[Federal Register Volume 60, Number 48 (Monday, March 13, 1995)]
[Proposed Rules]
[Pages 13526-13545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5656]
[[Page 13525]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
_______________________________________________________________________
Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7); Proposed Rule
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 /
Proposed Rules
[[Page 13526]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[A-91-73; FRL-5168-2]
RIN 2050-AD26
Accidental Release Prevention Requirements: Risk Management
Programs Under Clean Air Act Section 112(r)(7)
AGENCY: Environmental Protection Agency.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: On October 20, 1993, EPA proposed risk management program
regulations, mandated under the accidental release provisions of the
Clean Air Act (CAA). The purpose of the proposed rule is to reduce the
number and severity of chemical accidents. Based on information
presented during public hearings and in comments on the proposed rule,
EPA is requesting additional comment on the following regulatory
options and issues: approaches for increasing compliance flexibility
and decreasing cost while still ensuring preparedness by tiering the
regulatory requirements to take into consideration differences between
various types, classes, and kinds of sources, devices, and systems; the
hazard assessment approaches (including worst-case scenarios); accident
information reporting; public participation in risk management program
and plan oversight; inherently safer approaches for sources' design and
operations; and the implementation of CAA section 112(r) regulations,
including methods of integrating these requirements into the title V
permitting requirements and the codification of approved state section
112(r) requirements.
DATES: Comments: Comments must be submitted on or before May 12, 1995.
Hearings: The Agency will hold a hearing on March 31 from 9 a.m.
until 4 p.m.
ADDRESSES: Comments: Written comments may be mailed or submitted to:
U.S. Environmental Protection Agency, Attn: Docket (A-91-73), Room
1500, 401 M Street, SW, Washington, DC 20460. Comments must be
submitted in duplicate. Comments may also be faxed to the docket at
202-260-4400, as long as faxes are followed by hard copies.
Hearings: The hearing will be held at the EPA Auditorium, 401 M
Street, SW, Washington, DC. People who want to testify at this hearing
should call 703-934-3158 by March 27.
Docket: Supporting information used in developing the accidental
release prevention regulations is contained in Docket No. A-91-73. This
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
the address listed above. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Dr. Lyse D. Helsing at (202) 260-6128,
Chemical Emergency Preparedness and Prevention Office (5101), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, or the Emergency Planning and Community Right-to-Know Hotline at
1-800-535-0202.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
A. Statutory Authority
B. Relationship of Section 112(r) to Other Requirements of the
Clean Air Act
C. Summary of the Proposed Risk Management Program Rule
II. Discussion of Issues and Approaches
A. Approaches for Tiering the Regulatory Requirements
B. Hazard Assessment
C. Accident Information Reporting
D. Public Participation
E. Inherently Safer Approaches
F. Implementation and Integration of Section 112(r) with State
Programs
III. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Enhancing the Intergovernmental Partnership
D. Paperwork Reduction Act
I. Introduction and Background
A. Statutory Authority
This supplemental notice of proposed rulemaking is being issued
under sections 112(r) and 301(a)(1) of the Clean Air Act (CAA) as
amended (42 U.S.C. 7412(r) and 7601(a)(1)).
B. Relationship of Section 112(r) to Other Requirements of the Clean
Air Act
The Clean Air Act Amendments of 1990 amend CAA section 112 and add
a new paragraph (r). The intent of CAA section 112(r) is to prevent
accidental releases to the air and minimize the consequences of
releases by focusing preventive measures on chemicals that pose the
greatest risk to the public and the environment. For a summary of the
statutory requirements of section 112(r) and related statutory
provisions, see the notice of proposed rulemaking (NPRM) (58 FR 54190;
October 20, 1993).
Since the October 20, 1993, notice, the Environmental Protection
Agency (EPA) has taken various additional regulatory actions relevant
to the section 112(r) program. EPA promulgated the List of Regulated
Substances and Thresholds for Accidental Release Prevention on January
31, 1994 (59 FR 4478). The list of regulated substances and thresholds
will determine which sources must comply with the accident prevention
regulations.
CAA section 112(l) contains the statutory authority for EPA to
approve and delegate specific Federal authorities to states. EPA
promulgated a rule under section 112(l) on November 26, 1993 (58 FR
62262) that addresses the approval of both state programs for section
112 that mirror the Federal requirements and programs that differ from
Federal requirements. Approval of state rules addressing section 112(r)
requirements is addressed in the section 112(l) rule.
Certain other regulatory actions that predate the October 20, 1993,
NPRM are relevant to today's supplemental notice. Specifically, section
112(r) is addressed in CAA title V, operating permits, and the
subsequent rulemaking in 40 CFR part 70 (part 70) published on July 10,
1992 (57 FR 32250). Section 112(r) listed substances are ``regulated
air pollutants,'' and the accident prevention regulations developed
under section 112(r)(7) are ``applicable requirements'' for the
purposes of CAA title V and part 70.
C. Summary of the Proposed Risk Management Program Rule
The proposed rule would require sources to:
Register with EPA not later than three years after
publication of the final rule;
Develop and implement a risk management program that
includes a hazard assessment, prevention program, and emergency
response program, and maintain on-site documentation of the program's
implementation. The hazard assessment would include offsite consequence
analyses and a five-year accident history;
Develop and submit to Federal, state, and local
authorities a risk management plan (RMP) that documents the risk
management program. This plan will be available to the public; and
Update the risk management program and plan as required by
rule, audit, or process or chemical changes at the source.
The risk management program addresses the general requirements of
CAA section 112(r)(7)(B) for regulations to provide for accidental
release detection and prevention. The risk management plan, referred to
as the [[Page 13527]] RMP in this notice, addresses the specific
requirements of CAA section 112(r)(7)(B) for a plan that provides
governmental entities and the public with information on the hazards
found at sources and the source's plans for addressing the hazards.
These hazards would be identified and addressed through implementation
of the risk management program elements. Therefore, the RMP would
summarize the results of hazard assessments and the implementation of
the risk management program requirements. The proposed rule also
contains a system to audit the RMPs, including criteria for selecting
sources for audits.
II. Discussion of Issues and Approaches
During public hearings on the proposed rule, in comments provided
on the proposed rule, and through additional sources, EPA has learned
that six areas of the proposed rule need clarification and further
comment prior to development of a final rule. In addition to the
regulatory provisions and alternatives in the proposed rule, EPA is
requesting comment on regulatory options under consideration in the
following areas: approaches for tiering the regulatory requirements to
take into consideration differences between various types, classes, and
kinds of sources, devices and systems; the hazard assessment approaches
(including worst-case scenarios); accident information reporting;
public participation in risk management program and plan oversight;
inherently safer approaches for design and operation; and the
implementation of section 112(r) regulations including methods of
integrating these requirements into the title V permitting
requirements. All regulatory provisions and alternatives under the
proposed rule remain as options for the final rule. EPA will consider
carefully comments already submitted. Therefore, commenters on this
notice should not duplicate comments already submitted, but should
focus on the issues in this notice.
