. Stationary sources covered by these regulations must develop
and implement a risk management program that includes a hazard
assessment, a prevention program, and an emergency response program.
The risk management program must be described in a risk management plan
(RMP) that must be registered with EPA, submitted to state and local
authorities, and made available to the public. On October 20, 1993, EPA
published a Notice of Proposed Rulemaking (NPRM) for the section
112(r)(7) regulations (58 FR 54190). (For a summary of the statutory
requirements of section 112(r) and related statutory provisions, see
the October 20, 1993, NPRM).
Following publication of the proposed rule, EPA held four public
hearings and received approximately 770 written comments. Because of
these comments, EPA issued a supplemental notice of proposed rulemaking
(SNPRM) on March 13, 1995 (60 FR 13526) for comment on: approaches for
setting different requirements for sources that pose different levels
of hazard (tiering); worst-case releases and other hazard assessment
issues; accident information reporting; public participation;
inherently safer approaches; and implementation and integration of
section 112(r) with state programs, particularly state air permitting
programs. EPA held a public hearing on March 31, 1995, in Washington,
DC, and received more than 280 written comments. Today's rule reflects
EPA's consideration of all comments; major issues raised by commenters
and EPA's response are briefly discussed in Section III of this
preamble. A summary of all comments submitted and EPA's response to
them is available in the Docket (see ADDRESSES).
EPA has proposed to delist explosives from Sec. 68.130.
Consequently, explosives are not addressed in this rule. EPA had also
requested at the time of the final List Rule comments on whether
flammable substances, when used as fuel, posed a lesser intrinsic
hazard than the same substance handled otherwise (59 FR 4500, January
31, 1994). The comments submitted lacked data that would justify a
lesser level of hazard consideration for flammable fuels; hence, the
Agency will not adopt a fuel use exemption for purposes of threshold
quantity determination.
With today's rule, EPA continues the philosophy that the Agency
embraced in implementing the Emergency Planning and Community Right-to-
Know Act of
[[Page 31670]]
1986 (EPCRA). Specifically, EPA recognizes that regulatory
requirements, by themselves, will not guarantee safety. Instead, EPA
believes that information about hazards in a community can and should
lead public officials and the general public to work with industry to
prevent accidents. For example, today's rule requires covered sources
to provide information about possible worst-case scenarios. EPA intends
that officials and the public use this information to understand the
chemical hazards in the community and then engage in a dialogue with
industry to reduce risk. In this way, accident prevention is focused
primarily at the local level where the risk is found. Further, today's
rule builds on existing programs and standards. For example, EPA has
coordinated with Occupational Safety and Health Administration (OSHA)
and the Department of Transportation (DOT) in developing this
regulation. To the extent possible, covered sources will not face
inconsistent requirements under these agencies' rules. EPA is
encouraging sources to use existing emergency response programs, rather
than develop a separate and duplicative program under this rule. In
addition, today's rule scales requirements based on the potential risk
posed by a source and the steps needed to address the risk, rather than
imposing identical requirements on all sources.
To accommodate the concerns of small businesses, EPA is providing
guidance with reference tables that covered sources can use to model
the offsite consequences of a release. EPA is providing a model RMP
guidance for the ammonia refrigeration industry, and will develop
similar guidance for propane handlers and drinking water systems. As
today's rule is implemented, EPA hopes that other industry sectors will
work with EPA to develop model RMPs for other processes, thereby
reducing costs for individual sources. Finally, today's rule requires
industry to submit RMPs centrally in a format and method to be
determined by EPA. Working with stakeholders, EPA will develop
mechanisms to allow industry to use appropriate electronic technology
to register with EPA and submit RMPs. In turn, all interested parties
will be able to access electronically the data in RMPs. This method of
submission and access avoids a potentially significant amount of
paperwork for all involved parties and promotes uniformity. Users will
be able to develop databases for specific purposes and compare RMPs for
various sites across the country. In turn, industries' use of the data
will promote continuous improvement, for example, through new safety
technologies. As the method for submitting RMPs is developed, EPA
invites the participation of all stakeholders, including industry,
state and local governments, local emergency planning committees,
environmental groups, and the general public.
II. Discussion of Final Rule
A. Applicability
The owner or operator of a stationary source that has more than a
threshold quantity of a regulated substance in a process must comply
with these requirements no later than June 21, 1999; three years after
the date on which a regulated substance is first listed under
Sec. 68.130; or the date on which a regulated substance is first
present in more than a threshold quantity in a process, whichever is
later.
B. Program Criteria and Requirements
Under today's rule, processes subject to these requirements are
divided into three tiers, labeled Programs 1, 2, and 3. EPA has adopted
the term ``Program'' to replace the term ``Tier'' found in the SNPRM to
avoid confusion with Tier I and Tier II forms submitted under EPCRA,
also known as Title III of the Superfund Amendments and Reauthorization
Act of 1986 (SARA Title III). Eligibility for any given Program is
based on process criteria so that classification of one process in a
Program does not influence the classification of other processes at the
source. For example, if a process meets Program 1 criteria, the source
need only satisfy Program 1 requirements for that process, even if
other processes at the source are subject to Program 2 or Program 3. A
source, therefore, could have processes in one or more of the three
Programs.
Program 1 is available to any process that has not had an
accidental release with offsite consequences in the five years prior to
the submission date of the RMP and has no public receptors within the
distance to a specified toxic or flammable endpoint associated with a
worst-case release scenario. Program 3 applies to processes in Standard
Industrial Classification (SIC) codes 2611 (pulp mills), 2812 (chlor-
alkali), 2819 (industrial inorganics), 2821 (plastics and resins), 2865
(cyclic crudes), 2869 (industrial organics), 2873 (nitrogen
fertilizers), 2879 (agricultural chemicals), and 2911 (petroleum
refineries). Program 3 also applies to all processes subject to the
OSHA Process Safety Management (PSM) standard (29 CFR 1910.119), unless
the process is eligible for Program 1. Owners or operators will need to
determine individual SIC codes for each covered process to determine
whether Program 3 applies. All other covered processes must satisfy
Program 2 requirements. Program requirements and differences are
illustrated on Tables 1 and 2:
Table 1--Program Eligibility Criteria
------------------------------------------------------------------------
Program 1 Program 2 Program 3
------------------------------------------------------------------------
No offsite accident history. .................. Process is subject
to OSHA PSM.
No public receptors in worst- The process is not Process is in SIC
case circle. eligible for code 2611, 2812,
Program 1 or 3. 2819, 2821, 2865,
2869, 2873, 2879,
or 2911.
Emergency response ..................
coordinated with local
responders.
------------------------------------------------------------------------
Table 2--Comparison of Program Requirements
------------------------------------------------------------------------
Program 1 Program 2 Program 3
------------------------------------------------------------------------
Hazard Assessment:
Worst-case analysis......... Worst-case analysis. Worst-case analysis.
Alternative releases Alternative
releases.
5-year accident history..... 5-year accident 5-year accident
history. history.
Management Program:
Document management Document management
system. system.
[[Page 31671]]
Prevention Program:
Certify no additional steps Safety Information.. Process Safety
needed. Information.
Hazard Review....... Process Hazard
Analysis.
Operating Procedures Operating
Procedures.
Training............ Training.
Maintenance......... Mechanical
Integrity.
Incident Incident
Investigation. Investigation.
Compliance Audit.... Compliance Audit.
.................. Management of
Change.
.................. Pre-startup Review.
.................. Contractors.
.................. Employee
Participation.
.................. Hot Work Permits.
Emergency Response Program:
Coordinate with local Develop plan and Develop plan and
responders. program. program.
Risk Management Plan
Contents:
Executive Summary........... Executive Summary... Executive Summary
Registration................ Registration........ Registration.
Worst-case data............. Worst-case data..... Worst-case data.
5-year accident history..... Alternative release Alternative release
data. data.
Certification............... 5-year accident 5-year accident
history. history.
Prevention program Prevention program
data. data.
Emergency response Emergency response
data. data.
Certification....... Certification.
------------------------------------------------------------------------
The owner or operator of a covered process must: (1) prepare and
submit a single risk management plan (RMP), including registration that
covers all affected processes and chemicals; (2) conduct a worst-case
release scenario analysis, review accident history, ensure emergency
response procedures are coordinated with community response
organizations to determine eligibility for Program 1 and, if eligible,
document the worst case and complete a Program 1 certification for the
RMP; (3) conduct a hazard assessment, document a management system,
implement a more extensive, but still streamlined prevention program,
and implement an emergency response program for Program 2 processes;
and (4) conduct a hazard assessment, document a management system,
implement a prevention program that is fundamentally identical to the
OSHA PSM Standard, and implement an emergency response program for
Program 3 processes.
Measures taken by sources to comply with OSHA PSM for any process
that meets OSHA's PSM standard are sufficient to comply with the
prevention program requirements of all three Programs. EPA will retain
its authority to enforce the prevention program requirements and the
general duty requirements of CAA Section 112(r)(1). EPA and OSHA are
working closely to coordinate interpretation and enforcement of PSM and
accident prevention programs. EPA will also work with state and local
agencies to coordinate oversight of worker and public safety and
environmental protection programs.
C. Hazard Assessment
EPA has adopted the worst-case definition proposed in the SNPRM.
For all substances, the worst-case release scenario will be defined as
the release of the largest quantity of a regulated substance from a
vessel or process line failure, including administrative controls and
passive mitigation that limit the total quantity involved or the
release rate. For most gases, the worst-case release scenario assumes
that the quantity is released in 10 minutes. For liquids, the scenario
assumes an instantaneous spill; the release rate to the air is the
volatilization rate from a pool 1 cm deep unless passive mitigation
systems contain the substance in a smaller area. For flammables, the
worst case assumes an instantaneous release and a vapor cloud
explosion.
For the final rule, EPA has adopted the term ``alternative release
scenarios'' to replace the term ``other more likely scenarios'' found
in the NPRM and SNPRM. The non-worst-case accidental releases for the
hazard assessment portion of the risk management plan were presumed
``more likely to occur'' and ``more realistic'' than the worst case.
EPA believes sources should have flexibility to select non-worst-case
scenarios that are the most useful for communication with the public
and first responders and for emergency response preparedness and
planning. Catastrophic accidental releases are typically rare events;
the words ``more likely'' suggests certainty of occurrence.
Consequently, the scenarios other than worst case provided in the
hazard assessment are called alternative release scenarios. For
alternative scenarios, sources may consider the effects of both passive
and active mitigation systems.
One worst-case release scenario will be defined to represent all
toxics, and one worst-case release scenario will be defined to
represent all flammables held above the threshold at the source.
Additional worst-case release scenario(s) must be analyzed and reported
if such a release from another covered process at the source
potentially affects public receptors that would not be potentially
affected by the first scenario. EPA recognizes that this approach may
be problematic for some sources such as batch processors and warehouses
where use of listed substances or inventory may vary considerably
within an RMP reporting period. EPA suggests that owners or operators
of such processes develop a worst-case scenario for future chemical use
and inventory based on past practices to minimize the need for frequent
revision of their worst-case scenario. For alternative release
scenarios, one scenario is required for each toxic substance and one to
represent all flammable substances held in covered processes at the
source.
An endpoint is needed for the offsite consequence analysis.
Appendix A of today's rule lists the endpoints for toxic substances
that must be used in worst-
[[Page 31672]]
case and alternative scenario assessment. The endpoint for a toxic
substance is its Emergency Response Planning Guideline level 2 (ERPG-2)
developed by the American Industrial Hygiene Association (AIHA). If a
substance has no ERPG-2, then the endpoint is the level of concern
(LOC) from the Technical Guidance for Hazards Analysis, updated where
necessary to reflect new toxicity data. EPA recognizes the limitations
associated with ERPG-2 and LOC values and is working with other
agencies to develop Acute Exposure Guideline Limits (AEGLs). When these
values have been developed and peer-reviewed, EPA intends to adopt them
through rulemaking as the toxic endpoints for this rule. For
flammables, vapor cloud explosion distances will be based on an
overpressure of 1 psi; for alternative flammable releases, radiant heat
distances will be based on an exposure of 5 kW/m\2\ for 40 seconds. For
vapor cloud fires and jet fires, the lower flammability limit provided
by the National Fire Protection Association (NFPA) or other sources
shall be used.
EPA selected 1.5 meter per second (m/s) wind speed and F
atmospheric stability class as the default worst-case scenario
meteorological conditions. If the owner or operator has meteorological
data that show that higher minimum wind speeds or less stable
atmospheric class conditions existed at the source at all times in the
previous three years, then the higher wind speed and different
stability class may be used. Alternative release analyses may use site-
specific, typical meteorological conditions. If the owner or operator
has no data on typical meteorological conditions, then conditions used
in the RMP Offsite Consequence Analysis Guidance (3 m/s and D
stability), may be used. Although EPA is providing technical guidance
and reference tables for worst-case and alternative release scenario
assessments, owners or operators may use any generally recognized,
commercially or publicly available air dispersion modeling techniques,
provided the modeling parameters specified in the rule are used.
For the hazard assessment and the RMP, populations potentially
affected are defined as those within a circle that has as its center
the point of release and its radius the distance to the toxic or
flammable endpoint. Owners or operators may use Census data to define
this population, and may update those data if they are inaccurate. EPA
suggests that owners or operators use LandView, an electronic
publication of environmental, geographic and demographic information
published by EPA and the Bureau of Census. The presence of schools,
hospitals, other institutions, public arenas, recreational areas, and
large commercial and industrial developments that can be identified on
street maps within this circle must be noted in the RMP, but the number
of people occupying them need not be enumerated. The presence of
environmental receptors within this circle must also be listed. EPA has
defined environmental receptors as natural areas such as national or
state parks, forests, or monuments; officially designated wildlife
sanctuaries, preserves, refuges, or areas; and Federal wilderness
areas, that can be exposed to an accidental release. All of these can
be identified on local U.S. Geological Survey maps or maps based on
USGS data.
The five-year accident history will cover all accidents involving
regulated substances, but only from covered processes at the source
that resulted in serious on site or certain known offsite impacts in
the five years prior to the submission of each RMP. EPA has replaced
the definition of significant accidental release with specific
definitions of the types of releases to be covered under each of the
specific requirements previously associated with this definition.
D. Prevention Programs
EPA has retained the management system requirement proposed in the
NPRM, but only for Program 2 and 3 processes. EPA has moved the
management system requirement from the prevention program section to
the general requirements section because it should be designed to
oversee the implementation of all elements of the risk management
program. The owner or operator must designate a qualified person or
position with overall responsibility for the program and specify the
lines of authority if responsibility for implementing individual
requirements is assigned to other persons or positions.
In the SNPRM, EPA proposed a Program 2 prevention program that
covered training, maintenance, safety precautions, and monitoring, but
did not specify any particular actions. EPA solicited comment on
whether specific prevention activities should be required for Program 2
sources, such as any of the specific activities initially proposed in
the NPRM. For today's rule, EPA has developed seven specific elements
for the Program 2 prevention program: safety information (Sec. 68.48),
hazard review (Sec. 68.50), operating procedures (Sec. 68.52), training
(Sec. 68.54), maintenance (Sec. 68.56), compliance audits (Sec. 68.58),
and incident investigation (Sec. 68.60). Most Program 2 processes are
likely to be relatively simple and located at smaller businesses. EPA
believes owners or operators of Program 2 processes can successfully
prevent accidents without a program as detailed as the OSHA PSM, which
was primarily designed for the chemical industry. EPA combined and
tailored elements common to OSHA's PSM and EPA's NPRM to generate
Program 2 requirements and applied them to non-petrochemical industry
processes. EPA is also developing model risk management programs (and
RMPs) for several industry sectors that will have Program 2 processes.
These model guidances will help sources comply by providing standard
elements that can be adopted to a specific source. EPA expects that
many Program 2 processes will already be in compliance with most of the
requirements through compliance with other Federal regulations, state
laws, industry standards and codes, and good engineering practices.
The Program 3 prevention program includes the requirements of the
OSHA PSM standard, 29 CFR 1910.119 (c) through (m) and (o), with minor
wording changes to address statutory differences. This makes it clear
that one accident prevention program to protect workers, the general
public, and the environment will satisfy both OSHA and EPA. For
elements that are in both the EPA and OSHA rules, EPA has used OSHA's
language verbatim, with the following changes: the replacement of the
terms ``highly hazardous substance,'' ``employer,'' ``standard'' and
``facility'' with ``regulated substance,'' ``owner or operator,''
``part or rule,'' and ``stationary source''; the deletion of specific
references to workplace impacts or to ``safety and health;'' changes to
specific schedule dates; and changes to references within the standard.
The ``safety and health'' and ``workplace impacts'' references occur in
OSHA's PSM standard in process safety information (29 CFR 1910.119
(d)(2)(E)), process hazards analysis (29 CFR 1910.119(e)(3)(vii)), and
incident investigation (29 CFR 1910.119(m)(1)). These changes are
designed to ensure that OSHA retains its oversight of actions designed
to protect workers while EPA retains its oversight of actions to
protect public health and the environment and to remove possible
interpretations that certain elements of process safety management fail
to account for offsite impacts. Commenters were particularly concerned
about the phase-in of process hazard analyses
[[Page 31673]]
(PHAs). Under the final rule, PHAs conducted for OSHA are considered
adequate to meet EPA's requirements. They will be updated on the OSHA
schedule (i.e., by the fifth anniversary of their initial completion).
This approach will eliminate any need for duplicative analyses.
Documentation for the PHA developed for OSHA will be sufficient to meet
EPA's purposes.
EPA anticipates that sources whose processes are already in
compliance with OSHA PSM will not need to take any additional steps or
create any new documentation to comply with EPA's Program 3 prevention
program. Any PSM modifications necessary to account for protection of
public health and the environment along with protection of workers can
be made when PSM elements are updated under the OSHA requirements. EPA
has modified the OSHA definition of catastrophic release, which serves
as the trigger for an incident investigation, to include events ``that
present imminent and substantial endangerment to public health and the
environment.'' As a result, this rule requires investigation of
accidental releases that pose a risk to the public or the environment,
whereas the OSHA rule does not. EPA recognizes that catastrophic
accidental releases primarily affect the workplace and that this change
will have little effect on incident investigation programs already
established. However, EPA needs to ensure that deviations that could
have had only an offsite impact are also addressed.
E. Emergency Response
EPA has adopted the emergency response requirements found in the
statute, without additional specific planning requirements beyond those
necessary to implement the statute. This action is consistent with the
Agency's effort to develop a single Federal approach for emergency
response planning. The Presidential Review of Federal release
prevention, mitigation, and response authorities (required under
section 112(r)(10) of the Clean Air Act) found that there is seldom
harmony in the required formats or elements of response plans prepared
to meet various Federal regulations. Accordingly, EPA has committed not
to specify new plan elements and/or a specific plan format in today's
rule beyond those that are statutorily required. EPA believes that
plans developed to comply with other EPA contingency planning
requirements and the OSHA Hazardous Waste and Emergency Operations
(HAZWOPER) rule (29 CFR 1910.120) will meet most of the requirements
for the emergency response program. In addition, EPA and other National
Response Team agencies have prepared Integrated Contingency Plan
Guidance (``one plan'') (NRT, May 1996). The NRT and the agencies
responsible for reviewing and approving federal response plans to which
the one plan option applies agree that integrated response plans
prepared in the format provided in this guidance will be acceptable and
be the federally preferred method of response planning. An emergency
response plan that includes the elements specified in this guidance can
be used to meet the requirements in today's rule. The final rule also
provides relief for sources that are too small to respond to releases
with their own employees; these sources will not be required to develop
emergency response plans provided that procedures for notifying non-
employee emergency responders have been adopted and that appropriate
responses to their hazards have been addressed in the community
emergency response plan developed under EPCRA (42 U.S.C. 11003) for
toxics or coordinated with the local fire department for flammables.
F. Risk Management Plan (RMP)
Owners or operators must submit their first RMP by the date
specified in Sec. 68.10. After the RMP is submitted, changes at the
source may require updates to the RMP other than the standard update
every five years. If a new substance or new process is added, the RMP
will need to be revised and submitted by the date the substance is
first in the process above the threshold quantity. If changes to
processes require revised hazard assessments or PHAs, or if a process
changes Program level, the source must submit a revised RMP within six
months.
EPA intends that the RMP will be submitted in a method and format
to a central point as specified by EPA. States, local entities
including local emergency planning committees (LEPCs), and the public
will be able to access all RMPs electronically. This process will
relieve states and local entities of the burden of filing documents and
providing public access to them without limiting these agencies' or the
public's access to the information.
The RMP is a multi-purpose document. The CAA requires that the RMP
indicate compliance with the regulations and also include the hazard
assessment, prevention program, and emergency response program. EPA is
mandated to develop a program for auditing RMPs and requiring
revisions, where appropriate. The RMP, therefore, must include enough
data to allow the implementing agency to determine, through review of
the RMP, whether the source is in compliance with the rule. EPA,
however, believes that the RMP must serve another function; to provide
information to the public in a form that will be understandable and
will encourage the public to use the information to improve the
dialogue with sources on issues related to prevention and preparedness.
To meet both of these purposes, the RMP will consist of the
source's registration; an executive summary that will provide a brief
description of the source's activities as they relate to covered
processes and program elements; and data elements that address
compliance with each of the rule elements. While the public and
implementing agencies could make use of all sections of the RMP, the
executive summary will provide text descriptions and give the source a
chance to explain its programs in a format that will be easy for
communities to read and understand. The data elements will provide the
implementing agency with the basic data it needs to assess compliance
without asking for detailed documentation. The Agency is considering
development of an RMP form where the data elements of the form would
provide the implementing agency with the basic data it needs to assess
compliance without asking for detailed documentation. All data elements
would be checkoff boxes, yes/no answers, or numerical entries.
This approach will provide data that anyone can download or search.
States, communities, trade associations, or public interest groups may
want to use the data or a subset of the data to create databases that
allow them to compare sources in the same industry or same area. For
example, a local entity will be able to download data from all
reporting sources that are similar to ones in its community to
determine whether the quantities stored and process controls used are
typical. The information will provide the public with data that will
enhance their dialogue with sources. It will also help sources and
trade associations to understand practices in their industries and
identify practices that could be used to reduce risks. The risk
management program documentation will remain at the source and will be
available for review by EPA and the implementing agency.
G. Air Permitting
The SNPRM discussed the relationship between section 112(r) and CAA
air permitting requirements for sources subject to both provisions.
Under the CAA, air permitting authorities must ensure that sources are
[[Page 31674]]
in compliance with applicable requirements to issue a permit. Because
section 112(r) is an applicable requirement, EPA has identified in the
final rule the permit conditions and the actions owners or operators
and air permitting authorities must take to ensure compliance. The
permit must identify part 68 as an applicable requirement and establish
conditions that require the owner or operator of the source to submit
either a compliance schedule for meeting the requirements of part 68 by
the date specified in Sec. 68.10(a) or, as part of the compliance
certification submitted under 40 CFR 70.6(c)(5), a certification
statement that, to the best of the owner or operator's knowledge, the
source is in compliance with all requirements of this part, including
the registration and submission of the RMP. The owner or operator must
also submit any additional relevant information requested by the air
permitting authority or designated agency to ensure compliance with the
requirements of this section. If a permit is already issued that does
not contain the provisions described above, then, the owner or operator
or air permitting authority shall initiate permit revision or reopening
according to the procedures in 40 CFR 70.7 or 71.7 to incorporate the
terms and conditions as described above. EPA also allows the state to
assign the authority to implement and enforce these requirements to
another agency or agencies (the ``designated agency'') to take
advantage of resources or accident prevention expertise that might be
available in these other agencies. Finally, the air permitting
authority or designated agency must: (1) Verify that the source owner
or operator has registered and submitted an RMP or a revised plan when
required; (2) verify that the source owner or operator has submitted
the proper certification or compliance schedule; (3) for some or all
sources, use one or more mechanisms such as, but not limited to, a
completeness check, source audits, record reviews or facility
inspections to ensure that permitted sources are in compliance; and (4)
initiate enforcement action, based on the requirements of this section,
as appropriate.
H. Other Issues
In the SNPRM, EPA discussed three other issues raised by
commenters: accident information reporting, public participation, and
inherently safer technologies. EPA has decided not to develop any
requirements related to these issues at this time. Although EPA
continues to believe that accident reports that provide more detail on
the causes and impacts of accidents could be useful, the Agency has
decided to limit such reporting required under this rule to the five-
year accident history mandated by the CAA. When necessary, EPA will use
its authority to investigate individual accidents and to seek
additional information to the extent authorized by CAA section 114
(i.e., to determine compliance with this rule and CAA section
112(r)(1), to support further rule development, and to assist research
on hazard assessment).
Secondly, the Agency encourages sources, the public, and local
entities to work together on accident prevention issues, but believes
that the wide variety and large number of sources subject to this rule
make any single mandatory approach to public participation
inappropriate. RMP information should be used as the basis for dialogue
between the community and sources on accidental release prevention,
risk reduction and preparedness for emergency response. Industry and
the public should continue to use the LEPC as a mechanism for this
dialogue.
Finally, EPA does not believe that a requirement that owners or
operators conduct searches or analyses of alternative process
technologies for new or existing processes will produce significant
additional benefits. Many commenters, including those who support these
analyses, indicated that an assessment of inherently safer design
alternatives has the most benefit in the development of new processes.
Industry generally examines new process alternatives to avoid the
addition of more costly administrative or engineering controls
associated with a design that may be more hazardous in nature. Although
some existing processes may be judged to be inherently less safe than
others, EPA believes most of these processes can be safely operated
through management and control of the hazards without spending
resources searching for unavailable or unaffordable new process
technologies. Application of good PHA techniques often reveals
opportunities for continuous improvement of existing processes and
operations without a separate analysis of alternatives. EPA encourages
owners or operators to continue to examine and adopt viable alternative
processing technologies, system safeguards, or process modifications to
make new and existing processes and operations inherently safer.
Through the process and prevention program information in the RMP,
sources can demonstrate, and users of the RMP information can observe
and promote, progress toward safer processes and operations.
EPA is considering the development of incentives and awards to
stimulate inherently safer alternative research and development, public
outreach and education, and risk communication efforts. The Agency
welcomes ideas and participation in this effort.
III. Discussion of Comments
EPA received 1220 comments, including 180 relevant comments
submitted for the List Rule, 757 comments on the NPRM, and 283 comments
on the SNPRM. The commenters represented 92 chemical manufacturers, 81
other chemical users, 111 petroleum industry companies, 174 industry
trade associations, 40 other trade associations, 58 agricultural supply
retailers, 102 propane retailers, 132 explosives users, 29 water
treatment facilities, 26 utilities, 66 state agencies, 63 local
governments, 8 other Federal agencies, 52 academics and consultants, 61
environmental groups, 6 labor unions, and 31 private citizens. The
remaining 88 letters were requests for extensions of the comment
period, interim or duplicate sets of comments, or had been sent to the
incorrect docket. The major issues raised by the commenters are briefly
addressed below; a complete presentation of the Agency's response to
the comments received on this rulemaking is available in the Risk
Management Program Rule: Summary and Response to Comments in the docket
(see ADDRESSES).
Many commenters requested that EPA's list be identical to OSHA's
list of highly hazardous substances and no thresholds should be less
than OSHA's. These comments were addressed in the final list rule (59
FR 4478; January 21, 1994) and background material related to these
issues is available in docket number A-91-74 (see ADDRESSES).
A. Tiering
Commenters on the NPRM suggested that EPA create different levels
of requirements for sources that pose different risks. In the SNPRM,
EPA proposed three tiers: a low hazard tier for sources whose worst-
case release would not affect any public or environmental receptors of
concern; a medium hazard tier for sources that were not eligible or
covered by the low or high hazard tiers; and a high hazard tier based
on either industry sector accident history and number of employees or
simply based on the number of employees. Generally, commenters were
concerned that all processes at a source would need to be eligible for
Program 1 before any process could be. EPA has revised the rule to
clarify that eligibility for any tier
[[Page 31675]]
(Program) is based on process criteria, not source. If a process meets
Program 1 criteria, the owners or operators need only meet Program 1
requirements for that process even if other processes at the source are
subject to Program 2 or Program 3.
1. Rationale. Only 2 of the 57 commenters opposed tiering arguing
that the CAA mandates that all covered sources be required to complete
a full prevention program and that Congress had considered and rejected
exemptions. One commenter argued that EPA had already accounted for
``differences in size, operations, processes, class and categories of
sources'' in developing the list and thresholds. Most commenters
supported tiering as an appropriate way to recognize different levels
of risks and to allow sources and emergency responders to focus on the
highest risk processes.
EPA disagrees that the CAA requires all covered processes to comply
with the same detailed risk management program. EPA listed regulated
substances because of their inherent hazards, such as toxicity and
volatility. EPA did not consider, nor does the CAA indicate that it may
consider, ``differences in size, operations, processes, class and
categories of sources'' in selecting chemicals or setting thresholds.
In establishing section 112(r)(7) requirements, however, Congress
clearly recognized that a ``one-size-fits-all'' approach may not be
appropriate for these regulations and directed EPA to consider these
factors in the development of the accident prevention regulations.
Furthermore, EPA strongly disputes the assertion that it has exempted
any source from regulation by creating different programs for different
sources. As noted below, all covered processes will be addressed in
RMPs that contain hazard assessment, prevention, and response
information, as required by statute.
2. Program 1 vs. Program 2 and Program 3 Criteria. Commenters
generally supported Program 1 for low-risk sources, but argued that
few, if any, sources would qualify because the requirements were too
stringent.
a. Potential for Offsite Impact. Commenters generally agreed that
sources that can demonstrate no offsite impact should be eligible for
Program 1, but only public health should be considered, not
environmental impacts. Others stated that only sources posing a threat
of ``considerable'' impacts should not be eligible for Program 1. One
commenter stated that EPA's worst-case scenario is unrealistic and its
use as a Program 1 trigger is unreasonable. Other commenters want EPA
to allow site-specific modeling for the offsite consequence analysis,
rather than look-up tables.
In today's rule, EPA specifically allows owners or operators to use
site-specific air dispersion modeling for their offsite consequence
analyses. EPA disagrees that offsite impacts should be limited to
``considerable'' impacts. When offsite impacts are possible, it may be
reasonable to implement some additional measures to reduce accidental
releases, especially when the burden of measures such as additional
training or safety precautions is low. Programs 2 and 3 provide
flexibility to allow source-specific consideration of the appropriate
level of effort. Program 1 requires no additional prevention measures,
which is only categorically justifiable if such measures would not
reduce offsite impact. It is reasonable to couple a no impact criterion
with a conservative worst-case scenario to conclude categorically the
public would not benefit from additional prevention measures. If no
impact can be demonstrated for a conservative worst-case release, then
no impact is likely to occur for any other release event, and the
process could be judged to pose a low threat to the surrounding area.
EPA has decided that potential impact on environmental receptors
resulting from a worst-case scenario will not be a criterion to
determine eligibility for Program 1. EPA agrees that very little, if
any, data exist on the potential acute environmental impacts or
environmental endpoints associated with listed chemicals upon
accidental release. In addition, the offsite consequence distances
estimated using human acute toxicity or overpressure effects may not be
directly relevant to environmental effects. However, owners or
operators will be required to document in the RMP the presence of such
receptors within the distance determined for the worst case. EPA
believes that natural resource agencies and the public will be able to
benefit from the environmental receptors information in the RMP in
discussions with the source.
b. Accident History for Program 1. Many commenters objected to
accident history as a Program 1 criterion, arguing that a process that
had a significant accidental release in the previous five years may
have been changed to reduce or eliminate future events and public
impact. Several commenters suggested that such processes that otherwise
meet Program 1 criteria should remain eligible, but be required to
justify and document the changes. Some commenters also objected to
EPA's proposed definition of significant accidental release, arguing
that many companies and emergency responders conservatively evacuate or
shelter-in-place during minor incidents. Under the proposed definition,
these actions disqualify a process from Program 1 even if there were no
offsite impacts. Some commenters stated that the accident history
provision was unnecessary because, by definition, a Program 1 process
is not capable of an accidental release that could affect public
receptors.
EPA has decided to retain the accident history criterion for
Program 1 processes, excluding events with evacuations and shelterings
in place, and to drop the definition of significant accidental release.
Program 1 eligibility is not a one-time exercise; owners or operators
must certify in each RMP that no qualifying releases have occurred
since the previous RMP submission and provide current worst-case
release data indicating no offsite impacts are anticipated in the
future. Program 1 criteria and accident history provide owners or
operators an opportunity to demonstrate to the community ongoing
excellence in accident prevention and an incentive to search for and
implement ways, such as inventory reduction, to reduce the potential
for offsite impacts associated with large scale accidental releases.
Further, the unique circumstances surrounding past accidents can
provide a reality check on the theoretical modeling and worst-case
scenario claims used for the offsite consequence assessment and serve
to verify that administrative controls and passive mitigation measures
work as intended. EPA decided to delete public evacuations or
shelterings-in-place as criteria for Program 1 eligibility. EPA is that
inclusion of these criteria in Program 1 eligibility may create a
perverse incentive not to report releases and it may encourage sources
and local emergency officials to take more chances during an event when
there may be potential exposures that do not rise to the endpoint
specified in this rule but would otherwise be worthy of precautionary
actions by the source or by local officials. If the evacuation or
sheltering takes place because of a concern for public exposure to an
endpoint as specified in this rule, then public receptors necessarily
would be under the worst case distance and the process would not be
eligible for Program 1 under the criteria of the rule. Owners or
operators of processes that meet Program 1 eligibility requirements are
required to report a 5 year accident history for that process. If local
[[Page 31676]]
emergency planners, first responders or the public have concerns about
processes in Program 1 because of a past evacuation or sheltering-in-
place event, then mechanisms under EPCRA could be used to gather more
information from the source about its prevention program (such as EPCRA
sections 302(b)(2) [designation of a facility if it does not already
handle extremely hazardous substances listed under section 302] and
303(d)(3) [provision of information to the emergency planning
committee]) and involve the source in emergency planning. Sources and
local first responders should be discussing evacuation and sheltering-
in-place criteria and decisions as part of emergency response planning.
c. Other. Many commenters asked that specific industries such as
ammonia refrigeration, retail fertilizer outlets, all flammables, and
all non-PSM sources be assigned to Program 1. EPA disagrees because
each source has unique surroundings that must be considered in the
worst-case assessment and each source must demonstrate favorable
accident history. All ammonia refrigeration units covered by this rule
are already subject to OSHA PSM; many of these have had accidents that
affected the community and should be required to complete the
requirements of the hazard assessment and emergency response program
and provide the community with full RMP information. According to the
industry, a typical ammonia fertilizer retailer handles 200 tons of
ammonia. Some retailers may be very geographically isolated and can
qualify for Program 1, but EPA expects that most will be subject to
Program 2. Given the large quantity of ammonia involved, EPA considers
it important that the community have information on offsite
consequences from these sources and that the owner or operator takes
the necessary steps to address accidental release prevention and
emergency response.
EPA expects that some sources handling flammables will qualify for
Program 1 because the distance to a 1 psi overpressure is generally
less than distances to toxic endpoints. Nonetheless, those sources
handling flammables in sufficient quantity to generate a potential
offsite impact should provide the community with information on hazards
and address prevention and response steps. Many sources handling
flammables are already subject to PSM; the only additional steps
required under this rule are completion of the hazard assessment and
emergency response programs and submission of an RMP.
EPA does not agree that non-PSM sources should be assigned to
Program 1. Many of these sources could have an accidental release that
can affect the community. OSHA exempted retailers because they are
covered by other OSHA or state regulations that address workplace
safety, not because they are incapable of having offsite impacts. All
retailers are in Program 2 unless they can meet Program 1 criteria;
thus, they should be taking prevention steps and will be providing the
community with information. Compliance with other existing Federal and
state programs may satisfy many Program 2 prevention requirements,
thereby limiting the burden. In addition, EPA expects to develop model
risk management programs for these sectors. Public sources in states
without delegated OSHA programs are not covered by OSHA PSM because
OSHA is barred by law from regulating them. Nonetheless, these sources
may pose a threat to the community. Today's rule places these sources
in Program 2.
3. Program 2 vs. Program 3 Criteria. In the SNPRM, EPA's preferred
approach assigned sources to Program 3 based on SIC code and number of
employees; sources in specified SIC codes with 100 or more full-time
employees (FTE) would have been subject to the full program in 3 years;
sources in a subset of these SIC codes with 20 to 99 FTEs would have
been subject to the full program in 8 years. The alternative was to
impose the full program on all sources with more than 100 FTEs. Most
SNPRM commenters submitted suggestions and arguments about this
approach.
a. Number of Employees. Only two commenters supported using the
number of employees as the sole criterion, arguing it would be the
easiest approach to implement with the greatest amount of industry
participation. Commenters opposed it because the number of employees
proposed does not reliably correlate with risk, hazard, or quantity on
site, and because it could act as an incentive to reduce employment. In
addition, some commenters stated that smaller sources may have fewer
resources to manage hazards and, therefore, may pose a greater risk to
the public.
EPA agrees and has deleted the number of employees as a Program 3
criterion. Although size of a source in the manufacturing sectors may
be related to the quantities on site and complexity of the processes,
many other sources may have similar characteristics with fewer
employees. Complexity is more directly associated with the type of
industry (i.e., SIC code) than with number of employees; a highly
automated process may involve fewer employees and be more complex than
a more labor intensive process. Quantity, if relevant, can be directly
measured rather than indirectly by number of employees. In addition,
EPA was concerned that the data on which the Agency based its proposed
approach may not be representative of all accidental releases. These
data, drawn from reports to the National Response Center and EPA
regions, appear to indicate that larger sources have more and larger
accidental releases than do smaller sources. This finding, however, may
in part reflect different levels of reporting, rather than different
levels of accidents. Both Federal and state officials report that the
number of releases has risen in recent years as more sources learn
about their reporting obligations. EPA has decided that, because the
processes within the SIC codes basically handle the same chemicals in
the same way, smaller sources should not be moved to a different
Program based on the number of employees.
b. SIC Code. Fifty-seven commenters, particularly those in the oil
industry, utilities, and public systems, supported the use of SIC codes
based on accident history; 28 commenters opposed it. Supporters argued
that industry accident records represented a reasonable criterion for
identifying high-risk sources. If an entire industry has a long history
without accidental release, it may indicate that the materials handled
and handling conditions generate a smaller potential for serious
releases or that the industry is effectively controlled by government
or industry standards. Some commenters argued that industry accident
histories reflect underlying risk better than individual source
accident histories because accidents are rare events; a source with no
accidental releases over the previous five years is not necessarily
safe.
Commenters opposing the use of SIC codes stated that the approach
is arbitrary, that accidents with only onsite effects should not be
used, that sources in other industry sectors handle similar quantities
and pose similar risks, and that sources within an industry that have
successful risk management practices are penalized by a few isolated
sources within the industry.
EPA has decided to retain the use of SIC codes, adding SIC 2865
based on further review of accident histories, and to add coverage by
the OSHA PSM standard as a separate criterion for Program 3. EPA
selected the SIC codes by analyzing accident data filed by
[[Page 31677]]
sources in response to EPA's request for information in the Accidental
Release Information Program (ARIP). ARIP collects data from certain
sources that report releases under CERCLA section 103. EPA selected the
SIC codes that showed a high frequency of the most serious accidents
across a significant percentage of all sources within the SIC code to
avoid mischaracterizing an industry based on isolated, problematic
sources. Data on the selection criteria were summarized in the SNPRM
and the docket at the time of the SNPRM. The accident history of the
cyclic crudes industry (SIC code 2865) is similar to that of the
categories selected. EPA disagrees that only offsite impacts should be
considered; accidental releases that caused death, hospitalizations, or
injuries on site are also of concern because they indicate significant
safety problems that could lead to releases that cause impacts offsite.
The SIC codes selected by EPA are basically the same ones OSHA selected
for its PSM program inspection focus. EPA disagrees that sources are
``penalized'' by this approach because owners or operators of processes
in these SIC codes have an opportunity to present their safety record,
demonstrate the success of their accident prevention programs, and
communicate with the local community the basis for their risk
management practices. Sources that receive Merit or Star status in the
OSHA Voluntary Protection Program will be favorably distinguished from
others in the same industry when implementing agencies are selecting
sources for audits (see section III.T.1 below).