A. Approaches for Tiering the Regulatory Requirements
Many commenters asked for a tiered approach (i.e., applying
different requirements to different sources). Commenters have presented
several reasons why a tiered approach is needed:
Commenters stated that, if a source cannot cause offsite
impacts, the source should not have to meet the requirements of the
rule.
Commenters stated that the rule should be streamlined to
ensure that the requirements are appropriate for each type of source
covered and eliminate duplicative coverage where possible. Commenters
argued that CAA section 112(r)(7)(B)(i) allows EPA to take into account
differences in size, operations, processes, class and categories of
sources, and voluntary actions.
Commenters, particularly states, were concerned about
whether the final rule can be implemented effectively. Substantial
requirements imposed on lower risk sources may undermine the program
because implementing agencies and the public will find it more
difficult to identify and focus on the most serious risks. Resources
spent on unproductive regulatory requirements better might be used to
analyze and develop new accident prevention technologies.
Commenters have stated that, based on their experience
implementing similar accident prevention rules in New Jersey,
California, and Delaware, and implementing the OSHA PSM standard, the
rule would impose substantially higher costs on affected sources than
EPA had originally estimated. These commenters argued that the costs of
the rule should reasonably be related to benefits obtained. Commenters
noted that EPA is required under CAA section 112(r)(7)(C) to consider
the effects on small businesses.
In light of data and information supplied by commenters during the
initial comment period and developed by EPA subsequent to publication
of the initial proposed rule, EPA believes that it would be
unreasonable to apply the proposed rule prevention program to all
sources subject to part 68. EPA is considering a tiered approach to
achieve the program objectives of ensuring that the effort is
appropriate to the potential risk and recognizing the prevention steps
that sources are already required to take under other regulatory
programs. EPA believes a tiered implementation framework may be a
reasonable way to reduce the cost without sacrificing accident
prevention benefits.
EPA is proposing the use of three tiers, representing increasing
levels of effort, in defining requirements for sources. The tiers would
apply to different categories and classes of sources based on their
potential risk and steps already being taken. In light of the various
comments summarized above, EPA does not believe that the third tier,
which would be the proposed prevention program and would entail the
greatest level of effort among the alternatives discussed below should
apply to all sources. EPA solicits comments on this position.
Under the Common Sense Initiative (CSI), the Agency is working with
a broad cross section of stakeholders to examine regulations affecting
six industry sectors. These sectors are petroleum refining, metal
finishing, iron and steel, automobile manufacturing, electronics and
computers, and printing. Under CSI, the Agency and stakeholders
together will be looking for approaches that provide more environmental
protection at less cost for these industry sectors. The tiering
approaches discussed in this notice incorporate these CSI principles.
Discussion of Issues and Approaches
The CAA mandates that each source with more than a threshold
quantity of a regulated substance develop and implement a risk
management plan that includes an offsite consequence analysis, a five-
year accident history, a prevention program, and an emergency response
program. Under its proposed rule, EPA would require the submission of
an RMP that summarizes each of the elements listed. The risk management
program specifies the activities required for each of the broad
elements. The original proposal would require every source affected by
the rule to complete all specified activities and submit an RMP. EPA is
proposing today to create the following three tiers of risk management
programs:
Tier 1: A brief RMP would demonstrate and certify that the source's
worst-case release would not reach any public or environmental
receptors of concern.
Tier 2: A streamlined risk management program would require sources to
conduct an offsite consequence analysis, document a five-year accident
history, implement prevention steps, have an emergency response plan,
and submit an RMP. The rule would not require specific steps to comply
with the prevention and emergency response programs.
Tier 3: The full risk management program and plan would be that
described in the proposed rule.
In addition to the approach in the proposed rule, EPA has developed
two alternative approaches to assigning sources to the tiers in a way
that takes into consideration risk as well as differences between
types, classes, and kinds of sources:
Approach 1: Sources that could meet the requirements of Tier 1 would
comply with Tier 1; manufacturers with 100 or more full-time employees
(FTEs) producing pulp (SIC code 2611), chlor-alkalis (2812), industrial
inorganics, not elsewhere classified [[Page 13528]] (nec) (2819),
plastics and resins (2821), industrial organics, nec (2869), nitrogen
fertilizers (2873), agricultural chemicals, nec (2879), and petroleum
refineries (2911) would comply with Tier 3 requirements; all other
sources would comply with Tier 2 requirements. In addition, eight years
after the effective date of the rule, sources in SIC codes 2812, 2819,
2869, 2873, and 2911 with 20 to 99 FTEs would be required to meet Tier
3 requirements.
Approach 2: Sources that could meet the requirements of Tier 1 would
comply with Tier 1; other sources with fewer than 100 full-time
employees (FTEs) would comply with Tier 2 requirements; all other
sources would comply with Tier 3 requirements.
Discussion of Tier Requirements
Tier 1 (No Impact Tier). A source in Tier 1 would be a source that
is subject to part 68 because it has more than a threshold quantity of
a regulated substance, but that does not pose a risk to public or
environmental receptors. A source would be eligible for Tier 1 if the
owner or operator can demonstrate that, in a worst-case release, there
are no public and environmental receptors of concern within the impact
distances specified by rule. Sources would not be eligible for Tier 1
if they have had a significant accidental release (as defined in the
proposed rule) in the previous five years. To ensure that emergency
responders are aware of the hazards at the sites, sources that exceed a
threshold only for flammable or explosive regulated substances (i.e.,
they have no listed toxics above the threshold quantity) would need to
post a sign at all normal access routes that warns the public and
emergency responders about the hazard (fire or explosion) and lists an
emergency contact telephone number. The owner or operator of a source
eligible for Tier 1 that handles a regulated toxic substance would need
to show that the local emergency response plan prepared under the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)
section 303, 42 U.S.C. 11003, specifically addresses their source. For
regulated substances that are not extremely hazardous substances (EHSs)
under EPCRA, the owner or operator of the source would need to certify
that source emergency response planning and measures have been
coordinated with local first responders. EPA requests comments on this
approach. Sources meeting these criteria would be required to register,
submit an RMP consisting of the registration and standard one-paragraph
statement (see rule text), and maintain records of compliance with
these requirements.
The provisions described above would satisfy each element of
section 112(r)(7)(B)(ii) while recognizing that it is reasonable for
this class of sources to be addressed in a simple manner. The hazard
assessment element of the program would be satisfied by verifying that
there were no receptors within the potential impact zone of the worst-
case accidental release and by the absence of any significant
accidental release within the previous five years. In addition, EPA
proposes that, in lieu of obtaining a professional survey, an owner or
operator could rely on visual approximations of the distances
surrounding the source to public and environmental receptors for
comparison to the distance generated by the worst-case release. The
prevention program would not require additional prevention activities
because the characteristics of the process are such that there are no
potential public or environmental impacts. A standardized RMP ensures
that local emergency planners and the state know that the source has
been assessed by the owner or operator.
EPA believes that Tier 1 will be most suitable for operations that
handle flammable substances or explosive substances in locations that
are relatively distant from the public. In lieu of presenting a
distance table for explosives in this part, EPA would allow a source to
be eligible for Tier 1 if it maintained a distance to the public and
environmental receptors consistent with 27 CFR part 55 or 30 CFR parts
56, 57, or 77. These regulations, promulgated by the Bureau of Alcohol,
Tobacco and Firearms (BATF) and the Mine Safety and Health
Administration (MSHA) incorporate the American Table of Distances
(ATD). The distances identified in the ATD are more conservative than
the EPA listing criteria and should, therefore, protect the public and
the environment from the effects that caused EPA to list explosives.
Based on the known properties of flammable substances and
explosives, it is possible to use conservative assumptions and
calculate the maximum distance at which an overpressure or heat effect
of concern can be detected. Distances for potential impacts of
accidental releases for flammable substances and processes could be
determined by consulting distance tables or derived using the following
calculation method described in Flammable Gases and Liquids and Their
Hazards:
D = C x (nE)1/3,
where D is the distance in meters to a 1 psi overpressure; C is a
constant for damages associated with 1 psi overpressures or 0.15, n is
a yield factor of the vapor cloud explosion derived from the mechanical
yield of the combustion and is assumed to be 10 percent (or 0.1) and E
is the energy content of the explosive part of the cloud in Joules. E
can be calculated from the mass of substance in kilograms times the
heat of combustion (hc) in Joules per kilogram as follows:
E = mass x hc
Combining these two equations gives:
D = 0.15 x (0.1 x mass x hc)1/3
If distances to receptors are greater than the distance given by the
calculation method, then a source could be eligible for Tier 1.
EPA has received a study addressing the potential consequences of
accidental releases from oil and gas exploration and production (E&P)
sources that may provide a more suitable method for calculating impact
distances from these sources than the general formula presented above.
The study, Hazard Assessment of E&P Facilities Potentially Subject to
the EPA's Risk Management Program Regulations, was submitted by the
American Petroleum Institute in January 1995 and is available in the
docket (see ADDRESSES section of this rule). Generally the study
purports to show that given the composition of produced hydrocarbons at
the source and certain physical characteristics of an E&P source, such
as operating phase and piping size, one may estimate the potential
impact distances for vapor cloud explosions and radiant heat effects of
an accidental release. EPA is announcing the availability of this study
and seeks comment on whether EPA should allow E&P sources to use the
results of the study to determine worst-case release impact distances.
For listed toxic substances, EPA is proposing that sources use the
lookup tables discussed in Section B below. Sources would use the
lookup tables to determine the impact distance for their worst-case
releases. If a source can demonstrate that there are no public or
environmental receptors of concern within the distance, the source
would be eligible for Tier 1.
EPA seeks comment on whether Tier 1 is appropriate for the sources
discussed above. In particular, EPA seeks comment on whether Tier 1 is
appropriate for sources that have toxic regulated substances present in
more than a threshold quantity. Should sources be allowed to determine
that they have no offsite impacts for toxics [[Page 13529]] based on
site-specific analyses rather than the lookup tables? Is the criterion
of no significant accidental release in the previous five years
appropriate as a condition for Tier 1 eligibility? Are additional
response preparedness activities necessary beyond what has been
specified for sources in this tier?
Tier 2 (Streamlined Program). Sources would be required to register
with EPA, conduct a hazard assessment, develop a five-year accident
history, prevention program, and emergency response program, and submit
an RMP summarizing these elements.
The rule would not specify the prevention program in detail, but a
source's program would have to cover the statutory elements of
training, maintenance, safety precaution, and monitoring. The
prevention program section of the RMP would describe the steps the
source takes to train employees and maintain the facility, the safety
precautions used, and monitoring. Sources may be able to meet these
requirements through compliance with other, already existing Federal
regulations. For example, almost all sources are subject to OSHA
regulations. The Hazard Communication Standard (29 CFR 1910.1200)
requires training on hazards and preventive actions. OSHA has numerous
rules related to safety precautions. Certain industries (e.g., handlers
of anhydrous ammonia and LPG) have specific OSHA standards. Propane
handlers are also generally subject to state and local laws based on
NFPA-58, a storage and handling standard for propane. Sources could
cite compliance with these standards as part of their description of
their prevention steps. Sources that are in compliance with the OSHA
process safety management (PSM) standard or with chemical and refinery
industry standards would be able to cite compliance with these because
they parallel EPA's proposed prevention program.
One mandated prevention element not usually addressed in
regulations, except OSHA PSM, is maintenance. Sources would be required
to describe how they maintain a safe facility; EPA would not, however,
specify maintenance steps. EPA emphasizes that, under CAA section
112(r)(1), all sources already are required to identify their hazards
and design and maintain a safe facility and would continue to be
subject to this general duty under today's proposed rule.
The response program would document procedures for informing the
public and local entities about accidental releases, procedures to be
used on site to respond to an accidental release, and a description of
employee training measures regarding emergency situations. EPA requests
comment on whether Tier 2 sources should be required to exercise the
emergency response program under proposed Sec. 68.45 or whether a
streamlined response program would be sufficient. EPA notes that, for
both Tier 2 and Tier 3 (described below), compliance with other Federal
contingency and emergency response planning requirements (e.g., RCRA,
OPA-90) would be considered adequate to meet the emergency response
requirements of the rule. EPA asks for comment on what other Federal
emergency response measures would satisfy the requirements of section
112(r)(7)(B)(ii)(III). In particular, does HAZWOPER (29 CFR 1910.120)
fulfill the requirement for ``a response program providing for specific
actions * * * so as to protect human health and the environment''? If a
source is specifically addressed in an emergency plan under EPCRA
section 303, should that satisfy the response program element of the
CAA? Should EPA require that the LEPC meet the membership, planning
process, and public availability requirements of EPCRA sections 301,
303 and 324 for a source to rely on an EPCRA local emergency plan?
The streamlined approaches under Tier 2 fulfill the statutory
provisions of section 112(r)(7)(B)(ii), while exercising the discretion
granted under section 112(r)(7)(B)(i) to recognize ongoing prevention
activities at classes of sources. Requirements for hazard assessments
and response programs for sources would be similar to those in the
original proposal as modified by other portions of today's notice. The
five-year accident history would be based on the proposed rule. The
prevention program would place less burden on sources that are subject
to other governmental or industrial programs or that seem to present a
lesser risk of a significant accidental release than other sources,
based on public data and inferences drawn from such data. The RMP will
fulfill the right-to-know aspects of section 112(r) by requiring a
source to summarize data about its hazard assessment, prevention, and
response program activities and make this information available to the
public. EPA seeks comments on the proposed Tier 2 requirements.
Specifically, EPA seeks comment on whether additional, specific
prevention activities should be required to address safety precautions,
maintenance, monitoring, and training (e.g., any particular
requirements of the proposed rule targeted at these activities) and on
whether there are additional governmental regulations and industry or
third-party standards which fulfill the mandate of a prevention program
under section 112(r).
Tier 3--Full Rule. Tier 3 sources would be required to comply with
the detailed prevention program of the rule, as finalized. The RMP
would address hazard assessment, the prevention program, and the
emergency response program. EPA intends that the final prevention
program will be the OSHA PSM standard plus the requirement for a
management system.