EPA agrees that serious accidents occur infrequently even at
sources with poor safety practices and that industry-wide accident
records provide a better mechanism than the accident history at a
single source for identifying those sectors whose chemicals and
processes may lead to serious releases. A high proportion of the
sources in some SIC codes reported releases; EPA's analysis
specifically took into account the number of reports from individual
sources to avoid selecting an SIC code because of a small number of
sources with serious safety problems.
The OSHA PSM already applies to most covered processes in the
selected SIC codes. EPA expects that there will be fewer than 400
additional processes assigned to Program 3 that are not already subject
to the OSHA PSM standard at the approximately 1,400 sources in these
SIC codes and that all of these sources will already have other
processes covered by OSHA PSM. Consequently, fulfilling the RMP
requirements imposes little additional burden.
EPA decided to include all covered processes currently subject to
the OSHA PSM standard in Program 3 to eliminate any confusion and
inconsistency between the prevention requirements that the owners or
operators of such processes must meet. EPA's Program 3 prevention
program is identical to the OSHA PSM standard. Including OSHA PSM
processes in Program 3, therefore, imposes no additional burden on
these processes; the only new requirements for such processes are the
hazard assessment, emergency response program, and the RMP, which are
the same under Programs 2 and 3.
c. Site-Specific, Risk-based Criteria. Many commenters stated that
Program assignment should be based on site-specific risk-based
criteria. Accident history is one such criterion and is discussed
separately in Section III.A.3.d. Other criteria suggested include
population density or proximity, quantity on site, number of substances
held above the threshold, process conditions, toxicity, volatility,
alternative release scenario results, or combinations of these factors
as a risk index.
EPA agrees with commenters that Program assignments should be risk-
based to the extent possible; however, as the variety of suggestions
indicates, a considerable number of variables would need to be
considered. EPA knows of no standard approach or equation that is used
and generally accepted. The variety of suggestions indicate the
likelihood that any proposed formula would meet opposition. No
commenter provided a method to comprehensively address these factors on
a nation-wide basis.
An important consideration for EPA in developing the rule
provisions for Program assignment was to avoid undue complexity,
confusion, and resource expenditure by sources and implementing
agencies implementing the rule's criteria. To some extent, EPA has
incorporated risk factors, including site-specific factors, in
determining which sources are eligible for which Program. For example,
Program 1 eligibility already considers the potential for offsite
impacts; any process for which there are no public receptors within the
distance to an endpoint from a worst-case release may be eligible for
Program 1, provided there have been no releases with certain offsite
consequences within the previous five years. Today's rule allows
sources to consider passive mitigation and administrative controls in
conducting the worst-case release analysis. Such site-specific
considerations affect the extent of potential exposure to a worst-case
release, and thus are reflected in the Program 1 eligibility criteria.
Elements of risk such as process complexity and accident history are
also reflected the design of Program 2 and Program 3 requirements and
the assignment of processes to these Programs. Program 2 sources
generally handle and store regulated substances, but do not react or
manufacture them. EPA believes Program 2 sources can take prevention
steps that are less detailed than those in the OSHA PSM standard and
still accomplish accident prevention that is protective of any
population nearby. Program 3 is reserved for processes already subject
to the OSHA PSM standard and processes with high accidental release
histories. The SIC codes with an accident history selected by EPA for
Program 3 are typically complex processes. The PSM standard was
designed for, and is particularly appropriate for, these processes.
EPA takes issue with the appropriateness of some of the suggested
factors. Meteorological conditions vary too much to be considered in
determining a risk level. Chemical quantity alone does not accurately
relate to risk because the location and handling conditions can
dramatically change the potential for exposures.
In addition, EPA has implementation concerns about a detailed,
national, multi-factor, risk-based approach, were it to be feasible.
States such as Delaware have used a simple version of a risk-based
approach and found that it created serious problems for the state and
the sources. Smaller sources and those without technical staff have had
great difficulty in implementing the approach and have had to rely on
state officials to determine applicability for them. Delaware
specifically recommended that EPA not attempt implementing a similar
approach on a national basis because of the burden it imposes on the
state and the confusion and uncertainty it creates for sources.
Delaware has fewer than 100 sources; nationally, EPA estimates that
66,000 sources will be subject to the rule, approximately 62,000 of
which are outside of the chemical and refining sectors. If implementing
agencies had to help most of these sources determine the index score
and Program for each process, not only would the burden on the agencies
be extreme, but implementation would also be delayed. Furthermore, were
EPA to simply identify risk factors without an index and leave the
determination of Program
[[Page 31678]]
level to sources or implementing agencies, the process for such site-
specific determinations would be even more complex and resource
intensive for sources and implementing agencies; it would create
disincentives for a state to become involved and to take on the role of
an implementing agency. EPA believes it is better to have sources and
agencies focus their resources on prevention activities.
EPA considered, but decided against, a less comprehensive risk-
based approach using proximity or population density as criteria for
distinguishing between Program 2 and 3. EPA recognizes that accidental
releases from sources near or in densely populated areas may harm more
individuals and be perceived to pose a greater risk than other sources.
However, as stated above, EPA believes that the type of process, its
complexity and accident history should be considered for Program 2 or 3
assignment, regardless of the number of people potentially exposed. In
other words, EPA does not believe the streamlined Program 2 prevention
elements should apply to a complex Program 3 process just because fewer
persons could be potentially exposed or that the Program 3 prevention
elements should apply to a Program 2 process because more people could
be potentially exposed. EPA believes that populations offsite should be
protected from harm based on the type of process; the Program 2
prevention elements, properly applied to the expected types of Program
2 processes, serves to protect off-site populations, just as the
Program 3 prevention elements for complex processes serves to protect
offsite populations.
If Program assignments were based on the alternative release
scenario results, sources would not have the flexibility and latitude
in today's rule for these scenarios because more definite criteria
would need to be considered to ensure the proper scenarios and results
are assessed. This places more emphasis and burden for sources on the
offsite consequence assessment rather than on accident prevention and
communication with the public and first responders. Furthermore,
because active mitigation includes process and control equipment that
may fail, considering such equipment in evaluating risk would not be
appropriate without detailed review by the source and oversight by the
implementing agency.
Some commenters suggested yet another variation of a less
comprehensive, ``risk''-based approach that would have EPA use a site-
specific analysis of likelihood of release to assign Program levels.
Many of the same difficulties in developing a ``risk index'' for
determining Program assignments would apply to an attempt to
incorporate likelihood in a more sophisticated manner than EPA was able
to do in its analysis of accident history by SIC code. In addition to
the substance-specific properties considered as part of the chemical
listing criteria, the site-specific likelihood of a release depends on
a number of factors, including the appropriateness of the equipment in
use, the maintenance of that equipment, operator performance, and
safety systems and their performance. Evaluating site-specific
likelihood of release requires data on each of these items; such data
rarely exist especially for complex processes where a variety of
equipment must be evaluated along with the performance of multiple
operators and maintenance workers. Using surrogate data (e.g.,
manufacturer's failure rate data) introduces error of an unknown
magnitude to the analysis. Such analyses are very costly and produce
results that are, at best, questionable.
EPA also believes that assessing the likelihood of a release at
most sites for site-specific individualized Program-level
determinations is neither technically feasible nor cost-effective. In
most cases, the data do not exist to conduct a meaningful analysis;
where they do exist, the cost of developing a defensible analysis and
overseeing it could well exceed the cost of compliance with the rule.
Such an approach would resemble a permit program, which would be
resource-intensive for sources and implementing agencies. EPA
determined that the simpler approach for assigning sources to Program 1
would provide regulatory relief for those sources that could not affect
the public while allowing other sources to devote their resources to
prevention activities rather than to analyses that would be subject to
legal challenges.
EPA notes that sources have the flexibility to implement
appropriate accident prevention measures based on the hazards and risks
discovered in the hazard review or process hazard analysis. The
structure of Programs 2 and 3, therefore, reflect site-specific risk
criteria. Further, the purpose of the risk management program and RMP
effort is to prevent accidents and facilitate local level dialogue
about the risks, prevention measures, and emergency response effort in
place at the source. The local community and first responders may have
far different concerns that should, and can be addressed better through
today's approach than those reflected by a risk index approach.
d. Accident History. Some commenters argued that EPA should assign
sources to Program 3 based on the accident history of the source. One
commenter suggested that any source with no accidental release that
exceeded a reportable quantity (as defined in CERCLA) for the previous
five years should be in Program 2. Others argued that a source should
be in Program 2 if it had no significant accidental release in the
previous five years. Some commenters said that a one-release standard
was too stringent and that two or more significant accidental releases
should be allowed before a source was assigned to Program 3. Another
commenter suggested that a source with no significant accidental
releases in the past five years and with few potentially impacted
neighbors should be placed in Program 2.
Other commenters opposed this approach, arguing that, in many
cases, sources take steps to prevent recurrences following a serious
release. In some cases, the offsite impacts from releases are minor and
would not justify assigning a source to a particular Program. Other
commenters stated that the absence of an accidental release can be
indicative of lower risk, but it can also simply mean that a release
has not yet occurred. Several commenters noted that a five-year time
period is statistically insignificant because accidental releases are
infrequent events.
EPA agrees that source-specific accident history is not a
reasonable basis for assigning processes to Programs 2 and 3. Given the
relative infrequency of serious accidents, a five- or even ten-year
period without an accident may not be indicative of safe operations. In
addition, the criteria necessary to define the types of past accidental
release for the purposes of program classification would need to be
based on a wide variety of variables and site-specific factors, which
would lead to confusion and unnecessary complexity. Factors such as
weather conditions at the time of the release, rather than the size of
a source or its management practices, often determine whether a release
has offsite consequences. EPA believes that accident history is
appropriately used on an industry-wide basis as described above for
selection of Program 3 sources. If accidental releases with
consequences appear to occur at a large proportion of sources within an
SIC code, where similar processes, equipment and chemicals are used,
then it is reasonable to conclude that
[[Page 31679]]
processes in that SIC code pose a greater likelihood of a high hazard
release than others. This approach removes the need for at least one
accident to occur at every source that EPA believes ought to be
assigned to a particular Program, especially when such accidents are
rare events. EPA is also concerned that using source-specific accident
history as a criterion would create an incentive for sources to fail to
report releases. Finally, as EPA has stated, assignments to Program 2
and 3 also consider the appropriateness of the prevention steps for the
types of sources. EPA believes that both Programs move sources to
greater accident prevention.
e. Other. Some commenters asked that the implementing agency be
given discretion to move a source into a different Program based on
local concerns and knowledge. EPA notes that states have the authority,
under the CAA, to impose more, but not less, stringent standards than
EPA (see CAA section 112(r)(11)).
A few commenters suggested that Program 2 be limited to sources for
which a model risk management program had been developed. The models
would be designed to reflect risks associated with categories of
sources that all use the same type of equipment and handle the
substances in the same way (e.g., propane retailers and users, ammonia
retailers). EPA considered this approach and decided that the Program 2
prevention program provides a better, generic prevention approach for
processes for which the more detailed PSM program would be
inappropriate. Limiting Program 2 to those industrial sectors where
industry-specific models are feasible would place some manufacturing
sources at a disadvantage simply because their chemical uses,
processes, and equipment were too varied to allow development of a
model or because there are too few sources to justify use of EPA or
industry resources to develop a model. In addition, if EPA were to
limit Program 2 to sources with model programs, Program 2 regulations
would need sufficient specificity to enforce the use of these models;
otherwise, sources would be able to ignore both PSM and the models. EPA
is also concerned that codifying the model plans could stifle
innovation in safety practices. If industry codes or other Federal
regulations on which parts of the models may be based were updated, EPA
would have to revise its models; given the time needed to propose and
adopt regulations, sources might have to delay implementation of new
systems and, in some cases, might be caught between complying with a
revised EPA or OSHA regulation or state law or complying with the
model. Consequently, EPA decided it was better to have models available
as guidance, but not require compliance with them. Further, EPA
believes that the key elements of good accident prevention practices
are captured within the requirements of the Program 2 prevention
program. Model programs and plans are likely to build on these
approaches, making it easier for sources in Program 2 to use models
that are later developed by others.
EPA is working with industry to develop model risk management
programs and RMPs for ammonia refrigeration systems, propane
distributors and users, and water treatment systems. EPA also expects
to develop models for ammonia retailers and wastewater treatment
systems. EPA encourages other industrial sectors to work together on
additional model development.
4. Program 1 Requirements. Commenters were generally opposed to
posting signs, and certification of no environmental impact.
a. Certification of No Environmental Impact. Many commenters stated
that it would be ``virtually impossible'' to certify ``no potential for
environmental impacts,'' as required by the SNPRM. Commenters said that
the definition of environmental impact was too vague, that the list of
environments suggested in the SNPRM was too broad, and that the
language seemed to require a full environmental consequence assessment,
making the requirement impossible. One commenter noted that companies
would find it difficult to assert that there could be ``no
environmental impacts'' even after an environmental consequence
assessment reveals insignificant impacts. Two commenters suggested that
EPA substitute ``low potential for environmental impact'' or ``no
potential for long-term, adverse environmental impact.'' Other
commenters requested that environmental impact be dropped or that the
requirement be changed to mirror the Program 1 eligibility criteria
with an indication in the RMP that no environmental receptors of
concern were within the worst-case distance to an endpoint.
As described above in section III.A.2.a. Potential for Offsite
Impact, EPA has decided not to make the presence of environmental
receptors a part of the eligibility criteria for Program 1 and has
deleted the certification requirement. Instead, owners or operators of
all covered processes will have to identify in the RMP any
environmental receptors that are within the distance potentially
affected by the worst case.
b. Signs. Commenters generally opposed the SNPRM requirement that
sources with Program 1 processes post signs warning of the hazards on
site if the only regulated substances present at the site above the
threshold quantity were listed for flammability. Commenters stated that
local and state fire and safety codes often already require such signs.
In addition, sources are already required under EPCRA section 312 to
file annual inventories with the LEPC and fire department that identify
hazards on site. Signs would have fulfilled the emergency response
program requirements for a source. Because Program 1 eligibility will
now be determined on a by-process basis rather than by source-wide
criteria and because EPA has revised the emergency response program
provisions as noted below, EPA has dropped the requirement for signs.
c. Emergency Response Program. In the SNPRM, EPA asked whether
additional emergency response planning and coordination should be
required for Program 1 processes. Some commenters supported this
requirement, while others stated that most sources are already covered
by EPCRA and participate in community response planning. Commenters
stated that because the worst-case release could not reach public
receptors, such efforts were not necessary.
In the final rule, EPA is requiring the owner or operator of a
Program 1 process to ensure that any necessary response actions have
been coordinated with local response agencies. EPA believes that local
responders may become involved in an incident, even if the public is
not threatened. No additional CAA-related planning activities are
required, however.
d. Other. Many commenters stated that, since Program 1 processes
generate no offsite impact, they should be exempt from this rule. One
commenter objected to Program 1 because members of the public,
particularly first responders and business visitors, could still be
hurt by a release. Other commenters suggested that the annual EPCRA
section 312 form could be amended to indicate that a source was covered
by the rule, replacing the RMP registration form.
The CAA requires that all sources with more than a threshold
quantity of a listed substance register an RMP, perform a hazard
assessment, and develop accidental release prevention and emergency
response programs. Therefore, total exemption of processes that meet
Program 1 criteria is not
[[Page 31680]]
possible. See S. Rep. No. 228, 101st Cong., 1st session, at 208
(``Senate Report'') (precursor of RMP provision mandating hazard
assessments for sources that exceed threshold for listed substance);
136 Congressional Record S16927 (daily ed. October 27, 1990) (remarks
of Sen. Durenburger, sources with more than a threshold quantity are
subject to regulations); 136 Cong. Rec. H12879 (daily ed. Oct. 26,
1990)(remarks of Rep. Barton)(all users of hazardous chemicals are
required to plan for accidents). Moreover, even if an exemption for
processes that exceed a threshold were permissible, the owner or
operator would need to take steps that are equivalent to the hazard
assessment to establish eligibility for the exemption. The offsite
consequence analysis is the most significant burden for a Program 1
process under this rule. The minimal additional actions required in
today's rule for Program 1 simply establish a record of eligibility and
a response coordination mechanism.
EPA recognizes that emergency responders and site visitors could be
hurt by an accidental release from any process, but notes that
responder safety is covered by OSHA and EPA under the HAZWOPER
regulations. It is the owners' or operators' responsibility to inform
visitors about the hazards and the appropriate steps to take in the
event of an accidental release from any process subject to today's
rule.
Finally, EPA has based the registration information requirements in
today's rule on the EPCRA section 312 Tier II form. The CAA requires
that the RMP be registered with EPA. Because the EPCRA form is not
submitted to EPA, it would not substitute for registration with EPA
either in its present or amended form. Completion of the registration
portion of the RMP should impose little additional burden on owners or
operators. However, EPA recognizes the information overlap between the
Tier II form and the RMP registration and is considering use of the RMP
registration for the Tier II reporting requirement.
5. Program 2 Requirements. Commenters were generally concerned
about the lack of specific requirements for the Program 2 streamlined
prevention program and emergency response requirements, and how
compliance with other regulations would be incorporated.
a. Streamlined Program. Commenters stated that the Program 2
prevention program does not provide much, if any, regulatory relief
because sources would need to address most of the ten elements of the
Program 3 prevention program. Others said that the majority of the
sources affected by the rule are already covered by OSHA PSM and
chemical industry standards, the Program 2 requirements do not satisfy
the CAA mandate, and that only a full process hazard analysis would
meet the hazard assessment requirements under section 112(r). Another
commenter argued that EPA's statement that sources must comply with the
CAA's general duty clause was inadequate because EPA has not used, and
has no policy about, the clause.
EPA agrees that the preferred approach in the SNPRM did not provide
sufficient detail on Program 2 prevention requirements to distinguish
it from Program 3. EPA solicited comments on whether Program 2 should
require additional, specific prevention steps. Today's rule provides
specific requirements as discussed in section I.D above and in Section
IV below. In the RMP, the owner or operator will be required to report
on other Federal or state regulations, industry codes, and standards
used to comply with prevention elements as well as any major hazards,
process controls, mitigation systems, monitoring and detection systems
examined in the hazard review. This streamlined prevention program
addresses many of the PSM elements as the basis for sound prevention
practices, but is tailored to processes with less complex chemical
uses; this program provides considerable regulatory relief by
substantially reducing the documentation and recordkeeping burden of
PSM. In addition, EPA will provide guidance and model risk management
programs to further assist Program 2 processes in developing and
maintaining good prevention program practices.
EPA disagrees that only a full PHA would meet the requirements of
the Act. Section 112(r) does not contain detailed requirements for the
hazard assessment, beyond the key components of accidental release
scenarios and a five-year accident history. EPA believes that a PHA is
more appropriately considered an element of a prevention program, such
as PSM. The statute does not mandate detailed PHA engineering analyses
for all sources, whether as part of the hazard assessment or the
prevention program. EPA believes PHAs involve a more detailed
engineering analysis than is necessary to prevent accidents at Program
2 sources. The ``hazard review'' provisions of Program 2 should be
sufficient to detect process hazards at these simpler processes. EPA
recognizes that although hazard assessments and PHAs or process hazard
reviews are discreet elements that can be performed independently,
hazard assessment results can enhance PHA or process hazards reviews
and in turn, the results of the PHA or review can enhance the hazard
assessment. EPA encourages owners or operators to make maximum use of
the PHA or review and hazard assessment information to manage risks and
prevent accidents.
Finally, sources with Program 2 requirements, as well as sources
with Program 1 or 3 requirements, must comply with the general duty
clause of CAA Section 112(r)(1). The general duty clause provides that
owners and operators have a general duty to identify hazards that may
result from accidental releases, design and maintain a safe facility,
and minimize the consequences of any releases that occur. The general
duty clause is a self-executing statutory requirement: it requires no
regulations or other EPA action to take effect. The clause provides a
separate statutory mechanism that EPA will use in appropriate
circumstances to ensure the protection of public health and the
environment. To date, EPA has undertaken several inspections designed
in part to determine compliance with Section 112(r)(1). As appropriate
at a future date, EPA may issue policies or guidance on application of
the general duty clause.
b. Other Regulations. Commenters generally agree that OSHA PSM,
HAZWOPER, the OSHA hazard communication standard (29 CFR 1910.1200),
and NFPA-58 are examples of other regulations or voluntary industry
standards that could be cited to meet the requirements of a Program 2
prevention program. Commenters requested that EPA provide a matrix or
crosswalk that indicates which other regulations, standards, and codes
met specific requirements. One commenter opposed the use of other
regulations or referencing of voluntary industry standards, stating
that, other than OSHA PSM, no other OSHA standard addresses safety
precautions or maintenance. Another commenter objected that this
approach creates another documentation burden without any commensurate
benefit.
EPA agrees that the SNPRM preferred approach for Program 2 was not
specific enough and has provided more detailed requirements in this
rule as noted above. EPA continues to believe that many of the Program
2 prevention requirements are already met through industry compliance
with existing regulations and voluntary standards. For example, ammonia
retailers whose processes are designed to meet the OSHA ammonia
handling rule (29 CFR
[[Page 31681]]
1910.111) should be able to meet the Program 2 requirement that the
process design meets good engineering practices. This effectively
allows sources to cite compliance with these other regulations and
standards instead of developing specific, duplicative elements solely
to comply with Program 2. EPA will also use these existing regulations
and standards as it develops model programs.
c. Emergency Response Program. Commenters supported considering
HAZWOPER programs as adequate to meet the Program 2 emergency response
program. A few commenters said that HAZWOPER is inadequate because it
does not consider offsite impacts or the environment. Some commenters
also said that coverage of a source by an EPCRA community emergency
response plan should be sufficient. Others said that any contingency
plan developed under Federal or state law should be considered
sufficient because the requirements under these programs are generally
consistent with EPA's proposed emergency response program; one
commenter noted that, for flammable processes, compliance with 29 CFR
1910.38 should be adequate because the response is usually evacuation
of employees. Five commenters opposed any requirement that sources with
Program 2 processes conduct drills or exercises because they represent
lower hazards.
Consistent with its efforts to consolidate Federal emergency
planning requirements, EPA has included language in the final rule that
will allow any source in compliance with another Federal emergency
response program that includes the elements specified in this rule to
use that program to meet these requirements. In particular, this
applies to response plans prepared in accordance with the National
Response Team's Integrated Contingency Plan Guidance (``one plan'')
(NRT, May 1996). EPA believes that sources should have a single
response plan; creation of multiple response plans to meet slightly
different Federal or state standards is counterproductive, diverting
resources that could be used to develop better response capabilities.
EPA recognizes that some sources will only evacuate their employees
in the event of a release. For these sources, EPA will not require the
development of emergency response plans, provided that appropriate
responses to their hazards have been discussed in the community
emergency response plan developed under 42 U.S.C. 11003 for toxics or
coordinated with the local fire department for flammables.
B. Offsite Consequence Analysis
1. Worst-Case Release Scenario. EPA proposed in the NPRM to define
the worst-case release as the ``loss of all of the regulated substance
from the process * * * that leads to the worst offsite consequences''
and that the scenario should assume ``instantaneous release.'' Hundreds
of commenters stated that instantaneous loss of the total process
contents is not technically feasible for complex systems and,
therefore, represents a non-credible worst case that would provide no
useful information to the public or the source for risk communication,
accident prevention, and emergency preparedness. Many commenters also
argued that this approach differed from the release modeling
assumptions contained in EPA's Technical Guidance for Hazards Analysis,
which has been the basis for community emergency planning activities
under EPCRA. Although some commenters were generally opposed to the
concept of worst case, most of the commenters were supportive of an
approach similar to that taken in the Technical Guidance.
In response to these comments, EPA proposed in the SNPRM to
redefine a worst-case scenario as the release, over a 10-minute period,
of the largest quantity of a regulated substance resulting from a
vessel or process piping failure. The 10-minute release time is drawn
from the Technical Guidance for Hazards Analysis. EPA believes this
duration is reasonable and accounts for comments arguing that an
``instantaneous'' release is unrealistic for large-scale releases.
EPA has decided to adopt the SNPRM approach for worst-case toxic
vapor releases in the final rule because most of the SNPRM comments
agreed that the redefinition is generally more credible and that the
10-minute time frame particularly applies to vapor releases. Although
some commenters argued that this approach still does not account for
all process-specific conditions, EPA believes it is reasonable and
representative of accident history. EPA notes that owners or operators
may use air dispersion modeling techniques that better account for
site-specific conditions, provided modeling parameters as specified in
the rule are applied. This release scenario will apply to substances
that are gases at ambient conditions, including those liquefied under
pressure. Gases liquefied by refrigeration only may be analyzed as
liquids if the spill would be contained by passive mitigation systems
to a depth greater than 1 cm.
Under the SNPRM, worst-case liquid spills were assumed to form a
pool in 10 minutes, with the release rate to the air determined by
volatilization rate. EPA recognized that this approach differs from the
use of an instantaneous release in the Technical Guidance, which EPA
cited as an alternative to its favored approach. The few comments
received were divided between support of this approach and arguments
that the 10-minute time frame was unrealistic for liquid releases
(particularly for pipelines and connected equipment) and thus did not
properly account for process-specific conditions.
EPA's approach for the liquid worst-case scenario in the final rule
is similar to the Technical Guidance methodology, in which the total
quantity of liquid in a vessel or pipeline is instantaneously spilled
upon failure, considering administrative controls or passive mitigation
discussed below. The rate of release to the air is not instantaneous;
it is determined by the volatilization rate of the spilled liquid,
which depends on the surface area of the pool formed after the spill.
The pool surface area is determined by assuming the spilled liquid
rapidly spreads out and forms a one-centimeter deep pool, unless
passive mitigation systems contain the pool to a smaller area. EPA
believes this approach is reasonable because total vessel or pipeline
failure will generally lead to immediate and rapid spillage followed by
pool volatilization. Further, if the liquid were assumed to spill over
a particular time frame rather than instantaneously, owners or
operators would need to calculate the amount of vapor emitted to the
air as the liquid is spilled, in addition to the volatilization rate as
the pool spreads out and reaches its maximum size. Computer-based
models are available for such calculations, but they are complex and
require considerable data input to use. EPA believes that liquid
spillage from a worst-case scenario is likely to be extremely rapid
such that the most significant portion of the release rate is given by
pool volatilization; consequently, liquid release time is not
necessary. Liquid spill rates and times could be reflected in
alternative scenarios discussed below.
As proposed, the worst-case for flammables assumes that the total
quantity of the substance in the vessel or pipeline vaporizes,
resulting in a vapor cloud explosion. If the vapor cloud explosion is
modeled using a TNT-equivalent methodology, then a 10 percent yield
factor must be used.
EPA requested comment in the SNPRM on whether the worst-case
scenario should include an additional
[[Page 31682]]
amount of substance that could potentially drain or flow from process
equipment interconnected with the failed vessel or pipeline. Many
commenters opposed this option, suggesting that it is technically
uncertain and would have little value in terms of what they saw as
EPA's intended purpose for the worst-case assessment. Other commenters
requested that ``interconnected equipment'' be defined and clarified.
Given the assumption of rapid release associated with initial equipment
failure, EPA agrees that determination of the spill rate from connected
piping and equipment is likely to be technically complex, very
different from that of the quantity in the vessel or failed pipeline,
and likely to extend the duration of volatilization rather than
affecting the rate overall. Therefore, EPA has not included this
requirement in the final rule.
EPA also sought comment in the SNPRM on options for the
determination of the relevant quantity of regulated substance in a
vessel or process piping for a worst-case release scenario: the maximum
possible vessel inventory (design capacity) at any time without regard
for operational practices and administrative controls; the maximum
possible vessel inventory unless there are internal administrative
controls (written procedural restrictions) that limit inventories to
less than the maximum; or historic or projected maximum operating
inventories without regard to administrative controls. EPA preferred
that the maximum vessel inventory including administrative controls
that might limit or raise the vessel quantity to be used in the worst-
case assessment and reported in the worst-case release analysis section
of the RMP. If the quantity used in the assessment were exceeded (e.g.,
an administrative control were ignored), then the source would be in
violation of the rule (i.e., failure to perform a worst-case analysis)
and RMP reporting unless the administrative control was revised, the
worst-case analysis updated to reflect any changes in the analysis, and
a revised RMP submitted. This approach acknowledges the efforts by
sources to increase process safety by intentionally reducing the
inventory of regulated substances (e.g., vessels kept at half capacity
to allow for process upsets, emergency shutdowns, and deinventorying or
maintenance turnarounds). EPA notes that at some sources, as a result
of inventory reduction measures, the largest quantity may be held in a
transportation container that is loaded or unloaded at the source (See
section P.2).
A few commenters supported the other options, noting that
administrative controls may fail, potentially generating a larger
scenario. However, the majority of commenters supported EPA's preferred
approach based on the historical reliability of such controls at many
sources and the role that such a provision could play in encouraging
their use at additional locations. Other commenters asked whether
mechanical controls, alone or in combination with administrative
controls, should be incorporated into the proposal. Although mechanical
controls may also serve to limit the quantity, EPA has decided not to
include them in the quantity determination for the worst-case release
scenario because the definition for administrative control as ``written
procedural mechanisms used for hazard control'' provides a backup for
possible failure of mechanical controls. For more discussion of
mechanical controls, see section III(B)(2), mitigation systems, below.
In the SNPRM, EPA considered providing the implementing agency with
the discretion to determine the appropriate quantity for the worst-case
release scenario on a site-specific or industry-specific basis. EPA
noted in the SNPRM, and most of the few comments received on this issue
agreed, that implementing agency discretion would result in increased
administrative burden on the implementing agency and cross-
jurisdictional differences in the methodology used for the worst-case
analyses. EPA has decided not to incorporate this approach in the final
rule. States, however, may impose more stringent requirements, such as
additional modeling, under state authority.
In the NPRM worst-case definition, EPA did not specify what
constitutes or how to determine the worst offsite consequences. Some
commenters indicated that without clear direction, EPA's proposed worst
case might not actually capture the scenario that leads to the most
severe offsite impact. In the SNPRM, EPA indicated that the worst-case
scenario should be the scenario that generates the greatest distance to
a specified endpoint (i.e., the toxic vapor cloud or blast wave from a
vapor cloud explosion that travels the farthest).
EPA recognizes that there may be other release scenarios that could
generate a greater distance than the release from the largest vessel or
pipeline. Consequently, EPA has added paragraph (h) to Sec. 68.25 to
require owners or operators to consider other scenarios if those
scenarios generate greater distances to the endpoint than the distance
generated by the largest vessel or pipeline scenario. Owners or
operators need to consider releases from smaller vessels if those
vessels contain the substance at higher temperature or pressures or if
they are closer to public receptors. In some cases, the largest vessel
will be a storage vessel where the substance is held at ambient
conditions. A reactor vessel may hold a smaller quantity, but at high
pressures and temperatures, generating a release that could travel
farther offsite to an endpoint. Vessel location is important,
especially at large sources. A smaller vessel located nearer to the
stationary source boundary may generate a greater impact distance than
a larger vessel farther away. This difference may be particularly
important for flammables, because impact distances for flammables are
generally shorter than those for toxic releases.
2. Mitigation Systems
a. Worst-case scenario. In the NPRM worst-case scenario, EPA
indicated that sources must assume that both active and passive systems
fail to mitigate the release. Commenters were generally split between
those who wanted passive (as well as certain redundant active)
mitigation systems to be included and those who argued that historical
evidence from catastrophic releases suggests that the worst case should
assume the failure of all such systems. Those who supported mitigation
argued that inclusion provides a more credible scenario for improved
risk communication, accident prevention, and emergency planning.
EPA proposed in the SNPRM to include passive mitigation systems in
the worst-case release scenario as long as the system is capable of
withstanding, and continuing to function as intended during and after a
destructive event, such as an earthquake, storm, or explosion, which
causes a vessel or pipeline to fail. Passive systems such as dikes,
catch basins, and drains for liquids, and enclosures for both liquids
and gases, could be assumed to mitigate the release. Some commenters
opposed this approach, arguing again that the worst case should account
for the possibility of passive mitigation failure. The majority
supported this approach because the assumption that passive systems
specifically designed and installed as protection against a potential
catastrophe fail is unrealistic. Furthermore, the approach recognizes
and encourages prevention through additional passive mitigation and
supports more realistic emergency
[[Page 31683]]
planning. A few commenters also suggested that active mitigation
measures that were unlikely to fail (e.g., redundant or backup systems)
should be considered, for similar reasons. Historical data, however,
indicate that certain events compromise active mitigation systems
(e.g., explosions have destroyed fire water piping systems).
For the final rule, EPA has decided to adopt the SNPRM approach.
Passive mitigation systems would be defined as those systems that
operate without human, mechanical, or other energy input and would
include building enclosures, dikes, and containment walls. EPA also
agrees that reservoirs or vessels sufficiently buried underground are
passively mitigated or prevented from failing catastrophically. In this
case, sources should evaluate the failure of piping connected to
underground storage for the worst case or alternative case scenarios.
In addition to the requirements outlined in Sec. 68.25, EPA provides
guidance on how passive mitigation would affect release rate and
distance to endpoints in its RMP Offsite Consequence Analysis Guidance.
b. Alternative scenarios. EPA initially proposed that sources could
include passive mitigation systems in their alternative scenario
assessments, but that active mitigation systems (e.g., excess flow
valves, fail-safe and automatic shutdown valves, scrubbers, flares,
deluge systems, and water curtains) would be assumed to fail. Some
commenters generally opposed inclusion of any mitigation systems in the
hazard assessment, while other commenters noted that the alternative
release scenario should recognize and encourage industry accident
prevention efforts, specifically the installation of additional
mitigation systems, and support more realistic emergency planning.
EPA proposed in the SNPRM to allow sources to consider passive and
active mitigation measures in the alternative release scenario
assessment. Commenters supported this approach and EPA has decided to
retain it in the final rule. EPA agrees that the assumption that both
passive and active mitigation measures fail when such measures are
specifically designed and installed to mitigate catastrophic releases
is unrealistic for the alternative scenarios. Although not required,
EPA notes that sources may choose to apply passive and active
mitigation measures to a worst-case type scenario to illustrate the
capabilities of such systems to reduce the potential impact of a worst-
case accidental release. In addition to the requirements outlined in
Sec. 68.28, EPA provides guidance in its RMP Offsite Consequence
Analysis Guidance on how passive and active mitigation would affect
release rate and distance to endpoints.
3. Populations Affected. EPA described in the NPRM preamble certain
locations (e.g., schools and hospitals) where sensitive populations
might be present and proposed in the rule that owners or operators
identify potentially exposed populations as part of the offsite
consequence assessment. Commenters generally opposed requirements for
population surveys; several commenters suggested that Census data or
other readily available population information should be sufficient,
while other commenters indicated that the LEPC or other local planning
entities were the appropriate entity to prepare these data.
EPA believes owners or operators need to be aware of the magnitude
of impact on populations associated with the worst-case and alternative
scenarios. However, EPA learned that, although much of this information
is readily available, identification of some sensitive populations
could require considerable effort, especially if the distance to an
endpoint generated in the offsite consequence assessment is large or
crosses several jurisdictions. Consequently, EPA proposed in the SNPRM
that offsite populations be defined using available Census data;
information on the number of children and people over 65 could be
considered a proxy for sensitive populations, thereby accomplishing the
same objective as the proposed rule. EPA also indicated that it has
developed a geographic information system, LandView, that will
facilitate analysis of resident populations. (LandView can be ordered
from the U.S. Bureau of the Census customer service at (301) 457-4100.)
In general, commenters agreed with the SNPRM approach. However, some
commenters questioned the accuracy of potentially ten-year-old Census
data and requested additional flexibility, or a greater role for local
government, in this analysis.
EPA has decided to adopt the approach outlined in the SNPRM for the
final rule. Sources will be allowed to use available Census data to
estimate populations potentially affected. Sources may update these
data if they believe the data are inaccurate, but are not required to
do so. Populations shall be reported to two significant digits. Because
Census data are limited to residential populations, sources will also
have to note in the RMP whether other, non-residential populations,
such as schools, hospitals, prisons, public recreational areas or
arenas, and major commercial or industrial areas, are within the
distance to an endpoint. These institutions and areas are those that
can generally be found on local street maps. Sources will not be
required to estimate the number of people who might be present at these
locations. EPA provides further guidance on the identification of
affected populations in its RMP Offsite Consequence Analysis Guidance.
4. Number of Scenarios In the NPRM. EPA required a worst-case
release scenario for each regulated substance. Commenters requested
clarification, because one substance could be present in more than one
process at the source and sources would need to select the ``worst''
worst case for substances in multiple processes. In addition, one
process may have several, similar listed substances and multiple worst-
case analyses of similar substances (e.g., flammables) would not
provide additional useful information to the public.
EPA proposed in the SNPRM that sources report in the RMP one worst-
case release scenario representative of all toxic substances present at
the source and one worst-case release scenario representative of all
flammable substances present at the source. Even though additional
screening analyses to determine the appropriate worst-case scenario
might be necessary, this approach reduces to a maximum of two the
number of worst-case analyses reported in the RMP by a source. In
general, commenters favored this approach, particularly for flammables,
which do not produce markedly different adverse effects. A few
commenters argued that a single toxic substance should not be
considered representative of all toxic substances at a source, since
there are considerable differences in toxic endpoint and adverse
affect.
EPA has decided to adopt the approach outlined in the SNPRM for the
final rule: report one worst-case release scenario for all flammables
and one worst-case release scenario for all toxics at the source. EPA
notes that the worst-case scenario is designed principally to support a
dialogue between the source and the community on release prevention,
and not to serve as the sole or primary basis for local emergency
planning. The ``worst'' worst-case release scenario will inform the
broadest range of individuals that they may be impacted by the source
so that they may participate in dialogue with the source about
prevention, preparedness, and emergency response actions. Lesser worst-
case release scenarios would not
[[Page 31684]]
inform any person not already within the range of the ``worst'' worst
case even though the health effects may be different; consequently, EPA
believes that only a single toxic worst case is necessary. However,
sources must also analyze and report another worst-case release
scenario (for flammables or toxics) if such a release from another
location at the source potentially affects public receptors different
from those potentially affected by the first scenario (e.g., if a
large-sized source is located between two communities and has a covered
process adjacent to each community).
In the NPRM, EPA did not specify the number of alternative
scenarios to be reported for each regulated substance. EPA noted in the
preamble that this approach, while providing flexibility, may also
create uncertainty about what EPA will consider to be an adequate
number of scenarios. While a few commenters argued against scenarios
beyond the worst case, many commenters supported a requirement for a
maximum of two: the worst case plus one additional scenario; others
supported a maximum of three. Many of the commenters noted that local
entities could request further information under EPCRA section
303(d)(3) authority if they desired. At the same time, a number of
commenters suggested that this determination should be made by the
source based on their scenario analysis, perhaps in coordination with a
local agency.
In the SNPRM, EPA proposed to require one alternative release
scenario for all flammable substances at the source and one alternative
scenario for each toxic substance at the source. As discussed above,
the listed flammable substances behave similarly upon release and have
the same endpoint, while each toxic substance has a different endpoint
and different atmospheric behavior. EPA sought comment on whether one
toxic substance alternative scenario could represent all toxic
substances at a source or in a process. Although commenters generally
agreed with the approach for flammables, only a few argued that a
single alternative scenario for all toxics was also appropriate; most
others supported EPA's proposal.
Upon review of the comments, EPA has decided to adopt the approach
outlined in the SNPRM: an alternative release scenario must be reported
in the RMP for each toxic held above the threshold at the source, and
one alternative scenario must be reported that represents all
flammables held above the threshold. As EPA noted in the SNPRM preamble
and commenters echoed, the differences in the hazards posed by
individual toxic regulated substances are significant and should be
reflected in the alternative scenarios. This information has
significant value for emergency planning purposes and could increase
public interest in prevention at the source.
5. Technical Guidance The proposed rule required sources to
evaluate the consequences (vapor cloud dispersion, blast wave, or
radiant heat modeling calculations) associated with the worst-case and
alternative release scenarios. EPA did not specify a methodology or
models, expecting that sources would have, contract for, or find the
expertise and modeling tools needed to perform potentially complex
modeling calculations. Because of the potential burden associated with
this approach, EPA began working on the development of a set of simple,
generic tools that could provide useful results and become part of the
technical guidance for the rule. Based on its experience in developing
the Technical Guidance for Hazards Analysis and on advice from
commenters, EPA understands that a generic methodology depends on
approximations to capture a wide variety of situations, will likely
ignore site-specific conditions, and potentially may generate overly
conservative or less realistic estimates of offsite impacts. In spite
of these limitations, EPA believes that generic modeling tools are
capable of supporting greater understanding of the hazards posed by
substances and emergency planning. Commenters agreed this approach
would reduce the burden on smaller sources unfamiliar with such
activities as long as use of the guidance was not mandatory, and the
guidance addressed specific industry sectors or was used as part of a
screening process to focus resources on significant problem areas. Many
commenters recommended that sources be given the flexibility to use any
appropriate modeling techniques for the offsite consequence analysis to
take advantage of expertise and to apply site-specific considerations
to the hazard assessment. Other commenters argued that EPA should
establish mandatory guidelines or specify certain dispersion modeling
tools to make release scenario results more comparable across sources.
Some commenters were concerned about the development of modeling tools
by EPA outside of the rulemaking process and requested the opportunity
to participate in their development.
In the SNPRM, EPA stated it would develop a generic methodology and
reference tables in an offsite consequence assessment guidance to
assist sources with the analyses required by the rule. EPA believed
that the Technical Guidance could be revised, expanded, and updated to
address the rule requirements. The methodologies and tables would be
subject to public review prior to publication of the final rule; once
finalized, the tables would replace the Technical Guidance. EPA added
that sources that wish to conduct more sophisticated modeling could do
so, provided the techniques used account for the modeling parameters
described in the rule. Alternatively, EPA proposed that only Program 2
sources use the guidance; Program 3 sources would be required to
conduct their own dispersion modeling.
Most commenters supported the SNPRM approach, especially if sources
were given the option to use their own site-specific modeling. Some
commenters argued that the generic methodology and reference tables and
the option for site-specific modeling should be applied to processes in
all three Programs, while others suggested that they be applied only to
a specific Program. In recognition of these comments, EPA prepared
draft modeling methodologies and reference tables, provided an
opportunity for their review (see 61 FR 3031, January 30, 1996), and
has published them as the RMP Offsite Consequence Analysis Guidance.
EPA intends to conduct peer review of the RMP Offsite Consequence
Analysis Guidance and will revise it as appropriate. For the final
rule, EPA will allow sources in all Programs to use the guidance or
conduct their own site-specific modeling, provided the modeling
techniques used account for the parameters described in the rule. For
example, EPA's Office of Air Quality Planning and Standards has
prepared a publicly available modeling tool called TScreen that can
assist owners and operators with consequence assessments. EPA also
encourages local emergency planners, fire departments, and others who
use tools such as CAMEO/ALOHA or other modeling techniques to assist
businesses in their community who may need help in their modeling
efforts. EPA believes the final rule approach takes advantage of the
broad range of expertise and modeling tools already available and will
provide more useful results at the local level for chemical emergency
prevention, preparedness, and response. This approach will also
stimulate accidental release modeling research, new and existing model
development, and model validation to generate new tools for better
understanding of hazards and the behavior of substances in accidental
release situations.
[[Page 31685]]
6. Modeling Parameters. a. Endpoints. In the NPRM, EPA did not
specify toxic or flammable substance endpoints that must be used in the
offsite consequence assessment modeling. Most commenters recommended
that EPA specify endpoints to provide a consistent basis for modeling;
many favored the use of existing standards or guidelines, primarily the
emergency response planning guidelines (ERPGs) developed by the
American Industrial Hygiene Association for toxic substances. For
flammables, commenters suggested overpressure, heat radiation, and
explosion or flammability limits. In addition to other specific
standards, a few commenters recommended a hierarchy of values if
certain levels for some chemicals were not available.
In the SNPRM, EPA indicated that it would select one endpoint for
each toxic substance for use in the offsite consequence assessment
methodology and sought comment on whether it should use a single
endpoint to the extent possible (e.g., the Immediately Dangerous to
Life and Health (IDLH) value developed by the National Institute for
Occupational Safety and Health (NIOSH), unless one does not exist for a
substance), or a hierarchy of endpoints (e.g., ERPGs; if one does not
exist, then the IDLH; and finally toxicity data if no other value is
available). EPA also asked whether overpressure or both overpressure
and radiant heat effects should be used for flammable substance
endpoints. Some commenters supported the use of ERPG values for the
toxic substance endpoint, or a hierarchy of values beginning with the
ERPG. Others opposed IDLH or the IDLH divided by 10 for technical
reasons.
EPA agrees with commenters that one toxic endpoint should be set
for each substance. The endpoint for each listed toxic substance is
provided in Appendix A to the final rule. The endpoint, applicable
whether the source uses the EPA guidance or conducts site-specific
modeling described below, is the AIHA ERPG-2 or, if no ERPG-2 is
available, the level of concern (LOC) developed for the Technical
Guidance, corrected where necessary to account for new toxicity data.
The LOCs that were based on IDLHs have been updated only if the IDLHs
were revised between the original LOC listing in 1987 and the 1995 IDLH
revisions. The most recent IDLH revisions were not used because they
are based on a methodology that EPA has not reviewed; the previous IDLH
methodology was reviewed by EPA's Science Advisory Board for use as
LOCs. EPA chose the ERPG-2 first because ERPGs are subject to peer
review and are specifically developed by a scientific committee for
emergency planning to protect the general public in emergency
situations. The ERPG-2 represents the maximum airborne concentration
below which the committee judges that nearly all individuals could be
exposed for up to an hour without experiencing or developing
irreversible or other serious human health effects or symptoms that
could impair their ability to take protective action. EPA rejected the
ERPG-3, which is a lethal exposure level, because it is not protective
enough of the public in emergency situations. About 30 listed toxic
substances have ERPGs. EPA chose to use LOC levels for substances with
no ERPG because LOCs have been peer reviewed by EPA's Science Advisory
Board, they are intended to be protective of the general public for
exposure periods of up to an hour, they are widely used by the
emergency response planning community, and, for a majority of the
listed toxic substances, there are no acceptable alternatives. EPA
notes that, for substances with both values, the LOC is comparable to,
and in some cases is identical to, the ERPG-2.
EPA recognizes potential limitations associated with the ERPG and
LOC and is working with other agencies to develop Acute Exposure
Guideline Limits (AEGLs). See Establishment of a National Advisory
Committee for Acute Exposure Guideline Levels (AEGLs) for Hazardous
Substances, (60 FR 55376; October 31, 1995). When these values have
been developed and peer-reviewed, EPA intends to adopt them, through
rulemaking, as the toxic endpoint for substances under this rule.
As proposed, vapor cloud explosion distances will be based on an
overpressure of 1 psi, and for analysis of worst-case releases, a yield
factor of 10 percent. Yield factors (the percentage of the available
energy released in the explosion process) can vary considerably. EPA
selected 10 percent to generate conservative worst-case consequences.
For flammables, EPA selected a radiant heat exposure level of 5 kW/
m2 for 40 seconds as recommended by the commenters, and, for vapor
cloud fire and jet fire dispersion analysis, the lower flammability
limit (LFL) as specified by NFPA or other recognized sources.
b. Meteorology. In the NPRM, EPA proposed that sources model the
downwind dispersion of the worst-case release scenario using an F
atmospheric stability class and 1.5 m/s wind speed and model the
alternative release scenarios using both the worst-case conditions and
the meteorological conditions prevailing at the source. EPA did not
revise the meteorological assumptions in the SNPRM.
Several commenters argued that the worst-case meteorological
conditions were too conservative or not applicable on a national basis
and that site-specific conditions should be used, while others agreed
that for worst case, minimum wind speeds and the most stable
atmospheric conditions should be used. In the final rule, EPA has
decided that sources must conduct worst-case dispersion modeling using
an F atmospheric stability class and a 1.5 m/s wind speed. A higher
wind speed or less stable atmospheric stability class may be used if
the owner or operator has local meteorological data applicable to the
source that show that the lowest recorded wind speed was always greater
or the atmospheric stability class was always less stable during the
previous three years.
In the final rule, EPA also requires sources to conduct alternative
release scenario dispersion modeling using the typical meteorological
conditions applicable to the source. If meteorological data are not
available, typical conditions in the RMP Offsite Consequence Analysis
Guidance may be used. EPA believes typical meteorological conditions
should be used to generate realistic hazard assessments for
communication with the public and first responders and for emergency
planning.
C. Consideration of Environmental Impact
The issue of whether and how environmental impacts should be
addressed in the hazard assessment and the rule in general drew
considerable comment. The comments divide into three questions: Should
EPA consider environmental impacts from accidental releases? If so,
which environments should be identified? What constitutes an
environmental impact?
1. Inclusion of Environmental Impacts. Environmental groups argued
that the CAA requires assessment of potential impacts to the
environment and that the environmental receptors listed in the SNPRM
should be broadened. One commenter stated that since the CAA Amendments
of 1990 strengthened limits of continuous air toxic emissions, wildlife
is now threatened more by accidental releases. However, the majority of
commenters on this issue, principally industry groups, opposed
consideration of the environment because it is adequately protected by
other environmental statutes, environmental protection in section
112(r) relates only to emergency
[[Page 31686]]
response, and Congress intended in section 112(r) for the environment
to be addressed only to the extent that human health is protected.
Several commenters argued that flammable substances were unlikely to
generate environmental impacts. Commenters also stated that many
industries have voluntarily developed nature reserves around their
sources, often at the urging of government agencies. Additional
regulations based on ``environmental'' impact consideration would
``penalize'' these sources for their efforts. Finally, two commenters
noted that EPA's endpoints are based on acute human effects; applying
these to the environment may not be valid.
EPA disagrees that section 112(r) was not intended to protect the
environment as well as human health. Although section 112(r)(5) links
the threshold quantity to human health, section 112(r)(3) requires EPA
to select substances that could impact human health and the
environment. EPA agrees that the only time sections 112(r)(7)(B)(I) and
(ii) mention protection of the environment is in conjunction with
emergency response; however, this is also true for protection of human
health. Congress did not intend to limit concern about either impact
strictly to emergency response procedures; Congress may not have
mentioned either impact relative to prevention because the act of
preventing an accident eliminates the impact on both. When accidents
occur, human health and the environment need protection. By mentioning
both impacts in the response or post accident phase, Congress was
stressing its concern for the environment as well as human health.
Given the integrated nature of the RMP, it would be an inappropriately
narrow reading of CAA section 112(r)(7)(B) to say environmental impacts
must be ignored in hazard assessments and in the design of the
prevention program, but must be accounted for in emergency response. In
addition, section 112(r)(9) provides authority for EPA to take
emergency action when an actual or threatened accidental release of a
regulated substance may cause imminent and substantial endangerment to
human health, welfare, or the environment. Clearly, section 112(r)(9)
allows EPA to take action to prevent, as opposed to simply respond to,
accidental releases to protect the environment. Because section
112(r)(7) is intended to prevent situations that could lead to
emergency orders under section 112(r)(9), it is logical to conclude
that Congress meant EPA to develop regulations that would prevent
accidental releases that could cause environmental damage. Although the
consequences may not be precisely known, EPA believes that impacts
could occur at environmental receptors located within the distance to a
human acute exposure endpoint associated with a worst-case or
alternative scenario because wildlife may be more sensitive or require
less exposure to cause an adverse effect than humans.
2. Environmental Receptors to Be Considered. In the SNPRM, EPA
proposed that sources report in their RMP which sensitive environments
listed by the National Oceanographic and Atmospheric Administration
(NOAA) for the Clean Water Act are within the distance determined by
the worst-case or alternative case scenario. A few commenters argued
that the list should include state and local level analogues to Federal
entities (e.g., state parks), all surface waters that are fishable or
swimmable or supply drinking water, and ground water recharge areas.
Many commenters opposed the NOAA list, arguing that the list is
extremely broad, covers millions of acres in primarily rural areas, and
contains areas that are difficult for both the regulated community and
the government to clearly identify (e.g., habitat used by proposed
threatened or endangered species, cultural resources, and wetlands).
They stated that the NOAA list is not appropriate for this rule because
it represents guidance applicable to offshore sources, and to a limited
number of very large onshore sources, that could have catastrophic oil
spills. A few commenters suggested limiting the list to Federal Class I
areas designated under the CAA prevention of significant deterioration
program, or reducing the list of sensitive areas to national parks and
the designated critical habitat for listed endangered species, and
limiting environmental concern to those accidents that generate a
significant and long-term impact, such as an actual ``taking'' of an
endangered species.
For the final rule, EPA has not used the NOAA list. Instead EPA
requires owners or operators to indicate in the RMP the environmental
receptors located within circles whose radii are the distances to an
endpoint for the worst-case and alternative release scenarios. EPA
agrees with commenters that the locations of certain natural resources
are difficult to identify. Consequently, EPA has defined environmental
receptors as natural areas such as national or state parks, forests, or
monuments; officially designated wildlife sanctuaries, preserves,
refuges, or areas; and Federal wilderness areas, that can be exposed to
an accidental release. All such receptors typically can be found on
local U.S. Geological Survey (USGS) maps or maps based on USGS data.
Habitats of endangered or threatened species are not included because
the locations of these habitats are frequently not made public to
protect the species. Natural resource agencies will have access to the
RMP information and can raise concerns with local officials about
potential harm to these habitats, as necessary. Local emergency
planners and responders may want to consult with environmental
management agencies as part of emergency preparedness.
3. Level of Analysis Required. In the SNPRM, EPA proposed that
sources only identify sensitive environments within the area of the
worst-case release, rather than analyzing potential impacts. A few
commenters opposed this approach, stating that the CAA requires that
sources analyze impacts. Most commenters supported EPA's position
because extensive expertise at considerable cost is required to
adequately assess all environmental impacts associated with the
environments list EPA provided. Commenters stated that this cost would
make fewer resources available for prevention activities and providing
no benefit. Other commenters noted that much of the data needed for
such analyses is not available.
EPA agrees that extensive environmental analysis is not justified.
Irreversible adverse effect exposure level data for the wide variety of
environmental species potentially exposed in an accidental release
event are not available for most of the listed substances. EPA believes
that identification of potentially affected environmental receptors in
the RMP is sufficient for purposes of accident prevention,
preparedness, and response by the source and at the local level.
D. Program 3 Consistency with OSHA PSM Standard
1. Prevention Program. In EPA's original proposal, the prevention
program requirements were based on the elements of OSHA's PSM standard
(29 CFR 1910.119), and some commenters supported this approach. But EPA
added a paragraph to each OSHA prevention program element to explain
the purpose of the provision and, in some instances, added additional
recordkeeping, reporting, or substantive provisions to ensure that
statutory requirements were met. Several commenters argued that these
additions cause confusion and appear to require sources to create two
separate
[[Page 31687]]
prevention programs, which could cause conflicting inspection and
enforcement actions and greater cost for sources that must comply with
both the OSHA and EPA requirements. Many commenters suggested that EPA
simply reference the OSHA requirements.
EPA agrees that the Program 3 prevention program requirements
should be identical to OSHA's PSM standard to avoid confusion and
redundant requirements and to ensure that sources develop one
accidental release prevention program that protects workers, the
general public, and the environment. Therefore, EPA has moved the
Management System requirement (see section I.D) supported by most
commenters to a section separate from the Prevention Program and
deleted the introductory paragraphs and modifications to the PSM
language. The Agency recognizes that many workplace hazards also
threaten public receptors and that the majority of accident prevention
steps taken to protect workers also protect the general public and the
environment; thus, a source owner or operator responsible for a process
in compliance with the OSHA PSM standard should already be in
compliance with the Program 3 prevention program requirements.
EPA did not cross-reference sections of the PSM standard in today's
rule because, under Office of Federal Register requirements at 1 CFR
21.21(c)(2), EPA cannot adopt OSHA's requirements. EPA and OSHA have
separate legal authority to regulate chemical process safety to prevent
accidental releases. Furthermore, cross-referencing the OSHA standard
would be tantamount to a delegation of authority to set standards in
this area from the Administrator of EPA to the Secretary of Labor,
because OSHA would be able to modify the PSM requirements without an
EPA rulemaking under CAA Sec. 307(d). The Senate explicitly considered
and rejected the possibility of the Administrator delegating to OSHA
responsibility for hazard assessment. Senate Report at 226. As that
term was used in the Senate bill, hazard assessment included many of
the elements of PSM.
With the exception of some key terms and phrases, the Program 3
prevention program language in the final rule is identical to the OSHA
standard language (the rulemaking docket contains a side-by-side
analysis of the OSHA standard and EPA rule text with word differences
highlighted). Most of the differences are terms based on specific
legislative authorities given to OSHA or EPA that have essentially the
same meaning:
------------------------------------------------------------------------
OSHA term EPA term
------------------------------------------------------------------------
Highly hazardous substance............. Regulated substance.
Employer............................... Owner or operator.
Facility............................... Stationary source.
Standard............................... Rule or part.
------------------------------------------------------------------------
EPA also agrees with commenters that sound process safety
management systems ideally address chemical accident prevention in a
way that protects workers, the public, and the environment. Since
OSHA's responsibility is to protect workers, there are phrases in the
OSHA standard that are designed to focus employer attention on
accidents that affect the workplace. It could be argued that these
phrases inadvertently exclude consideration of offsite impacts. EPA has
deleted the phrases noted below to ensure that all sources implement
process safety management in a way that protects not only workers, but
also the public and the environment:
------------------------------------------------------------------------
OSHA PSM requirement EPA program 3 requirement
------------------------------------------------------------------------
1910.119(d)(2)(E) An evaluation of the 68.65(c)(1)(v) An evaluation of
consequences of deviations, including the consequences of
those affecting the safety and health deviations.
of employees.
1910.119(e)(3)(ii) The identification 68.67(c)(2) The identification
of any previous incident which had a of any previous incident which
likely potential for catastrophic had a likely potential for
consequences in the workplace. catastrophic consequences.
1910.119(e)(3)(vii) A qualitative 68.67(c)(7) A qualitative
evaluation of a range of the possible evaluation of a range of the
safety and health effects of failure possible safety and health
of controls on employees in the effects of failure of
workplace. controls.
1910.119(m)(1) The employer shall 68.81(a) The owner or operator
investigate each incident which shall investigate each
resulted in, or could reasonably have incident which resulted in, or
resulted in a catastrophic release of could reasonably have resulted
a highly hazardous chemical in the in a catastrophic release of a
workplace. regulated substance.
------------------------------------------------------------------------
EPA also made changes to specific schedule dates to coordinate with
the OSHA PSM requirements, made internal references consistent, and
added a provision to the PHA section specifically grandfathering all
OSHA PHAs and allowing sources to update and revalidate these PHAs on
their OSHA schedule. EPA believes these modifications do not cause
source owners or operators to make major adjustments to their PSM
systems established under OSHA. These minor modifications ultimately
lead to the development of one comprehensive process safety management
system satisfying both OSHA and EPA that works to prevent accidents
affecting workers, the public, and the environment.
EPA also modified the OSHA definition of catastrophic release,
which serves as a trigger for an accident investigation, to include
events ``that present imminent and substantial endangerment to public
health and the environment.'' This modification, in combination with
the changes noted above, ensure that sources covered by both OSHA and
EPA requirements must investigate not only accidents that threaten
workers, but also those that threaten the public or the environment.
EPA agrees with commenters and recognizes that most catastrophic
accidental releases affect workers first. However, the Agency also
believes that there are accidental release situations where workers are
protected but the public and the environment are threatened, e.g.
vessel overpressurizations that cause emergency relief devices to work
as designed and vent hazardous atmospheres away from the workplace and
into the air where they are carried downwind. Although many sources
through the PHA process will have recognized and addressed the
potential impact offsite associated with safety measures that protect
workers (e.g. an
[[Page 31688]]
emergency vent scrubber system), EPA believes that the requirements in
today's rule ensure that all sources routinely consider such
possibilities and integrate the protection of workers, the public, and
the environment into one program.
2. Enforcement. Many commenters expressed concern for conflicting
audit procedures, interpretations, and enforcement actions when EPA and
OSHA auditors inspect the same processes. EPA has no authority to
exempt a source covered under the PSM standard and today's rule from
any prospect of an EPA enforcement action for violations of section
112(r) and EPA regulations issued under it. EPA and OSHA are working
closely to ensure that enforcement actions are based on consistent
interpretations and coordinated to avoid overlapping audits. Such
coordination in enforcement was recognized as an appropriate method for
exercising the Administrator's duty to coordinate the EPA program with
OSHA (Senate Report at 244).
3. Exemptions. Many commenters suggested that the Agency exempt
small businesses or certain industry sectors because the rule is too
costly, some industries are already subject to substantial regulation
by other Federal or state agencies, OSHA exempts certain industries
from the PSM standard, and some sources have effective self-policing
regimes in place.
Regardless of whether the source is covered under some other
Federal, state, or local program, EPA has no authority to exempt a
source that has more than a threshold quantity of a regulated substance
from complying with the risk management program rule (CAA section
112(r)(7)(B)(ii)). EPA established the tiered approach to acknowledge
that different industries pose different potential risks to human
health and the environment and that elements of other regulatory
programs may serve to prevent accidents. EPA believes that owners or
operators can indicate in their Program and RMP how compliance with
other particular regulations and standards satisfies Program or RMP
elements, thereby, avoid duplication. Only those processes in certain
SIC codes or covered by OSHA's PSM standard must implement the full PSM
program under Program 3. A source owner or operator can demonstrate
compliance with the Program 2 or 3 prevention program under today's
rule for a covered process by showing that it complies with the PSM
standard. This approach is consistent with the authority to set
different standards for different types of sources under CAA section
112(r)(7)(B)(I).
E. Relationship to Air Permitting
Several commenters on the NPRM requested that EPA clarify the
relationship between the risk management program and the air permit
program under Title V of the CAA for sources subject to both
requirements. In the SNPRM, EPA indicated that in Title V, section
502(b)(5)(A), Congress clearly requires that permitting authorities
must have the authority to ``assure compliance by all sources required
to have a permit under this title with each applicable standard,
regulation or requirement under this Act.'' EPA further states in part
70.2 that ``Applicable Requirement means * * * (4) Any standard or
other requirement under section 112 of the Act, including any
requirement concerning accident prevention under section 112(r)(7) of
the Act; * * *'' Consequently, EPA must require that air permitting
authorities implementing Title V permit programs be able to assure
compliance with section 112(r). In the SNPRM, EPA attempted to identify
the section 112(r) ``applicable requirements,'' clarify the minimum
content of part 70 permits with respect to these requirements, and to
specify the role and responsibilities of the part 70 permitting
authority in assuring compliance with these requirements.
The sections below address the major issue areas raised by
commenters on the SNPRM. More detail can be found in the Risk
Management Program Rule: Summary and Response to Comments in the
Docket. The SNPRM also addressed the role and responsibilities of the
implementing agency with respect to section 112(r). This issue is
addressed separately in Section R below.
1. General relationship between the part 68 and air permitting
programs. Some commenters agreed with EPA's proposed role for the air
permitting authority with respect to section 112(r), but encouraged EPA
to avoid new, confusing, and duplicative state and source permitting
requirements. A few commenters suggested that all part 68 requirements
should become permit conditions, that it be fully enforced through the
part 70 permitting program, and that anything less violates the CAA.
Most commenters (state air permitting authorities and industry),
opposed EPA's proposal stating that Congress did not intend, and
legislative history does not support, section 112(r) to be implemented
or enforced through the Title V permit program.
EPA agrees that Congress did not intend for section 112(r) to be
implemented and enforced primarily through Title V and recognizes the
potential for confusion and burden on sources and air permitting
authorities associated with section 112(r). EPA believes that the
requirements in today's rule are flexible, impose minimal burden,
address the concerns raised by commenters and satisfy the CAA
requirement for assurance of compliance with section 112(r) as an
applicable requirement for permitting. The requirements apply only to
sources subject to both part 68 and parts 70 or 71; there are no
permitting requirements on sources subject solely to part 68. EPA
agrees that ideally, one authority should implement part 68 oversight;
however, air permitting authorities should not be responsible for
implementation just as implementing agencies should not be responsible
for permitting (see implementing agency discussion in Section R,
below). The air permitting authority has the flexibility under today's
rule to obtain assistance, expertise or resources from other agencies
in fulfilling its responsibilities with respect to section 112(r). This
will foster interaction and coordination of air pollution, pollution
prevention, public and worker safety and health and environmental
programs at the state and local levels leading to more effective
oversight.
2. Impact of EPA's proposal on air permitting programs. Several
commenters stated that EPA's proposal places an unreasonable burden on
air permitting programs because states would need to amend or develop
new legislative authority and implementing regulations which diverts
limited state resources away from the development and operation of more
important routine emissions permit programs.
EPA disagrees that today's rule places an unreasonable burden on
air permitting programs. Part of the approval process for a state air
permitting program is confirmation that states have the authority to
ensure that sources are in compliance with air toxics requirements
under section 112 including section 112(r). The provisions of section
68.215 are sufficient to meet the obligations under part 70. Thus, for
state and local agencies that have approved part 70 programs, states
would need to develop new legislative authorities only if they seek
delegation to implement part 68 beyond the narrow responsibilities
provided in Sec. 68.215 (see Section R, below). State obligations under
Sec. 68.215, which should be covered by permit fees (see section E.11,
below), should not impose a substantial burden on state resources
because the rule streamlines the RMP requirements and establishes
centralized recordkeeping for RMPs.
[[Page 31689]]
3. Part 68 as an ``applicable requirement'' under part 70. As
described above, the CAA requires that air permitting authorities
ensure that sources are in compliance with applicable requirements as a
condition of permitting. In the preamble of previous rulemakings for
part 70 (57 FR 32301), EPA indicated that the definition of
``applicable requirement'' under Title V includes ``any requirement
under section 112(r) to prepare and register a risk management plan
(RMP).'' This explanatory statement preceded development of part 68,
which implements section 112(r)(7). In the SNPRM, EPA proposed more
specific provisions to assure compliance with applicable requirements
for section 112(r) than the part 70 preamble so that air permitting
authority responsibility is clear. EPA believed that all elements of
part 68 are applicable requirements; however, compliance with
applicable requirements could be assured by including generic terms in
permits and certain minimal oversight activities. Together, these steps
ensure that permitted sources fulfill their accident prevention and
information sharing responsibilities.
EPA proposed standard permit conditions that would allow air
permitting authorities to verify compliance with part 68. Commenters
stated that alteration of the part 70 rule definition of the term
`applicable requirement' under the part 68 rulemaking is inappropriate
and that the role of the air permitting authority with respect to
section 112(r) should be defined in part 70 rulemakings rather than in
part 68.
EPA's action today does not alter the definition of ``applicable
requirements'' under 40 CFR 70.2, which already includes ``any
requirement concerning accident prevention under section 112(r)(7).''
Rather, EPA is establishing very simple permit terms and flexible,
minimal oversight responsibilities that will assure compliance with
part 68. EPA disagrees that part 68 cannot establish more specific
terms for permits than those given in part 70 or 71 with respect to
section 112(r). As mentioned in the SNPRM preamble, part 70 does not
preclude EPA from clarifying or even expanding air permitting
responsibilities. Specific permit requirements are useful to clearly
establish the minimum permit conditions and state responsibilities
essential to ensuring compliance with part 68 and to reduce
uncertainties that may lead to overly broad interpretations of the
requirements. However, air permitting authorities still have the
flexibility to establish additional terms for the permit if it so
chooses.
4. Role of the air permitting authority. In the SNPRM, EPA proposed
certain air permitting authority responsibilities necessary to ensure
that sources are in compliance with part 68 for purposes of permitting.
Commenters stated that the role of the Title V permitting authority
should be defined in part 70, not in part 68 and opposed EPA's proposal
arguing that it causes unnecessary confusion for sources. Commenters
also argued that air permitting authorities do not have the relevant
expertise needed and that states should have the flexibility to
implement risk management programs in whichever agency they see fit.
Other commenters argued that air permitting authorities, without
section 112(l) delegation, could not accept the responsibilities
assigned by the SNPRM and that EPA was unlawfully attempting to
delegate the responsibility for implementing section 112(r) to the
state permitting authorities. Several commenters believed the
permitting authority should have no responsibilities beyond those set
forth in EPA's April 13, 1993, policy memorandum from John Seitz,
Director of the Office of Air and Quality Planning and Standards
(OAQPS), to EPA Regional Air Division Directors, available in the
docket because states invested significant resources and effort into
the development of their programs, guided by this EPA memorandum.
However, a state permitting authority stated that the EPA memorandum
did not account for many of the key program elements, including the
necessary incorporation of standard permit conditions. Many commenters
also opposed requiring extensive details or all aspects of part 68
compliance in the permit, finding this approach excessive and overly
burdensome on both state air permitting authorities and sources and
contrary to the law and Congressional intent in that it would have
required section 112(r)(7) to be fully implemented by state permit
programs.
Several commenters were concerned that a single violation of part
68 could potentially be enforced by both the permitting authority and
the implementing agency. One commenter suggested that the only case
where a violation of a part 68 requirement should also be considered a
violation of part 70 would be the failure to register an RMP on time
under the requirements of Sec. 68.12. Another commenter requested that,
at Sec. 68.58(b)(3), EPA should allow the state the discretion to
determine whether a penalty should be assessed. Several commenters,
uncertain how the Programs proposed by EPA in the SNPRM would affect
the role of the permitting authority, suggested that EPA develop a
process to inform states of the tiering approach and to exclude Program
1 and 2 sources from additional permitting requirements.
EPA believes that part 68 should more clearly define the role of
the air permitting authority with respect to section 112(r). Part 70
requirements were established well before part 68 and are therefore
vague. Consequently, EPA is using part 68 to clarify the applicable
requirements, to specify permit terms and to establish the minimum
permit conditions and activities to avoid misinterpretations and to
ensure compliance with part 68. EPA agrees that air permitting
authorities may not have the expertise necessary with respect to part
68; consequently, the requirements in today's rule only specify the
actions the state must take to assure that sources have met their part
68 responsibilities while giving the state flexibility to assign or
designate by agreement entities other than the permitting authority to
carry out these activities. The elements in today's rule are the
minimal components of a successful compliance program; anything less
falls short of the statutory requirements of assuring compliance with
all applicable requirements. EPA also disagrees that it is forcing
delegation on air permitting authorities to implement section 112(r).
As described in the SNPRM and above, air permitting authorities must
ensure that sources are in compliance with applicable requirements for
purposes of permitting. This is not section 112(r) implementation (see
section R below). EPA is merely specifying more clearly the
requirements already upon air permitting authorities; without the
specification given in today's rule, it could be argued that air
permitting authorities are obligated to review and evaluate the
adequacy of RMP submissions. EPA agrees that oversight of the adequacy
of part 68 compliance, including RMPs, is not an appropriate activity
for the air permitting authority and is more appropriately an
implementing agency duty. Delegation of these implementing agency
activities can only be accomplished through a delegation consistent
with part 63, subpart E.
EPA also maintains that the air permitting authority role should be
more specifically defined than that offered by the April 13, 1993,
memorandum. The April 1993 policy was prepared prior to the NPRM and
SNPRM, it does not account for implementation of the risk management
program by the source (as opposed to
[[Page 31690]]
implementation of the plan), and there is no mechanism, such as a
review of the RMP by the permitting authority, to ensure that the plan
contains the elements required by part 68. These deficiencies were
previously indicated by EPA in a June 24, 1994, memorandum from John
Seitz and Jim Makris, Director of the Chemical Emergency Preparedness
and Prevention Office (CEPPO) to EPA Regional Division Directors, which
stated that ``approval criteria in the April 13 memorandum may not be
sufficient to ensure compliance with all `applicable requirements'
established'' in the risk management program rule. EPA acknowledges
that states may have invested considerable resources and effort in
development of air permitting programs based on the April 13, 1993
policy. However, EPA also believes that the minimum requirements and
flexibility offered by today's rule allow air permitting authorities to
fold these activities into their programs with minimal burden. EPA
recognizes that there may be multiple agency oversight related to
permitting and part 68. As mentioned above, today's rule allows the air
permitting authority the flexibility to use other agencies, such as the
implementing agency or a designated agency (upon agreement), to better
coordinate at the state and local level. In addition, EPA must note
that there is no `approval' of either initial or revised RMP
submissions.
EPA agrees that requiring the permit to contain extensive details
of part 68 compliance goes well beyond the need for part 70 permits to
assure compliance with applicable section 112(r) requirements and it
would impose considerable resource and expertise burdens on the
permitting authority. EPA has maintained that it is not appropriate to
include risk management program elements as permit conditions since
these elements will be highly source-specific and subject to change as
the source develops and implements its programs.
While enforcement would primarily occur using part 68 authority,
EPA agrees that the permitting authority also has the authority to
pursue violations under part 70 and sources could be subject to
multiple violations. This is no different from any other standard
promulgated by EPA that becomes an applicable requirement for
permitting. EPA agrees that the air permitting authority has the
discretion to coordinate with the implementing agency with respect to
penalty assessment associated with Sec. 68.58(b)(3) in the SNPRM
(Sec. 68.215(e)(4) under today's rule).
Finally, the tiering (Program) approach benefits sources as well as
air permitting authorities. EPA has simplified the tiering provisions
so sources and air permitting authorities should be able to readily
determine the Program requirements each process must satisfy, leading
to more effective oversight. EPA has also streamlined the RMP reporting
requirements and is working on electronic submission of RMP information
which serve to reduce the burden on air permitting authorities and
implementing agencies.
5. Title V permit application contents. Many commenters stated that
sources regulated under parts 70 or 71 and part 68 should only be
required to certify whether they are subject to section 112(r) in their
initial permit application to allow timely processing. Although EPA
indicated that it did not want the RMP included in permit applications
or in the permit, many commenters stated their opposition because the
additional time required for RMP review could delay permit grants and,
in some states, the RMP could be included in the source's permit.
Several commenters suggested that the air permitting authority should
decide whether it wants the RMP; one commenter stated that sources
would have a significant incentive to comply with such a request, given
the permitting authority's ability to withdraw an application shield.
Others stated that the permitting authority should be prohibited from
asking for the RMP as part of the permit application.
As EPA has indicated, the RMP should not be submitted with the
permit application or made part of the permit. EPA is working to
streamline permit application requirements and has indicated that the
minimum with respect to section 112(r) is a ``check box'' for the
source to note whether it is subject to section 112(r), and either
certification that the source is in compliance with part 68 or has a
plan for achieving compliance. Any other requirements are up to the air
permitting authority. All sources will be required to submit their RMP
to a central point to be specified by EPA and will be immediately
available to local responders and the state which may elect to make it
available to air permitting authorities.
6. Air permit contents. EPA proposed in the SNPRM that each permit
contain standard conditions that address key compliance elements in
part 68 and mechanisms for compliance plans, certifications and
revisions. Although EPA indicated it did not believe the RMP should be
part of the permit, two commenters suggested that it should be included
while most others indicated that it should not or that the air
permitting authority should decide. Several commenters supported no
more than the four conditions proposed in the SNPRM while others
suggested requirements including: prompt development and updating of a
complete RMP; no conditions other than an indication that a source is
subject to part 68; provisions stating the need to register according
to Sec. 68.12; a condition stating that the source will comply with all
part 68 requirements; and a standard provision recognizing that the
implementing agency has the section 112(r) enforcement authority.
Except for the provisions of Sec. 68.215(a), EPA does not believe
that the RMP or all or any portion of the remainder of part 68 should
become permit conditions because the RMP and part 68 elements will be
highly source-specific and subject to frequent change introducing
unnecessary complexity and delaying permit implementation. The
provisions of Sec. 68.215 should allow the air permitting authority to
implement the conditions in a standardized way across many sources with
minimal burden. EPA has revised Sec. 68.215 to require that all permits
contain a statement listing part 68 as an applicable requirement and
that conditions shall be added that require the source to submit a
compliance schedule for meeting the requirements of part 68 or, as part
of the compliance certification all permitted sources must submit under
40 CFR 70.6(c)(5), a certification statement that, to the best of the
owner or operator's knowledge, the source is in compliance with all
requirements of this part, including the registration and submission of
the RMP. EPA had amended the authority citation for part 68 to include
CAA Title V because EPA is promulgating permit terms and oversight
duties. Consistent with parts 70 and 71, the permit shield provisions
of parts 70 and 71 would not apply to the substantive requirements of
part 68 because the detailed substantive requirements of part 68 are
not addressed in the Title V permit or permit application. If a permit
without these conditions has already been issued, then when the permit
comes up for renewal under part 70 or 71 requirements (40 CFR Part
70.7), the owner or operator shall submit an application for a revision
to its permit to incorporate these conditions. The suggested
alternative conditions, not adopted, generally help assure compliance
only with portions of part 68, such as registration or the preparation
of the RMP, or omit critical
[[Page 31691]]
information, such as whether the source is subject to part 68 or what
its compliance status is. The implementing agency's enforcement
authority is apparent on the face of the CAA.
7. Completeness review. As part of ensuring compliance, EPA
proposed in the SNPRM that within a certain time-frame the air
permitting authority must verify that an RMP containing the required
elements had been submitted and indicated in the preamble that it would
assist air permitting authorities by developing a checklist. EPA stated
that this review is independent of completeness reviews required for
permit applications to avoid interfering with the permit process.
Further, air permitting authorities could arrange for other agencies,
including the implementing agency, to perform the completeness review.
EPA also requested comment on whether the permitting authority should
be able to require sources to make revisions to an RMP.
Most commenters disagreed with this proposal arguing that if a
completeness check is necessary, it should be performed by the
implementing agency since most air permitting authorities will not have
the technical expertise (e.g., chemical process safety) required to
adequately review RMPs for technical completeness. Commenters also
argued that a completeness review would be merely procedural, it
duplicates effort without creating any real benefit, it consumes scarce
resources, and it leads to inconsistent RMP review without ensuring the
source is in compliance with risk management program requirements. Some
commenters suggested that the completeness review could be better
defined only as a review of source self-certification that a complete
RMP was submitted rather than a substantive review. Some commenters
generally agreed that completeness checks should be completed within
sixty days. Finally, most commenters argued that only the implementing
agency should be able to require revisions to the RMP. Otherwise,
another revision review, appeal and verification process would be
necessary, duplicating the process already established for the
implementing agency.
Based on these comments, EPA has decided not to require that air
permitting authorities perform a completeness check as part of the
verification of compliance with part 68. EPA has modified the rule
requirements so that the air permitting authority may select for itself
one or more appropriate mechanisms (such as source audits, record
reviews, source inspections or completeness checks) and time-frame in
conjunction with source certifications, to ensure that permitted
sources are in compliance with the part 68 requirements. Without some
kind of oversight, source self-certification is not a sufficient means
of compliance assurance, given that an RMP contains information
essential at the local level for emergency prevention, preparedness,
and response and is not subject to routine, case-by-case review for
quality. These oversight mechanisms do not need to be used on each
source in order to be effective. EPA agrees that the review for quality
or adequacy of the RMP is best accomplished by the implementing agency
on a frequency and scope that may vary. EPA is willing to work with air
permitting authorities on guidance, checklists or other tools to assist
in the development of compliance mechanisms related to the RMP. In
addition, EPA is willing to assist air permitting authorities in
electronic checks once the electronic system for RMP submittal is
developed. EPA emphasizes that if an RMP completeness check is used by
the air permitting authority, it should remain independent of the
completeness determination for the permit application. The RMP will
most likely be submitted at a different time than a permit application,
since almost all permit applications will have been submitted well in
advance of the risk management program rule deadline. If the
completeness check determines that an incomplete RMP has been
submitted, the permitting authority can request additional information
under Sec. 68.215(b) and should coordinate with the implementing agency
on necessary RMP revisions. The completeness checks are facial reviews
of RMPs to verify that there are no omissions. Such checks could be
performed on a select basis and occasionally integrated with a multi-
purpose source inspection conducted to ensure that the air source is in
compliance with its permit.