Discussion of Assignment to Tiers
Sources would be eligible for Tier 1 based on a demonstration and
certification of no impact on public or environmental receptors. All
other sources would be allocated to either Tier 2 or Tier 3. Tier 2 is
a default tier for those sources not specifically assigned to Tier 3.
EPA's preferred approach would assign sources in specific four-
digit SIC codes to Tier 3. To identify such SIC codes, EPA analyzed its
ARIP database for the period from 1987 through 1993. EPA believes that
SIC codes in which more than 10 sources with 100 or more full-time
employees reported regulated substance releases (not limited to
accidental releases under part 68) and more than 20 percent of such
sources had releases that had impacts onsite or offsite would be
candidate SIC codes for Tier 3 during the initial implementation of
part 68. EPA also considered the quantities released and the number of
sources in the SIC code as reported in Census data. EPA used some
judgment when looking at SIC codes in Census data because the Census
reports only the one SIC code per source that represents the greatest
financial activity even when many SIC codes apply. Thus, the Census may
be likely to understate the total number of sources in a 4-digit SIC
code, especially in the chemical industry, because sources in certain
industries typically involve many different operations. EPA believes
that chemical releases that are not accidental releases and releases in
which workers were injured should be included in an analysis of
accidental releases for the purposes of section 112(r) because all such
releases may indicate a failure of company safety practices. EPA
requests comments on this conclusion and data indicating that this
assumption is valid (or not) for the groups discussed below.
Based on the analysis described above, EPA identified eight four-
digit SIC codes that have a release history that supports requiring
sources in such codes to implement a Tier 3 program.
[[Page 13530]] These SIC codes are: 2611 (pulp mills), 2812 (chlor-
alkali), 2819 (industrial inorganics nec), 2821 (plastics and resins),
2869 (industrial organics nec), 2873 (nitrogen fertilizer), 2879
(agricultural chemicals nec), and 2911 (refineries). In all of these
industries, the number of facilities reporting releases was more than
20 percent of the number in each SIC code using Census data.
Four industrial categories that EPA does not believe would be
appropriate under the accident history criteria for Tier 3 are 2865
(cyclic crudes), 3312 (steel mills), 2816 (industrial inorganic
pigments), and 4911 (electric utilities). Less than 20 percent of the
releases reported from cyclic crude sources and steel mills had
impacts. In the cyclic crude industrial category, while 16 sources
reported releases (approximately 25 percent of the SIC code), only
three sources had releases with impacts. The largest release at 11 of
the cyclic crude sources exceeded 1,000 pounds, and three of these
sources had largest releases exceeding 10,000 pounds. Given the size of
releases from cyclic crude sources, EPA requests comments on whether
they should be required to meet Tier 3 requirements. In the steel mill
sector, while 18 sources reported releases (approximately 14 percent of
the industry), only 3 had impacts. However, six of these sources
reported releases exceeding 10,000 pounds. The industrial inorganic
pigment industry was just below the candidate SIC code criteria for
facilities reporting releases and percentage of impact releases. While
nearly half the industry reported releases, only two facilities had
releases that were more than 1000 pounds, and none had releases that
exceeded 10,000 pounds. Although there were a high number of releases
reported by electric utilities, only about 2 percent of the industry
accounted for the reported releases.
EPA would initially limit Tier 3 to sources in the eight categories
with 100 or more full-time employees because these sources have the
most significant accident histories. However, certain smaller sources
also have accident histories that would support eventual Tier 3
treatment. EPA conducted an analysis of sources with 20-99 full-time
employees and identified five categories that, based on accident
history, would become Tier 3 sources 8 years after promulgation: 2812,
2819, 2869, 2873, and 2911. The flammable substance accident history
for refineries with 20-99 full-time employees supports eventually
requiring these sources to comply with Tier 3. The four other
industries all had a significant percentage of impact releases relative
to the number of facilities reporting toxic releases. Three groups
(industrial inorganics, industrial organics, and nitrogen fertilizer)
had more than ten facilities reporting toxic releases, while two groups
(chlor-alkali and nitrogen fertilizer) had more than 30 percent of the
SIC code reporting releases. EPA may review this determination based on
data gathered during the eight-year period. The full program would be
phased in to allow these sources to benefit from the expertise gained
by governmental agencies and larger industry during initial
implementation of the full program; the phase in would also ease the
cost burden on these smaller companies by giving them more time to
implement the program. EPA would calculate full-time employees based on
the definition in 40 CFR 372.3. Full-time employees would include
contractors on site.
EPA also requests comment on a second approach to tiering. EPA
would include in Tier 3 all sources with more than 100 FTEs. Larger
sources not eligible for Tier 1 would be subject to Tier 3 because of
the size of their operations and the likelihood that they have larger
quantities of regulated substances on site, as well as because of their
technical capabilities to undertake the program relative to most small
manufacturers and non-manufacturers. EPA does not favor this approach,
however, because many of these large sources do not have a significant
record of accidental releases.
EPA requests comment on the two alternatives or on other criteria
for placing sources in tiers under the risk management program. EPA may
adopt, in whole or in part, any or all of the approaches to eligibility
for Tier 2 in the final rule. The first approach focuses on industry
segments that have a history of releases from a number of sources. This
approach would remove from Tier 3 individual sources that may have had
a history of accidents, but are part of sectors that have not had
numerous accidents. It would also remove from Tier 3 entire sectors
based on an accident history, which in the future may change. Should a
change occur, EPA would revise the rule to include these sectors in
Tier 3. Should such sources and segments be exempt from adopting
process safety management principles until problems in the industry
become pervasive? In addition to placing sources in Tier 3 based on
industry segment, should a source be placed in Tier 3 if it has had one
or more significant accidental releases in a five-year period?
Conversely, should a source in an industry segment in Tier 3 be allowed
to move to Tier 2 if it has not had a significant accidental release in
the past five years? The Agency requests comment on the oversight and
compliance burdens that would be placed on implementing agencies and
sources by a site-specific tiering approach. Should proximity to
significant numbers of people (either residential population, workers,
or other people) be used (alone, or in conjunction with other criteria
discussed above) to qualify a source for potential Tier 3 treatment?
Should EPA structure the audit provisions of proposed Sec. 68.60 to
allow for implementing agencies to require Tier 2 sources to undertake
more specific prevention activities if an audit uncovers inadequate
risk management programs? Are there additional industries (two-digit or
four-digit SIC codes) that should not be eligible for Tier 2 under
either approach? Under approach 2, are there sources with more than 100
FTEs that should be eligible for Tier 2 because of industry-specific
standards or the simplicity and nature of their processes? EPA believes
the preferred approach is the most appropriate level for national
implementation. EPA notes that state implementing agencies have the
authority under the CAA to impose more stringent requirements.