8. Interaction of the implementing agency and the permitting
authority. In the SNPRM, EPA attempted to delineate the specific
requirements unique to the air permitting authority and the
implementing agency. The role of the state is described in more detail
in E.4 while the implementing agency is discussed in R. Commenters on
the SNPRM suggested that EPA should require the implementing agency to
certify to permitting authorities whether part 68 sources regulated
under part 70 are in compliance with part 68 requirements. Such
certification should be deemed sufficient to ``assure compliance'' with
the applicable requirement under part 70. Other commenters suggested
that the permitting authority could simply consult with the
implementing agency when it believes there is a problem requiring
attention or that the implementing agency should notify the permitting
authority of any problems in part 68 compliance, so that the permitting
authority may then expand the permit conditions accordingly.
EPA does not believe it is necessary to define the interaction
between the permitting authority and the implementing agency. Ideally,
this coordination and interaction should occur at the state or local
level. Coordination of other CAA programs (Title V, SBAP, and other 112
programs) with the 112(r) program will ensure that the programs are
more consistently implemented and enforced, while easing regulatory
burden and providing the public greater access to information. However,
when EPA is the implementing agency, it stands ready to work with air
permitting authorities on oversight associated with permitting and
enforcement of the part 68 requirements. Today's rule also provides the
state the flexibility to assign some or all of its responsibilities by
prior cooperative agreements or memoranda of understanding to the
implementing agency or another state, local, or Federal ``designated
agency.'' EPA recognizes that each state is structured differently and
will have different impediments and opportunities; therefore each state
has the flexibility to place the program in an appropriate agency or
department, including the air permitting agency.
9. The ``designated agency.'' In the SNPRM, EPA proposed to define
the designated agency as the state or local agency designated by the
air permitting authority as the agency responsible for the review of an
RMP for completeness. This provision was designed to give the air
permitting authority the flexibility to obtain expertise from other
agencies to fulfill its responsibilities. Several commenters believed
the SNPRM does not clearly allow the permitting authority to delegate
tasks to a designated agency and the permitting authority should be
able to delegate more than the completeness review, e.g., enforcement.
Some commenters requested that EPA redefine the term to allow
permitting authorities to delegate tasks to EPA or other Federal
agencies; while one commenter argued that EPA should not allow the
permitting authority to designate EPA as the designated agency.
[[Page 31692]]
EPA agrees that the definition should be revised to give the air
permitting authority more flexibility. EPA has dropped the mandatory
completeness review, added broader implementation and enforcement
activities, and included Federal agencies in the designated agency
definition. Thus, a ``designated agency'' may be any state, local, or
Federal agency designated by the state as the agency to carry out the
provisions of Sec. 68.215, provided that such designation is in writing
and, in the case of a Federal agency, consented to by the agency. The
parties to any such designation should negotiate the terms and details
of any agreements.
10. Reopening part 70 permits to incorporate section 112(r)
requirements. In the preamble to the SNPRM, EPA indicated that part 68
requirements should be incorporated into part 70 or 71 permits using
the part 70 administrative amendment process because of the timing
difference between part 68 and air permitting. Most commenters agreed
with this approach or indicated that permits should not be reopened at
all; instead, sources that submitted permit applications prior to
promulgation of the final section 112(r) regulations should not be
subject to enforcement action under Title V until after the first
renewal of the permit (i.e., after 5 years).
As discussed under section E.6, if a permit without the necessary
part 68 conditions has already been issued, then the owner or operator
or air permitting authority shall initiate a permit revision or
reopening according to the procedures detailed in 40 CFR 70.7 or 71.7
to incorporate the terms and conditions under paragraph (a) of
Sec. 68.215. Although EPA has not completed part 70 permit streamlining
efforts, the requirements for permit revisions or reopenings should be
complete by the time sources will be required to be in compliance with
the part 68 requirements. Under the most recent part 70 proposal, the
part 68 requirements would be classified as ``less environmentally
significant'' and the associated procedures would be followed. Sources
with such permits shall be subject to enforcement under authorities
other than Title V.
11. Use of Title V funds. In the SNPRM, EPA indicated that
activities conducted by air permitting authorities should be covered by
fees collected under part 70 since part 68 is an ``applicable
requirement.'' EPA also acknowledged that air permitting authorities
may not have planned for section 112(r) activities and requested input
on alternative funding mechanisms or whether resources would need to be
reduced in other programs to allow completion of part 68
responsibilities.
Several commenters raised concerns about the impact of the section
112(r) requirements on state and local air permitting authorities
because funding will be needed and it may not be possible in the
current political climate for the permitting authorities to raise the
necessary fees through Title V. Some commenters argued that funding
decisions should be left up to the air permitting authorities.
EPA agrees that funding decisions regarding the part 68 program
should be made at the discretion of the state and local agencies.
However, air permitting authorities need to be aware that the CAA
requires states to impose permit fees that are sufficient to cover the
direct and indirect costs of implementing the permit program, including
part 68 activities and activities conducted by state designated
agencies. EPA believes the straight-forward and flexible requirements
established in today's rule impose minimal additional burden on air
permitting authorities. Funding associated with section 112(r)
implementation is addressed in section R, below.
12. Other issues. In the SNPRM preamble, EPA stated that it worked
closely with and directly involved several state and local air program
officials and state emergency response and prevention representatives
in the development of the preamble and regulatory language to prepare
the approaches described. EPA stated that the proposed approaches
``best reflect the concerns of the states about air permit program
implementation and the needs for comprehensive participation in
chemical accident prevention, preparedness, and response at the state
and local level.'' Two commenters disagreed, arguing that in January
1995, the National Governors Association (NGA) and ECOS (organization
of state environmental officials) presented numerous recommendations to
EPA Assistant Administrator Mary Nichols for changes in several clean
air programs; regarding section 112(r), NGA/ECOS recommended that Title
V permitting authorities be required only to certify that an RMP has
been submitted. These commenters believe that the SNPRM fails to
adequately address states' central concern; requiring permitting
authorities to review RMPs will encumber an already overtaxed system.
Although EPA disagrees that the proposal fails to adequately
address states' concerns, EPA agreed that the air permitting authority
requirements could be more sharply focused to minimize the burden. EPA
believes that today's rule is the product of many hours of hard work
with state and local air permitting authorities to recognize their
concerns and to develop a rule that is effective, flexible and imposes
the least economic burden possible.
F. General Definitions
1. Significant Accidental Release. In the NPRM, EPA proposed to
define significant accidental release as ``any release of a regulated
substance that has caused or has the potential to cause offsite
consequences such as death, injury, or adverse effects to human health
or the environment or to cause the public to shelter in place or be
evacuated to avoid such consequences.'' This definition was key to the
applicability of a number of rule requirements, including hazard
assessment, accident history, and accident investigation. Only four of
more than 115 commenters supported this proposal arguing that the
definition should be protective of the public and should consider
inconvenience to the public and precautionary measures taken. Other
commenters argued that Congress intended for the section 112(r) rules
to address catastrophic releases, not those with minor impacts, and
that this definition overly broadens the scope of the rule diverting
resources and increasing cost for little additional benefit. Many
commenters stated that ``injury'' and ``adverse effects'' are undefined
and could mean any health impact from irreversible effects to minor
irritation requiring no medical treatment. ``Potential to cause'' was
also considered too vague. As discussed in Section III.C, many
commenters objected to consideration of environmental impacts.
Commenters also opposed sheltering-in-place and evacuation as criteria
because these actions are often precautionary and, in many cases, are
later viewed as unnecessary and may discourage owners or operators from
making recommendations to evacuate or shelter-in-place. Several
commenters submitted alternative definitions where injuries were
limited to those that require hospitalization, adverse effects were
limited to serious effects, and environmental effects were limited to
those that generate human deaths or hospitalizations. Some suggested
that all environmental effects be dropped.
EPA agrees that the definition as proposed was too vague and
subject to a wide variety of interpretations. In addition, EPA decided
that a single definition does not adequately address
[[Page 31693]]
the criteria needed for all affected sections of the rule. For example,
the five-year accident history requirement depends on the offsite
impacts generated by the accident while endpoint criteria are used for
the worst-case and alternate scenario offsite consequence assessments.
Consequently, EPA has decided to drop the definition and instead
identify the criteria for the types of releases or impacts that should
be addressed by the appropriate requirement. EPA has considered the
suggestions offered by commenters and added definitions of the terms
``environmental receptor,'' ``injury,'' ``medical treatment,'' and
``public receptor'' and adopted (with modifications as described above)
the OSHA definition of catastrophic release. EPA notes that sources
should be aware that within the definition of Injury, direct
consequences include effects caused by shrapnel and debris set in
motion by a vapor cloud explosion. EPA adopted its Medical Treatment
definition from one OSHA uses for logging occupational injuries and
illness. Finally, under the environmental and public receptor
definitions, sources should note that certain parks and recreational
areas may be both if the public could be exposed as a result of an
accidental release.
2. Stationary Source. Commenters requested that EPA state whether
the term stationary source covers the entire ``facility'' or simply a
single process and provide guidance on which requirements apply source-
wide and which are process-specific. EPA also received comments
regarding the relationship or overlap between the stationary source
definition and DOT regulations. These are discussed in section III.P.2
below.
In the List and Thresholds rule, EPA defined stationary source to
include an entire ``facility.'' Sources will be required to submit one
RMP and one registration as part of that RMP for all processes at the
source with more than a threshold quantity of a regulated substance.
Although the management system applies to all Program 2 and 3
processes, the prevention program elements are process-specific. The
hazard assessment requirements apply to the regulated substances, but
only in covered processes. As a practical matter, the emergency
response program will probably apply to the entire source although
technically it applies only to covered processes.
3. Process. Several commenters argued that the definition of
process was susceptible to overly expansive interpretations and asked
that certain activities such as storage at sources or distribution
terminals be excluded. Many commenters sought clarification of ``close
proximity'' and ``interconnected vessel.'' Commenters also wanted the
definition to be consistent with OSHA.
EPA adopted OSHA's definition of process in the original proposal
and for the final rule. This definition specifically covers storage (as
well as handling and processing) of regulated substances. EPA disagrees
that storage-only sources are adequately covered by SPCC regulations
since the regulations under SPCC and OPA-90 cover oil terminals and
releases to water. This rule is directed at accidental releases of
regulated substances (not including oil) to the ambient air. Generally,
OSHA PSM also covers these chemical terminals; consequently, the only
additional steps these sources will need to take will be to conduct the
hazard assessment and submit the RMP, as existing emergency response
plans may meet the emergency response program requirements.
Since EPA's definition is identical to OSHA's, EPA will coordinate
interpretations of the definition of process with OSHA to ensure that
the rule is applied consistently. OSHA has stated that processes are in
``close proximity'' if a release from one could lead to a release from
the other. Owners or operators must be able to demonstrate that an
``effective barrier'' exists to prevent a release from one process from
affecting another. OSHA has interpreted ``interconnected vessel'' to
mean vessels connected by any means, such as piping, valves or hoses,
even if these are occasionally disconnected. EPA will also adhere to
these interpretations.
4. Offsite. One commenter stated that EPA's proposed definition of
offsite should be expanded to include the air above and below the point
of release to cover exposure to the upper atmosphere and groundwater.
Another asked EPA to limit the definition to areas frequented by the
public. Two commenters opposed including areas on site where the public
has access because OSHA already covers these areas.
In the final rule, EPA has retained a definition of offsite as
``areas beyond the property boundary of the stationary source or areas
within the property boundary to which the public has routine and
unrestricted access during or outside business hours.'' OSHA's
jurisdiction includes visitors that may be on the property of a
facility who are conducting business as employees of other companies
but does not necessarily extend to casual visitors or to areas within a
facility boundary to which the public has routine and unrestricted
access at any time.
5. Other Definitions. Commenters raised questions about several
other definitions. Three commenters suggested changes or clarifications
to the definition of accidental release. EPA's definition is the
statutory definition. Commenters also proposed modifications to the
definition of ``analysis of offsite consequence.'' As noted above, EPA
has determined that this definition is not needed and has deleted it
from the final rule.
Commenters sought clarification of the definition of mitigation
systems and whether personnel should be considered an active mitigation
system. Others asked for a list of passive mitigation systems and
provided proposals. These commenters also objected to limiting passive
systems to those that capture or control released substances; they
suggested that systems that are designed to prevent releases or control
the volume or rate of a release, such as vent/catch tanks, quench
tanks, blowdown tanks, elevated stacks and high velocity stacks,
adsorbents including carbon beds, neutralization tanks, double-walled
vessels or pipelines, chemical sewers, closed drain header systems for
flammables, vapor-liquid separators, fire barriers, explosion-resistant
walls, isolation distances, barriers to prevent free access of air flow
after a release, containment buildings, pre-charged water spray
systems, closed vent systems, and filters should also be considered
passive mitigation. One commenter suggested that active mitigation
systems should be defined as those that require manual activation or an
energy source (other than gravitational attraction) to perform their
intended function.
For the final rule, EPA has decided to define passive mitigation
systems as those systems that operate without human, mechanical, or
other energy input and would include building enclosures, dikes, and
containment walls but excludes active mitigation systems such as excess
flow valves, fail-safe systems, scrubbers, flares, deluge systems, and
water curtains. In addition to the requirements outlined in Secs. 68.25
and 68.28, EPA provides further guidance on the consideration of the
effect of passive mitigation in its RMP Offsite Consequence Analysis
Guidance. EPA does not believe that all systems designed to prevent
releases or control the volume or rate of a release should be
considered passive mitigation, consistent with its intent to reflect
the potential for failure of any system that requires human,
mechanical, or other energy inputs.
[[Page 31694]]
G. Risk Management Plan (RMP)
In the NPRM, EPA proposed that owners or operators of stationary
sources covered by the requirements submit an RMP summarizing the key
elements of its risk management program. In the NPRM preamble, EPA
indicated that summaries of the information requested (e.g., hazard
assessment and emergency response program) would provide the most
useful information to the public and local agencies without
overburdening them with unneeded detailed information. EPA further
stated that the RMP should serve to provide local and state agencies
and the public with sufficient information to determine if additional
details are needed. These details would be available, if needed, to
implementing agency officials conducting audits or compliance
inspections.
1. Level of Detail. Most commenters agreed with EPA's proposal
noting that the public should be able to identify key hazard and risk
management information from the RMP without being overwhelmed by
extraneous documentation that is more appropriately maintained on site.
A detailed submission would not be cost-effective and could threaten
plant security; these commenters expressed fears of terrorism, thieves,
and saboteurs.
Other commenters disagreed and argued that summaries would not
provide enough information while ``full disclosure'' would support an
informed public. Some commenters argued that the public could be misled
by a summary derived from a ``full'' RMP withheld from the public by
the source. Further, several commenters made the general argument that
right-to-know provisions should be strengthened and that the public
should be given full access to all risk management program information
including PHAs and actual operating procedures. Individual commenters
also requested public access to specific information regarding such
details as worst-case scenarios and descriptions of chemical accidents.
Some commenters argued that an informed public and public scrutiny, in
general, can act as a powerful force in reducing risk and preventing
accidents at stationary sources.
EPA agrees that an informed public is a key element of sound
chemical emergency prevention, preparedness, and response. However, EPA
also believes that it is essential for the public to focus on the
information essential at the local level for prevention, preparedness,
and response and has decided to maintain its proposed requirement that
the RMP provide certain information about the risk management programs
at a source. EPA notes that its previous use of the word summary was
not intended to imply that the source prepares a ``full'' RMP document
from which a source extracts summary information that is shared with
the public. Rather, the source is obligated to develop certain
information about the hazards, prevention, and emergency response
programs from the array of documentation at the source to prepare an
RMP. EPA believes it would be impractical to require sources to share
all documentation used for the safe operation of the processes at a
source. Not only is much of this information likely to be confidential,
but significant technical expertise and time are necessary to extract,
understand, and to make meaningful judgments about the adequacy of the
information. The RMP will consist of an executive summary and required
data elements addressing all elements of the risk management program as
described below. Detailed supporting documentation will be maintained
on site available to the implementing agency for review.
2. RMP Contents. Most commenters requested that EPA generally limit
the level of detail required, the number of scenarios, or the number of
pages in the RMP. Other commenters recommended EPA require submission
of only information specified in the CAA and incorporate other detailed
information by reference. Commenters also noted that documenting each
action taken to address a hazard, the date on which the action started
(or is scheduled to start), and the actual or scheduled completion date
would prove impractical. EPA received many comments stating that the
requirement that exact dates on which training, emergency exercises, or
rescue drills, are conducted would be impractical and unnecessary.
Commenters seeking more comprehensive RMPs argued in favor of
requiring an index or bibliography of detailed information or a catalog
of all available documents, an investigation and analysis of all other
credible release scenarios, and submission of assumptions, methodology,
and modeling methods used to determine worst-case accidents.
As described above, EPA is considering development of a reporting
mechanism and form to collect key data elements. As discussed below,
this approach will foster electronic submission and immediate
availability to Federal, state and local entities, and the public. To
make such submission possible, EPA wants to collect data that generally
can be reported by numerical information, yes/no answers, and check
boxes. For the offsite consequence analyses, owners or operators will
be asked to provide distance to the endpoint, populations and
environments affected, and enough of the data used to determine these
distances so that local entities and the public can check the distance
against the distance derived from EPA's reference tables or a model
identified in the RMP. If EPA's guidance was not used, sources will
need to indicate which models were used. Many of the parameters for
modeling are set in the rule and do not need to be respecified in the
RMP. The rule requires only one alternative release scenario per toxic
substance and one for all flammables; owners or operators may submit
additional scenarios.
For prevention programs, owners or operators must provide
information (primarily dates) that will allow the implementing agency
to assess whether the source is in compliance with the rule elements.
For the PHA, owners or operators must state which technique was used
for each covered process, the general hazards associated with the
chemicals and process, the process controls in use, mitigation and
monitoring or detection systems in use, and changes instituted since
the last PHA (Program 3) or hazard review (Program 2) update. Through
lists and checkoff boxes, EPA can collect a significant amount of
information on current safety practices without requiring sources to
develop lengthy documentation that would have proved a burden to both
the source and any government or public data user and reduced the
potential for electronic submission. EPA believes this approach
provides the Agency and others with a mechanism for identifying
industry practices and controls from almost 70,000 sources that would
not be feasible otherwise. EPA notes that some of the largest chemical
sources and refineries may be providing data on 30 or more processes.
In the format proposed in the NPRM, these sources might have submitted
several thousand pages each; analyzing such submissions would have been
a daunting task for the implementing agencies and probably would have
made it impossible for public interest groups to review an industry as
a whole. With electronic submission, such reviews will be easier. The
implementing agency or EPA can seek additional details from individual
sources, as needed. EPA has eliminated the requirement to provide dates
of training and emergency exercises or
[[Page 31695]]
drills because the Agency agrees that this amount of detail is
unnecessary and impractical.
3. Submission. In the NPRM preamble, EPA proposed that computer
software be developed that would provide sources with a standard format
for completing the information required in the RMP; that local
authorities be allowed to designate the state as the receiving entity;
or that RMPs be submitted only on request from the state, or local
entity.
Many commenters, particularly those in the potentially regulated
community, supported submission of the RMP upon request or mandatory
submission to the implementing agency with submission by request to
other organizations. Others recommended submission to the LEPC and
public with submission by request to the implementing agency, and SERC.
Most commenters favored reducing the paperwork burden and electronic
submission because it would reduce time and errors, provide more
consistency, and make information more useful for the LEPC and
regulatory agencies. Only two commenters opposed electronic filing
because all sources may not have the computer capability.
Commenters also supported the development of a standard RMP format
regardless of whether the RMP is submitted electronically because
standardization would ensure submissions were manageable and useful and
would ease burdens on both regulated and reviewing entities.
EPA has decided to work toward electronic submission of RMPs. The
Agency believes this will meet numerous objectives of the program and
will address several issues. First, electronic submission would reduce
the burden on regulated and receiving entities. The Agency has noted
that information management of regulatory documents is not a cost-free
requirement, and that duplication of effort, including system
development, personnel resources, and storage and maintenance efforts
could be significant. Electronic submissions would reduce the paperwork
burden on sources and state and local governments and would further
serve to comply with the Paperwork Reduction Act of 1995, which
supports the maximum feasible use of electronic submission. Second, EPA
wishes to limit the information management burden on local entities so
they can focus on the chemical safety issues raised by this rule.
Third, electronic submissions would benefit affected communities
and the general public. Besides having the RMP provide the statutorily
required information on compliance with the regulations to the
implementing agency, EPA believes the specific value of RMP information
is for the local community to understand its community's risk from
chemical accidents and to help them work with sources using these
chemicals to reduce such risks. The Agency believes this objective
would not be served well with a centralized paper information source
and that using an electronic medium would support better access to
information. With electronic submission of RMPs to a central point,
states, local entities, and the public will have access to all RMPs
electronically. RMP information may also be made available on-line via
libraries and other institutions. Electronic submissions further
address the issue of standardized RMPs. The RMP data elements included
in the submission will be checkoff boxes, yes/no answers, or numerical
entries to ease the burden of submission and reception and will promote
consistency and uniformity. The Agency intends to develop technical
guidance for the submission of the RMPs, which will provide for
submission and receipt of an electronic formatted document containing
the data elements outlined in Secs. 68.160 through 68.180.
4. Other Issues. In the NPRM, EPA proposed that RMPs be resubmitted
within six months of an information change. Several commenters argued
it would generate a continual flow of paperwork and recommended an
update frequency requirement of once a year.
EPA has retained the requirement that the RMP be resubmitted within
six months of the elimination of a substance in a process or at the
source, a change in Program status for a process, or if a process
change at the source requires a revised hazard assessment or hazard
review/PHA. To be consistent with the statutory requirements for
compliance, the RMP would also have to be updated on the date an
already regulated substance becomes present in a process above the
threshold or within three years of the date when EPA lists a new
substance. EPA believes that with a standardized format and electronic
filing, updates can be rapidly and easily made, and this information
should be promptly shared. EPA changed the update schedule for hazard
assessments to make them consistent with the RMP update. EPA also
specified when offsite consequence analyses require update; the rule
states that these analyses need to be reviewed and changed if on-site
changes may be reasonably expected to change the distance to an
endpoint by a factor of two or more. EPA notes that this change is
likely to reduce the number of updates required. For PHAs, only major
changes to a process or installation of new processes is likely to
trigger a revised PHA. EPA expects that relatively few sources will
need to update either their offsite consequence analyses or PHAs/hazard
reviews more frequently than once every five years because the majority
of sources have simple processes that do not change frequently.
Chemical industry sources may need to submit more updates if processes
are changing significantly. The RMP should reflect such significant
changes.
EPA proposed that RMPs be submitted to implementing agencies,
SERCs, and LEPCs, and be made available to the public. Several
commenters recommended that additional parties, local fire officials in
particular, also receive RMPs. One commenter stated that EPCRA requires
various reports go to local fire departments, and another commenter
noted that RMP information may be better used by emergency management
agencies, fire departments, and hazardous materials teams. Because EPA
plans to have RMPs submitted to and available from a central point in
electronic format, any agency that wants the information will be able
to access it directly on-line. The RMP will be immediately available to
local responders and the state. Thus, this manner of submission
fulfills the requirements of CAA section 112(r)(7)(B)(iii). Additional
submission requirements are, therefore, unnecessary.
The Department of Defense (DOD) commented concerning the lack of a
rule provision explicitly declaring that information that is classified
under applicable laws and Executive Orders (E.O.s) is not to be
included in the RMP. EPA is clarifying that such classified information
is protected from disclosure by including a specific regulatory
exemption for such information. Furthermore, EPA is clarifying that no
provision of part 68 requires the disclosure of classified information
in violation of Federal law, regulations, or E.O.s. Finally, EPA is
also promulgating a definition of ``classified information'' that
adopts the definition under the Classified Information Procedures Act.
EPA has found no relevant statutory language superseding or
impliedly repealing the Classified Information Procedures Act or
applicable E.O.s regarding disclosure of classified information, nor
has EPA found any legislative history indicating that Congress intended
to supersede or repeal these provisions when it established the
requirement to prepare
[[Page 31696]]
publicly-available RMPs. The provision for exemptions from standards
and limitations established under CAA section 112 narrowly addresses
the procedures for an exemption when ``the President determines that
the technology to implement such standard is not available and * * * it
is in the national security interests of the United States to do so.''
CAA Sec. 112(i)(4). The focus of section 112(i)(4) is on the technical
capability to meet a limitation; for example, the provision would apply
when an emission standard requires a control device that precludes
national security-related equipment from functioning. Section 112(i)(4)
does not consider or address the availability or distribution of
classified information to the public, nor does the legislative history
demonstrate that such disclosure was contemplated.
The requirement of section 112(r)(7)(B)(iii) to make RMPs publicly
available must read in congruence with the provisions prohibiting
disclosure of classified information. ``Classified information,'' as
defined by the Classified Information Procedures Act, 18 U.S.C. App. 3,
section 1(a), is ``any information or material that has been determined
by the United States Government pursuant to an Executive order,
statute, or regulation, to require protection against unauthorized
disclosure for reasons of national security. * * *'' ``National
security * * * means the national defense and foreign relations of the
United States'' 18 U.S.C. App. 3, section 1(b). Criminal penalties
exist for unauthorized disclosure of classified information that has
been designated by the Department of Defense or defense agencies for
limited or restricted dissemination or distribution. 18 U.S.C. 793. It
is not reasonable to interpret the CAA to require the disclosure of
classified information in violation of criminal law. It has been EPA's
long-standing policy to interpret information disclosure provisions in
its statutes as being consistent with national security law to the
maximum extent possible and to require such information to be
maintained in accordance with the originating agency's requirements.
Federal Facilities Compliance Strategy (November 1988), at page V-6.
Therefore, EPA is promulgating language in Sec. 68.150(d) to clarify
its intent with respect to the disclosure of classified information in
RMPs by specifically exempting classified information from the RMP
except by means of a classified annex submitted to appropriately
cleared Federal or state representatives with proper security
clearances. Furthermore, EPA is promulgating Sec. 68.210(b) to clarify
that disclosure of classified information is controlled by the
Classified Information Procedures Act, E.O.s 12958 and 12968, and other
laws, regulations, and E.O.s applicable to classified information.
Finally, in Sec. 68.3, EPA is defining classified information by
promulgating the definition under the Classified Information Procedures
Act.
H. Prevention Program
In the NPRM preamble, EPA noted that the CAA requires the risk
management program to include a prevention program that covers safety
precautions and maintenance, monitoring, and employee training
measures. Because OSHA PSM covers this same set of elements, EPA
proposed a prevention program that adopted and built on OSHA PSM. The
proposed requirements for EPA's prevention program included a
management system requirement and sections covering nine elements:
process hazard analysis, process safety information, operating
procedures (SOPs), training, maintenance, pre-startup review,
management of change, safety audits, and accident investigation.
To assist in describing its prevention program, EPA included a
section in its preamble comparing its prevention program to OSHA PSM
standard. EPA noted that with the exception of the management system
requirement, the proposed prevention program covered the same elements
as OSHA's PSM and generally used identical language except where the
statutory mandates of the two agencies dictated differences. EPA added
introductory paragraphs to most sections to provide additional
information. Further, in some of the sections, EPA proposed additional
requirements and established different deadlines. The majority of
comments EPA received concerned conflicts and differences between EPA's
proposed requirements and OSHA PSM standard.
In the final rule, the Program 3 prevention program is the OSHA PSM
standard for parallel elements, with minor wording changes to address
statutory differences. For elements that are in both the EPA and OSHA
rules, EPA has used OSHA's language verbatim, changing only certain
regulatory terms (e.g., highly hazardous chemical to regulated
substance and employer to owner/operator) and dates. The sections of
the OSHA PSM standard were not cross-referenced for the reasons
discussed in section III.D of this preamble. Key issues under PSM are
discussed below; the remainder are addressed in the Response to
Comments Document.
Management. In the NPRM preamble, EPA stated the purpose of its
proposed management system is to ensure integration of all prevention
program elements. EPA proposed that owners or operators identify a
single person or position that has the overall responsibility for the
development, implementation, and integration of the risk management
program requirements. When responsibility for implementing individual
requirements of the risk management program is assigned to persons
other than the person designated, the names or positions of these
people shall be documented and the lines of authority defined through
an organization chart or similar document.
Several commenters agreed with this approach because it serves a
useful purpose and many PSM sources already implement management
systems. Many commenters opposed the requirement for submission of an
organization chart of their source because it would be of no value to
EPA and that continual updating would waste company resources.
EPA has decided to maintain its management system requirements in
the final rule for sources with processes in Program 2 and 3, but has
moved it to general requirements (Sec. 68.15) because it is the entire
risk management program that should be managed, not just the prevention
program. EPA has also revised the requirement to provide flexibility in
indicating lines of authority; an organization chart is not absolutely
required and is not included in the RMP.
Management of Change. Some commenters objected to EPA's definition
of replacement in kind, asking that EPA adopt the OSHA PSM definition.
Other commenters stated that management of change procedures should
only be implemented when the changes had the potential to increase the
risk (e.g., an increase in inventory, an introduction of a new
substance).
As part of its efforts to strengthen coordination between the two
programs, EPA will use the OSHA definition for ``replacements in
kind'': ``a replacement which satisfies the design specification.''
OSHA defined this term to address a concern expressed by commenters on
its standard that failing to define ``replacements in kind'' could
result in misunderstandings such as employers believing that only a
replacement with the same brand and model number could be characterized
as a ``replacement in kind.'' OSHA promulgated a definition in
recognition of these comments, and EPA
[[Page 31697]]
understands it to reflect a concept understood in industry.
Further, EPA does not agree that management of change requirements
should exclude changes that reduce the risk of an accidental release.
The Agency does not believe that only changes to ``critical systems''
should be subject to management of change procedures. As EPA stated in
the NPRM preamble, most process changes improve process safety or
efficiency. However, even these changes may result in unintended
effects when source owners and operators fail to evaluate the
consequences of the change. Therefore, the Agency continues to believe
that a change that reduces the risk of an accidental chemical release
may, nonetheless, be an appropriate subject for a management of change
procedure. Failure to subject such changes to a management of change
process could inadvertently result in a change that was believed to
lower risk when such a change, in fact, increases risk. Regarding the
comment about critical systems, EPA notes that chemical processes are
integrated systems, and that a change in one part of the process can
have unintended effects in other parts of the system--irrespective of
whether the system is ``critical.'' Consequently, EPA agrees with OSHA
that source owners and operators must establish and implement written
management of change procedures for any change to a regulated
substance, process technology, or equipment and any change to a source
that affects the covered process.
Other Provisions. Several commenters stated that EPA should include
in its risk management program the OSHA PSM provisions on contractors,
employee participation, and hot work permits that EPA had not proposed
in its prevention program. The NPRM solicited comment on whether to
include these provisions (58 FR 54205; October 20, 1993). Commenters
argued that contractors have been responsible for a number of accidents
that have affected the public and the environment. Commenters presented
the same argument to support inclusion of the hot work permit
requirements. A substantial number of commenters also argued that
employee participation is a key factor in successful implementation of
PSM. A few commenters supported EPA's initial position that these
requirements were more properly OSHA concerns.
In response to the former commenters' arguments and to ensure
consistency between the elements of the two rules, EPA has decided to
add these sections to its Program 3 prevention program. EPA believes
that each of these elements is important to the implementation of an
effective prevention program. Worker participation in PHAs and other
elements is critical to the success of process safety because workers
are intimately familiar with the process and equipment operation,
possible failure modes and consequences of deviations. It also serves
as a mechanism for greater communication and understanding of specific
process hazards (as opposed to the general chemical hazards) and the
importance of developing and following proper procedures. Similarly,
contract employees have been involved in a number of major accidents in
recent years; for example, the explosion in Pasadena, Texas, in 1989,
which killed 23 workers, has been attributed to improper maintenance
practices by contractor employees. Oversight of contractors, therefore,
can be critical for accident prevention. Finally, hot work permits
ensure that use of flame or spark-producing equipment is carefully
controlled. Not only are many of the listed substances highly
flammable, but fires in the vicinity of vessels or pipes containing the
toxic substances can lead to releases of these substances.
I. Accident History
In the NPRM, EPA required sources to document a five-year history
of releases that caused or had the potential to cause offsite
consequences for each regulated substance handled at the source. EPA
specified that the accident history should include the nature of any
offsite consequences, such as deaths, injuries, hospitalizations,
medical treatments, evacuations, sheltering-in-place, and major offsite
environmental impacts such as soil, groundwater, or drinking water
contamination, fish kills, and vegetation damage.
A few commenters argued that releases with only the potential for
offsite consequences should not be included, while other commenters
were evenly divided on whether near-miss events should be included in
the accident history. A number of commenters indicated that releases
with on-site consequences should be added to the accident history.
Several commenters requested that EPA clarify that the accident history
applies only to covered processes.
In recognition of these comments, in the final rule, only those
accidents from covered processes that resulted in deaths, injuries, or
significant property damage on-site, or known offsite deaths, injuries,
evacuations, sheltering in place, property damage, or environmental
damage need to be included in the five-year accident history. Near-miss
accidents or accidents with only the potential for offsite consequences
(that did not meet any of the previous criteria) would not need to be
included. Because the accident history is, by statute, an aspect of the
hazard assessment, and the hazard assessment provisions apply only to
covered processes, EPA believes that requiring the accident history to
address accidental releases from processes not covered by this rule
would be inconsistent with the structure of part 68. EPA notes that
such releases may be subject to reporting under other statutes; the
Agency may investigate such releases to determine the need for a
response action under CERCLA and to determine whether CAA section
112(r)(1) has been violated.
J. Emergency Response Program
In the proposed rule, EPA required sources to develop an emergency
response plan that defines the steps the source and each employee
should take during an accidental release of a regulated substance. EPA
noted that most sources are already required to have at least part of
the emergency response plan in place as a result of other EPA (Spill
Prevention, Control, and Countermeasures and Resource Conservation and
Recovery Act) and OSHA (emergency action plans and HAZWOPER)
regulations and requested comment on how the proposed requirements
could best be integrated with these existing programs to minimize
duplication. Many of the commenters were particularly concerned with
the potential for increased duplication of emergency planning
requirements at the state and Federal levels that would require
expenditure of additional resources without improving source emergency
response capabilities. Most of these commenters suggested that EPA
allow compliance with other Federal regulatory programs to meet the
mandate of the Clean Air Act for an emergency response program, while
other commenters recommended that EPA work with other agencies to
develop a format for a single, comprehensive response plan for the
source. Some commenters addressed related concerns with respect to
state program or voluntary initiatives.
EPA has decided to adopt the emergency response requirements found
in the statute, without additional specific planning requirements. This
action is consistent with the Agency's effort to develop a single
Federal approach for emergency response planning. The Review of Federal
Authorities for Hazardous Materials Accident Safety, (required under
section
[[Page 31698]]
112(r)(10) of the Clean Air Act) reported little harmony in the
required formats or elements of response plans prepared to meet various
Federal regulations. Accordingly, EPA has committed not to specify new
plan elements or a specific plan format in today's rule. EPA believes
that plans developed to comply with other EPA contingency planning
requirements and the OSHA Hazardous Waste and Emergency Operations
(HAZWOPER) rule (29 CFR 1910.120) will meet the requirements for the
emergency response program provided that they address the elements in
section 68.95(a). EPA believes that coordination of the emergency
response plan with the community emergency response plan will help
ensure that offsite response issues are addressed. In addition, EPA and
other National Response Team agencies have prepared Integrated
Contingency Plan Guidance (``one plan'') (NRT, May 1996). An emergency
response plan that includes the elements specified in this guidance can
be used to meet the requirements in today's rule. The final rule also
provides relief for sources that are too small to respond to releases
with their own employees; these sources will not be required to develop
emergency response plans provided that appropriate responses to their
hazards have been discussed in the community emergency response plan
developed under EPCRA (42 U.S.C. 11003) for toxics or coordinated with
the local fire department for flammables.
K. Registration
In the NPRM, EPA proposed that sources register with the EPA
Administrator by three years after the publication date of the final
rule, or within three years of the date on which a source becomes
subject to the risk management program requirements as mandated by the
CAA. While a number of commenters agreed with this proposal, a greater
number requested that EPA accelerate the registration to between six
months and two years of promulgation of the rule so that implementing
agencies could better determine resource allocation and conduct more
extensive outreach and technical assistance to sources developing risk
management programs and preparing RMPs.
EPA agrees that earlier registration could aid outreach efforts and
help implementing agencies focus resources. However, since the first
RMP need not be submitted until June 21, 1999, an earlier, pre-
registration would impose an additional burden on sources. Some sources
may reduce inventories, make process modifications or switch chemicals
prior to the first RMP due date and, consequently, will not be subject
to the rule. If EPA required a pre-registration, these sources would
have to deregister at that time. Further, states and local agencies
already have information gathered under EPCRA section 312 that could be
used for early identification and outreach to sources covered by this
rule. EPA is also working with trade associations and other
representatives of affected industries to ensure that sources are aware
of the rule. Instead, in today's rule, the registration is included as
part of the RMP to limit the number of filings made by sources.
EPA also proposed that sources submit written registration
information. A number of commenters advocated either the modification
of existing forms (e.g., the EPCRA Tier II form) or an electronic
filing system for the submission of this information. Since the RMP and
the registration are consolidated into one submission, this issue is
addressed generally in Section III.G.
Under the proposed rule sources would need to submit an amended
notice to the Administrator and the implementing agency within 60 days
if information in the registration is no longer accurate. Many
commenters argued that six months or a year is needed to ensure
compliance with the certification requirements. EPA agrees with
commenters and in the final rule has lengthened the time for submission
of an amended registration to six months which should be enough time to
modify the information and to electronically resubmit the registration
and RMP.
L. Model Risk Management Programs
Commenters supported the development of model risk management
programs and RMPs, stating that the models were needed by smaller
businesses and public systems that lack the expertise to implement
process safety management. Commenters specifically supported
development of models for industries with well-understood processes and
practices, such as chlorination systems, propane and ammonia retailers,
and refrigeration systems. A few commenters asked that the models be
made available for public review. Others said the models should be
published as guidance, not regulations.
EPA is working with industry groups to develop model programs for
ammonia refrigeration, propane handling, and water treatment. After
having provided the public with an opportunity to review a draft of the
ammonia model program, EPA today is issuing a guidance on a model
program for this industry (see Model Risk Management Program for
Ammonia Refrigeration). EPA encourages other industry groups to work
with the Agency to develop models for their sectors. EPA notes that the
models are particularly relevant to sources with Program 2 processes.
Because EPA has adopted the OSHA PSM standard, EPA has not provided an
EPA guidance on PSM compliance. EPA will also publish general technical
guidance to help sources understand and comply with the rule which will
include Program 2 prevention program guidance. The RMP Offsite
Consequence Analysis Guidance contains reference tables for the offsite
consequence analysis, which can be used instead of site-specific
modeling. EPA emphasizes that the models are guidance, not regulations;
sources are not required to use them.
M. Implementing Agency Audits
EPA originally proposed in Sec. 68.60 seven criteria an
implementing agency could use to determine whether to audit a source's
RMP. EPA also proposed that the implementing agency have the authority
to determine whether an RMP should be revised and to direct the owner
or operator to make revisions. Many commenters suggested that the
Agency lacked statutory authority to specify measures to correct risk
management program elements through the RMP, and that RMP changes based
on implementing agency directives will be costly.
EPA or other implementing agencies have general inspection and
enforcement authority under CAA sections 112(r)(7)(E), 113, and 114 to
compel source owners and operators to correct deficiencies in the risk
management program. EPA intends to use the audit process as a way to
verify the quality of the program summarized in the RMP. When it is
reasonable, EPA will require modifications to the RMP that may lead to
quality improvements in the underlying program.
EPA notes that many commenters were uncertain of the distinction
among audits conducted under Sec. 68.220, reviews by the permitting
authority under Sec. 68.215, and inspections. CAA section
112(r)(7)(B)(iii) requires EPA to develop, by regulation, a system for
auditing RMPs. These audits will review the information submitted by
sources to determine whether the source is in compliance with the rule
elements. For example, the implementing agency will consider whether
the dates for reviews and revisions of various elements are consistent
with the steps sources are
[[Page 31699]]
required to take. If a source reported a major change on a date later
than the last date on which safety information and operating procedures
were reviewed, the implementing agency could seek further information
about why such reviews had not been conducted and require updates if
the agency determined that the source should have reviewed the
documents. Audits may be detailed paper reviews or may be done at a
source to confirm that on-site documentation is consistent with
reported information.