Qualified Third Party. EPA is seeking comments on whether
provisions should be made to employ a ``qualified third party,'' under
implementing agency oversight, to assist certain regulated sources in
achieving and maintaining compliance with the RMP rule. In raising this
issue, EPA is cognizant of the recent National Performance Review
recommendations to OSHA on the use of third parties, and growing
reliance on ``qualified third parties'' to facilitate compliance with
other regulations, to audit the performance of regulated third parties,
and verify compliance status on a periodic basis. Such arrangements,
thereby, assist both the regulated community and the regulating
agencies in ensuring compliance with regulations. EPA requests comments
whether to use qualified third parties for this program as well as
specific suggestions on how appropriately to include qualified third
parties in the present rulemaking.
One way to incorporate ``qualified third party'' review into the
RMP tiering framework might be to assign certain sources that
participate in the Voluntary Protection Program (VPP) to Tier 2. The
VPP is a voluntary program sponsored by OSHA and industry that
recognizes strong safety practices, including process safety
management. Within [[Page 13531]] VPP, a ``Star'' rating indicates the
highest level of worker safety practices in all aspects measured by the
program, while a ``Merit'' rating indicates sound practices with
specific qualifications. One commenter suggested that EPA should
integrate Star and Merit status into the risk management program. It is
not clear whether Star and Merit ratings are relevant to protecting the
public and the environment from accidental releases because the VPP
only directly measures worker safety impacts. EPA invites comment on
whether a source that obtains Star rating or a Merit rating without
qualifications related to process safety management should be eligible
for Tier 2 even when it is part of an industry sector that otherwise is
subject to Tier 3. Should implementing agencies and the public rely on
Star or Merit status as a good indicator that the source poses a lesser
risk of a significant accidental release than other sources in the same
industry sector?
Comments on other types of ``qualified third party'' options to
facilitate responsible self-enforcement of the RMP rule will also be
useful, particularly as they relate to subsectors of regulated sources
which have demonstrated the capacity for establishing and enforcing
voluntary safety procedures, or to subsectors in which the regulated
sources or their associations have indicated an interest in developing
such capacity. Comments from state and local officials, emergency
responders, and the public regarding the use of third party
arrangements are sought.
B. Hazard Assessment
EPA received substantial comments on hazard assessment topics
during the four public hearings, the comment period, and a one-day
forum on worst-case scenarios. Commenters made the following main
points:
Commenters questioned the intended use of the worst case,
arguing that EPA failed to provide a clear description of its purpose.
Commenters questioned whether EPA would require sources to
conduct separate analyses for each hazard for substances that are both
flammable and toxic. Commenters suggested that the number of
assessments could be limited by analyzing only the substance that has
the potential for the most serious offsite impacts.
Commenters stated that, although the proposed definition
of worst case as instantaneous loss of the total contents of a process
may be possible for sources that have simple systems, instantaneous
loss of the total process contents is not technically feasible for
complex systems and, therefore, would provide no useful information to
the public or the source.
Commenters stated that failure to account for at least
well-designed passive mitigation systems reduces the incentive for
installation of such systems.
Commenters argued that EPA should specify in the final
rule certain methodological assumptions that sources would use to
analyze release scenarios.
Several commenters argued that the worst-case
meteorological conditions defined in the proposed rule (F stability and
1.5 meters/second wind speed) were too conservative.
Commenters expressed concern that the results of the
offsite consequence analyses would be difficult to compare between
sources without specification of the assumptions.
Commenters asked for clarification of what EPA expects
sources to do to define offsite populations and environmental impacts.
Clarification of the Purpose of Worst-Case Analyses. Sources and
the public need to assess and understand the extent of the impact
associated with an uncontrolled major accident. EPA does not intend
that worst-case analyses should be used as the sole or primary basis
for emergency planning or accident prevention actions. The results of
the worst-case analyses, in combination with other more likely release
scenario assessments, as contained in the RMP, should be used to build
a dialogue and a working partnership between the source and the public,
response agencies, workers, and various levels of government for
chemical accident prevention, response, and preparedness.
Worst-Case Release Definition
EPA is considering alternatives to the definition of worst-case
release in proposed Sec. 68.3. EPA is proposing to redefine a worst-
case release as the release of the largest quantity of a regulated
substance resulting from a vessel or process piping failure. The worst-
case analysis would involve a 10-minute release under worst-case
meteorological conditions (F stability and 1.5 meters per second wind
speed) and would consider passive mitigation measures.
The 10-minute release time is used in the Technical Guidance for
Hazards Analysis. EPA believes that this release duration is reasonable
and accounts for comments arguing that an ``instantaneous'' release is
not realistic. As described in the Technical Guidance, a 10-minute
release is intended to represent modeling of a continuous release
rather than a ``puff'' release. Therefore, for modeling purposes, the
release rate (per minute) to the air for gases would be the quantity
released divided by 10. Liquids would be assumed to form a pool in 10
minutes, with the release rate to the air determined by volatilization
rate. This approach to liquid releases differs from that of the
Technical Guidance, which specifies an instantaneous release.
Alternatively, the Technical Guidance could be used, but no time frame
would be specified; the liquid quantity would be assumed to form a pool
for calculation of the volatilization rate. EPA requests comments on
the appropriate release duration and justification for its basis.
EPA is considering the revision of proposed Sec. 68.15(c) to
incorporate the effects of passive mitigation systems, but not active
mitigation systems, into the worst-case release scenario, if such
systems are capable of withstanding destructive events (e.g., fires,
explosions, floods, hurricanes, and earthquakes). Passive systems would
include dikes, catch basins, and drains for liquids, and enclosures for
both liquids and gases. EPA requests comment on its definition of
``passive mitigation system'' and requests examples of other such
devices. Scenarios involving passive mitigation systems that have
connections to the environment (such as a rainwater drain valve) would
have to assume failure of that connection. The threat of natural
disasters would be specific to certain geographic regions, and sources
could certify that their passive mitigation meets or exceeds local
natural disaster design standards as capable of withstanding
destructive natural events. Underground storage tanks might also be
considered a passive mitigation system for liquids to the degree that
overlying soils would reduce the volatilization rate to the air in the
event of a worst-case accidental release. However, overlying soil is
not likely to contain high pressure gas releases. EPA requests comment
on this issue.
Incorporation of passive mitigation measures into the worst-case
release analysis could be left to implementing agency discretion. Such
discretion would result in an increased administrative burden on that
agency and cross-jurisdictional differences in the methodology used for
worst-case analyses. EPA is considering allowing the incorporation of
active mitigation measures in the hazard assessments for more likely
accidental release scenarios.
EPA seeks comment on several possible ways to define the relevant
quantity of regulated substance in a [[Page 13532]] vessel or process
piping for a worst-case release scenario. One alternative would be to
define the quantity as the maximum possible vessel inventory, without
regard for operational practices and administrative controls. This
quantity would represent a physical maximum, but would exaggerate the
potential worst case for sources that never operate at the physical
maximum inventory of the vessel. The process piping failure scenario
would assume that the inventory contained in vessels or other process
equipment on either side of the piping failure location would be
released through the pipe break at full pipe flow.
A second, preferred alternative would be to require that the
determination of the worst-case release scenario be based on the
maximum possible vessel inventory unless there are internal
administrative controls (written procedural restrictions) that restrict
inventories to less than the maximum. The operational limit would be
described in the worst-case release analysis in the RMP. Exceedance of
any administrative control on vessel inventory would be a violation of
Sec. 68.15 (failure to perform a worst-case analysis) unless the
administrative control was revised and the worst-case analysis updated
to reflect any changes in the analysis. An exceedance would also result
in a violation of Sec. 68.50 unless the RMP was updated within the
timeframes set out in that section. Acknowledgement of such
administrative controls would reflect the efforts of sources that have
intentionally reduced inventories of regulated substances for process
safety reasons. EPA seeks comment on whether administrative controls
are sufficiently reliable or whether a mechanical control should be
required in addition to the administrative control.
A third alternative for defining the relevant quantity would be to
base the quantity on historic or projected maximum operating
inventories without regard for administrative controls. The maximum
operating inventory would be specified in the RMP. Exceedance of the
maximum operating inventory also would be a violation of Secs. 68.15
and 68.50 as described above. EPA does not favor this third alternative
because it does not believe that historic or projected operating
practices represent the maximum possible amount of a chemical that
could be stored in a vessel unless there is a specific management
operational restriction at the source.
EPA is also considering 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.
Implementing agency discretion would result in an increased
administrative burden on the implementing agency and cross-
jurisdictional differences in the methodology used for the worst case
analyses. EPA also requests comment on whether the scenario should
consider the additional amount of substance that could potentially
drain or flow from process equipment interconnected with the failed
vessel or pipeline.
Applicability of the Hazard Assessment Requirements
A number of commenters stated that multiple analyses of similar
substances would not improve the information provided to the public.
EPA is proposing the following requirements for substances and
processes affected by the rule:
A single worst-case release scenario would be analyzed for
all flammables on site; only one flammable substance would be analyzed
for other more likely scenarios as well;
A single worst-case release scenario would be analyzed for
all explosives on site; only one explosive substance would be analyzed
for other more likely scenarios as well; and
A single worst-case release scenario would be analyzed for
all toxic substances at the source; other more likely release scenarios
would be analyzed for each toxic substance covered by the rule.
The appropriate hazard category would be the hazard for which the
regulated substance was listed. This proposal would reduce to a maximum
of three the number of worst-case analyses required of each source in
the RMP. Additional screening analyses to determine the appropriate
worst-case scenario may be necessary, but only one worst-case release
scenario would be reported for each hazard category. Sources would,
within the constraints of the worst-case release definition, describe
the greatest offsite impacts presented by potential catastrophic
accidents involving regulated toxic, flammable, and explosive
substances. The potential worst-case impacts of substances and
processes not described in the RMP would be less than those described.
As an alternative, EPA could require analysis of only one worst-case
scenario by each stationary source. This approach would require the
analysis of the one scenario that presents the worst offsite
consequences. A significant drawback to a one-scenario analysis is that
the different types of worst-case hazards (for toxics, flammables and
explosives) would not all be described.
EPA would require more likely release scenarios per hazard category
for flammables and explosives, but per substance for listed toxics.
Toxic substances each have different exposure concentrations of
concern, but flammables and explosives can be treated uniformly within
hazard categories. EPA seeks comment on whether a single toxic
substance could be considered representative of all toxic substances at
a source or in a process.
Hazard Assessment Methodology and Calculations
EPA intends to develop ``lookup'' tables for all listed substances
to assist sources in determining the impact distances for their release
scenarios. The tables will specify potential impact distances for
releases of substances under conditions that are relevant to
dispersion. Sources will only have to define their release scenarios
and develop the information, such as release rate, needed to use the
tables. The tables will provide impact distances that sources can then
map. For explosives, the American Table of Distances will serve as the
lookup table. For toxics and flammables, the lookup tables will be
developed and made available for public review and comment prior to the
publication of the final rule. The tables, and accompanying guidance,
will represent a revision of the Technical Guidance for Hazards
Analysis. The tables will provide distances under varying conditions,
including worst-case. In developing the tables, EPA will select one
level of concern value for each toxic substance. EPA seeks further
comment on whether it should use a single endpoint to the extent
possible to develop the tables (e.g., the 1/10 IDLH unless one does not
exist for a substance), or a hierarchy of endpoints (e.g., ERPG-3; if
one does not exist, then the 1/10 IDLH; and finally toxicity data if no
other value is available). For flammables, should EPA use overpressure
or both overpressure and radiant heat effects as endpoints? EPA
requests comment on the lookup table approach. The tables and the
methodology used to develop them will be made available for public
review and comment.
The purpose of providing lookup tables is three-fold. First, if
each source conducts its own dispersion modeling, the results will be
extremely difficult to compare among sources; different models and
different assumptions can produce widely varying results. Second,
because of the differences in models and the impact of changing
assumptions [[Page 13533]] (e.g., a different wind speed), the results
of dispersion modeling are best used to provide a general idea of
impact; models do not have a level of predictive accuracy that can
reliably differentiate between, for example, a release with a four-mile
zone and one with a five-mile zone. Third, dispersion modeling is
expensive, especially for sources that are outside of the chemical
industry. Given that the results of sophisticated modeling may not be
more accurate than results derived from simple tables, EPA decided that
a simpler approach that would provide comparable data among sources was
preferable. Sources that wish to conduct more sophisticated modeling
may, but would not be required to do so, under the rule. For sources
that want to do modeling, a number of models available in the public
domain exist; EPA has published guidance on the use of these models. An
alternative approach would be to limit use of the lookup tables to Tier
2 sources and require Tier 3 sources to conduct air dispersion
modeling. EPA requests comments on this alternative.
Offsite Consequence Analysis
EPA agrees with commenters that further direction is necessary with
respect to assessments of potentially affected populations and the
environment. Section 68.15(e)(3) of the proposed rule requires an
analysis of populations within distances of potential exposure. The
preamble to the proposed rule specified that sensitive populations
potentially affected by a release should be identified. Although much
of this information is readily available, identification of some
sensitive populations, such as day care centers and nursing homes,
could require considerable effort, especially where the vulnerable zone
crosses several jurisdictions. In addition, sources in the same area
would be required to duplicate each other's efforts.
To limit the effort required to define offsite populations, EPA is
proposing that offsite populations be defined using available Census
data. Information on the number of children and people over 65 may be
considered a proxy for sensitive populations. With the assistance of
the Bureau of the Census and NOAA, EPA is developing a geographic
information system, LandView, that will facilitate analysis of resident
populations. In addition, EPA may require sources to identify public
arenas or institutions that are potentially affected. These arenas or
institutions would be limited to those identified on available street
maps or Census TIGER files.
EPA has proposed that sources analyze both potential human health
impacts and environmental impacts in hazard assessments and consider
such impacts in designing prevention and response programs. ``The
environment'' is specifically mentioned twice in section 112(r)(7)(B)
as a receptor to be protected by emergency response measures. First,
section 112(r)(7)(B)(i) states that regulations under subparagraph B
``shall include procedures and measures for emergency response after an
accidental release of a regulated substance in order to protect human
health and the environment.'' Second, under the response program
provisions of the risk management plan, the plan must address
``specific actions to be taken in response to an accidental release of
a regulated substance so as to protect human health and the
environment.'' Also, a third reference to ``the environment'' is
ambiguous and may refer not only to response measures, but also to
other aspects of risk management plans (CAA 112(r)(7)(B)(ii)).