In contrast, the air permitting authority or its designated agency
may be reviewing the RMP for completeness, rather that the quality of
the RMP contents. Inspections are generally more extensive in scope
than audits although they may include a review of the accuracy of the
RMP information. Inspections will consider whether the source is in
compliance with part 68 as a whole, not just with the RMP requirements,
and may review both the documentation kept at the source and operating
practices.
Regarding comments that making changes to the RMP would be too
costly, EPA has endeavored to ameliorate the cost burden of this rule
by using a tiering approach to make the risk management program
elements on which the RMP rests appropriate for sources of various
sizes and complexity. In addition, EPA is considering development of a
standard RMP reporting format and data elements, which should
significantly reduce the time and effort necessary to revise the RMP.
Any source owner or operator can further limit the costs associated
with revising its RMP by submitting a timely, complete, and valid plan
in the first instance.
N. Public Participation
In the SNPRM, EPA requested comments on how public participation in
the risk management program process might be encouraged. EPA's
preferred approach was to encourage the public and sources to use
existing groups, primarily the LEPC, as a conduit for communications
between the source and the public throughout the RMP development
process. A substantial number of commenters supported this approach,
stating that the LEPC was well placed to interpret the RMP information
for the public. Commenters said that LEPCs and their member
organizations have considerable experience and have established rapport
in dealing with the community. Others stated that this role is a
logical extension of current LEPC responsibilities under EPCRA,
although funding for LEPCs was a concern.
A number of commenters opposed this approach because some LEPCs are
not functional and that LEPCs are not a substitute for public
participation. A few LEPCs also objected to assuming any additional
role. Commenters suggested that EPA should require public participation
in the development of the RMP and require all major sources to have a
public participation strategy. Industry commenters generally opposed
any mandated public participation requirements because direct
involvement in risk management program development would delay the
process and would represent an unwarranted and inappropriate
interference in management and site control responsibilities. A few
commenters supported the SNPRM suggestion that public participation be
limited to sources with Program 3 processes because these sources
represent the greatest risk. Other commenters opposed this idea,
preferring the decision to be left to local authorities.
EPA has not adopted any specific public participation requirements.
EPA plans to make the RMP immediately available to any member of the
public. LEPCs and others will be able to compare their sources with
similar sources in other areas to determine whether quantities on
sites, process controls, mitigation systems, and monitoring systems are
significantly different. This information will give the public an
opportunity to gain a better understanding of local industries and
carry on a more informed dialogue with sources on their prevention
practices. EPA continues to encourage sources to work with the LEPCs
and other community groups to provide information to the public and
ensure an on-going dialogue during and after RMP development and
submission. The public is a valuable resource and a key stakeholder in
chemical accident prevention, preparedness, and response at the local
level.
A number of commenters said that EPA should prohibit the public
from triggering an audit through petitions because this approach would
open the process to litigation; a petition process would be expensive,
time-consuming, and increase the time needed to complete the RMP. Some
commenters said it would impose an excessive burden on the implementing
agency. Two commenters favored public petitions to trigger audits. One
said that the audits should be conducted by qualified third parties,
subject to community selection and supervision.
EPA has not included public petitions as a mechanism for periodic
audits of sources under Sec. 68.220. States, however, are able to adopt
more stringent requirements.
O. Inherently Safer Technologies
In response to the NPRM, a number of commenters stated that EPA
should require sources to conduct ``technology options analyses'' to
identify inherently safer technologies. In the SNPRM, EPA solicited
comments on this issue, but did not propose a requirement for such
analyses.
A number of commenters stated that EPA should require analyses of
inherently safer technologies, at least for sources with Program 3
processes or new processes. Some commenters argued that inherent safety
is primary prevention (directed at the source of the hazard), while
EPA's proposed requirements are secondary prevention (control of the
hazard). One commenter asked that sources be required to provide full
economic and technical analyses of options. Commenters argued that
without a technology options analysis requirement, industry will not
conduct these analyses because, unlike its pollution prevention
efforts, EPA has provided no incentive for safer plants.
Other commenters strongly opposed any requirement for these
analyses because PHA teams regularly suggest viable, effective (and
inherently safer) alternatives for risk reduction, which may include
features such as inventory reduction, material substitution, and
process control changes. These changes are made as opportunities arise,
without regulation or adopting of completely new and unproven process
technologies. Commenters said that similar analyses are frequently
conducted during the design phase of a process or source where there
are sufficient economic incentives to design a process with as few
costly additional safety features as possible without new EPA
requirements. Commenters also said that a requirement would prove
costly, without providing commensurate benefits.
EPA has decided not to mandate inherently safer technology
analyses. EPA does not believe that a requirement that sources conduct
searches or analyses of alternative processing technologies for new or
existing processes will produce additional benefits beyond those
accruing to the rule already. As many commenters, including those that
support such analyses, pointed out, an assessment of inherently safer
design alternatives has the most benefit in the development of new
processes. Industry generally
[[Page 31700]]
examines new process alternatives to avoid the addition of more costly
administrative or engineering controls to mitigate a design that may be
more hazardous in nature. Although some existing processes may be
superficially judged to be inherently less safe than other processes,
EPA believes these processes can be safely operated through management
and control of the hazards without spending resources searching for
unavailable or unaffordable new process technologies. Good PHA
techniques often reveal opportunities for continuous improvement of
existing processes and operations. EPA encourages sources to continue
to examine and adopt viable alternative processing technologies, system
safeguards, or process modifications to make new and existing processes
and operations inherently safer. EPA included questions related to
process modifications in the RMP so that sources can demonstrate, and
users of the RMP information can observe, progress toward safer
processes and operations.
P. Coverage by Other Regulations
A large number of commenters expressed concerns about duplication
between the risk management program rule and other Federal and state
regulations. Issues related to overlap between this rule and OSHA PSM
are discussed in Section III.D of this preamble; issues related to
overlap between this rule and other emergency response planning
regulations are discussed in Section III.J of this preamble.
1. General Issues. A substantial number of commenters stated that
EPA had failed to consider other regulations to which sources are
subject that cover some of the same requirements as this rule. They
noted that many sources are covered by DOT rules, other EPA rules, OSHA
rules, and, in some cases, other agency or state rules. Some commenters
argued that these other regulations essentially prevent accidents and,
therefore, this rule is not needed. Commenters stated that EPA should
define jurisdictional and enforcement boundaries so that sources
subject to multiple regulations are not subjected to multiple
enforcement actions for the same violation. Other commenters said that
EPA should clearly identify which similar requirements imposed by other
programs satisfy this rule and what additional steps are needed. Some
commenters said that any source covered by another, similar rule should
be excluded from this rule. Others suggested that EPA explicitly cross-
reference other applicable rules. A few commenters stated that EPCRA
reporting requirements provide ample information to local entities and
no further reporting is needed.
EPA disagrees with some of these comments. Except for the OSHA PSM
rule, no other rule cited by the commenters addresses accidental
releases of regulated substances to the extent that today's rule does.
Some Federal and state rules for certain industries provide design
standards; compliance with these rules will satisfy parts of today's
rule. For example, sources in compliance with 29 CFR 1910.111 for
handling of anhydrous ammonia may not need to take additional steps to
ensure the safe design of the process. These other standards generally
do not cover training, maintenance, hazards analysis, and accident
investigation, which are all key elements in process safety management.
In addition, none of the Federal rules require offsite consequence
analyses or reporting to the public on the results of these analyses
and on prevention steps. Information submitted under EPCRA, which
consists primarily of annual inventories, is not equivalent to the RMP
information.
Nevertheless, EPA agrees with commenters that duplication should be
minimized, which is why the emergency response and Program 2 prevention
program steps recognize that meeting other requirements will satisfy
elements of this rule. The model risk management programs that EPA is
developing with industry will explicitly cite other regulations, as
well as codes and standards, that satisfy specific elements of this
rule.
2. DOT Transportation Regulations. Commenters concerned with
overlap with DOT regulations focused on two issues: pipeline
regulations, and loading/unloading and storage regulations. Commenters
asked EPA to exclude pipelines and transportation containers connected
for loading or unloading since these are adequately covered by DOT
regulations. Some commenters disagreed and wanted loading and unloading
of transportation containers to be included because many accidents
occur during these procedures.
In the final List Rule, EPA defined stationary source to include
``transportation containers that are no longer under active shipping
orders and transportation containers that are connected to equipment at
the stationary source for the purposes of temporary storage, loading,
or unloading.'' One commenter stated that the 1993 oleum release in
Richmond, California, demonstrated that DOT regulations do not
adequately address risk management of loading and unloading. The other
commenters, however, said that loading and unloading were covered by
DOT regulations and should not be subject to this rule. They noted that
DOT has adopted regulations requiring training for anyone who loads or
unloads hazardous materials. They further said that at distribution
centers, regulated substances are not used or processed, and, if in
packages, the containers are not opened.
Several commenters were concerned that EPA regulation in this area
could create problems with DOT's preemption of state rules. Under U.S.
law, states may not adopt regulations in certain specified areas that
are not substantively the same as DOT rules or in other areas that pose
an obstacle to DOT goals under Federal Hazardous Materials
Transportation Law. If state laws are authorized by Federal law,
however, states could develop different requirements than DOT imposes.
In this case, the commenter said, if EPA were to regulate loading and
unloading under the CAA, the states would have the authority under the
CAA to impose more stringent requirements on this activity.
EPA disagrees with the commenters concerning the scope of the
Hazardous Materials Transportation Act preemption authority in this
area. EPA's definition of stationary source clearly covers
transportation containers only when they are no longer in
transportation in commerce and was addressed in the List Rule. EPA
believes commenters have overstated the extent of any preemption
problem. EPA's interpretation today is consistent with DOT's, as
explained in ``California and Los Angeles County Requirements
Applicable to the On-Site Handling and Transportation of Hazardous
Materials--Preemption Determination'' (60 FR 8774, 8776-78, February
15, 1995). EPA notes that in many cases warehouses and wholesalers take
delivery of materials and resell them; EPA considers this storage to be
covered by today's rule. EPA believes that DOT standards for container
integrity satisfy process safety information requirements. The same
applies to DOT standards for training requirements for loading and
unloading; that training satisfies the training requirements of this
rule for loading and unloading. Requirements for the PHA only apply to
connections to transportation containers and for storage of containers.
3. Other EPA Regulations. Many commenters stated that other EPA
regulations cover the same activities and
[[Page 31701]]
should be deferred to or referenced to prevent duplicative requirements
and enforcement. A number of commenters said that regulations under the
Clean Water Act, specifically the Spill Prevention, Control, and
Countermeasure (SPCC) and Oil Pollution Act of 1990 (OPA-90) rules,
duplicate many of the provisions of this rule. Other commenters argued
the Underground Storage Tank (UST) rules require sources to comply with
requirements equivalent to many of the notification, prevention, and
emergency response provisions. A few commenters stated that EPCRA
already covers the right-to-know provisions; others stated that the
risk management program regulations should support existing EPCRA
rules. Three commenters said that EPA should exempt any source covered
by the Resource Conservation and Recovery Act (RCRA) because the rules
under that act already impose comprehensive risk management
requirements.
As discussed in Section III.J, emergency response plans developed
under SPCC, OPA-90, or RCRA can be used to meet the emergency response
requirements of this rule. EPA notes, however, that SPCC, OPA-90, and
UST rules do not address storage, handling, and release prevention for
regulated substances. SPCC and OPA-90 rules apply to oil; UST rules
apply to oil and gasoline. The processes addressed by these rules,
therefore, do not overlap with the processes covered by today's rule.
RCRA requirements apply only to certain activities undertaken at
sources that may be subject to the requirements of today's final rule.
As noted above, EPA anticipates that emergency response plans developed
under RCRA can be used to meet the emergency response requirements of
this rule. In addition, certain training and other release prevention
activities required under RCRA may satisfy certain of the prevention
program requirements for Program 2 processes.
4. Other Federal Regulations. A number of commenters stated that
EPA should not cover outer continental shelf (OCS) sources because they
are adequately regulated under the Marine Mineral Service, Pipeline
Safety Act, and OPA-90. The mining industry said that they should not
be covered because their handling of explosives is regulated in great
detail by the Mine Safety and Health Administration and the Bureau of
Alcohol, Tobacco, and Firearms. In its proposed rule (61 FR 16598,
April 15, 1996), EPA has proposed to delist explosives and proposed a
stay of the affected list provisions; elsewhere in today's Federal
Register, EPA has stayed implementation of the affected provisions
until these changes are finalized. OCS sources are not subject to part
68 because the connection between this part and protection of ambient
air quality is too remote; therefore, CAA section 328 proscribes EPA's
jurisdiction.
5. State and Local Regulations. Commenters sought clarification of
how risk management programs implemented under state laws in Delaware,
New Jersey, California, and Nevada would be treated. Some commenters
said sources complying with these state rules should be grandfathered
into EPA's rule for at least five years. California commenters asked
that risk management prevention programs (RMPPs) developed and
submitted under California's rule be considered in lieu of the required
RMP. Some commenters asked that documentation created to meet the state
requirements be considered adequate to meet EPA's program so that
additional documentation need not be created just to meet slightly
different rules. A few commenters suggested that EPA should explicitly
preempt any state risk management program regulations that are not
submitted to and approved by EPA. Other states said that EPA should
defer to state rules on hydrogen sulfide and propane.
None of the four state risk management program rules is identical
to EPA's or each other. The Delaware, New Jersey, and Nevada programs
closely parallel the OSHA PSM rule; the California program is less
specific. EPA expects that sources in compliance with these state
programs will have completed most of the steps required under EPA's
rule. EPA notes that these sources are generally also covered by OSHA
PSM and, therefore, should be in compliance with a significant portion
of EPA's rule.
In relation to the request for grandfathering, EPA does not have
the authority to grandfather compliance with programs that the Agency
has not reviewed and approved. EPA expects that these four states will
seek delegation of the 112(r) program under CAA section 112(l). At that
time, EPA will review the state programs and approve them if they are
as stringent as EPA's rule and meet other section 112(l) requirements.
If states are granted delegation, they will have the authority to
grandfather previous compliance. Because the CAA specifically grants
states the right to impose more stringent regulations, EPA cannot
preempt state programs as one commenter requested.
EPA believes that substitution of the RMPP for the RMP for
California sources is not feasible. The California RMPPs are voluminous
documents, submitted per process, not per source. These documents could
not be submitted electronically. Because EPA is concentrating on
submission of data elements, EPA believes that its RMP requirements can
be met quickly by any source that has completed an RMPP. Completion of
the RMP will not impose a large burden on sources. If the RMPP has
summary sections, these may be directly transferable for use as the
executive summary.
In regard to other state laws, states may include them as part of
their CAA section 112(l) submission for EPA's review and approval.
These laws, however, must be as stringent as EPA's; that is, they must
cover all elements of the rule with requirements that at least match
EPA's. EPA notes that state propane laws are generally based on NFPA-
58, which EPA is using to help develop its model risk management
program for propane distributors and users. Therefore, sources in
compliance with NFPA-58 requirements may meet many of the requirements
of Program 2, as defined in the model.
Q. Industry-Specific Issues
A number of industries submitted comments on issues that were
particular to them, in many cases seeking exemption from the rule.
1. Oil and Gas Facilities. Industry commenters argued that
components of the oil and gas industries should be excluded from EPA's
risk management program; in particular, that EPA should exempt the
following operations and facilities from RMP requirements:
Atmospheric storage and transfer of flammable liquids;
Retail facilities;
Marketing terminals and bulk plants;
Remote, low-risk petroleum operations;
Oil and gas exploration, production and processing
facilities;
Crude oil separation, handling, and storage operations;
Subsurface hydrocarbon reservoirs;
All transportation and facilities incident to
transportation; and
Outer continental shelf facilities.
Commenters noted that these industries and facilities pose a low risk
to the public for a number of reasons. Significant accidental releases
are highly unlikely because these facilities handle materials which,
given site conditions, have limited potential for release to the air or
offsite impacts. Existing regulations reduce the potential
[[Page 31702]]
for significant accidental releases. Additionally, commenters argued
that the RMP provisions extend beyond EPA's statutory authority and run
counter to the Domestic Natural Gas and Oil Initiative established by
President Clinton.
Commenters stated that most of the exploration and production
facilities are remotely located and argued that even the tiering
approach that EPA proposed in the SNPRM did not provide adequate relief
for these sources, which pose minimal risks. They noted that OSHA
specifically excludes remotely located sources, retail facilities, DOT-
regulated sources, and atmospheric storage tanks. A number of
commenters said that EPA had never included most of these sources in
its economic analysis, implying that EPA did not intend to cover them
in these regulations; they requested an explicit statement to that
effect. One commenter opposed an exemption for oil and gas sources and
pipeline and other transportation companies, arguing that these sources
have some of the most common or worst accidents.
EPA does not agree that marketing terminals or bulk plants should
be excluded if there are regulated substances present above their
threshold quantities. Although EPA did not specifically exempt gasoline
and naturally occurring hydrocarbons (e.g., crude oil), it did not
intend to cover regulated flammables in these mixtures. In its proposed
rule (61 FR 16598, April 15, 1996), EPA has proposed to revise the
criteria for flammable mixtures and to exclude naturally occurring
hydrocarbons prior to processing at a gas processing plant or refinery.
Flammable mixtures would be covered only if they met all of the NFPA-4
criteria. Gasoline and crude oil are listed with NFPA 3 flammability
ratings in NFPA 325 M, Fire Hazard Properties of Flammable Liquids,
Gases, and Volatile Solids, 1991. Elsewhere in today's Federal
Register, EPA has stayed implementation of the risk management program
rule for substances and processes that would be affected by the
proposed changes. As EPA explained in the preamble to the final list
rule, the Agency has not adopted OSHA's exemption for atmospheric
storage of flammables because, unlike OSHA, EPA has listed only
flammable gases and highly volatile flammable liquids. EPA considers
these substances to be intrinsically hazardous, regardless of storage
conditions and, therefore, does not believe it is appropriate to
provide an exemption for such tanks.
2. Retail Facilities. The rule is expected to cover a substantial
number of retail facilities, specifically those handling propane and
ammonia as a fertilizer. Approximately 100 commenters requested that
EPA exempt propane retailers from coverage under the risk management
program, primarily due to the effectiveness of the existing regulatory
structure for the industry (in particular, NFPA Standard 58). At the
same time, more than 50 commenters requested that EPA exempt
agricultural chemical retailers (with inventories of ammonia
fertilizer) from coverage under the risk management program because of
the existing state and Federal regulation of these operations.
a. Propane Retailers. Commenters argued that the primary thrust of
the proposed regulations is to preclude unwarranted risk to the
surrounding community from an accidental failure of a storage tank.
They stated that the basic purpose of NFPA 58, the Storage and Handling
of Liquefied Petroleum Gases, is to prevent such releases through
design and engineering. This standard requires fire safety analyses,
distance separation between the storage tank and surrounding exposures,
and approval of plans for new or existing facilities by local
authorities. They noted that NFPA 58 has been adopted as state law in
48 of the 50 states and that the two remaining states (California and
Texas) have similar rules. They said that propane storage containers
are manufactured strictly to the specifications of the American Society
of Mechanical Engineers. According to commenters, emergency response
planning is already covered by NFPA-58, OSHA, and DOT. Because of
compliance with this standard and state law, commenters argued that the
rule would not provide any improvement in safety. A number of
commenters argued that propane was a heating fuel, not a chemical, and
did not pose the same level of risk as larger quantities of propane
held and used as a chemical feedstock. One commenter noted that OSHA
had exempted retailers and propane when used as a fuel.
In contrast, one state, which also regulates propane under its
state risk management program law, argued that propane is not
sufficiently regulated. It stated:
Fire authorities inspect each new facility before propane is
introduced. They concentrate on adequate fire water supply, electrical
code compliance, and distance separation requirements. Some fire
authorities are not technically capable of determining if the facility
piping system complies with NFPA 58. There are no follow-up inspections
to assure continuing compliance and no requirements under NFPA 58 for
training distribution plant operators or mechanics, written maintenance
programs, or procedures to control change. During our inspections, we
have identified some facilities that were not in conformance with NFPA
58.
EPA does not agree with commenters who are seeking exemption of
propane retailers and users. In a supplemental notice, EPA sought
comment on whether flammable substances, when used as a fuel, posed a
lesser intrinsic hazard than the same substances handled otherwise; no
data were submitted to EPA to justify this position. Further, EPA has
considerable accident data for propane that illustrates its potential
to affect the public located nearby. As a result, EPA continues to
believe that the hazard posed by propane is inherent and does not vary
with its use. Because of a lack of data justifying a different level of
hazard for flammables used as fuel, the Agency will not adopt a fuel
use exemption similar to that provided by OSHA.
Furthermore, EPA notes that many propane retailers are relatively
close to other commercial buildings and the community. Should a fire or
explosion occur, the community could be substantially impacted. EPA
believes the community and sources need to be aware of the potential
risk and understand the steps the source is taking to limit the
potential for a release. Because EPA recognizes that the full PSM
standard is not appropriate for propane retailers, EPA has assigned
propane retailers and users to Program 2. Compliance with most aspects
of Program 2 should be simple. For example, use of tanks that meet
relevant ASME standards and retention of the material safety data
sheets required by OSHA will satisfy the safety information
requirements of Sec. 68.48. Furthermore, EPA is developing a model risk
management program to help sources comply. This model is being based on
NFPA-58 standards, where they apply, so that sources already in
compliance with NFPA-58 will be in substantial compliance with Program
2. The model will help sources comply with other elements in a cost-
effective manner.
b. Ammonia Retailers. Ammonia is sold as a fertilizer from
agricultural retailers, primarily in the Middle West, Great Plains, and
West. Commenters stated that the retail fertilizer industry is already
governed by OSHA's Health and Safety Standards, which are specifically
applicable to the storage and handling of anhydrous ammonia. They noted
that this standard (29 CFR 1910.111) is based on ANSI K61.1 and sets
forth extensive
[[Page 31703]]
requirements applicable to the design, construction, location,
installation, and operation of anhydrous ammonia facilities. Measures
designed to adequately provide for the prevention of and response to
accidental releases are an integral part of this standard. Some
commenters said that if EPA did not exempt retail sources, ammonia
retailers should be deemed to be in compliance with the prevention
program. In addition, commenters said they are regulated under state
laws and are subject to EPCRA reporting requirements. Many commenters
argued that retail fertilizer sources have an excellent safety record.
They stated that retail fertilizer facilities are limited in size, do
not involve complex processing and manufacturing operations, and are
located in rural areas; consequently, they present a low risk to the
surrounding communities. Commenters objected to the regulations because
they would impose a substantial burden on what are small operations.
Some commenters argued that, because Congress had granted EPA the
authority to exempt ammonia when held by a farmer for use as a
fertilizer, EPA could grant retail ammonia sources the same exemption.
Although EPA recognizes that other regulatory programs address
safety for agricultural retailers and that such operations do not
involve complex processing or manufacturing, EPA disagrees with the
conclusions of these commenters. According to the industry, the typical
ammonia retailer has 200 tons of ammonia on site at times. Even in
rural areas, release of even a fraction of this quantity could affect
the community. Sources constructed and operated consistent with the
relevant ANSI standard will meet the EPA rule for subjects addressed by
both. EPA recognizes the OSHA standard for anhydrous ammonia handling
and hopes to work with the ammonia industry to develop a model risk
management program for ammonia retailers. This model would be based on
the OSHA standard, where applicable. The standard, however, does not
include some elements mandated by the CAA as part of the prevention
program, specifically training and maintenance programs. In addition,
EPA believes that there is a further need to convey information on
hazards and risk management practices of these operations to the public
and local entities. The model will provide guidance to help sources
comply with these elements in a cost-effective manner. Finally, EPA
does not agree that the Congressionally allowed exemption of farmers
can be extended to non-farmers. See 136 Cong. Rec. S2284 (March 7,
1990) (colloquy between Sens. Kerrey and Chafee).
3. Refrigeration Systems. A number of commenters stated that
ammonia used in a refrigeration system should be exempted from this
rule because these systems pose little risk to the public. One
commenter said that EPA should exempt roof-mounted air handlers, pipes,
and components. Some commenters said that the industry was already
overregulated and the imposition of this rule would be a burden.
The CAA requires EPA to impose this rule on any source with more
than a threshold quantity of a regulated substance. Therefore, EPA
cannot exempt ammonia refrigeration systems that contain more than
10,000 pounds of ammonia. In addition, ammonia refrigeration plants
have had a substantial number of accidents where the ammonia has
migrated offsite, indicating that these systems do pose a risk to the
public. At the same time, it should be noted that all of these
refrigeration systems are already covered by the OSHA PSM standard.
Consequently, the only additional steps sources will have to take are
to conduct the hazard assessment, comply with the emergency response
requirements, and file the RMP. EPA worked with the International
Institute of Ammonia Refrigeration to develop a model risk management
program that will facilitate compliance and reduce the burden on
sources (Model Risk Management Program for Ammonia Refrigeration). For
most of these sources, which have only one chemical, the RMP will be a
very brief document.
4. Other Operations. Comments were submitted on a range of other
industries.
The warehouse industry said that it should be exempted where
material is received and shipped in packages that are not opened;
commenters noted that they are covered by DOT packaging regulations.
EPA believes that warehouses must be covered if they have more than a
threshold quantity of a regulated substance. Under the OSHA definition
of process, which EPA has adopted, packages of a substance stored in
the same room may be counted toward the threshold quantity if the
packages could release their contents in the same event. EPA notes that
warehouse fires have created major incidents in the past 10 years, and
the Agency believes that warehouses should take the steps necessary to
prevent and mitigate such incidents. EPA is interested in working with
the industry to create a model risk management program that would help
sources develop a hazard assessment process that can account for
potentially changing contents of a warehouse.
Batch processors face related problems with changing chemicals on
site. EPA is willing to work with industry to develop a generic
approach to risk management programs. EPA believes, however, that most
batch processors will already be covered by OSHA PSM. The RMP Offsite
Consequence Analyses Guidance will reduce the burden of developing
multiple release scenario analyses. To minimize the need for continual
revision of their worst-case scenario to accommodate periodic inventory
changes, sources such as warehouses and batch processors may want to
analyze their expected chemical inventory in developing a scenario that
represents the worst case for the foreseeable future, even if the
substance is not currently in use at the source.
A number of commenters raised questions about coverage of POTWs. A
specific concern was EPA's statement in the NPRM that substances in
waste streams would not be covered by the rule. This statement is based
on the belief that the regulated toxic substances will not constitute
more than one percent of any waste stream received by a POTW.
Consequently, they will not be considered in calculations of threshold
quantities. No waste stream is likely to meet EPA's flammability
criteria. POTWs are likely, however, to be covered because of regulated
substances they use to treat wastes.
R. Implementing Agency Delegation
EPA received a number of comments to the NPRM regarding the role
and potential burden on LEPCs, SERCs, and other local agencies that may
result from implementation of the risk management program. In the SNPRM
preamble, EPA indicated that EPA and the states share the
responsibility for protecting public health and the environment and
encouraged state and local agencies to seek delegation for this program
because their participation is essential to successful chemical
accident prevention, preparedness and response and recognized by the
legislative history and the CAA section 112(r) requirements by
requiring that RMPs be submitted to states and local planning entities.
States are already involved in chemical emergency preparedness and
planning through the requirements of EPCRA.
Commenters on the SNPRM requested that the final rule clearly state
that EPA is the implementing agency unless a state or local agency is
granted a
[[Page 31704]]
delegation of authority under section 112(l). Several commenters
indicated that EPA should allow states the flexibility to designate the
most appropriate implementing agency, such as OSHA or the state agency
that administers and enforces the OSHA PSM standard, rather than
mandating the air permitting authority or a SERC agency in the final
rule. A number of commenters on the SNPRM and NPRM suggested that
existing local emergency planning agencies (e.g., LEPCs, fire
departments) would be best suited to serve as implementing agencies, in
part because they are closest to the communities at risk. However, many
commenters (including LEPCs that commented) argued that LEPCs would be
unprepared to take on such a burden and that even a minimal role in
implementing section 112(r), including mere storage of RMPs, would
overwhelm their limited resources and technical expertise. In addition,
commenters indicated that LEPCs, as mostly volunteer agencies, would
not and could not have the authority necessary to implement and enforce
the RMP rule.
The implementing agency is the state or local agency that obtains
delegation of the section 112(r) program under section 112(l). As
stated in the definition of Implementing Agency in today's rule, until
a state or local agency is granted delegation of the risk management
program under CAA section 112(l), EPA will serve as the implementing
agency. States may select any state or local agency to implement this
program, including an air permitting authority or a state OSHA program,
provided the agency has the expertise, legal authority and resources to
implement the program; the state must also have the authority to
enforce the program. EPA realizes that, in most cases, LEPCs will not
have the authority to be implementing agencies, but they should be
involved as much as possible in the program.
Commenters on the SNPRM suggested that EPA should avoid adding
specific implementation details to the final rule so that states would
have the flexibility to develop or continue programs that meet local
needs. Other commenters, however, suggested that EPA should issue
delegation guidance and to define the elements of an adequate state
program to avoid inconsistent interpretations and implementation of the
rule. Commenters representing companies that operate in several states
were particularly concerned about maintaining uniform implementation.
EPA has not added specific state or local implementation
requirements to today's rule because the Agency already promulgated
sufficient provisions for delegation of accident prevention programs
under section 112(r) to states and local authorities under 40 CFR part
63, subpart E, which implements CAA Sec. 112(l). As EPA discussed in
the SNPRM, implementing agencies will be responsible for such tasks as
reviewing RMP information, auditing and inspecting a percentage of
sources annually, requiring revisions to the RMP as necessary, and
assisting the permitting authority in ensuring compliance. States have
the flexibility to implement their own programs, however the CAA
requires that state or local program requirements must be as stringent
as EPA's and must include EPA regulated substances and processes. This
means that California, Delaware, Nevada, and New Jersey will need to
revise their existing program requirements, substance lists, and in
some cases, thresholds, to meet EPA's requirements and to obtain
section 112(r) delegation. EPA intends to issue additional guidance
that will help state and local agencies obtain program delegation. EPA
must review delegation requests submitted under 40 CFR part 63, subpart
E to ensure that state and local programs requirements are as stringent
as EPA's. With respect to nationwide uniform implementation, EPA notes
that the CAA specifically grants states the right to develop more
stringent requirements; consequently, there may be state-to-state
variations. Many states, however, are prohibited under their state laws
from adopting regulations that are more stringent than Federal rules.
One commenter on the NPRM indicated that EPA's estimation of the
costs of implementing the section 112(r) program is extremely low,
representing demands that are 65 to 75 percent lower than those
experienced by states implementing similar programs. LEPCs and state
governments were concerned about the imposition of section 112(r)
requirements on state and local governments as an unfunded mandate.
Several state agencies indicated that the considerable financial burden
imposed by section 112(r) implementation would prohibit them from
seeking section 112(l) delegation. Commenters encouraged EPA to develop
guidance on potential funding mechanisms, including descriptions of the
fee systems used by existing state programs for accidental release
prevention. Several commenters indicated that the political climate at
the state and local level would make it impossible to levy new, or
raise existing, fees.
Since states are not required to seek delegation of this program,
it does not constitute an unfunded mandate (see also section V.C).
Before EPA grants delegation, state or local agencies must show that
they have the resources to implement and enforce the risk management
program rules. EPA recognizes that there is no Federal funding
associated with implementation of section 112(r) but believes that the
tiered program levels and centralized electronic submission of RMPs in
today's rule substantially reduces the cost and resource demand for
state and local entities seeking delegation. State and local agencies
that fully implement section 112(r) will be able to develop and operate
a program that best fits their individual needs, resources, and
structures. As part of consideration of the costs to implement section
112(r), state and local agencies should also weigh the benefits of
integrating accident prevention with pollution prevention,
environmental protection, and worker and public health and safety at
the state level, and the benefits to local industry associated with
state, rather than Federal, implementation of this program. Many states
and local agencies have established a close working relationship with
the sources in their jurisdiction. In addition, a number of state and
local publicly owned sources are covered by this rule; state
implementation can serve to enhance compliance that may otherwise
require increased coordination with EPA. Although other states have
successfully ``self-funded'' their accident prevention programs with
various state authorized fees, EPA recognizes that it may be difficult
for state or local agencies to generate the resources necessary to fund
full section 112(r) implementation.
Several commenters on the SNPRM requested guidance and training for
sources, local entities, and implementing agencies on understanding
hazard assessments, and conducting program inspections, reviews, and
audits. EPA recognizes the need for guidance and training for
implementing agencies and sources. EPA plans to modify and to continue
offering its four-day Chemical Safety Audit workshop to other federal
agency representatives, state and local government officials, and
industry representatives as an introduction to chemical process safety,
current industry chemical accident prevention practices and
understanding the elements of the risk management program. EPA is ready
to assist state and local agencies through its regional offices to
coordinate state and local
[[Page 31705]]
programs and to help in obtaining program delegation and development of
resources to fund state or local programs. Region 4 in Atlanta,
Georgia, for example, has developed an integrated section 112(r) work
group of state and local air pollution control, SERC, and LEPC
representatives who participate in workshops, seminars, and pilot
studies designed to foster local program implementation and to build a
support network. EPA also continues to work with NOAA to enhance
modeling and information management tools contained in the Computer
Aided Management of Emergency Operations (CAMEO) and Areal Locations of
Hazardous Atmospheres (ALOHA) software for local emergency planners and
responders.
Two commenters on the NPRM requested that EPA address the issue of
tort liability in the event that an accidental release occurs after an
RMP has been submitted to the implementing agency. One other commenter
believed that the implementing agency must be held accountable for RMP
content while another believed that EPA must ensure that adequate
limits to implementing agency liability exist.
The primary responsibility for accident prevention rests with the
owners or operators of sources. Section 112(r) does not create a basis
for implementing agency tort liability under federal law. CAA
Sec. 112(r)(1). When EPA is the implementing agency, it is immune from
tort liability under state law. States that are implementing agencies
generally will have protection from liability under their state laws.
If a state has waived its sovereign immunity, EPA cannot take steps to
alter that situation. EPA encourages states concerned about this issue
to discuss the matter with their attorneys general to determine whether
state law protects them from liability.
S. Accident Information Reporting
In the SNPRM, EPA discussed the possibility of additional accident
reporting to support a variety of future accident prevention
activities. EPA proposed that sources either submit an OSHA PSM or
Program 3 investigation report for certain accidental releases or a
survey form that collects certain accident data. Otherwise EPA could
use existing authorities to collect additional accident data from
existing information, as needed.
Most commenters opposed EPA's proposal for additional accident
reporting requirements, especially the collection of accident
investigations prepared under Program 3 or OSHA PSM, because it
increases costs, it would have no benefit, it generates significant
liability issues, and it would divert limited resources away from
activities with greater public health benefit. Commenters supported the
use of existing reports since this approach should not generate an
additional burden, such reports are available through EPA and OSHA
under other regulations and they should be adequate for the objectives
outlined by EPA.
EPA agrees with commenters and has decided not to adopt any
additional accident reporting requirements. EPA will rely on the five-
year accident history for the immediate future and, based on that
information, determine whether additional information and requirements
are needed. EPA has the authority under CAA section 114 to investigate
releases and seek additional information as needed.
T. Other Issues
1. OSHA VPP. In the SNPRM, EPA asked whether the OSHA Voluntary
Protection Program (VPP) protects public health and the environment and
suggested that one approach to third party review (discussed below)
would be to assign sources that participate in VPP to Program 2. Many
commenters supported VPP participation as a criterion for assigning a
source to Program 2. Several of these commenters noted, however, that
because VPP sources are probably already covered by OSHA PSM, assigning
them to Program 2 would provide no reduction in burden or regulatory
relief. One commenter suggested that EPA could allow VPP sources the
flexibility to determine, with the LEPC, what the offsite consequence
analysis would cover. Seven commenters opposed VPP participation as a
Program 2 criterion because VPP does not address offsite consequences,
no evidence was presented that PSM is being carried out adequately at
VPP sources, and this approach would discriminate against other
voluntary programs.
After consideration of the comments, EPA has decided not to use VPP
participation as a Program 2 criterion, but has adopted language in the
final rule to exempt sources with a Star or Merit ranking under OSHA's
VPP from selection for audits based on the criteria in Sec. 68.220
(b)(2) and (b)(7); such a source may be audited if it has an accidental
release that requires an accident investigation under these
regulations. This decision recognizes that such sources have active
accident prevention programs and should not be regarded in the same way
as other sources within the same industry or as other sources in
general. In addition, it thus provides a similar degree of benefit with
respect to EPA auditing as it does with respect to OSHA auditing. EPA
agrees that VPP sources would gain no benefit by assignment to Program
2. EPA does not believe it is appropriate to adjust the hazard
assessment requirements for VPP sources; this information is essential
to local emergency preparedness and response and for public dialogue.
2. Qualified Third Party. In the SNPRM, EPA sought comments on
whether sources should be allowed to have qualified third parties
assist them in achieving and maintaining compliance. Eight commenters
supported third party reviews as a way to reduce implementing agency
efforts. One commenter stated that sources should be required to hire a
qualified third party to assess their activities. Most commenters,
however, expressed some reservations including greater cost if sources
were required to hire third parties, when many sources already have
staff qualified to implement the risk management program. Commenters
said that a third party review would be particularly costly for
retailers who will have model programs and stated that use of third
parties would add another layer of bureaucracy to the process. A number
of commenters said that EPA should fund third parties. Commenters also
stated that use of third parties might confuse the issue of who was
responsible for safety and for enforcement; they said that EPA must
make it clear that the owner or operator of the source remains
responsible for accidents and that the implementing agency retains
enforcement authority. Finally, several commenters asked who would
determine the qualifications of a qualified third party.
EPA is not requiring use of qualified third parties in this rule.
EPA, however, endorses the concept of offering sources the option of
using third parties to assist owner/operators in meeting their
obligations under the rule. Based on the comments, EPA recognizes that
any third party proposal must:
Not weaken the compliance responsibilities of source
owner/operators;
Offer cost savings and benefits to the industry,
community, and implementing agencies that significantly exceed the cost
of implementing the qualified third party approach;
Lead to a net increase in process safety, particularly for
smaller, less technically sophisticated sources; and
Promote cost-effective agency prioritization of
implementing agency oversight resources.
[[Page 31706]]
Several key issues need further discussion before the use of a
qualified third party may be offered as an option. These include
qualification criteria, certification procedures, liability, and other
critical issues associated with the use of a qualified third party.
Therefore, following promulgation of this rule, EPA proposes to call a
meeting to solicit input from trade associations, professional and
technical societies, states, and other interested parties to address
these issues and investigate the need for developing a process and a
national exam to qualify third parties.
3. Documentation. Commenters expressed a number of concerns about
the level of recordkeeping and the availability of information. Some
commenters stated that records need to be maintained for longer than
five years; commenters suggested 10 years, 20 years, and the life of
the source. One commenter suggested that records should be kept for the
life of the process and then seven years thereafter to ensure that
records would be available if a lawsuit was initiated. Industry
commenters said that only current documents and data should be
maintained to prevent confusion from having multiple versions of the
same document. One commenter stated that policies and procedures should
be kept until they are superseded, then they should be destroyed;
retaining old, superseded information is unsafe and unacceptable and
can result in accidents.
One commenter said that sources should be required to develop and
maintain a master index or catalogue of documents relevant to the
proposed rule to support public access. Another commenter stated that,
in addition to maintaining records supporting the implementation of the
risk management program, the owner or operator should submit the
records to the implementing agency. A third commenter said that the
rule should require that all records supporting compliance with the
rule be organized and readily available through the designated contact
person at the source to the implementing agency for inspection.
Other commenters said the proposed recordkeeping was excessive. One
stated that EPA is forcing industries towards ``defensive universal
recordkeeping,'' retaining mountains of documents because EPA has not
specified what records need to be kept. Another commenter said that an
examination of the proposal indicated that no fewer than about 22
separate written documents are required to be maintained on site or
submitted to the responsible regulatory agency and other parties. One
commenter noted that more resources will be spent on filling out
paperwork than on actual spill prevention.