The structure of the CAA's accidental release provisions integrates
the assessment of potential hazards and the prevention of accidents
with response planning to prevent potentially hazardous conditions from
resulting in accidents and ensure that the response measures are
adequate in the event of an accidental release. EPA supports this
integrated approach to planning with respect to accidents. EPA believes
it is reasonable for sources to address not only human health impacts,
but also environmental impacts in the hazard assessment. In light of
the mandatory CAA language requiring that the environment be addressed
as a receptor for purposes of emergency response, EPA invites comments
on this approach.
EPA recognizes that one of the concerns of commenters about
addressing the environment in a hazard assessment was that the proposed
rule discussion of environmental impacts was not specific enough.
Consequently, EPA would revise Sec. 68.15(e)(4) of the proposed rule to
require identification of sensitive environments (rather than analysis
of potential environmental damage) within the radius determined by the
worst-case and more likely accidental release scenario analyses. In
addition, EPA would revise Sec. 68.15(h)(3)(v) to require sources to
list the sensitive environments within the accidental release scenario
radii in the RMP. To identify receptors, the source could call the
appropriate state or Federal agencies to determine if any sensitive
environments were within the impact distances.
EPA requests comments on the use of all or part of Appendix I of
the NOAA Guidance for Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments (59 FR 14714, March 29, 1994) for
determination of sensitive environments. Appendix I lists the following
sensitive environments and identifies responsible Federal agencies:
wetlands (as defined in 40 CFR part 230.3); critical habitat for
designated or proposed endangered/threatened species; habitat used by
designated or proposed endangered/threatened species or marine mammals;
national marine sanctuaries; national parks; Federal wilderness areas;
national estuary program areas; near coastal waters program areas;
clean lakes program critical areas; national monuments; national
recreational areas; national preserves; national wildlife refuges;
coastal barrier resource system; national river reach designated as
recreational; Federal or state designated wild and scenic rivers;
national conservation areas; hatcheries; waterfowl management areas;
cultural resources; areas of critical environmental concern; and the
national forest system. Accidental releases of volatile substances may
not represent a major threat to certain of the sensitive environments
listed above. For example, wetlands, national marine sanctuaries,
national monuments, national estuary program areas, near coastal waters
program areas, and clean lakes program critical areas may not be
threatened by accidental releases to the air. They could, however, be
threatened by volatile liquid releases. In addition, deposition of
listed substances from accidental releases of toxics to the air could
also represent a threat to these sensitive environments. EPA requests
comment on whether these, and other, specific sensitive environments
should be removed from consideration for identification of sensitive
environments.
C. Accident Information Reporting
The proposed rule addresses emergency notification (Sec. 68.45(b))
and self-investigation of accidental releases (Sec. 68.40). However,
other than the five-year accident history in the RMP and emergency
reporting under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) and EPCRA, sources are not required to
report any accident data or results of accident investigations. Certain
accidental release information that otherwise is not available could be
useful to states and EPA to learn which types of sources are having
problems, understand more about accident causes, track trends in
chemical accidents and [[Page 13534]] prevention activities, monitor
the progress of the risk management program, focus future prevention
activities, and avoid overregulation of industry sectors or substances.
EPA is evaluating how such accidental release information needs
might be met so as to impose a minimal burden on sources and avoid
redundancy. One approach would be to require submission of information
on any accidental release of a regulated substance if the release
results in death, injury, evacuation, property damage, or offsite
environmental impacts. If the source experiencing such an accident is
subject to the OSHA PSM requirements or Tier 3 requirements described
above, then the owner or operator could submit to EPA and the state a
copy of the accident investigation report generated under 29 CFR
1910.119(m)(4) or 40 CFR 68.40. For sources not subject to these
requirements, or alternatively all sources, owners or operators could
submit an accidental release information survey form to collect a
brief, but accurate description of the event and its consequences, the
substance and amount released, root causes, initiating events and
contributing factors causing the release, and changes or potential
changes at the source to prevent a recurrence. EPA requests specific
information on the types of questions that should be included. EPA also
seeks comments on which accidents should be reported (e.g., should any
investigated deviation be reported?), reporting triggers (e.g.,
threshold quantities or reportable quantities released), whether
reporting formats can be used to streamline or eliminate duplicative
reporting, and if the submission of these data raises liability
concerns.
Another approach EPA is considering would be to have EPA request
information developed under existing regulations, such as OSHA PSM
accident investigation requirements or EPCRA section 304 follow-up
notices. Under this approach, sources would not need to develop any new
information for EPA, but could provide EPA with documents prepared
under other regulations. EPA could supplement such information as
necessary by undertaking surveys to acquire specific data on accidents
based on these existing documents. EPA requests comment on this
approach. Specifically, EPA seeks information on what the appropriate
mechanism for obtaining data on accidents would be.
The approach outlined above would not affect a source's current
obligations to report releases of certain regulated substances under
CERCLA section 103 or EPCRA section 304. For purposes of CERCLA section
101(10)(H), part 68 is not a control regulation, and the RMP is not a
permit allowing the accidental release of any specific quantity of a
regulated substance.
D. Public Participation
A number of commenters have asked that EPA require sources to
involve the public in development and review of the risk management
program. Several commenters have identified key points at which public
involvement is appropriate, including at the outset of the planning
process, upon completion of the process hazard analysis (PHA), prior to
submittal of the RMP, prior to RMP revisions, after an accident, after
an accident investigation, and during response drills involving action
outside the plant.
EPA believes that the public is a key stakeholder in preventing
chemical accidents and that sources have the responsibility to make the
public aware of the hazards associated with potential accidental
releases. EPA is committed to encouraging public involvement. EPA's
favored approach would encourage sources to use existing groups,
primarily the local emergency planning committees (LEPCs), as a conduit
for communications between the source and the public. Many sources
covered under part 68 are already obligated to participate on, and
perform emergency preparedness and planning activities with their LEPCs
under EPCRA. In areas where there is no functioning LEPC or its
equivalent, sources, local first responders, citizens, and others need
to develop and support the LEPC or its equivalent. EPA expects sources
to work with the LEPC during the development of the RMP as well as
after its submission. Similarly, EPA expects the public to contact the
LEPC for information from the source whenever it has questions or
concerns. EPA notes that the RMP is not a one-time document; the RMP
reflects the risk management program at the source and will change as
activities at the source change. Sources, therefore, should be involved
in a continuing dialogue with the LEPC about the prevention and
emergency response programs as they evolve to address changes at the
source. EPA prefers this approach because, just as one size of risk
management program is not appropriate for all sources, a rigid set of
public participation requirements would not be reasonable for all
sources.