In the final rule, EPA has adopted the OSHA PSM language for
Program 3 processes; therefore, documentation for PSM elements is
dictated by that rule. For other elements of the risk management
program and for processes in other tiers, EPA has set a period of five
years for the maintenance of supporting documentation. EPA agrees with
commenters that only current versions of documents and procedures
should be retained. On the issue of records submitted to the
implementing agency, EPA believes that the provisions outlined in the
final rule (as described in Subpart G to part 68) will limit the volume
of such documentation. The implementing agency and EPA will have access
to all on-site documentation when needed. Much of the on-site
documentation will be confidential and protected under Section 114(c)
of the CAA. The burden on the implementing agency will be substantially
reduced because it will not have to establish protected trade secret
files and procedures.
Finally, EPA agrees with commenters that level of recordkeeping
should be kept as low as possible consistent with EPA's statutory
mandate. EPA has reduced the documentation requirements for Program 2
processes (particularly with respect to the prevention program) because
it believes that for these sources, the benefit of the records does not
offset the cost of creating and maintaining files.
IV. Section-by-Section Analysis of the Rule
This section discusses specific changes to the rule that are not
otherwise described in this preamble. The rule has been renumbered to
include new sections and subparts. The hazard assessment requirements
have been divided into separate sections in subpart B. The Program 2
prevention program requirements are in subpart C; Program 3 prevention
program elements are in Subpart D. Emergency response requirements are
in subpart E, RMP requirements in subpart G. The registration
requirement, proposed Sec. 68.12, has been moved to the RMP subpart.
Tables 3 and 4 present the distribution of NPRM and SNPRM sections and
derivation of final rule sections.
Table 3.--Distribution Table
------------------------------------------------------------------------
NPRM and SNPRM citations Final rule citations
------------------------------------------------------------------------
68.3 Definitions..................... 68.3 Definitions.
68.10 Applicability................... 68.10 Applicability.
68.12 Registration.................... 68.160 Registration.
68.13 No Impact Sources (Tier 1)...... 68.10(b) Applicability.
68.12(b) General Requirements.
68.14 Streamlined Risk Management Subpart C Program 2 Prevention
Program (Tier 2). Program (68.48-68.60).
68.15 Hazard Assessment............... Subpart B Hazard Assessment
(68.20-68.42).
68.20 Prevention Program--Purpose..... Deleted.
68.22 Prevention Program--Management 68.15 Management.
System.
68.24 Prevention Program--Process 68.67 Process Hazard Analysis.
Hazard Analysis.
68.26 Prevention Program--Process 68.65 Process Safety
Safety. Information.
68.28 Prevention Program--Standard 68.69 Operating Procedures.
Operating Procedures.
68.30 Prevention Program--Training.... 68.71 Training.
68.32 Prevention Program--Maintenance 68.73 Mechanical Integrity.
(mechanical integrity).
68.34 Prevention Program--Pre-Startup 68.77 Pre-Startup Review.
Review.
68.36 Prevention Program--Management 68.75 Management of Change.
of Change.
68.38 Prevention Program--Safety 68.58 Compliance Audits.
Audits.
68.79 Compliance Audits.
68.40 Prevention Program--Accident 68.60 Incident Investigation.
Investigation.
68.81 Incident Investigation.
68.45 Emergency Response Program...... 68.95 Emergency Response
Program.
[[Page 31707]]
68.50 Risk Management Plan............ Subpart G Risk Management Plan
(68.150-68.190).
68.55 Recordkeeping Requirements...... 68.200 Recordkeeping.
68.58 Permit Content and Air 68.215 Permit Content and Air
Permitting Authority Requirements. Permitting Authority or
Designated Agency
Requirements.
68.60 Audits.......................... 68.220 Audits.
------------------------------------------------------------------------
Table 4.--Derivation Table
------------------------------------------------------------------------
Final rule citations NPRM and SNPRM citations
------------------------------------------------------------------------
68.3 Definitions..................... 68.3 Definitions.
68.10 Applicability................... 68.10 Applicability, SNPRM
68.13.
68.12 General Requirements............ SNPRM 68.13, 68.14.
68.15 Management...................... 68.22 Prevention Program--
Management.
68.20 Applicability (Hazard 68.10 Applicability.
Assessment).
68.22 Offsite Consequence Analysis 68.15(e) Hazard Assessment.
Parameters (Hazard Assessment).
68.25 Worst-Case Release Analysis 68.15(c) Hazard Assessment.
(Hazard Assessment).
68.28 Alternative Release Analysis 68.15(d) Hazard Assessment.
(Hazard Assessment).
68.30 Defining Offsite Impacts-- 68.15(e)(3) Hazard Assessment.
Population (Hazard Assessment).
68.33 Defining Offsite Impacts-- 68.15(e)(4) Hazard Assessment.
Environment (Hazard Assessment).
68.36 Review and Update (Hazard 68.15(g) Hazard Assessment.
Assessment).
68.39 Documentation (Hazard 68.15(h) Hazard Assessment.
Assessment).
68.42 Five-year Accident History 68.15(f) Hazard Assessment.
(Hazard Assessment).
68.48 Safety Information (Program 2).. 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.26 Process Safety
Information.
68.50 Hazard Review (Program 2)....... 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.24 PHA.
68.52 Operating Procedures (Program 2) 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.28 SOPs.
68.54 Training (Program 2)............ 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.30 Training.
68.56 Maintenance (Program 2)......... 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.32 Maintenance.
68.58 Compliance Audits (Program 2)... 68.38 Prevention Program--
Safety Audits.
68.60 Incident Investigation (Program 68.40 Prevention Program--
2). Incident Investigation.
68.65 Process Safety Information 68.26 Prevention Program--
(Program 3). Process Safety.
68.67 Process Hazard Analysis (Program 68.24 Prevention Program--
3). Process Hazard Analysis.
68.69 Operating Procedures (Program 3) 68.28 Prevention Program--
Standard Operating Procedures.
68.71 Training (Program 3)............ 68.30 Prevention Program--
Training.
68.73 Mechanical Integrity (Program 3) 68.32 Prevention Program--
Maintenance (mechanical
integrity).
68.75 Management of Change (Program 3) 68.36 Prevention Program--
Management of Change.
68.77 Pre-Startup Review (Program 3).. 68.34 Prevention Program--Pre-
Startup Review.
68.79 Compliance Audits (Program 3)... 68.38 Prevention Program--
Safety Audits.
68.81 Accident Investigation (Program 68.40 Prevention Program--
3). Accident Investigation.
68.83 Employee Participation (Program 68.24(f) Process Hazard
3). Analysis.
68.85 Hot Work Permit (Program 3)..... NPRM Preamble (58 FR 54205).
68.87 Contractors (Program 3)......... NPRM Preamble (58 FR 54205).
68.90 Applicability (Emergency 68.45(a) Emergency Response
Response). Program.
68.95 Emergency Response Program...... 68.45(b)-(f) Emergency Response
Program.
68.150 Submission (Risk Management 68.50(a) Risk Management Plan.
Plan).
68.155 Executive Summary (Risk 68.50(a) Risk Management Plan.
Management Plan).
68.160 Registration (Risk Management 68.12 Registration.
Plan).
68.165 Offsite Consequence Analysis 68.50(c) Risk Management Plan.
(Risk Management Plan).
68.168 Five-Year Accident History 68.15(f) Hazard Assessment.
(Risk Management Plan).
68.170 Prevention Program/Program 2 68.14(b) Streamlined Risk
(Risk Management Plan). Management Program (Tier 2);
68.50(g).
68.175 Prevention Program/Program 3 68.50(g) Risk Management Plan.
(Risk Management Plan).
68.180 Emergency Response Program 68.50(e) Risk Management Plan.
(Risk Management Plan).
68.185 Certification (Risk Management 68.50(g) Risk Management Plan.
Plan).
68.13(a) No Impact Sources.
68.190 Updates (Risk Management Plan). 68.50(h) Risk Management Plan.
68.200 Recordkeeping.................. 68.55 Recordkeeping
Requirements.
68.210 Availability of Information to 42 U.S.C. 7412.
the Public.
68.215 Permit Content and Air 68.58 Permit Content and Air
Permitting Authority or Designated Permitting Authority
Agency Requirements. Requirements.
68.220 Audits......................... 68.60 Audits.
Appendix A--Table of Toxic Endpoints... 68.15(h)(3)(iii) Hazard
Assessment.
------------------------------------------------------------------------
Section 68.3, Definitions, has been revised to add or delete a
number of definitions. A definition of administrative controls has been
added that is derived from the definition used
[[Page 31708]]
by the Center for Chemical Process Safety (CCPS).
The definition of analysis of offsite consequences has been
deleted.
A definition of catastrophic release has been added that is adapted
from OSHA's definition of catastrophic release (29 CFR 1910.119);
OSHA's language on danger to employees in the workplace has been
changed to imminent and substantial endangerment to public health and
the environment.
A definition of classified information has been added. The
definition is adopted from the Classified Information Procedures Act.
The proposed definition of covered process is unchanged.
The proposed definition of designated agency has been revised to
indicate that the state, not the state air permitting authority, shall
select an agency to conduct activities required by Sec. 68.215.
As discussed above, a definition of environmental receptor has been
added to list the receptors of concern.
The definition of full-time employee has been deleted.
A definition of hot work has been adopted verbatim from the OSHA
PSM standard.
The definition of implementing agency is adopted as proposed in the
SNPRM.
A definition of injury has been added.
A definition of major change has been added to clarify the types of
changes that necessitate actions to manage change. The definition will
help sources understand when they are required to take steps to review
their activities for new hazards.
A definition of mechanical integrity has been added to clarify the
requirements of maintenance sections.
A definition of medical treatment has been added to clarify what
constitutes an injury. The definition is adapted from an OSHA
definition used by sources in logging occupational injuries and
illnesses.
The proposed definition of mitigation has been changed by adding a
definition of active mitigation.
A definition of offsite has been changed to clarify that areas
within the source would be considered offsite if the public has routine
and unrestricted access during or outside of business hours. Areas
within a source's boundaries that may be considered offsite are public
roads that pass through sections of the site and natural areas owned by
the source to which the public has unrestricted access. For some sites,
parking lots within the boundary may be offsite if the source cannot
restrict access.
A definition of population has been added. Population is defined as
the public.
A definition of public has been added to state that all persons
except employees and contractors at the stationary source are members
of the public. A number of commenters stated that employees at other
facilities should not be considered part of the public. EPA disagrees
because these employees may not be trained in protective actions or
have protective equipment appropriate for releases from covered
processes.
A definition of public receptor has been added. Some commenters
stated that EPA should include public roads within this definition. EPA
decided that inclusion of public roads was unwarranted. EPA recognizes
that people on public roads may be exposed during a release. In most
cases, however, vehicles on public roads will be able to leave the area
quickly and further access can be blocked, especially in isolated
areas. If public roads were included, almost no sources would be
eligible for Program 1 because there will be public roads leading to
the source. In those cases where public roads are heavily traveled,
there will be other public receptors near the source and, therefore,
the source's processes will not qualify for Program 1.
OSHA's definition of replacement in kind has been adopted.
The definition of significant accidental release has been deleted.
A definition of typical meteorological conditions has been added
which means the temperature, wind speed, cloud cover, and atmospheric
stability class prevailing at the source. Data on the first three of
these are available from local meteorological stations (e.g.,
airports). Atmospheric stability class can be derived from cloud cover
data.
The definition of worst-case release has been revised to clarify
that the release is the one that leads to the greatest distance to the
applicable endpoint.
Section 68.10, Applicability, has been revised to change the term
``tier'' to ``Program.'' The section now details the eligibility
criteria for all three programs. Paragraph (a) has been revised to be
consistent with statutory language on compliance dates. Sources must
comply with the requirements by June 21, 1999, three years after EPA
first lists a substance, or the date on which a source first becomes
subject to this part, whichever is latest. After June 21, 1999, sources
that begin using a regulated substance that has been listed for at
least three years must be in compliance with the requirements of part
68 on the day they bring the substance on site above a threshold
quantity.
The Program 1 eligibility requirements have been revised to clarify
that the criteria are applied to a process, not the source as a whole,
as discussed above. EPA has deleted requirements for explosives because
the Agency is proposing to delist explosives. The types of accidents
that will disqualify a process from Program 1 are now specified in the
rule as those accidental releases of a regulated substance that led to
offsite exposure to the substance, its reaction products, overpressure
generated by an explosion involving the substance, or radiant heat
generated by a fire involving the substance which resulted in offsite
death or injury (as defined by the rule), or response or restoration
activities at an environmental receptor. These accidental release
criteria eliminate the need for a definition of significant accidental
release, which has been deleted. Offsite environmental response or
restoration would include such activities as collection, treatment and
disposal of soil, shutoff of drinking water, replacement of damaged
vegetation, or isolation of a natural areas due to contamination
associated with an accidental release. The distance calculation
equation for flammables has been dropped, and the worst-case release
endpoint for flammables is specified which allows the source to use the
reference tables or their own methodology to determine the distance to
the endpoint. The requirement that the community have an EPCRA
emergency response plan has been replaced by a requirement that the
source coordinate emergency response procedures with local community
responders.
As discussed above, the eligibility criteria for Program 2 and 3
have been changed. Both apply to processes, not sources.
Paragraph (e) states that if a process no longer meets the
eligibility criteria of its Program level, the source must comply with
the requirements of the new Program level and the update the RMP
according to Sec. 68.190. This paragraph clarifies the responsibility
of the source when a process becomes ineligible for a Program level
(e.g., public receptors move within the distance to an endpoint for a
Program 1 process or OSHA changes the applicability of its PSM
standard).
Proposed Sec. 68.12, Registration, has been dropped. Registration
requirements are now part of the RMP requirements in subpart G,
Sec. 68.160.
New Sec. 68.12, General Requirements, has been added to provide a
roadmap
[[Page 31709]]
for sources to use to identify the requirements that apply to processes
in each of the three tiers. The Program 1 requirements, in proposed
Sec. 68.13, have been included in this section. Owners or operators of
Program 1 processes are required to analyze and document in the RMP the
worst-case release to ensure that they meet the eligibility criteria of
no public receptors within the distance to the endpoint. As discussed
above, the requirement to post signs has been dropped. The
certification statement has been revised to be consistent with the
eligibility requirements. If a source has more than one Program 1
process, a single certification may be submitted to cover all such
processes.
The Program 2 requirements specify the sections of the rule that
apply to these processes.
The Program 3 requirements specify the sections of the rule that
apply to these processes.
Proposed Sec. 68.22, Management, has been moved from the prevention
program to Sec. 68.15 in subpart A-General. The section has been
adopted as proposed except that the purpose sentence in paragraph (a)
has been dropped and a phrase at the beginning of paragraph (b) has
been deleted as unnecessary.
A new subpart B has been created to cover the hazard assessment
requirements. The proposed Sec. 68.15 has been divided into separate
sections to cover the parameters, the different types of analyses, the
identification of offsite populations and environments, documentation
and updates, and the five-year accident history. EPA believes that
limiting each section to a single topic will make the rule easier to
understand.
Section 68.20 has been added to specify which hazard assessment
requirements apply to Program 1, 2, and 3 processes. All sources are
required to complete a worst-case release analysis for regulated
substances in covered processes, based on the requirements of
Sec. 68.25. Program 2 and 3 processes must also perform alternative
release analyses required by Sec. 68.28. All sources must complete the
five-year accident history for all covered processes.
A new Sec. 68.22 has been added to list the parameters to be used
in the offsite consequence analyses. Owners or operators who choose to
use their own air dispersion modeling tools must use the parameters
specified in paragraphs (a), (e), (f), and (g) of this section; they
must use the meteorological parameters specified in paragraph (b) of
this section unless they can demonstrate that the conditions do not
exist at their site. Paragraph (c) specifies the ambient temperature
and humidity for worst case (highest daily maximum over the previous
three years and average humidity); if a source uses the guidance, it
may use average temperature and humidity (25 deg. C and 50 percent) as
default values. EPA recognizes that these values are less conservative
than the worst-case meteorological conditions, but determined that they
represent a reasonable average to be used for developing tables.
Providing tables for a variety of temperatures and humidity would have
made the guidance much more voluminous and difficult to use. EPA is
requiring sources that use dispersion models instead of the guidance to
use actual temperature and humidity data applicable to the site. EPA
believes this approach represents a reasonable tradeoff. The guidance
generates conservative results even with the less conservative
assumptions about temperature and humidity; air dispersion modeling
will generally produce less conservative results and, therefore, should
be based on actual data for these variables. Average data applicable to
the source may be used for alternative scenarios. Paragraph (d)
requires that the release height for worst-case be at ground level
(zero feet). Paragraph (e) specifies that urban or rural topography be
used as appropriate in modeling. Paragraph (f) requires sources to use
models or tables appropriate for the density of the substance being
released (e.g., dense gases must be modeled using tables or models that
account for the behavior of dense gases). Dense gases are typically
those that are heavier than air as well as those that form aerosols and
behave as if they are heavier than air upon release. For worst-case
releases, liquids (other than gases liquefied by refrigeration only)
shall be considered to be released at the highest daily maximum
temperature or at process temperature, whichever is higher. For
alternative scenarios, substances may be considered to be released at
ambient or process temperatures as appropriate. Owners or operators may
choose to use EPA's RMP Offsite Consequence Analysis Guidance for their
offsite consequence analyses. All of the parameters specified here are
reflected in this guidance.
A new Sec. 68.25 has been added on the worst-case release analysis.
As discussed above, the section requires one worst-case release for
toxics and one for flammables. If additional scenarios, for either
class of substances, would potentially expose receptors not exposed by
the worst-case release, the additional scenario shall be analyzed and
reported. This provision is to take into account the possibility that
at large sources, vessels at opposite ends of the source may expose
different populations.
The section specifies how maximum quantity in a vessel or pipe is
to be determined, the scenarios to be considered for toxic gases, toxic
gases liquefied by refrigeration only, toxic liquids, and flammables,
the parameters to be used, consideration of passive mitigation, and
factors to be considered in selecting the worst-case scenario. The
section also specifies that sources may use proprietary models if the
source provides the implementing agency access to the model and
explains differences between the model and publicly available models,
if requested. This approach will allow sources to use the most
appropriate models available, while preserving the transparency of the
results.
A new Sec. 68.28 has been added on alternative release scenario
analysis. As discussed above, the section requires one alternative
release analysis for all flammables held above the threshold in
processes at the source and one alternative release analysis for each
toxic held above the threshold in processes. For each scenario, the
owner or operator shall select a scenario that is more likely to occur
than the worst case; and that will reach an endpoint offsite, unless no
such scenario exists. The section includes a list of scenarios that
owners/operators may want to consider, but does not dictate a
particular scenario. EPA has provided additional direction and
suggestions for defining these scenarios in the RMP Offsite Consequence
Analysis Guidance. As noted above, the section references the
parameters to be used and allows consideration of both passive and
active mitigation systems. The section specifies factors to be
considered in selecting alternative scenarios; specifically, sources
shall consider releases that have been documented in the five-year
accident history; or failure scenarios identified through the PHA or
hazard review.
A new Sec. 68.30 has been added on defining offsite impacts--
population. The section specifies that populations are to be defined
for a circle with a radius that is the distance to the endpoint. Owners
or operators are required only to estimate the residential population
within the circle to two significant digits and may use Census data to
make these estimates. Owners or operators are also required to note, in
the RMP, the presence of any major institutions, such as schools,
hospitals, prisons, public recreational areas, arenas, and major
commercial and
[[Page 31710]]
industrial developments, but they are not required to estimate the
number of people present at such sites. These additional locations are
those that would normally be shown on area street maps.
A new Sec. 68.33 has been added on defining offsite impacts to the
environment. As discussed above, the owners or operators are required
only to identify any environmental receptors within the circle with a
radius determined by the distance to the endpoint. The owners or
operators are not required to assess the potential types or degree of
damage that might occur from a release of the substance. The
environmental receptors are those that can be identified on U.S.
Geological Survey local topographical maps or maps based on U.S.G.S.
data.
A new Sec. 68.36 has been added to list the requirements for
reviewing and updating the offsite consequence analysis. As proposed,
if no changes occur at the site, the analyses must be reviewed and
updated at least once every five years. If changes at the site occur
that would reasonably be expected either to increase or decrease the
distance to the endpoint by a factor of two or more, owners/operators
are required to update the offsite consequence analysis within six
months. The time for the reanalysis has been changed to six months to
make it consistent with the update requirements for the RMP. The
proposed requirement for reviewing the analyses based on offsite
changes has been deleted. A number of commenters objected to the
requirement because it would have compelled them to track changes over
very large areas. Because the distance to the endpoints, especially for
toxics, may be as much as 40 km, the area affected could easily exceed
1,000 square miles. EPA agreed with commenters that there was little
benefit from requiring sources to track offsite changes and redo
analyses because the public is aware of the changes.
A new Sec. 68.39 has been added to list the documentation related
to the offsite consequence analyses that must be retained on site. For
both types of scenarios, the documentation shall include a description
of the scenarios identified, assumptions and parameters used, the
rationale for the selection of specific scenarios; assumptions shall
include use of mitigation and any administrative controls that were
assumed to limit the quantity that could be released. Documentation
shall include the effect of the mitigation and controls on the release
quantity. The documentation shall also include the estimated quantities
released, release rates, and durations of release. The owners or
operators shall also identify the methodology used to determine
distance to endpoints (i.e., EPA's guidance or an air dispersion model)
and the data used to estimate population and environmental receptors
potentially affected. EPA has deleted the proposed requirement for
documentation of endpoints because these are now dictated by the rule.
EPA has also dropped the requirement for documentation of distance
calculations; distances will either be determined from EPA's reference
tables or by an air dispersion model.
A new Sec. 68.42 has been added to detail the requirements for the
five-year accident history. As discussed above, the accident history is
limited to accidental releases of listed substances from covered
processes only. The only accidental releases that must be included in
the history are those that resulted in deaths, injuries, or significant
property damage on site, or known offsite deaths, injuries,
evacuations, sheltering in place, property damage, or environmental
damage. Although language related to the types of environmental damage
listed in the proposed rule has been dropped, EPA intends that
environmental damage not be limited to environmental receptors; events
where any known environmental impact of any kind (e.g., fish or animal
kills, lawn, shrub, or crop damage), should be included in the history.
The data required on each accident include date, time, and
approximate duration of the release; chemical(s) released; estimated
quantity in pounds; the type of release event and its source; weather
conditions (if known); on-site impacts and known offsite impacts; the
initiating event and contributing factors (if known); whether offsite
responders were notified (if known); and operational or process changes
that resulted from the release. Estimates may be provided to two
significant digits. EPA expects that for accidents that occur after the
publication of this rule, sources will be able to document weather
conditions, initiating events and contributing factors, and
notification of offsite responders as these items would be part of the
incident investigation. The Agency recognizes, however, that for
incidents that occur before the rule is final, sources may not have
this information unless OSHA PSM already would require the source to
gather such information (e.g., initiating event and contributing
factors). EPA has dropped the requirement that the concentration of the
released substance be reported. Concentration at the point of release
is assumed to be 100 percent except for substances in solution, where
the concentration at the point of release is assumed to be the
percentage of the solution as held or processed. The data provided will
allow the source or the public to estimate the concentration offsite.
Because the five-year accident history will initially cover
releases that occurred before this rule is promulgated, EPA is
requiring reports on weather conditions only if the source has a
record. For future releases, EPA encourages the owners or operators
keep a record of wind speed and temperature if possible as these
conditions have a significant impact on the migration of a release
offsite. The rule specifies that the source must document known offsite
impacts. The source is not required to conduct research on this
subject, but must report impacts of which it is aware through direct
reporting to the source or claims filed, or reasonably should have been
aware of from publicly available information. The source is not
required to verify the accuracy of public or media reports.
A new subpart C has been created to include the requirements of the
prevention program for Program 2 processes.
New Sec. 68.48 details the safety information that sources will be
required to develop. The information is a subset of the information
required under the OSHA rule and is limited to those items that are
likely to apply to Program 2 processes: MSDSs, maximum intended
inventory, safe upper and lower process parameters, equipment
specifications, and the codes and standards used to design, build, and
operate the process. Because Program 2 processes are generally simple,
EPA determined that items such as process chemistry, process flow
diagrams, detailed drawings on equipment, and material and energy
balances are not necessary for these processes. Evaluation of
consequences of deviations will be handled under the process review and
the offsite consequence analysis.
Paragraph (b) of Sec. 68.48 requires owners or operators to ensure
that the process is designed in compliance with good engineering
practices. The paragraph states that compliance with Federal or state
regulations that address industry-specific safe design or with
industry-specific design codes may be used to demonstrate compliance.
NFPA-58 for propane handlers and OSHA's rule for ammonia handling (29
CFR 1910.111) are examples of such design codes.
[[Page 31711]]
The final paragraph of Sec. 68.48 requires owners or operators to
update the safety information if a major change makes it inaccurate.
New Sec. 68.50 sets the requirements for a hazard review. The
section lists the hazards and safeguards that the owners or operators
must identify and review. The section states that owners or operators
may use checklists, such as those provided in model risk management
programs, to conduct the review. For processes that are designed to
industry standards (e.g., NFPA-58) or Federal/state design rules,
owners or operators need only check their equipment closely to ensure
that it has been fabricated and installed according to the standards or
rules and is being operated appropriately. In this case, the standard
or rule-setting body has, in essence, conducted the hazard review and
designed the equipment to reduce hazards. Like the PHA required under
PSM, the hazard review must be documented and the findings resolved.
The review must be updated at least once every five years or when a
major change occurs. A streamlined version of the PHA requirement, the
review recognizes that for simple processes some of the OSHA
requirements, such as the requirement for a team and a person trained
in the technique, may not be necessary. Most Program 2 processes will
have model risk management programs that will assist owners or
operators in conducting the review.
New Sec. 68.52 covers operating procedures. The section allows
owners or operators to use standardized procedures developed by
industry groups or provided in model risk management programs as a
basis for the SOPs. Owners or operators will need to review
standardized SOPs to ensure that they are appropriate for their
operations; some may need to be tailored. The steps covered in the SOP
are adapted from the OSHA PSM standard. Certain elements of the PSM
requirement (e.g., safety and health consideration) were dropped
because they are generally covered in training provided under the OSHA
hazard communication standard. Other elements were not included because
they are covered by other OSHA rules or may not apply to the kinds of
sources in Program 2. The section requires that the SOPs be updated
whenever necessary.
New Sec. 68.54 covers training and is a streamlined version of the
OSHA PSM requirement. The primary difference with the OSHA PSM training
element is that the documentation requirements have been dropped. EPA
believes that for Program 2 sources, which generally will have simple
processes and few employees involved in the process, the level of
documentation required by OSHA PSM is not needed. The section
specifically states that training conducted to comply with other
Federal or state rules or industry codes may be used to demonstrate
compliance with the section if the training covers the SOPs for the
process. Workers must be retrained when SOPs change as a result of a
major change.
New Sec. 68.56 covers maintenance and requires owners or operators
to prepare and implement procedures for maintenance and train workers
in these procedures. The owners or operators are also required to
inspect and test process equipment consistent with good engineering
practices. The OSHA list of equipment has been dropped because it
seemed too detailed for the simpler Program 2 processes. Similarly, the
OSHA PSM requirements for documentation, equipment deficiencies, and
quality assurance seem too burdensome given the type of processes in
Program 2. EPA emphasizes that sources should address equipment
deficiencies when they arise.
New Secs. 68.58 and 68.60 on compliance audits and accident
investigation are adopted directly from the OSHA PSM standard. EPA
believes that these two elements are critical to good prevention
practices and that no changes are needed from the OSHA requirements.
EPA has added a provision to clearly indicate that audit reports more
than five-years old need not be retained.
The Program 3 prevention program is codified in new subpart D. As
explained above, the subpart adopts the OSHA PSM standard with only
minor editorial changes necessitated by the different statutory
authorities of the two agencies. Throughout the subpart, ``employer''
has been changed to ``owner or operator,'' ``facility'' to ``stationary
source,'' and ``highly hazardous chemical'' to ``regulated substance.''
EPA has reordered the elements somewhat so that the order reflects the
progression in which sources will generally implement the program. For
example, process safety information, which is needed for the PHA, now
precedes that section. Pre-startup review, which is the last step of
management of change procedures, now follows management of change. The
reordering does not reflect any change in the content.
Section 68.65, process safety information, is adopted directly from
OSHA. The only changes are the following: references to other
requirements have been changed to reflect the appropriate EPA section
numbers; the phrase ``highly hazardous chemical'' has been changed to
``regulated substance''; the word ``standard'' has been changed to
``rule'' in paragraph (a); and the date when material and energy
balances are needed for new processes has been changed to June 21,
1999. The words ``including those affecting the safety and health of
employees'' has been deleted from the requirement for the evaluation of
the consequences of deviations (paragraph (c)(1)(v)) because EPA has no
authority to regulate the workplace. Further, EPA believes this change
reflects EPA's desire that sources implement one prevention program
that protects the safety and health of workers, the public and the
environment and should have no effect on sources already complying with
the OSHA PSM rule.
Section 68.67, process hazard analysis, has been adopted from the
OSHA rule with a few changes. The OSHA schedule for completion of PHAs
has been replaced with the compliance date of this rule; a new sentence
has been added to state that PHAs conducted to comply with OSHA PSM are
acceptable as the initial PHA under this rule. These PHAs shall be
updated and revalidated based on their OSHA completion date. This
provision will ensure that sources do not need to duplicate PHAs
already completed or change their update schedule.
In paragraph (c)(2), the phrase ``in the workplace'' has been
deleted from the requirement to identify previous incidents with the
potential for catastrophic consequences because EPA does not have the
authority to regulate the work place. EPA believes that this change
will have no effect on the rule; any incident with the potential for
catastrophic consequences in the workplace will also have had the
potential for catastrophic consequences offsite. Similarly, the phrase
``on employees in the workplace'' has been deleted from paragraph
(c)(7), which requires a qualitative evaluation of a range of the
possible safety and health effects of failure of controls. By deleting
the language, rather than changing it, EPA is consistent with its
authority without imposing any new requirements on sources. A new
sentence has been added to paragraph (f) to state that PHAs updated and
revalidated under the OSHA rule are acceptable for EPA's purposes.
Throughout this section, internal references have been changed.
To maintain consistency with OSHA PSM, proposed paragraph (j),
which would have required the evaluation of mitigation and detection
systems, has been dropped, as have proposed
[[Page 31712]]
references to offsite consequences and public health and the
environment. Evaluation of mitigation and detection systems is normally
part of the PHA process and of management's decisions on implementing
recommendations and, therefore, EPA decided that a separate requirement
was not needed. EPA will collect information on monitoring, detection,
and mitigation systems used in each Program 2 and 3 process as part of
the RMP. Proposed paragraph (a), which was advisory, has been dropped.
Section 68.69, Operating Procedures, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator.''
Proposed paragraph (a) has been deleted to ensure consistency with
OSHA.
Section 68.71, Training, has been adopted verbatim from OSHA except
for changing ``employer'' to ``owner or operator'' and changes in
referenced sections. Proposed paragraph (a) has been deleted to ensure
consistency with OSHA, as has proposed paragraph (e).
Section 68.73, Mechanical Integrity proposed as Maintenance, has
been adopted verbatim from OSHA except for changing ``employer'' to
``owner or operator.'' Proposed paragraph (a) has been deleted to
ensure consistency with OSHA. The proposed requirements to develop a
critical equipment list, document training, and ``maintain'' as well as
inspect and test under paragraph (d) have been dropped to ensure
consistency with OSHA.
Section 68.75, Management of Change, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) has been deleted
to ensure consistency with OSHA. EPA's proposed paragraph (b), which
defined changes not covered by the section, has also been dropped in
favor of OSHA's definition of ``replacement in kind.''
Section 68.77, Pre-Startup Review, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) and the
reference to emergency response training in proposed paragraph (c)(4)
have been deleted to ensure consistency with OSHA.
Section 68.79, Compliance Audits, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) has been deleted
to ensure consistency with OSHA.
Section 68.81, Accident Investigation, has been adopted verbatim
from OSHA except for changing ``employer'' to ``owner or operator'' and
``highly hazardous chemical'' to ``regulated substance'' and changes to
referenced sections. Proposed paragraphs (a) and (b), the latter of
which would have required written procedures, have been deleted to
ensure consistency with OSHA. References to significant accidental
release have been dropped because the phrase is no longer used.
Although EPA has adopted OSHA's language, EPA has changed the
definition of catastrophic release. Consequently, this section requires
owners or operators to investigate accidents that resulted in or could
reasonably have resulted in a release that presented serious danger to
public health or the environment. EPA does not believe that, except in
isolated cases, the modification to this provision will require sources
to investigate accidents that they would not investigate under the OSHA
rule.
Section 68.83, Employee Participation, has been adopted verbatim
from OSHA except for changing ``employer'' to ``owner or operator.''
Although EPA did not propose adopting this section, the Agency
solicited comments on this issue, and commenters convinced the Agency
that employee participation is an important component of a complete
prevention program.
Section 68.85, Hot Work Permit, has been adopted verbatim from OSHA
except for changing ``employer'' to ``owner or operator.'' Although EPA
did not propose adopting this section, the Agency solicited comments on
this provision and decided that it was valuable to maintain consistency
with the OSHA PSM elements and that the hot work permit was important
to good prevention practices.
Section 68.87, Contractors, has been adopted verbatim from OSHA
except for changing ``employer'' to ``owner or operator,'' changing to
referenced sections, and deleting OSHA's paragraph 29 CFR
1910.119(h)(2)(vi). Although EPA did not propose adopting this section,
the Agency solicited comments on this issue. Commenters argued that
contractor practices are an important component of a complete
prevention program. A number of major accidents have resulted from
contractor mistakes. EPA agrees with the commenters and has included
the provision in the final rule. EPA has, however, deleted the
requirement that employers maintain an occupational injury and illness
log for contract employees because the Agency does not have the
authority to impose this requirement.
EPA has placed the emergency response requirements in a new Subpart
E and divided the proposed emergency response section into two separate
sections, an applicability section and a section to cover the emergency
response program.
A new Sec. 68.90, Applicability, has been added. Because many
sources covered by this rule may be too small to handle emergency
response themselves, EPA has provided, in this new section, the actions
they must take if they will not respond to releases. Specifically, for
sources with regulated toxic substances, the source must be addressed
in the community emergency response plan developed under EPCRA section
303. Sources with regulated flammable substances must coordinate
response actions with the local fire department. These sources must
also establish a mechanism to contact local emergency responders.
Sources that do not meet these requirements must comply with EPA's
emergency response program requirements.
Section 68.95, Emergency Response Program, is adopted from
Sec. 68.45 of the proposed rule. The program has four components: an
emergency response plan, procedures for use of response equipment and
its maintenance, training for employees, and procedures to update the
plan after changes to the source. The required elements of the plan are
those specified in CAA section 112(r)(7)(B)(ii): procedures for
informing the public and local response agencies; documentation of
emergency medical treatment; and procedures and measures for emergency
response. As explained above, EPA decided that, to avoid inconsistency
with other emergency response planning regulations, the rule would be
limited to the statutory requirements. Consequently, EPA has deleted
the following proposed requirements: documentation of evacuation routes
(which should be covered under the emergency action plans required by
OSHA under 29 CFR 1910.38); descriptions of all response and mitigation
technologies available at the source; documentation of the maintenance
and training programs; emergency response drills and exercises;
revision of the plan based on the findings of the drills and exercises;
and documentation of management's response to findings and a schedule
for completion. EPA believes that these requirements are addressed in
other Federal regulations and, therefore, sources are already doing
them. By not including them, EPA, however, avoids the possibility that
slightly different wording could lead to unnecessary additional effort
on the part of sources.
[[Page 31713]]
EPA has added a paragraph (b) to this section to state that
compliance with other Federal contingency plan regulations or use of
the National Response Team's Integrated Contingency Plan Guidance
(``One Plan'') that results in a written plan that addresses the
elements in paragraph (a) shall satisfy the requirements of the rule,
provided that the owner or operator also complies with paragraph (c) of
this section.
Paragraph (c) is adopted from proposed paragraph Sec. 68.45(g) and
requires coordination of the plan with the local community emergency
response plan. References to the local emergency planning committee
(LEPC) have been changed to `local emergency response officials' to
recognize and include other local groups that may be in charge of
coordinating emergency planning. LEPCs would be included in this
category.
A new Subpart G has been created to cover the Risk Management Plan.
The Risk Management Plan includes three main sections, an executive
summary, the registration, and data elements that provide information
on the offsite consequence analyses, the five-year accident history,
the prevention program, and the emergency response program. The subpart
includes separate section to address each of these, plus sections on
submission, certifications, and updates.
New Sec. 68.150, Submission, has been added. As discussed above, an
owner or operator shall submit a single RMP for the source, regardless
of the number of covered processes or the tiers for which they are
eligible. All RMPs will be submitted in a manner and method EPA will
specify by the compliance date to a point designated by EPA; no other
submission will be required because other agencies and the public will
have access to the submissions on-line. As required by the CAA, the
first RMP must be submitted by June 21, 1999, three years after EPA
first lists a substance, or the date on which a source first becomes
subject to this part, whichever is latest. As discussed above under
applicability, after June 21, 1999, sources that begin using a
substance that has been listed for at least three years will be
required to submit their RMPs on the date the substance is first on
site above the threshold quantity. Sources that begin using such a
regulated substance prior to June 21, 1999 will need to be in
compliance with the rule on June 21, 1999. The final paragraph states
that, except for a classified annex that would not be publicly
available, the RMP shall exclude classified information.
New Sec. 68.155 details the requirements for the executive summary.
The summary shall include brief descriptions of the following items:
the source's prevention and emergency response approach; the stationary
source and regulated substances; worst-case release scenario(s) and
alternative release scenario(s), including any administrative controls
applied to limit the release quantity; the general prevention program
and chemical-specific prevention steps; the five-year accident history;
the emergency response program; and planned changes to improve safety.
EPA anticipates that none of these items should require more than a
half page of text. Because this information may be filed
electronically, EPA is not asking sources to submit maps of the worst-
case or alternative release scenario circles. The data submitted under
each of these sections will allow state or local agencies and the
public to map the circles.
Section 68.160, Registration, replaces proposed Sec. 68.12. The
registration shall include the following data: stationary source name,
street, city, county, state, zip code, latitude, and longitude; the
stationary source and corporate Dun and Bradstreet numbers; the name,
telephone number, and mailing address of the owner/operator; the name
and title of the person responsible for implementation of the risk
management program; the name, title, telephone number, and 24-hour
telephone number of the emergency contact; the stationary source EPA
identifier; the number of full-time employees at the stationary source;
whether the stationary source is subject to 29 CFR 1910.119; whether
the stationary source is subject to 40 CFR part 355; and the date on
which the stationary source last had a safety inspection by a Federal,
state, or local government agency.
For each covered process, the source must list the regulated
substances present above a threshold quantity (name and CAS number),
the maximum quantity of each substance in the process, the SIC code of
the process, and the Program level that applies to the process. This
process information provides a simple method for describing covered
processes and identifying Program levels.
The reporting of the quantity has been changed; rather than have
sources report in ranges, the rule requires that the quantity be
reported to two significant digits. EPA has found that the reporting
ranges are so broad (generally an order of magnitude) that data
analysis is extremely difficult. By limiting the reporting to two
significant digits, EPA will allow sources to estimate quantities, but
still provide more precise data than are currently available. EPA has
added a requirement for reporting full-time employees. These data are
easy for sources to provide and will enhance the Agency's ability to
assess the impact of its rule on businesses of various sizes. The EPA
identifier will be the unique number EPA will assign to each source and
will allow EPA to cross reference other reporting to the Agency. Use of
the identifier also means that EPA may not need to collect certain data
on this form because they will be available from the identifier
database; EPA may revise the requirements when the identifier rule is
promulgated.
EPA has deleted the certification statement proposed for the
registration because the RMP as a whole will have a certification
statement that will cover all elements, including registration.
Corrections to the registration will be treated as corrections to the
RMP and must be filed within six months of the change, rather than the
60 days proposed for registration changes.
The registration now requires the owners or operators to check off
the agency that last conducted a safety inspection at the source and
provide the date. The inspection does not need to have been related to
prevention practices as defined in this rule, but may instead cover
fire safety, workplace safety, etc.
New Sec. 68.165 covers the requirements for reporting on the
offsite consequence analysis. As discussed in Section III.B, the RMP
shall include data on one worst case release scenario for each Program
1 process; and, for Program 2 and 3 processes, one worst case release
scenario for toxics and one for flammables (for sources with substances
in both hazard classes). If additional worst-case release scenarios are
required under Sec. 68.25 for either class, data on that scenario must
also be reported. Sources with Program 2 and 3 processes will also
provide data on one alternative release scenario to cover all
flammables in covered processes and an alternative release scenario for
each toxic substance held in covered processes.
For each reported scenario, the owners or operators shall provide
the following data: chemical name; physical state (toxics only); basis
of results and model (if used); scenario; quantity released in pounds;
release rate; duration; wind speed and stability (toxics only);
topography (toxics only); distance to endpoint; public and
environmental receptors within the distance; passive mitigation
considered; and active mitigation (alternative releases only)
considered. A number of the data elements are not relevant to all
[[Page 31714]]
flammable releases; for example, in the worst-case release flammables
are assumed to be released and explode almost instantly so that release
rate, duration, wind speed and stability, and topography are not
factors in determining distances.
The purpose of requiring these data elements, rather than the
proposed summary of the assessment, is to provide the public with the
essential estimates of distance to the endpoints and provide enough
data on the release scenario to allow agencies or the public to confirm
the distance estimate. With the data provided, a public agency will be
able to use EPA's guidance to determine the distance for a particular
chemical release and compare that distance with the one reported by the
source. This ability will be particularly important when a source has
chosen to use an air dispersion model rather than the reference table.
The proposed rule approach, which required a summary of the assessment,
would have resulted in considerable variation in the information
submitted, as happened in the Kanawha Valley exercise. In that case,
each source decided on the level of information to provide; although
each provided maps, it was not possible, in many cases, to determine
how the distances were estimated because much of the underlying data
was not reported. EPA believes that these requirements will impose a
minimal burden on sources, because they will already have the data from
completing the analyses, will ensure that the same data are reported by
all sources, and will provide enough data to evaluate the results using
publicly available documents and models.
New Sec. 68.168 on the five-year accident history simply references
the data elements listed in Sec. 68.42(a). The data elements will be
reported for each accidental release covered by the accident history
requirement.
New Sec. 68.170, Prevention Program/Program 2, requires owners or
operators with Program 2 processes to list the name of chemical(s) in,
and SIC code for, the Program 2 process; to provide the dates of the
most recent revisions or reviews of the prevention program elements; to
provide, based on the hazard review, information on the major hazards,
process controls, mitigation systems, monitoring or detection systems,
and changes since the last hazard review; to list any state or federal
regulations of industry-specific design codes or standards being used
to demonstrate compliance with prevention program elements; to list the
type of training and competency testing used; to provide the date of
the most recent change that triggered a review or revision of
prevention elements; and to provide the date of the completion of any
changes resulting from hazard reviews, audits, or incident
investigations. EPA recognizes that not all recommendations resulting
from hazard reviews, audits, or incident investigations result in
changes; some or all may be resolved without changes. However, if any
changes are made, the owners or operators shall report in the RMP the
date when such changes are complete or expected to be complete.
New Sec. 68.175, Prevention Program/Program 3, requires owners or
operators with Program 3 processes to list the name of chemical(s) in,
and SIC code for, the Program 3 process; to provide the dates of the
most recent revisions or reviews of the prevention program elements; to
provide, based on the PHA, information on the major hazards, process
controls, mitigation systems, monitoring or detection systems, and
changes since the last PHA; to list the type of training and competency
testing used; to provide the date of the most recent change that
triggered a review or revision of prevention elements; and to provide
the date of the completion of any changes resulting from PHAs, audits,
or incident investigations. As above, EPA recognizes that not all
recommendations resulting from PHAs, audits, or incident investigations
result in changes; some or all may be resolved without changes.
However, if any changes are made, the owners or operators shall report
in the RMP the date when such changes are complete or expected to be
complete.
New Sec. 68.180, Emergency Response Program, requires owners or
operators to answer questions about the required content of the
emergency response plan, providing the date of the most recent training
of employees update of the plan, indicate whether the source emergency
response plan has been coordinated with the LEPC plan, provide the name
and telephone number of the local agency with which the plan has been
coordinated, and list other Federal or state emergency planning
requirements to which the source is subject.
New Sec. 68.185, Certification, specifies the certification
requirements that owners or operators must complete when the RMP is
submitted.
New Sec. 68.190 details the requirements for updating the RMP. The
plan must be updated at least once every five years. If a new substance
is added to an already covered process or a new covered process is
added, the RMP must be updated on the date on which the regulated
substance is first present above a threshold quantity. If EPA lists a
new substance that the source has above a threshold quantity, the RMP
must be updated within three years of the date of listing. If a change
at the source leads to a revised offsite consequence analysis, process
hazard analysis or review, or a process changes Program level, the RMP
must be revised and resubmitted within six months of the change.
Subsequent updates will be required within five years of the update.
A new Subpart H, Other Requirements, has been added.
New Sec. 68.200, Recordkeeping, simply states that records will be
maintained for five years unless otherwise specified in the Program 3
prevention program.
New Sec. 68.210, Availability of information to the public, has
been added and a paragraph included to provide that classified
information is protected under applicable laws, regulations, and
executive orders.
New Sec. 68.215, Permit content and air permitting authority or
designated agency requirements, has been added to define the
requirements for including part 68 in Part 70 and 71 permits, as
discussed above.
Section 68.220, Audits, has been revised to change references in
paragraph (a). A new paragraph (c) has been added to specify the
sources that have achieved a star or merit rating under OSHA's VPP
program will be exempt from audits if the audit program is based on
industry accident history or on neutral random oversight and if the
source has not had an accidental release that requires investigation
under the rule. Paragraph (h) has been revised to clarify that the
source must revise the RMP 30 days after completion of the actions
detailed in the implementation plan, not 30 days after the issuance of
the final determination.
Appendix A has been added to provide the toxic endpoints.
V. Required Analyses
A. E.O. 12866
Under Executive Order (E.O.) 12866 (58 FR 51735; October 4, 1993),
EPA must determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the E.O. The
Order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal government or communities.
[[Page 31715]]
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
Under terms of E.O. 12866, EPA has determined that today's final
rulemaking is a ``significant regulatory action.'' EPA, therefore, has
developed an economic impact analysis for the final rule, (Economic
Analysis in Support of Final Rule on Risk Management Program
Regulations for Chemical Accidental Release Prevention), which is
available in the docket.
In developing the final rule, EPA notes that it has taken actions
to streamline requirements whenever possible and has tailored the
requirements through the use of Programs. This approach differed from
the proposed rule, which imposed what are now Program 3 requirements on
all sources and processes. EPA has also changed substantially the
requirements for two elements of the rule, the offsite consequence
analysis and the RMP. For the offsite consequence analysis, EPA decided
to develop methodologies and look-up tables so sources would not need
to spend resources obtaining air dispersion models; EPA also reduced
the requirements to define offsite populations by allowing sources to
use Census data and to identify only those institutions and
developments that appear on local maps (as opposed to identifying day
care centers and nursing homes). For the RMP, EPA has limited the
requirements for information to that which can be reported as data
elements. In contrast, the rule as proposed would have required sources
to document for each process all major hazards, the consequences of
each of these hazards, the risk reduction steps taken to address each
hazard, and the consequences of each risk reduction step. The result
would have been, for large, complex sources, documents of a 1,000 pages
or more.
To analyze the cost impacts of the various approaches, EPA
considered three possible options in the final EIA: the final rule, an
option that imposed final rule Program 3 requirements on all sources,
and an option that imposed proposed rule requirements on all sources.
The last of these options was considered to evaluate the impact of
changing the requirements for the offsite consequence analysis and RMP.
Based on the final list and thresholds, EPA estimates that
approximately 66,100 sources will be affected by the rule. EPA expects
that about 360 sources and approximately 410 processes will be eligible
for Program 1. These sources are primarily gas processors that, because
they are remote and unstaffed, are not covered by OSHA PSM. EPA also
estimated that approximately 50 processes using toluene di-isocyanate
(TDI) may qualify for Program 1 based on the relatively low volatility
of TDI. Program 2 is expected to include 40,200 sources and 47,700
processes; these sources include all retailers, propane users, public
drinking water and wastewater systems and public electric utilities not
subject to OSHA PSM, wholesalers, processes at Federal facility
processes, and non-chemical manufacturers. Program 3 is expected to
cover 25,500 sources and 43,800 processes. These sources include
manufacturers, electric utilities, POTWs and drinking water sites
covered by OSHA PSM, wholesalers, ammonia refrigeration systems, gas
utilities, gas processors, and Federal facilities. All of these sources
are already covered by OSHA PSM for at least one regulated substance;
EPA estimates that about 370 non-OSHA Program 3 processes in the
specified SIC codes will be covered.
Sources that already have a high quality PSM program would not need
to take any additional actions to satisfy EPA's Program 3 prevention
program, but the analysis assumed that many sources may still be in the
process of improving their PSM programs after achieving initial
compliance. The public scrutiny expected to follow submission of the
RMP is likely to encourage sources to ensure that their prevention
efforts are fully implemented and effective. To account for these
efforts, the analysis assumed that sources covered by OSHA would
improve training, maintenance, and management oversight and, in some
cases, institute additional capital improvements.
The rule provides sources three years to come into compliance with
the rule. The rule, however, will impose continuing costs as sources
implement their risk management programs. Initial compliance,
therefore, covers the cost of meeting the requirements of the rule by
the three-year compliance date. These costs are presented as a single
figure, but are assumed to be incurred over a three-year period. Total
costs to industry were estimated by multiplying the estimated unit
costs of compliance with the risk management program elements by the
estimated number of affected sources. Because many sources already
implement some of the risk management requirements (e.g., training),
cost estimates were adjusted to account for the expected likelihood
that a source is already human health (death or injury), responses to
these threats (evacuations, sheltering in place) threats to the
environment, and economic damages (lost production, property damages,
and litigation). Additional benefits may be provided by making
information available to the public in the RMP. These benefits,
however, cannot be quantified.
B. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, Federal
agencies must evaluate the impacts of rules on small entities and
consider less burdensome regulatory alternatives. As originally
proposed in 1993, EPA believes that the rule would have created a
severe, adverse impact on small manufacturers. In February 1995, EPA
published a supplemenatal proposal which introduced a tiering approach
for this regulation. By using the tiering approach and streamlining the
Program 2 requirements, this final rule significantly reduces the
impact on small businesses. The tiering approach also significantly
reduces the impact on small communities.
EPA has developed a Regulatory Flexibility Analysis for this final
rule evaluating the effects on small entities, which is presented in
Chapter 7 of the EIA. The number of small manufacturers was estimated
to be 960 sources with fewer than 20 FTEs, and 2,000 sources with
between 20 and 99 FTEs. The number of small non-manufacturers is more
difficult to determine. Virtually all retailer and wholesalers have
fewer than 100 FTEs. Industry estimates, however, indicate that about
80 percent of the affected retailers may be owned by larger companies;
the analysis assumed that 3,700 retailers were small businesses. No
information was available to estimate the percentage of wholesalers
that might be owned by large corporations. The analysis assumed that
all wholesalers were small. The total number of small businesses,
therefore, was estimated to be 8,160.
Public drinking water and waste water systems affected by the rule
generally serve a minimum of 10,000 people. Approximately 980 water
systems are estimated to serve between 10,000 and 25,000 people.
Approximately 500 water systems are estimated to serve between 25,000
and 50,000 people. Consequently, 1,480 drinking water systems would be
considered small governmental entities. The number of small POTWs was
[[Page 31716]]
estimated to include all systems treating less than 10 mgd and 59
percent of those treating between 10 and 25 mgd (based on the ratio of
drinking water systems in this category that serve populations below
50,000). Approximately 2,600 POTWs were estimated to serve between
10,000 and 25,000 people and 180 to serve between 25,000 and 50,000,
for a total of 2,800 POTWs. A total of approximately 4,300 small
governmental entities would be affected by this rule.
The total number of small entities affected by this rule was
estimated to be 12,500 or 19 percent of the affected universe. No
detailed analysis of the impact on small entities was performed because
of the relatively low cost of the rule for small entities. Initial
costs are considerably less than one percent of sales for all small
manufacturers. Subsequent year costs will be even lower. Costs for non-
manufacturers are very low (less than $1,000 per year for initial
compliance). These sums do not impose a serious adverse burden on these
sources. Only chemical manufacturers with complex processes and 20 to
99 FTEs have initial costs that exceed $6,000 per year. The costs for
these sources, $28,000 to $30,000 per year for the first three years,
represent less than 0.5 percent of sales. It should be noted that all
of the costs for small manufacturers assume that the sources will take
additional efforts, above their actions to comply with the OSHA rule,
to improve the quality of the risk management programs. If they do not
take additional actions, their costs would be substantially lower.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA must
generally prepare a written statement, including a cost-benefit
analysis for proposed and final rules with ``Federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternatives
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that significantly or uniquely affect small governments,
including tribal governments, it must have developed under section 203
of UMRA, a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input into the
development of the regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule contains a Federal mandate that
may result in expenditures of $100 million or more for state, local,
and tribal governments, in the aggregate, or to the private sector, in
any one year. Accordingly, EPA has prepared, under section 202 of the
UMRA, a written statement which is summarized below.
EPA is required to promulgate this rule under CAA section 112(r).
In the first and third year of initial compliance, the cost of the rule
to the regulated community will exceed $100 million; in all subsequent
years the costs will be below $100 million. EPA has developed an
economic impact analysis, discussed above, that evaluates several
regulatory alternatives. EPA has adopted the least costly of these
alternatives. EPA estimates that annualized costs for state and local
governments will be $13 million; annualized costs for the private
sector are estimated to be $72 million.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA and Executive Order 12875 ``Enhancing the
Intergovernmental Partnership,'' EPA has involved state, local and
business representatives in focus groups to develop the rule. EPA
included representatives of state government in the rulemaking
workgroup process, available to the public under CAA section 114(c) and
40 CFR part 2; EPA does not believe that any of the requested
information will be considered confidential.
The public reporting burden will depend on the regulatory program
into which the 66,100 sources are placed. The public reporting burden
for rule familiarization is estimated to range from 4 to 68 hours per
source for all three program tiers. The public reporting burden to
prepare and submit the registration and other RMP elements is estimated
to be 0.5 hours for sources with only Program 1 processes, between 6.0
and 11.25 hours for Program 2 sources, and between 6.25 and 30.5 hours
for Program 3 sources. The RMP is submitted once, at the end of the
three year compliance period. The public recordkeeping burden to
maintain on-site documentation is estimated to range from 10 to 180
hours for Program 2 sources and from 52 to 1,200 hours for Program 3
sources. On-site documentation must be developed and maintained on an
ongoing basis, which varies by rule element; based on the statute of
limitation for this rule, documentation must generally be maintained
for five years. The total annual public reporting burden for rule
familiarization, to complete the RMP, and to maintain on-site
documentation is estimated to be about 3.36 million hours over three
years, or an annual burden of 1.119 million hours. No capital costs are
expected to be incurred to maintain or submit this documentation.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and use
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is a ``major rule'' as defined by section 804(2) of the APA
as amended.
[[Page 31717]]
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Hazardous substances,
Intergovernmental relations.
Dated: May 24, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Part 68 is amended
as follows:
PART 68--[AMENDED]
1. The authority citation for part 68 is revised to read as
follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
2. Part 68 is amended by redesignating Subpart C (Secs. 68.100--
68.130) as Subpart F.
Subpart A--[Amended]
4. Section 68.3 is amended to add the following definitions:
Sec. 68.3 Definitions.
Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.)
* * * * *
Administrative controls mean written procedural mechanisms used for
hazard control.
AIChE/CCPS means the American Institute of Chemical Engineers/
Center for Chemical Process Safety.
* * * * *
API means the American Petroleum Institute.
ASME means the American Society of Mechanical Engineers.
Catastrophic release means a major uncontrolled emission, fire, or
explosion, involving one or more regulated substances that presents
imminent and substantial endangerment to public health and the
environment.
Classified information means ``classified information'' as defined
in the Classified Information Procedures Act, 18 U.S.C. App. 3, section
1(a) as ``any information or material that has been determined by the
United States Government pursuant to an executive order, statute, or
regulation, to require protection against unauthorized disclosure for
reasons of national security.''
Covered process means a process that has a regulated substance
present in more than a threshold quantity as determined under
Sec. 68.115.
Designated agency means the state, local, or Federal agency
designated by the state under the provisions of Sec. 68.215(d) .
* * * * *
Environmental receptor means natural areas such as national or
state parks, forests, or monuments; officially designated wildlife
sanctuaries, preserves, refuges, or areas; and Federal wilderness
areas, that could be exposed at any time to toxic concentrations,
radiant heat, or overpressure greater than or equal to the endpoints
provided in Sec. 68.22(a) , as a result of an accidental release and
that can be identified on local U. S. Geological Survey maps.
Hot work means work involving electric or gas welding, cutting,
brazing, or similar flame or spark-producing operations.
Implementing agency means the state or local agency that obtains
delegation for an accidental release prevention program under subpart
E, 40 CFR part 63. The implementing agency may, but is not required to,
be the state or local air permitting agency. If no state or local
agency is granted delegation, EPA will be the implementing agency for
that state.
Injury means any effect on a human that results either from direct
exposure to toxic concentrations; radiant heat; or overpressures from
accidental releases or from the direct consequences of a vapor cloud
explosion (such as flying glass, debris, and other projectiles) from an
accidental release and that requires medical treatment or
hospitalization.
Major change means introduction of a new process, process
equipment, or regulated substance, an alteration of process chemistry
that results in any change to safe operating limits, or other
alteration that introduces a new hazard.
Mechanical integrity means the process of ensuring that process
equipment is fabricated from the proper materials of construction and
is properly installed, maintained, and replaced to prevent failures and
accidental releases.
Medical treatment means treatment, other than first aid,
administered by a physician or registered professional personnel under
standing orders from a physician.
Mitigation or mitigation system means specific activities,
technologies, or equipment designed or deployed to capture or control
substances upon loss of containment to minimize exposure of the public
or the environment. Passive mitigation means equipment, devices, or
technologies that function without human, mechanical, or other energy
input. Active mitigation means equipment, devices, or technologies that
need human, mechanical, or other energy input to function.
NFPA means the National Fire Protection Association.
Offsite means areas beyond the property boundary of the stationary
source, and areas within the property boundary to which the public has
routine and unrestricted access during or outside business hours.
OSHA means the U.S. Occupational Safety and Health Administration.
Owner or operator means any person who owns, leases, operates,
controls, or supervises a stationary source.
Population means the public.
* * * * *
Public means any person except employees or contractors at the
stationary source.
Public receptor means offsite residences, institutions (e.g.,
schools, hospitals), industrial, commercial, and office buildings,
parks, or recreational areas inhabited or occupied by the public at any
time without restriction by the stationary source where members of the
public could be exposed to toxic concentrations, radiant heat, or
overpressure, as a result of an accidental release.
* * * * *
Replacement in kind means a replacement that satisfies the design
specifications.
RMP means the risk management plan required under subpart G of this
part.
SIC means Standard Industrial Classification.
* * * * *
Typical meteorological conditions means the temperature, wind
speed, cloud cover, and atmospheric stability class, prevailing at the
site based on data gathered at or near the site or from a local
meteorological station.
* * * * *
Worst-case release means the release of the largest quantity of a
regulated substance from a vessel or process line failure that results
in the greatest distance to an endpoint defined in Sec. 68.22(a).
5. Section 68.10 is added to subpart A to read as follows:
Sec. 68.10 Applicability.
(a) An owner or operator of a stationary source that has more than
a threshold quantity of a regulated substance in a process, as
determined under Sec. 68.115, shall comply with the requirements of
this part no later than the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above
a threshold quantity in a process.
(b) Program 1 eligibility requirements. A covered process is
eligible for
[[Page 31718]]
Program 1 requirements as provided in Sec. 68.12(b) if it meets all of
the following requirements:
(1) For the five years prior to the submission of an RMP, the
process has not had an accidental release of a regulated substance
where exposure to the substance, its reaction products, overpressure
generated by an explosion involving the substance, or radiant heat
generated by a fire involving the substance led to any of the following
offsite:
(i) Death;
(ii) Injury; or
(iii) Response or restoration activities for an exposure of an
environmental receptor;
(2) The distance to a toxic or flammable endpoint for a worst-case
release assessment conducted under Subpart B and Sec. 68.25 is less
than the distance to any public receptor, as defined in Sec. 68.30; and
(3) Emergency response procedures have been coordinated between the
stationary source and local emergency planning and response
organizations.
(c) Program 2 eligibility requirements. A covered process is
subject to Program 2 requirements if it does not meet the eligibility
requirements of either paragraph (b) or paragraph (d) of this section.
(d) Program 3 eligibility requirements. A covered process is
subject to Program 3 if the process does not meet the requirements of
paragraph (b) of this section, and if either of the following
conditions is met:
(1) The process is in SIC code 2611, 2812, 2819, 2821, 2865, 2869,
2873, 2879, or 2911; or
(2) The process is subject to the OSHA process safety management
standard, 29 CFR 1910.119.
(e) If at any time a covered process no longer meets the
eligibility criteria of its Program level, the owner or operator shall
comply with the requirements of the new Program level that applies to
the process and update the RMP as provided in Sec. 68.190.
6. Section 68.12 is added to subpart A to read as follows:
Sec. 68.12 General requirements.
(a) General requirements. The owner or operator of a stationary
source subject to this part shall submit a single RMP, as provided in
Secs. 68.150 to 68.185. The RMP shall include a registration that
reflects all covered processes.
(b) Program 1 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process eligible for Program 1, as provided in
Sec. 68.10(b), shall:
(1) Analyze the worst-case release scenario for the process(es), as
provided in Sec. 68.25; document that the nearest public receptor is
beyond the distance to a toxic or flammable endpoint defined in
Sec. 68.22(a); and submit in the RMP the worst-case release scenario as
provided in Sec. 68.165;
(2) Complete the five-year accident history for the process as
provided in Sec. 68.42 of this part and submit it in the RMP as
provided in Sec. 68.168;
(3) Ensure that response actions have been coordinated with local
emergency planning and response agencies; and
(4) Certify in the RMP the following: ``Based on the criteria in 40
CFR 68.10, the distance to the specified endpoint for the worst-case
accidental release scenario for the following process(es) is less than
the distance to the nearest public receptor: [list process(es)]. Within
the past five years, the process(es) has (have) had no accidental
release that caused offsite impacts provided in the risk management
program rule (40 CFR 68.10(b)(1)). No additional measures are necessary
to prevent offsite impacts from accidental releases. In the event of
fire, explosion, or a release of a regulated substance from the
process(es), entry within the distance to the specified endpoints may
pose a danger to public emergency responders. Therefore, public
emergency responders should not enter this area except as arranged with
the emergency contact indicated in the RMP. The undersigned certifies
that, to the best of my knowledge, information, and belief, formed
after reasonable inquiry, the information submitted is true, accurate,
and complete. [Signature, title, date signed].''
(c) Program 2 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process subject to Program 2, as provided in
Sec. 68.10(c), shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the Program 2 prevention steps provided in
Secs. 68.48 through 68.60 or implement the Program 3 prevention steps
provided in Secs. 68.65 through 68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 2 processes as provided in Sec. 68.170.
(d) Program 3 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process subject to Program 3, as provided in
Sec. 68.10(d) shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the prevention requirements of Secs. 68.65 through
68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95 of this part; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 3 processes as provided in Sec. 68.175.
7. Section 68.15 is added to subpart A to read as follows:
Sec. 68.15 Management.
(a) The owner or operator of a stationary source with processes
subject to Program 2 or Program 3 shall develop a management system to
oversee the implementation of the risk management program elements.
(b) The owner or operator shall assign a qualified person or
position that has the overall responsibility for the development,
implementation, and integration of the risk management program
elements.
(c) When responsibility for implementing individual requirements of
this part is assigned to persons other than the person identified under
paragraph (b) of this section, the names or positions of these people
shall be documented and the lines of authority defined through an
organization chart or similar document.
8. Subpart B--is added to read as follows:
Subpart B--Hazard Assessment
Sec.
68.20 Applicability.
68.22 Offsite consequence analysis parameters.
68.25 Worst-case release scenario analysis.
68.28 Alternative release scenario analysis.
68.30 Defining offsite impacts population.
68.33 Defining offsite impacts environment.
68.36 Review and update.
68.39 Documentation.
68.42 Five-year accident history.
Subpart B--Hazard Assessment
Sec. 68.20 Applicability.
The owner or operator of a stationary source subject to this part
shall prepare a worst-case release scenario analysis as provided in
Sec. 68.25 of this part and complete the five-year accident history as
provided in Sec. 68.42. The owner or
[[Page 31719]]
operator of a Program 2 and 3 process must comply with all sections in
this subpart for these processes.
Sec. 68.22 Offsite consequence analysis parameters.
(a) Endpoints. For analyses of offsite consequences, the following
endpoints shall be used:
(1) Toxics. The toxic endpoints provided in Appendix A of this
part.
(2) Flammables. The endpoints for flammables vary according to the
scenarios studied:
(i) Explosion. An overpressure of 1 psi.
(ii) Radiant heat/exposure time. A radiant heat of 5 kw/m2 for
40 seconds.
(iii) Lower flammability limit. A lower flammability limit as
provided in NFPA documents or other generally recognized sources.
(b) Wind speed/atmospheric stability class. For the worst-case
release analysis, the owner or operator shall use a wind speed of 1.5
meters per second and F atmospheric stability class. If the owner or
operator can demonstrate that local meteorological data applicable to
the stationary source show a higher minimum wind speed or less stable
atmosphere at all times during the previous three years, these minimums
may be used. For analysis of alternative scenarios, the owner or
operator may use the typical meteorological conditions for the
stationary source.
(c) Ambient temperature/humidity. For worst-case release analysis
of a regulated toxic substance, the owner or operator shall use the
highest daily maximum temperature in the previous three years and
average humidity for the site, based on temperature/humidity data
gathered at the stationary source or at a local meteorological station;
an owner or operator using the RMP Offsite Consequence Analysis
Guidance may use 25 deg.C and 50 percent humidity as values for these
variables. For analysis of alternative scenarios, the owner or operator
may use typical temperature/humidity data gathered at the stationary
source or at a local meteorological station.
(d) Height of release. The worst-case release of a regulated toxic
substance shall be analyzed assuming a ground level (0 feet) release.
For an alternative scenario analysis of a regulated toxic substance,
release height may be determined by the release scenario.
(e) Surface roughness. The owner or operator shall use either urban
or rural topography, as appropriate. Urban means that there are many
obstacles in the immediate area; obstacles include buildings or trees.
Rural means there are no buildings in the immediate area and the
terrain is generally flat and unobstructed.
(f) Dense or neutrally buoyant gases. The owner or operator shall
ensure that tables or models used for dispersion analysis of regulated
toxic substances appropriately account for gas density.
(g) Temperature of released substance. For worst case, liquids
other than gases liquified by refrigeration only shall be considered to
be released at the highest daily maximum temperature, based on data for
the previous three years appropriate for the stationary source, or at
process temperature, whichever is higher. For alternative scenarios,
substances may be considered to be released at a process or ambient
temperature that is appropriate for the scenario.
Sec. 68.25 Worst-case release scenario analysis.
(a) The owner or operator shall analyze and report in the RMP:
(1) For Program 1 processes, one worst-case release scenario for
each Program 1 process;
(2) For Program 2 and 3 processes:
(i) One worst-case release scenario that is estimated to create the
greatest distance in any direction to an endpoint provided in Appendix
A of this part resulting from an accidental release of regulated toxic
substances from covered processes under worst-case conditions defined
in Sec. 68.22;
(ii) One worst-case release scenario that is estimated to create
the greatest distance in any direction to an endpoint defined in
Sec. 68.22(a) resulting from an accidental release of regulated
flammable substances from covered processes under worst-case conditions
defined in Sec. 68.22; and
(iii) Additional worst-case release scenarios for a hazard class if
a worst-case release from another covered process at the stationary
source potentially affects public receptors different from those
potentially affected by the worst-case release scenario developed under
paragraphs (a)(2)(i) or (a)(2)(ii) of this section.
(b) Determination of worst-case release quantity. The worst-case
release quantity shall be the greater of the following:
(1) For substances in a vessel, the greatest amount held in a
single vessel, taking into account administrative controls that limit
the maximum quantity; or
(2) For substances in pipes, the greatest amount in a pipe, taking
into account administrative controls that limit the maximum quantity.
(c) Worst-case release scenario--toxic gases.
(1) For regulated toxic substances that are normally gases at
ambient temperature and handled as a gas or as a liquid under pressure,
the owner or operator shall assume that the quantity in the vessel or
pipe, as determined under paragraph (b) of this section, is released as
a gas over 10 minutes. The release rate shall be assumed to be the
total quantity divided by 10 unless passive mitigation systems are in
place.
(2) For gases handled as refrigerated liquids at ambient pressure:
(i) If the released substance is not contained by passive
mitigation systems or if the contained pool would have a depth of 1 cm
or less, the owner or operator shall assume that the substance is
released as a gas in 10 minutes;
(ii) If the released substance is contained by passive mitigation
systems in a pool with a depth greater than 1 cm, the owner or operator
may assume that the quantity in the vessel or pipe, as determined under
paragraph (b) of this section, is spilled instantaneously to form a
liquid pool. The volatilization rate (release rate) shall be calculated
at the boiling point of the substance and at the conditions specified
in paragraph (d) of this section.
(d) Worst-case release scenario--toxic liquids.
(1) For regulated toxic substances that are normally liquids at
ambient temperature, the owner or operator shall assume that the
quantity in the vessel or pipe, as determined under paragraph (b) of
this section, is spilled instantaneously to form a liquid pool.
(i) The surface area of the pool shall be determined by assuming
that the liquid spreads to 1 centimeter deep unless passive mitigation
systems are in place that serve to contain the spill and limit the
surface area. Where passive mitigation is in place, the surface area of
the contained liquid shall be used to calculate the volatilization
rate.
(ii) If the release would occur onto a surface that is not paved or
smooth, the owner or operator may take into account the actual surface
characteristics.
(2) The volatilization rate shall account for the highest daily
maximum temperature occurring in the past three years, the temperature
of the substance in the vessel, and the concentration of the substance
if the liquid spilled is a mixture or solution.
(3) The rate of release to air shall be determined from the
volatilization rate of the liquid pool. The owner or operator may use
the methodology in the RMP Offsite Consequence Analysis Guidance or any
other publicly available techniques that account for the modeling
conditions and are recognized by industry as applicable as part of
[[Page 31720]]
current practices. Proprietary models that account for the modeling
conditions may be used provided the owner or operator allows the
implementing agency access to the model and describes model features
and differences from publicly available models to local emergency
planners upon request.
(e) Worst-case release scenario--flammables. The owner or operator
shall assume that the quantity of the substance, as determined under
paragraph (b) of this section, vaporizes resulting in a vapor cloud
explosion. A yield factor of 10 percent of the available energy
released in the explosion shall be used to determine the distance to
the explosion endpoint if the model used is based on TNT-equivalent
methods.
(f) Parameters to be applied. The owner or operator shall use the
parameters defined in Sec. 68.22 to determine distance to the
endpoints. The owner or operator may use the methodology provided in
the RMP Offsite Consequence Analysis Guidance or any commercially or
publicly available air dispersion modeling techniques, provided the
techniques account for the modeling conditions and are recognized by
industry as applicable as part of current practices. Proprietary models
that account for the modeling conditions may be used provided the owner
or operator allows the implementing agency access to the model and
describes model features and differences from publicly available models
to local emergency planners upon request.
(g) Consideration of passive mitigation. Passive mitigation systems
may be considered for the analysis of worst case provided that the
mitigation system is capable of withstanding the release event
triggering the scenario and would still function as intended.
(h) Factors in selecting a worst-case scenario. Notwithstanding the
provisions of paragraph (b) of this section, the owner or operator
shall select as the worst case for flammable regulated substances or
the worst case for regulated toxic substances, a scenario based on the
following factors if such a scenario would result in a greater distance
to an endpoint defined in Sec. 68.22(a) beyond the stationary source
boundary than the scenario provided under paragraph (b) of this
section:
(1) Smaller quantities handled at higher process temperature or
pressure; and
(2) Proximity to the boundary of the stationary source.
Sec. 68.28 Alternative release scenario analysis.
(a) The number of scenarios. The owner or operator shall identify
and analyze at least one alternative release scenario for each
regulated toxic substance held in a covered process(es) and at least
one alternative release scenario to represent all flammable substances
held in covered processes.
(b) Scenarios to consider. (1) For each scenario required under
paragraph (a) of this section, the owner or operator shall select a
scenario:
(i) That is more likely to occur than the worst-case release
scenario under Sec. 68.25; and
(ii) That will reach an endpoint offsite, unless no such scenario
exists.
(2) Release scenarios considered should include, but are not
limited to, the following, where applicable:
(i) Transfer hose releases due to splits or sudden hose uncoupling;
(ii) Process piping releases from failures at flanges, joints,
welds, valves and valve seals, and drains or bleeds;
(iii) Process vessel or pump releases due to cracks, seal failure,
or drain, bleed, or plug failure;
(iv) Vessel overfilling and spill, or overpressurization and
venting through relief valves or rupture disks; and
(v) Shipping container mishandling and breakage or puncturing
leading to a spill.
(c) Parameters to be applied. The owner or operator shall use the
appropriate parameters defined in Sec. 68.22 to determine distance to
the endpoints. The owner or operator may use either the methodology
provided in the RMP Offsite Consequence Analysis Guidance or any
commercially or publicly available air dispersion modeling techniques,
provided the techniques account for the specified modeling conditions
and are recognized by industry as applicable as part of current
practices. Proprietary models that account for the modeling conditions
may be used provided the owner or operator allows the implementing
agency access to the model and describes model features and differences
from publicly available models to local emergency planners upon
request.
(d) Consideration of mitigation. Active and passive mitigation
systems may be considered provided they are capable of withstanding the
event that triggered the release and would still be functional.
(e) Factors in selecting scenarios. The owner or operator shall
consider the following in selecting alternative release scenarios:
(1) The five-year accident history provided in Sec. 68.42; and
(2) Failure scenarios identified under Secs. 68.50 or 68.67.
Sec. 68.30 Defining offsite impacts--population.
(a) The owner or operator shall estimate in the RMP the population
within a circle with its center at the point of the release and a
radius determined by the distance to the endpoint defined in
Sec. 68.22(a).
(b) Population to be defined. Population shall include residential
population. The presence of institutions (schools, hospitals, prisons),
parks and recreational areas, and major commercial, office, and
industrial buildings shall be noted in the RMP.
(c) Data sources acceptable. The owner or operator may use the most
recent Census data, or other updated information, to estimate the
population potentially affected.
(d) Level of accuracy. Population shall be estimated to two
significant digits.
Sec. 68.33 Defining offsite impacts--environment.
(a) The owner or operator shall list in the RMP environmental
receptors within a circle with its center at the point of the release
and a radius determined by the distance to the endpoint defined in
Sec. 68.22(a) of this part.
(b) Data sources acceptable. The owner or operator may rely on
information provided on local U.S. Geological Survey maps or on any
data source containing U.S.G.S. data to identify environmental
receptors.
68.36 Review and update.
(a) The owner or operator shall review and update the offsite
consequence analyses at least once every five years.
(b) If changes in processes, quantities stored or handled, or any
other aspect of the stationary source might reasonably be expected to
increase or decrease the distance to the endpoint by a factor of two or
more, the owner or operator shall complete a revised analysis within
six months of the change and submit a revised risk management plan as
provided in Sec. 68.190.
Sec. 68.39 Documentation
The owner or operator shall maintain the following records on the
offsite consequence analyses:
(a) For worst-case scenarios, a description of the vessel or
pipeline and substance selected as worst case, assumptions and
parameters used, and the rationale for selection; assumptions shall
include use of any administrative
[[Page 31721]]
controls and any passive mitigation that were assumed to limit the
quantity that could be released. Documentation shall include the
anticipated effect of the controls and mitigation on the release
quantity and rate.
(b) For alternative release scenarios, a description of the
scenarios identified, assumptions and parameters used, and the
rationale for the selection of specific scenarios; assumptions shall
include use of any administrative controls and any mitigation that were
assumed to limit the quantity that could be released. Documentation
shall include the effect of the controls and mitigation on the release
quantity and rate.
(c) Documentation of estimated quantity released, release rate, and
duration of release.
(d) Methodology used to determine distance to endpoints.
(e) Data used to estimate population and environmental receptors
potentially affected.
Sec. 68.42 Five-year accident history.
(a) The owner or operator shall include in the five-year accident
history all accidental releases from covered processes that resulted in
deaths, injuries, or significant property damage on site, or known
offsite deaths, injuries, evacuations, sheltering in place, property
damage, or environmental damage.
(b) Data required. For each accidental release included, the owner
or operator shall report the following information:
(1) Date, time, and approximate duration of the release;
(2) Chemical(s) released;
(3) Estimated quantity released in pounds;
(4) The type of release event and its source;
(5) Weather conditions, if known;
(6) On-site impacts;
(7) Known offsite impacts;
(8) Initiating event and contributing factors if known;
(9) Whether offsite responders were notified if known; and
(10) Operational or process changes that resulted from
investigation of the release.
(c) Level of accuracy. Numerical estimates may be provided to two
significant digits.
9. Subpart C is added to read as follows:
Subpart C--Program 2 Prevention Program
Secs.
68.48 Safety information.
68.50 Hazard review.
68.52 Operating procedures.
68.54 Training.
68.56 Maintenance.
68.58 Compliance audits.
68.60 Incident investigation.
Subpart C--Program 2 Prevention Program
Sec. 68.48 Safety information.
(a) The owner or operator shall compile and maintain the following
up-to-date safety information related to the regulated substances,
processes, and equipment:
(1) Material Safety Data Sheets that meet the requirements of 29
CFR 1910.1200(g);
(2) Maximum intended inventory of equipment in which the regulated
substances are stored or processed;
(3) Safe upper and lower temperatures, pressures, flows, and
compositions;
(4) Equipment specifications; and
(5) Codes and standards used to design, build, and operate the
process.
(b) 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.
(c) The owner or operator shall update the safety information if a
major change occurs that makes the information inaccurate.
Sec. 68.50 Hazard review.
(a) The owner or operator shall conduct a review of the hazards
associated with the regulated substances, process, and procedures. The
review shall identify the following:
(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.
(b) The owner or operator may use checklists developed by persons
or organizations knowledgeable about the process and equipment as a
guide to conducting the review. For processes designed to meet industry
standards or Federal or state design rules, the hazard review shall, by
inspecting all equipment, determine whether the process is designed,
fabricated, and operated in accordance with the applicable standards or
rules.
(c) The owner or operator shall document the results of the review
and ensure that problems identified are resolved in a timely manner.
(d) The review shall be updated at least once every five years. The
owner or operator shall also conduct reviews whenever a major change in
the process occurs; all issues identified in the review shall be
resolved before startup of the changed process.
Sec. 68.52 Operating procedures.
(a) The owner or operator shall prepare written operating
procedures that provide clear instructions or steps for safely
conducting activities associated with each covered process consistent
with the safety information for that process. Operating procedures or
instructions provided by equipment manufacturers or developed by
persons or organizations knowledgeable about the process and equipment
may be used as a basis for a stationary source's operating procedures.
(b) The procedures shall address the following:
(1) Initial startup;
(2) Normal operations;
(3) Temporary operations;
(4) Emergency shutdown and operations;
(5) Normal shutdown;
(6) Startup following a normal or emergency shutdown or a major
change that requires a hazard review;
(7) Consequences of deviations and steps required to correct or
avoid deviations; and
(8) Equipment inspections.
(c) The owner or operator shall ensure that the operating
procedures are updated, if necessary, whenever a major change occurs
and prior to startup of the changed process.
Sec. 68.54 Training.
(a) The owner or operator shall ensure that each employee presently
operating a process, and each employee newly assigned to a covered
process have been trained or tested competent in the operating
procedures provided in Sec. 68.52 that pertain to their duties. For
those employees already operating a process on June 21, 1999, the owner
or operator may certify in writing that the employee has the required
knowledge, skills, and abilities to safely carry out the duties and
responsibilities as provided in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
operating a process to ensure that the employee understands and adheres
to the current operating procedures of the process. The owner or
operator, in consultation with the employees operating the process,
shall determine the appropriate frequency of refresher training.
[[Page 31722]]
(c) The owner or operator may use training conducted under Federal
or state regulations or under industry-specific standards or codes or
training conducted by covered process equipment vendors to demonstrate
compliance with this section to the extent that the training meets the
requirements of this section.
(d) The owner or operator shall ensure that operators are trained
in any updated or new procedures prior to startup of a process after a
major change.
Sec. 68.56 Maintenance.
(a) The owner or operator shall prepare and implement procedures to
maintain the on-going mechanical integrity of the process equipment.
The owner or operator may use procedures or instructions provided by
covered process equipment vendors or procedures in Federal or state
regulations or industry codes as the basis for stationary source
maintenance procedures.
(b) The owner or operator shall train or cause to be trained each
employee involved in maintaining the on-going mechanical integrity of
the process. To ensure that the employee can perform the job tasks in a
safe manner, each such employee shall be trained in the hazards of the
process, in how to avoid or correct unsafe conditions, and in the
procedures applicable to the employee's job tasks.
(c) Any maintenance contractor shall ensure that each contract
maintenance employee is trained to perform the maintenance procedures
developed under paragraph (a) of this section.
(d) The owner or operator shall perform or cause to be performed
inspections and tests on process equipment. Inspection and testing
procedures shall follow recognized and generally accepted good
engineering practices. The frequency of inspections and tests of
process equipment shall be consistent with applicable manufacturers'
recommendations, industry standards or codes, good engineering
practices, and prior operating experience.
Sec. 68.58 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart at least every three
years to verify that the procedures and practices developed under the
rule are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) The owner or operator shall develop a report of the audit
findings.
(d) The owner or operator shall promptly determine and document an
appropriate response to each of the findings of the compliance audit
and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports. This requirement does not apply to any
compliance audit report that is more than five years old.
Sec. 68.60 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic
release.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) A summary shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(d) The owner or operator shall promptly address and resolve the
investigation findings and recommendations. Resolutions and corrective
actions shall be documented.
(e) The findings shall be reviewed with all affected personnel
whose job tasks are affected by the findings.
(f) Investigation summaries shall be retained for five years.
10. Subpart D is added to read as follows:
Subpart D--Program 3 Prevention Program
Sec.
68.65 Process safety information.
68.67 Process hazard analysis.
68.69 Operating procedures.
68.71 Training.
68.73 Mechanical integrity.
68.75 Management of change.
68.77 Pre-startup review.
68.79 Compliance audits.
68.81 Incident investigation.
68.83 Employee participation.
68.85 Hot work permit.
68.87 Contractors.
Subpart D--Program 3 Prevention Program
Sec. 68.65 Process safety information.
(a) In accordance with the schedule set forth in Sec. 68.67, the
owner or operator shall complete a compilation of written process
safety information before conducting any process hazard analysis
required by the rule. 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.
(b) Information pertaining to the hazards of the regulated
substances in the process. This information shall consist of at least
the following:
(1) Toxicity information;
(2) Permissible exposure limits;
(3) Physical data;
(4) Reactivity data:
(5) Corrosivity data;
(6) Thermal and chemical stability data; and
(7) Hazardous effects of inadvertent mixing of different materials
that could foreseeably occur.
Note to paragraph (b): Material Safety Data Sheets meeting the
requirements of 29 CFR 1910.1200(g) may be used to comply with this
requirement to the extent they contain the information required by
this subparagraph.
(c) Information pertaining to the technology of the process.
(1) Information concerning the technology of the process shall
include at least the following:
(i) A block flow diagram or simplified process flow diagram;
(ii) Process chemistry;
(iii) Maximum intended inventory;
(iv) Safe upper and lower limits for such items as temperatures,
pressures, flows or compositions; and,
(v) An evaluation of the consequences of deviations.
(2) Where the original technical information no longer exists, such
information may be developed in conjunction with the process hazard
analysis in sufficient detail to support the analysis.
(d) Information pertaining to the equipment in the process.
(1) Information pertaining to the equipment in the process shall
include:
(i) Materials of construction;
(ii) Piping and instrument diagrams (P&ID's);
(iii) Electrical classification;
(iv) Relief system design and design basis;
(v) Ventilation system design;
(vi) Design codes and standards employed;
(vii) Material and energy balances for processes built after June
21, 1999; and
(viii) Safety systems (e.g. interlocks, detection or suppression
systems).
[[Page 31723]]
(2) The owner or operator shall document that equipment complies
with recognized and generally accepted good engineering practices.
(3) For existing equipment designed and constructed in accordance
with codes, standards, or practices that are no longer in general use,
the owner or operator shall determine and document that the equipment
is designed, maintained, inspected, tested, and operating in a safe
manner.
Sec. 68.67 Process hazard analysis.
(a) The owner or operator shall perform an initial process hazard
analysis (hazard evaluation) on processes covered by this part. The
process hazard analysis shall be appropriate to the complexity of the
process and shall identify, evaluate, and control the hazards involved
in the process. The owner or operator shall determine and document the
priority order for conducting process hazard analyses based on a
rationale which includes such considerations as extent of the process
hazards, number of potentially affected employees, age of the process,
and operating history of the process. The process hazard analysis shall
be conducted as soon as possible, but not later than June 21, 1999.
Process hazards analyses completed to comply with 29 CFR 1910.119(e)
are acceptable as initial process hazards analyses. These process
hazard analyses shall be updated and revalidated, based on their
completion date.
(b) The owner or operator shall use one or more of the following
methodologies that are appropriate to determine and evaluate the
hazards of the process being analyzed.
(1) What-If;
(2) Checklist;
(3) What-If/Checklist;
(4) Hazard and Operability Study (HAZOP);
(5) Failure Mode and Effects Analysis (FMEA);
(6) Fault Tree Analysis; or
(7) An appropriate equivalent methodology.
(c) The process hazard analysis shall 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 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.
(d) The process hazard analysis shall be performed by a team with
expertise in engineering and process operations, and the team shall
include at least one employee who has experience and knowledge specific
to the process being evaluated. Also, one member of the team must be
knowledgeable in the specific process hazard analysis methodology being
used.
(e) The owner or operator shall establish a system to promptly
address the team's findings and recommendations; assure that the
recommendations are resolved in a timely manner and that the resolution
is documented; document what actions are to be taken; complete actions
as soon as possible; develop a written schedule of when these actions
are to be completed; communicate the actions to operating, maintenance
and other employees whose work assignments are in the process and who
may be affected by the recommendations or actions.
(f) At least every five (5) years after the completion of the
initial process hazard analysis, the process hazard analysis shall be
updated and revalidated by a team meeting the requirements in paragraph
(d) of this section, to assure that the process hazard analysis is
consistent with the current process. Updated and revalidated process
hazard analyses completed to comply with 29 CFR 1910.119(e) are
acceptable to meet the requirements of this paragraph.
(g) The owner or operator shall retain process hazards analyses and
updates or revalidations for each process covered by this section, as
well as the documented resolution of recommendations described in
paragraph (e) of this section for the life of the process.
Sec. 68.69 Operating procedures.
(a) The owner or operator shall develop and implement written
operating procedures that provide clear instructions for safely
conducting activities involved in each covered process consistent with
the process safety information and shall address at least the following
elements.
(1) Steps for each operating phase:
(i) Initial startup;
(ii) Normal operations;
(iii) Temporary operations;
(iv) Emergency shutdown including the conditions under which
emergency shutdown is required, and the assignment of shutdown
responsibility to qualified operators to ensure that emergency shutdown
is executed in a safe and timely manner.
(v) Emergency operations;
(vi) Normal shutdown; and,
(vii) Startup following a turnaround, or after an emergency
shutdown.
(2) Operating limits:
(i) Consequences of deviation; and
(ii) Steps required to correct or avoid deviation.
(3) Safety and health considerations:
(i) Properties of, and hazards presented by, the chemicals used in
the process;
(ii) Precautions necessary to prevent exposure, including
engineering controls, administrative controls, and personal protective
equipment;
(iii) Control measures to be taken if physical contact or airborne
exposure occurs;
(iv) Quality control for raw materials and control of hazardous
chemical inventory levels; and,
(v) Any special or unique hazards.
(4) Safety systems and their functions.
(b) Operating procedures shall be readily accessible to employees
who work in or maintain a process.
(c) The operating procedures shall be reviewed as often as
necessary to assure that they reflect current operating practice,
including changes that result from changes in process chemicals,
technology, and equipment, and changes to stationary sources. The owner
or operator shall certify annually that these operating procedures are
current and accurate.
(d) The owner or operator shall develop and implement safe work
practices to provide for the control of hazards during operations such
as lockout/tagout; confined space entry; opening process equipment or
piping; and control over entrance into a stationary source by
maintenance, contractor, laboratory, or other support personnel. These
safe work practices shall apply to employees and contractor employees.
Sec. 68.71 Training.
(a) Initial training. (1) Each employee presently involved in
operating a process, and each employee before being involved in
operating a newly assigned process, shall be trained in an overview of
the process and in the operating procedures as specified in Sec. 68.69.
The training shall include emphasis on the specific safety and health
hazards, emergency operations including shutdown, and safe work
practices applicable to the employee's job tasks.
[[Page 31724]]
(2) In lieu of initial training for those employees already
involved in operating a process on June 21, 1999 an owner or operator
may certify in writing that the employee has the required knowledge,
skills, and abilities to safely carry out the duties and
responsibilities as specified in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
involved in operating a process to assure that the employee understands
and adheres to the current operating procedures of the process. The
owner or operator, in consultation with the employees involved in
operating the process, shall determine the appropriate frequency of
refresher training.
(c) Training documentation. The owner or operator shall ascertain
that each employee involved in operating a process has received and
understood the training required by this paragraph. The owner or
operator shall prepare a record which contains the identity of the
employee, the date of training, and the means used to verify that the
employee understood the training.
Sec. 68.73 Mechanical integrity.
(a) Application. Paragraphs (b) through (f) of this section apply
to the following process equipment:
(1) Pressure vessels and storage tanks;
(2) Piping systems (including piping components such as valves);
(3) Relief and vent systems and devices;
(4) Emergency shutdown systems;
(5) Controls (including monitoring devices and sensors, alarms, and
interlocks) and,
(6) Pumps.
(b) Written procedures. The owner or operator shall establish and
implement written procedures to maintain the on-going integrity of
process equipment.
(c) Training for process maintenance activities. The owner or
operator shall train each employee involved in maintaining the on-going
integrity of process equipment in an overview of that process and its
hazards and in the procedures applicable to the employee's job tasks to
assure that the employee can perform the job tasks in a safe manner.
(d) Inspection and testing. (1) Inspections and tests shall be
performed on process equipment.
(2) Inspection and testing procedures shall follow recognized and
generally accepted good engineering practices.
(3) The frequency of inspections and tests of process equipment
shall be consistent with applicable manufacturers' recommendations and
good engineering practices, and more frequently if determined to be
necessary by prior operating experience.
(4) The owner or operator shall document each inspection and test
that has been performed on process equipment. The documentation shall
identify the date of the inspection or test, the name of the person who
performed the inspection or test, the serial number or other identifier
of the equipment on which the inspection or test was performed, a
description of the inspection or test performed, and the results of the
inspection or test.
(e) Equipment deficiencies. The owner or operator shall correct
deficiencies in equipment that are outside acceptable limits (defined
by the process safety information in Sec. 68.65) before further use or
in a safe and timely manner when necessary means are taken to assure
safe operation.
(f) Quality assurance. (1) In the construction of new plants and
equipment, the owner or operator shall assure that equipment as it is
fabricated is suitable for the process application for which they will
be used.
(2) Appropriate checks and inspections shall be performed to assure
that equipment is installed properly and consistent with design
specifications and the manufacturer's instructions.
(3) The owner or operator shall assure that maintenance materials,
spare parts and equipment are suitable for the process application for
which they will be used.
Sec. 68.75 Management of change.
(a) The owner or operator shall establish and implement written
procedures to manage changes (except for ``replacements in kind'') to
process chemicals, technology, equipment, and procedures; and, changes
to stationary sources that affect a covered process.
(b) The procedures shall assure that the following considerations
are addressed prior to any change:
(1) The technical basis for the proposed change;
(2) Impact of change on safety and health;
(3) Modifications to operating procedures;
(4) Necessary time period for the change; and,
(5) Authorization requirements for the proposed change.
(c) Employees involved in operating a process and maintenance and
contract employees whose job tasks will be affected by a change in the
process shall be informed of, and trained in, the change prior to
start-up of the process or affected part of the process.
(d) 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.
(e) If a change covered by this paragraph results in a change in
the operating procedures or practices required by Sec. 68.69, such
procedures or practices shall be updated accordingly.
Sec. 68.77 Pre-startup review.
(a) The owner or operator shall perform a pre-startup safety review
for new stationary sources and for modified stationary sources when the
modification is significant enough to require a change in the process
safety information.
(b) The pre-startup safety review shall confirm that prior to the
introduction of regulated substances to a process:
(1) Construction and equipment is in accordance with design
specifications;
(2) Safety, operating, maintenance, and emergency procedures are in
place and are adequate;
(3) For new stationary sources, a process hazard analysis has been
performed and recommendations have been resolved or implemented before
startup; and modified stationary sources meet the requirements
contained in management of change, Sec. 68.75.
(4) Training of each employee involved in operating a process has
been completed.
Sec. 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this section at least every three
years to verify that the procedures and practices developed under the
standard are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) A report of the findings of the audit shall be developed.
(d) The owner or operator shall promptly determine and document an
appropriate response to each of the findings of the compliance audit,
and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports.
Sec. 68.81 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic
release of a regulated substance.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) An incident investigation team shall be established and consist
of at least one person knowledgeable in the
[[Page 31725]]
process involved, including a contract employee if the incident
involved work of the contractor, and other persons with appropriate
knowledge and experience to thoroughly investigate and analyze the
incident.
(d) A report shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(e) The owner or operator shall establish a system to promptly
address and resolve the incident report findings and recommendations.
Resolutions and corrective actions shall be documented.
(f) The report shall be reviewed with all affected personnel whose
job tasks are relevant to the incident findings including contract
employees where applicable.
(g) Incident investigation reports shall be retained for five
years.
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 provide to employees and their
representatives access to process hazard analyses and to all other
information required to be developed under this rule.
Sec. 68.85 Hot work permit.
(a) The owner or operator shall issue a hot work permit for hot
work operations conducted on or near a covered process.
(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.
Sec. 68.87 Contractors.
(a) Application. This section applies to contractors performing
maintenance or repair, turnaround, major renovation, or specialty work
on or adjacent to a covered process. It does not apply to contractors
providing incidental services which do not influence process safety,
such as janitorial work, food and drink services, laundry, delivery or
other supply services.
(b) Owner or operator responsibilities. (1) The owner or operator,
when selecting a contractor, shall obtain and evaluate information
regarding the contract owner or operator's safety performance and
programs.
(2) The owner or operator shall inform contract owner or operator
of the known potential fire, explosion, or toxic release hazards
related to the contractor's work and the process.
(3) The owner or operator shall explain to the contract owner or
operator the applicable provisions of subpart E of this part.
(4) The owner or operator shall develop and implement safe work
practices consistent with Sec. 68.69(d), to control the entrance,
presence, and exit of the contract owner or operator and contract
employees in covered process areas.
(5) The owner or operator shall periodically evaluate the
performance of the contract owner or operator in fulfilling their
obligations as specified in paragraph (c) of this section.
(c) Contract owner or operator responsibilities. (1) The contract
owner or operator shall assure that each contract employee is trained
in the work practices necessary to safely perform his/her job.
(2) The contract owner or operator shall assure that each contract
employee is instructed in the known potential fire, explosion, or toxic
release hazards related to his/her job and the process, and the
applicable provisions of the emergency action plan.
(3) The contract owner or operator shall document that each
contract employee has received and understood the training required by
this section. The contract owner or operator shall prepare a record
which contains the identity of the contract employee, the date of
training, and the means used to verify that the employee understood the
training.
(4) The contract owner or operator shall assure that each contract
employee follows the safety rules of the stationary source including
the safe work practices required by Sec. 68.69(d).
(5) The contract owner or operator shall advise the owner or
operator of any unique hazards presented by the contract owner or
operator's work, or of any hazards found by the contract owner or
operator's work.
11. Subpart E is added to read as follows:
Subpart E--Emergency Response
Sec.
68.90 Applicability.
68.95 Emergency Response Program.
Subpart E--Emergency Response
Sec. 68.90 Applicability.
(a) Except as provided in paragraph (b) of this section, the owner
or operator of a stationary source with Program 2 and Program 3
processes shall comply with the requirements of Sec. 68.95.
(b) The owner or operator of stationary source whose employees will
not respond to accidental releases of regulated substances need not
comply with Sec. 68.95 of this part provided that they meet the
following:
(1) For stationary sources with any regulated toxic substance held
in a process above the threshold quantity, the stationary source is
included in the community emergency response plan developed under 42
U.S.C. 11003;
(2) For stationary sources with only regulated flammable substances
held in a process above the threshold quantity, the owner or operator
has coordinated response actions with the local fire department; and
(3) Appropriate mechanisms are in place to notify emergency
responders when there is a need for a response.
Sec. 68.95 Emergency response program.
(a) The owner or operator shall develop and implement an emergency
response program for the purpose of protecting public health and the
environment. Such program shall include the following elements:
(1) An emergency response plan, which shall be maintained at the
stationary source and contain at least the following elements:
(i) Procedures for informing the public and local emergency
response agencies about accidental releases;
(ii) Documentation of proper first-aid and emergency medical
treatment necessary to treat accidental human exposures; and
(iii) Procedures and measures for emergency response after an
accidental release of a regulated substance;
(2) Procedures for the use of emergency response equipment and for
its inspection, testing, and maintenance;
(3) Training for all employees in relevant procedures; and
(4) Procedures to review and update, as appropriate, the emergency
response plan to reflect changes at the stationary source and ensure
that employees are informed of changes.
(b) A written plan that complies with other Federal contingency
plan
[[Page 31726]]
regulations or is consistent with the approach in the National Response
Team's Integrated Contingency Plan Guidance (``One Plan'') and that,
among other matters, includes the elements provided in paragraph (a) of
this section, shall satisfy the requirements of this section if the
owner or operator also complies with paragraph (c) of this section.
(c) The emergency response plan developed under paragraph (a)(1) of
this section shall be coordinated with the community emergency response
plan developed under 42 U.S.C. 11003. Upon request of the local
emergency planning committee 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.
12. Subpart G is added to read as follows:
Subpart G--Risk Management Plan
Sec.
68.150 Submission.
68.155 Executive summary.
68.160 Registration.
68.165 Offsite consequence analysis.
68.168 Five-year accident history.
68.170 Prevention program/Program 2.
68.175 Prevention program/Program 3.
68.180 Emergency response program.
68.185 Certification.
68.190 Updates.
Subpart G--Risk Management Plan
Sec. 68.150 Submission.
(a) The owner or operator shall submit a single RMP that includes
the information required by Secs. 68.155 through 68.185 for all covered
processes. The RMP shall be submitted in a method and format to a
central point as specified by EPA prior to June 21, 1999.
(b) The owner or operator shall submit the first RMP no later than
the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above
a threshold quantity in a process.
(c) Subsequent submissions of RMPs shall be in accordance with
Sec. 68.190.
(d) Notwithstanding the provisions of Secs. 68.155 to 68.190, the
RMP shall exclude classified information. Subject to appropriate
procedures to protect such information from public disclosure,
classified data or information excluded from the RMP may be made
available in a classified annex to the RMP for review by Federal and
state representatives who have received the appropriate security
clearances.
Sec. 68.155 Executive summary.
The owner or operator shall provide in the RMP an executive summary
that includes a brief description of the following elements:
(a) The accidental release prevention and emergency response
policies at the stationary source;
(b) The stationary source and regulated substances handled;
(c) The worst-case release scenario(s) and the alternative release
scenario(s), including administrative controls and mitigation measures
to limit the distances for each reported scenario;
(d) The general accidental release prevention program and chemical-
specific prevention steps;
(e) The five-year accident history;
(f) The emergency response program; and
(g) Planned changes to improve safety.
Sec. 68.160 Registration.
(a) The owner or operator shall complete a single registration form
and include it in the RMP. The form shall cover all regulated
substances handled in covered processes.
(b) The registration shall include the following data:
(1) Stationary source name, street, city, county, state, zip code,
latitude, and longitude;
(2) The stationary source Dun and Bradstreet number;
(3) Name and Dun and Bradstreet number of the corporate parent
company;
(4) The name, telephone number, and mailing address of the owner or
operator;
(5) The name and title of the person or position with overall
responsibility for RMP elements and implementation;
(6) The name, title, telephone number, and 24-hour telephone number
of the emergency contact;
(7) For each covered process, the name and CAS number of each
regulated substance held above the threshold quantity in the process,
the maximum quantity of each regulated substance or mixture in the
process (in pounds) to two significant digits, the SIC code, and the
Program level of the process;
(8) The stationary source EPA identifier;
(9) The number of full-time employees at the stationary source;
(10) Whether the stationary source is subject to 29 CFR 1910.119;
(11) Whether the stationary source is subject to 40 CFR part 355;
(12) Whether the stationary source has a CAA Title V operating
permit; and
(13) The date of the last safety inspection of the stationary
source by a Federal, state, or local government agency and the identity
of the inspecting entity.
Sec. 68.165 Offsite consequence analysis.
(a) The owner or operator shall submit in the RMP information:
(1) One worst-case release scenario for each Program 1 process; and
(2) For Program 2 and 3 processes, one worst-case release scenario
to represent all regulated toxic substances held above the threshold
quantity and one worst-case release scenario to represent all regulated
flammable substances held above the threshold quantity. If additional
worst-case scenarios for toxics or flammables are required by
Sec. 68.25(a)(2)(iii), the owner or operator shall submit the same
information on the additional scenario(s). The owner or operator of
Program 2 and 3 processes shall also submit information on one
alternative release scenario for each regulated toxic substance held
above the threshold quantity and one alternative release scenario to
represent all regulated flammable substances held above the threshold
quantity.
(b) The owner or operator shall submit the following data:
(1) Chemical name;
(2) Physical state (toxics only);
(3) Basis of results (give model name if used);
(4) Scenario (explosion, fire, toxic gas release, or liquid spill
and vaporization);
(5) Quantity released in pounds;
(6) Release rate;
(7) Release duration;
(8) Wind speed and atmospheric stability class (toxics only);
(9) Topography (toxics only);
(10) Distance to endpoint;
(11) Public and environmental receptors within the distance;
(12) Passive mitigation considered; and
(13) Active mitigation considered (alternative releases only);
Sec. 68.168 Five-year accident history.
The owner or operator shall submit in the RMP the information
provided in Sec. 68.42(b) on each accident covered by Sec. 68.42(a).
Sec. 68.170 Prevention program/Program 2.
(a) For each Program 2 process, the owner or operator shall provide
in the RMP the information indicated in paragraphs (b) through (k) of
this section. If the same information applies
[[Page 31727]]
to more than one covered process, the owner or operator may provide the
information only once, but shall indicate to which processes the
information applies.
(b) The SIC code for the process.
(c) The name(s) of the chemical(s) covered.
(d) The date of the most recent review or revision of the safety
information and a list of Federal or state regulations or industry-
specific design codes and standards used to demonstrate compliance with
the safety information requirement.
(e) The date of completion of the most recent hazard review or
update.
(1) The expected date of completion of any changes resulting from
the hazard review;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last hazard review.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit.
(j) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation.
(k) The date of the most recent change that triggered a review or
revision of safety information, the hazard review, operating or
maintenance procedures, or training.
Sec. 68.175 Prevention program/Program 3.
(a) For each Program 3 process, the owner or operator shall provide
the information indicated in paragraphs (b) through (p) of this
section. If the same information applies to more than one covered
process, the owner or operator may provide the information only once,
but shall indicate to which processes the information applies.
(b) The SIC code for the process.
(c) The name(s) of the substance(s) covered.
(d) The date on which the safety information was last reviewed or
revised.
(e) The date of completion of the most recent PHA or update and the
technique used.
(1) The expected date of completion of any changes resulting from
the PHA;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last PHA.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent change that triggered management of
change procedures and the date of the most recent review or revision of
management of change procedures.
(j) The date of the most recent pre-startup review.
(k) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit;
(l) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation;
(m) The date of the most recent review or revision of employee
participation plans;
(n) The date of the most recent review or revision of hot work
permit procedures;
(o) The date of the most recent review or revision of contractor
safety procedures; and
(p) The date of the most recent evaluation of contractor safety
performance.
Sec. 68.180 Emergency response program.
(a) The owner or operator shall provide in the RMP the following
information:
(1) Do you have a written emergency response plan?
(2) Does the plan include specific actions to be taken in response
to an accidental releases of a regulated substance?
(3) Does the plan include procedures for informing the public and
local agencies responsible for responding to accidental releases?
(4) Does the plan include information on emergency health care?
(5) The date of the most recent review or update of the emergency
response plan;
(6) The date of the most recent emergency response training for
employees.
(b) The owner or operator shall provide the name and telephone
number of the local agency with which the plan is coordinated.
(c) The owner or operator shall list other Federal or state
emergency plan requirements to which the stationary source is subject.
Sec. 68.185 Certification.
(a) For Program 1 processes, the owner or operator shall submit in
the RMP the certification statement provided in Sec. 68.12(b)(4).
(b) For all other covered processes, the owner or operator shall
submit in the RMP a single certification that, to the best of the
signer's knowledge, information, and belief formed after reasonable
inquiry, the information submitted is true, accurate, and complete.
Sec. 68.190 Updates.
(a) The owner or operator shall review and update the RMP as
specified in paragraph (b) of this section and submit it in a method
and format to a central point specified by EPA prior to June 21, 1999.
(b) The owner or operator of a stationary source shall revise and
update the RMP submitted under Sec. 68.150 as follows:
(1) Within five years of its initial submission or most recent
update required by paragraphs (b)(2) through (b)(7) of this section,
whichever is later.
(2) No later than three years after a newly regulated substance is
first listed by EPA;
(3) No later than the date on which a new regulated substance is
first present in an already covered process above a threshold quantity;
(4) No later than the date on which a regulated substance is first
present above a threshold quantity in a new process;
(5) Within six months of a change that requires a revised PHA or
hazard review;
(6) Within six months of a change that requires a revised offsite
consequence analysis as provided in Sec. 68.36; and
(7) Within six months of a change that alters the Program level
that applied to any covered process.
(c) If a stationary source is no longer subject to this part, the
owner or operator shall submit a revised
[[Page 31728]]
registration to EPA within six months indicating that the stationary
source is no longer covered.
13. Subpart H is added to read as follows:
Subpart H--Other Requirements
Sec.
Sec. 68.200 Recordkeeping.
Sec. 68.210 Availability of information to the public.
68.215 Permit content and air permitting authority or designated
agency requirements.
68.220 Audits.
Subpart H--Other Requirements
Sec. 68.200 Recordkeeping.
The owner or operator shall maintain records supporting the
implementation of this part for five years unless otherwise provided in
Subpart D of this part.
Sec. 68.210 Availability of information to the public.
(a) The RMP required under subpart G of this part shall be
available to the public under 42 U.S.C. 7414(c).
(b) The disclosure of classified information by the Department of
Defense or other Federal agencies or contractors of such agencies shall
be controlled by applicable laws, regulations, or executive orders
concerning the release of classified information.
Sec. 68.215 Permit content and air permitting authority or designated
agency requirements.
(a) These requirements apply to any stationary source subject to
this part 68 and parts 70 or 71 of this Chapter. The 40 CFR part 70 or
part 71 permit for the stationary source shall contain:
(1) A statement listing this part as an applicable requirement;
(2) Conditions that require the source owner or operator to submit:
(i) A compliance schedule for meeting the requirements of this part
by the date provided in Sec. 68.10(a) or;
(ii) As part of the compliance certification submitted under 40 CFR
70.6(c)(5), a certification statement that the source is in compliance
with all requirements of this part, including the registration and
submission of the RMP.
(b) The owner or operator shall submit any additional relevant
information requested by the air permitting authority or designated
agency.
(c) For 40 CFR part 70 or part 71 permits issued prior to the
deadline for registering and submitting the RMP and which do not
contain permit conditions described in paragraph (a) of this section,
the owner or operator or air permitting authority shall initiate permit
revision or reopening according to the procedures of 40 CFR 70.7 or
71.7 to incorporate the terms and conditions consistent with paragraph
(a) of this section.
(d) The state may delegate the authority to implement and enforce
the requirements of paragraph (e) of this section to a state or local
agency or agencies other than the air permitting authority. An up-to-
date copy of any delegation instrument shall be maintained by the air
permitting authority. The state may enter a written agreement with the
Administrator under which EPA will implement and enforce the
requirements of paragraph (e) of this section.
(e) The air permitting authority or the agency designated by
delegation or agreement under paragraph (d) of this section shall, at a
minimum:
(1) Verify that the source owner or operator has registered and
submitted an RMP or a revised plan when required by this part;
(2) Verify that the source owner or operator has submitted a source
certification or in its absence has submitted a compliance schedule
consistent with paragraph (a)(2) of this section;
(3) For some or all of the sources subject to this section, use one
or more mechanisms such as, but not limited to, a completeness check,
source audits, record reviews, or facility inspections to ensure that
permitted sources are in compliance with the requirements of this part;
and
(4) Initiate enforcement action based on paragraphs (e)(1) and
(e)(2) of this section as appropriate.
Sec. 68.220 Audits.
(a) In addition to inspections for the purpose of regulatory
development and enforcement of the Act, the implementing agency shall
periodically audit RMPs submitted under subpart G of this part to
review the adequacy of such RMPs and require revisions of RMPs when
necessary to ensure compliance with subpart G of this part.
(b) The implementing agency shall select stationary sources for
audits based on any of the following criteria:
(1) Accident history of the stationary source;
(2) Accident history of other stationary sources in the same
industry;
(3) Quantity of regulated substances present at the stationary
source;
(4) Location of the stationary source and its proximity to the
public and environmental receptors;
(5) The presence of specific regulated substances;
(6) The hazards identified in the RMP; and
(7) A plan providing for neutral, random oversight.
(c) Exemption from audits. A stationary source with a Star or Merit
ranking under OSHA's voluntary protection program shall be exempt from
audits under paragraph (b)(2) and (b)(7) of this section.
(d) The implementing agency shall have access to the stationary
source, supporting documentation, and any area where an accidental
release could occur.
(e) Based on the audit, the implementing agency may issue the owner
or operator of a stationary source a written preliminary determination
of necessary revisions to the stationary source's RMP to ensure that
the RMP meets the criteria of subpart G of this part. The preliminary
determination shall include an explanation for the basis for the
revisions, reflecting industry standards and guidelines (such as AIChE/
CCPS guidelines and ASME and API standards) to the extent that such
standards and guidelines are applicable, and shall include a timetable
for their implementation.
(f) Written response to a preliminary determination.
(1) The owner or operator shall respond in writing to a preliminary
determination made in accordance with paragraph (e) of this section.
The response shall state the owner or operator will implement the
revisions contained in the preliminary determination in accordance with
the timetable included in the preliminary determination or shall state
that the owner or operator rejects the revisions in whole or in part.
For each rejected revision, the owner or operator shall explain the
basis for rejecting such revision. Such explanation may include
substitute revisions.
(2) The written response under paragraph (f)(1) of this section
shall be received by the implementing agency within 90 days of the
issue of the preliminary determination or a shorter period of time as
the implementing agency specifies in the preliminary determination as
necessary to protect public health and the environment. Prior to the
written response being due and upon written request from the owner or
operator, the implementing agency may provide in writing additional
time for the response to be received.
(g) After providing the owner or operator an opportunity to respond
under paragraph (f) of this section, the implementing agency may issue
the owner or operator a written final determination of necessary
revisions to
[[Page 31729]]
the stationary source's RMP. The final determination may adopt or
modify the revisions contained in the preliminary determination under
paragraph (e) of this section or may adopt or modify the substitute
revisions provided in the response under paragraph (f) of this section.
A final determination that adopts a revision rejected by the owner or
operator shall include an explanation of the basis for the revision. A
final determination that fails to adopt a substitute revision provided
under paragraph (f) of this section shall include an explanation of the
basis for finding such substitute revision unreasonable.
(h) Thirty days after completion of the actions detailed in the
implementation schedule set in the final determination under paragraph
(g) of this section, the owner or operator shall be in violation of
subpart G of this part and this section unless the owner or operator
revises the RMP prepared under subpart G of this part as required by
the final determination, and submits the revised RMP as required under
Sec. 68.150.
(i) The public shall have access to the preliminary determinations,
responses, and final determinations under this section in a manner
consistent with Sec. 68.210.
(j) Nothing in this section shall preclude, limit, or interfere in
any way with the authority of EPA or the state to exercise its
enforcement, investigatory, and information gathering authorities
concerning this part under the Act.
14. Part 68 Appendix A is added to read as follows:
Appendix A to Part 68--Table of Toxic Endpoints
[As defined in Sec. 68.22 of this part]
----------------------------------------------------------------------------------------------------------------
Toxic
CAS No. Chemical name endpoint (mg/
L)
----------------------------------------------------------------------------------------------------------------
107-02-8..................................... Acrolein [2-Propenal].............................. 0.0011
107-13-1..................................... Acrylonitrile [2-Propenenitrile]................... 0.076
814-68-6..................................... Acrylyl chloride [2-Propenoyl chloride]............ 0.00090
107-18-6..................................... Allyl alcohol [2-Propen-1-ol]...................... 0.036
107-11-9..................................... Allylamine [2-Propen-1-amine]...................... 0.0032
7664-41-7.................................... Ammonia (anhydrous)................................ 0.14
7664-41-7.................................... Ammonia (conc 20% or greater)...................... 0.14
7784-34-1.................................... Arsenous trichloride............................... 0.010
7784-42-1.................................... Arsine............................................. 0.0019
10294-34-5................................... Boron trichloride [Borane, trichloro-]............. 0.010
7637-07-2.................................... Boron trifluoride [Borane, trifluoro-]............. 0.028
353-42-4..................................... Boron trifluoride compound with methyl ether (1:1) 0.023
[Boron, trifluoro[oxybis[methane]]-, T-4.
7726-95-6.................................... Bromine............................................ 0.0065
75-15-0...................................... Carbon disulfide................................... 0.16
7782-50-5.................................... Chlorine........................................... 0.0087
10049-04-4................................... Chlorine dioxide [Chlorine oxide (ClO2)]........... 0.0028
67-66-3...................................... Chloroform [Methane, trichloro-]................... 0.49
542-88-1..................................... Chloromethyl ether [Methane, oxybis[chloro-]....... 0.00025
107-30-2..................................... Chloromethyl methyl ether [Methane, chloromethoxy-] 0.0018
4170-30-3.................................... Crotonaldehyde [2-Butenal]......................... 0.029
123-73-9..................................... Crotonaldehyde, (E)-, [2-Butenal, (E)-]............ 0.029
506-77-4..................................... Cyanogen chloride.................................. 0.030
108-91-8..................................... Cyclohexylamine [Cyclohexanamine].................. 0.16
19287-45-7................................... Diborane........................................... 0.0011
75-78-5...................................... Dimethyldichlorosilane [Silane, dichlorodimethyl-]. 0.026
57-14-7...................................... 1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-]... 0.012
106-89-8..................................... Epichlorohydrin [Oxirane, (chloromethyl)-]......... 0.076
107-15-3..................................... Ethylenediamine [1,2-Ethanediamine]................ 0.49
151-56-4..................................... Ethyleneimine [Aziridine].......................... 0.018
75-21-8...................................... Ethylene oxide [Oxirane]........................... 0.090
7782-41-4.................................... Fluorine........................................... 0.0039
50-00-0...................................... Formaldehyde (solution)............................ 0.012
110-00-9..................................... Furan.............................................. 0.0012
302-01-2..................................... Hydrazine.......................................... 0.011
7647-01-0.................................... Hydrochloric acid (conc 30% or greater)............ 0.030
74-90-8...................................... Hydrocyanic acid................................... 0.011
7647-01-0.................................... Hydrogen chloride (anhydrous) [Hydrochloric acid].. 0.030
7664-39-3.................................... Hydrogen fluoride/Hydrofluoric acid (conc 50% or 0.016
greater) [Hydrofluoric acid].
7783-07-5.................................... Hydrogen selenide.................................. 0.00066
7783-06-4.................................... Hydrogen sulfide................................... 0.042
13463-40-6................................... Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB- 0.00044
5-11)-].
78-82-0...................................... Isobutyronitrile [Propanenitrile, 2-methyl-]....... 0.14
108-23-6..................................... Isopropyl chloroformate [Carbonochloride acid, 1- 0.10
methylethyl ester].
126-98-7..................................... Methacrylonitrile [2-Propenenitrile, 2-methyl-].... 0.0027
74-87-3...................................... Methyl chloride [Methane, chloro-]................. 0.82
79-22-1...................................... Methyl chloroformate [Carbonochloridic acid, 0.0019
methylester].
60-34-4...................................... Methyl hydrazine [Hydrazine, methyl-].............. 0.0094
624-83-9..................................... Methyl isocyanate [Methane, isocyanato-]........... 0.0012
74-93-1...................................... Methyl mercaptan [Methanethiol].................... 0.049
556-64-9..................................... Methyl thiocyanate [Thiocyanic acid, methyl ester]. 0.085
75-79-6...................................... Methyltrichlorosilane [Silane, trichloromethyl-]... 0.018
13463-39-3................................... Nickel carbonyl.................................... 0.00067
7697-37-2.................................... Nitric acid (conc 80% or greater).................. 0.026
[[Page 31730]]
10102-43-9................................... Nitric oxide [Nitrogen oxide (NO)]................. 0.031
8014-95-7.................................... Oleum (Fuming Sulfuric acid) [Sulfuric acid, 0.010
mixture with sulfur trioxide].
79-21-0...................................... Peracetic acid [Ethaneperoxoic acid]............... 0.0045
594-42-3..................................... Perchloromethylmercaptan [Methanesulfenyl chloride, 0.0076
trichloro-].
75-44-5...................................... Phosgene [Carbonic dichloride]..................... 0.00081
7803-51-2.................................... Phosphine.......................................... 0.0035
10025-87-3................................... Phosphorus oxychloride [Phosphoryl chloride]....... 0.0030
7719-12-2.................................... Phosphorus trichloride [Phosphorous trichloride]... 0.028
110-89-4..................................... Piperidine......................................... 0.022
107-12-0..................................... Propionitrile [Propanenitrile]..................... 0.0037
109-61-5..................................... Propyl chloroformate [Carbonochloridic acid, 0.010
propylester].
75-55-8...................................... Propyleneimine [Aziridine, 2-methyl-].............. 0.12
75-56-9...................................... Propylene oxide [Oxirane, methyl-]................. 0.59
7446-09-5.................................... Sulfur dioxide (anhydrous)......................... 0.0078
7783-60-0.................................... Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)- 0.0092
].
7446-11-9.................................... Sulfur trioxide.................................... 0.010
75-74-1...................................... Tetramethyllead [Plumbane, tetramethyl-]........... 0.0040
509-14-8..................................... Tetranitromethane [Methane, tetranitro-]........... 0.0040
7750-45-0.................................... Titanium tetrachloride [Titanium chloride (TiCl4) 0.020
(T-4)-].
584-84-9..................................... Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato- 0.0070
1-methyl-].
91-08-7...................................... Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato- 0.0070
2-methyl-].
26471-62-5................................... Toluene diisocyanate (unspecified isomer) [Benzene, 0.0070
1,3-diisocyanatomethyl-].
75-77-4...................................... Trimethylchlorosilane [Silane, chlorotrimethyl-]... 0.050
108-05-4..................................... Vinyl acetate monomer [Acetic acid ethenyl ester].. 0.26
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-14597 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-M