A second approach would require a source to take steps to involve
the public in discussions concerning the content of its RMP and
describe those steps in the RMP. EPA would not specify the steps, but
would provide guidance on ways a demonstration could be made. The
source could describe its community outreach efforts during the
planning process in on-site records that would be available to the
public or could summarize these activities in the RMP. Similarly, a
source could maintain a record on site of community outreach actions
taken after submittal of the RMP. EPA would provide guidance on ways
such a demonstration could be made. For example, sources could choose
to notify the public through a general circulation newspaper that the
RMP was available and make copies available; the source could publish
the RMP in a newspaper or on electronic bulletin boards; or the source
could hold a public meeting on the RMP or use local TV public service
channels to target a local audience or to broadcast logistics for
upcoming meetings. EPA requests comment on whether public participation
activities should be limited to Tier 3 sources. Another suggested
approach for public participation was to allow the public, by petition,
to trigger audits of completed RMPs by the implementing agency. EPA
does not favor this approach because it could generate an excessive
burden for implementing agencies.
E. Inherently Safer Approaches
The manufacture, processing, and use of chemicals is inherently
risky. EPA believes that fulfillment of the risk management program
requirements entails ongoing attention to hazard identification, hazard
analysis, risk management (assessment, reduction and control, or
elimination), and public outreach. This process should lead to
continuous improvement and the evolution of safer sources through a
wide range of actions involving reduction of the inherent risk and
control or mitigation of the hazards. During the proposed rule
hearings, several presenters argued that, like pollution prevention,
accident prevention could be more successful if the program were to
focus on the elimination of hazards to make processes inherently safer
rather than on an attempt to control or mitigate existing hazards. It
was suggested that sources be required to examine different approaches
or technologies through a process of technology options analysis (TOA),
or a ``state-of-the-art'' search and analysis of safety alternatives as
required by New Jersey in its Toxic Catastrophe Prevention Act
regulations, to find, and adopt, inherently safer chemical pathways and
processing techniques. In addition to TOA and state-of-the-art
searches, the Center for [[Page 13535]] Chemical Process Safety has
published a guideline containing a checklist for evaluating the
inherent safety of processes (Guidelines for Engineering Design for
Process Safety, CCPS, 1993). Commenters suggested that EPA formalize
the search for alternative technologies by making TOA or similar
reviews a required part of PHAs and by requiring sources to document
and share the results in the RMP.
Such costly analyses are probably best conducted during the design
of new processes, when, according to industry commenters, they often
are already part of the design process to identify cost-effective
approaches to improving safety. In addition, if alternative
technologies are discovered, whether for new or existing processes,
further analysis is necessary to determine whether risks are
inadvertently being transferred by the new technology from one location
to another. Adoption of new technologies without such analyses may
inadvertently impose greater individual or societal risk. EPA
recognizes, however, that there are many opportunities to make
processes inherently safer without large-scale adoption of new
technologies. These opportunities may become apparent through the PHA.
Some sources have already performed such analyses and have successfully
taken action to make their processes inherently safer. Consequently,
EPA does not favor inclusion of a specific requirement in the initial
program for an analysis of the inherent safety of processes or for
adoption of new technologies. EPA, however, strongly encourages
industry to consider implementing inherently safer approaches when
appropriate and include a discussion of any such studies and actions it
takes in RMP updates. EPA is considering further study of this issue
with all stakeholders and requests comment on this issue.
F. Implementation and Integration of Section 112(r) With State Programs
Section 112(r) places responsibility on sources to prevent
accidents and share information about their accident prevention
efforts. However, EPA believes, and Congress intended, that successful
chemical emergency prevention, preparedness, and response efforts
require active state and local involvement. The legislative history and
CAA section 112(r) requirements support and build on the existing state
and local infrastructure by requiring that RMPs be submitted to states
and local planning entities. [See, e.g., S. Rep. No. 228, 101st
Congress, 1st session, at 193 and 225.] EPA encourages and supports any
state or local efforts to develop comprehensive plans for coordination
and integration of section 112(r) with state and local programs
mandated under the CAA, EPCRA, and other environmental statutes and
planning and safety programs under OSHA and other agencies.
The ways in which state and local organizations are, or could
become, involved in the implementation and integration of section
112(r) are described in more detail below. About 15 percent of the
sources subject to the section 112(r) requirements will already have or
will need to get operating permits from state air permitting
authorities under part 70 by the time the RMPs are due. In the final
part 68 rule, EPA intends to clarify the responsibilities of sources
subject to part 70 permitting requirements and section 112(r), the air
permitting authority with respect to section 112(r), and state or local
agencies who elect to implement section 112(r) for all other sources.
EPA 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 approaches detailed in the following sections.
These 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.
Applicable Requirements and Permitting Authority Responsibilities for
Section 112(r)
Under CAA section 504(a) and EPA's implementing regulations
(Sec. 70.6(a)(1)), part 70 permits must contain conditions sufficient
to assure compliance with all CAA applicable requirements. Part 70
defines ``applicable requirement'' to include any standard or
requirement of section 112, and includes any requirement concerning
accident prevention under section 112(r)(7).
In the preamble to part 70 (57 FR 32275, July 21, 1992), EPA stated
its belief that section 112(r) was not intended to be implemented or
enforced primarily through part 70 permits. EPA cited the provisions of
section 112(r)(7)(F), which provides that, notwithstanding title V, no
source must obtain a permit solely because it is subject to the
requirements of section 112(r). The part 70 preamble stated that it was
sufficient for a part 70 source subject to 112(r) to ``indicate in its
permit [application] that it has complied with any requirement to
register an RMP, or alternatively to indicate in its compliance plan
and schedule of compliance its intent to comply with such
requirement.'' Thus the preamble set forth the view that all that was
required of a part 70 source with respect to 112(r) was a statement in
its permit application that it has registered the RMP or has submitted
a schedule to do so. By stating explicitly that section 112(r)
requirements were not to be implemented or enforced primarily through
the permit, the preamble defined a narrow role for the permit: one of
ensuring submittal of the RMP, but not ensuring the quality of the RMP
or the implementation or enforcement of section 112(r) regulations in
any particular way. The preamble also did not say what conditions must
be in the permit to assure compliance with applicable 112(r)
requirements (even though the preamble went on to provide that the RMP
itself need not be included in a title V permit). Finally, the preamble
was silent on the issue of responsibilities the permitting authority
might have in assisting the implementing agency in assuring compliance
with section 112(r) requirements.
This view was necessarily preliminary, since it was developed
before any part 68 rulemaking that could clarify how the permit must
assure compliance with ``applicable requirements'' relative to section
112(r). The part 70 preamble does not preclude part 68 rulemaking from
clarifying and even expanding the responsibilities of permitting
authorities (e.g., a completeness review of the RMP) with respect to
implementation of section 112(r) requirements through part 70 permits.
Today's proposal would go beyond the part 70 preamble, principally
by setting forth the part 70 measures necessary to ``assure compliance
with'' applicable section 112(r) requirements. In addition, today's
proposal would establish limits on the responsibilities of the air
permitting authority for assuring compliance with section 112(r) within
the part 70 program as opposed to the greater responsibilities
envisioned for an implementing agency.
``Applicable Requirements'' for Part 70 Sources
One principal objective of the regulations proposed today is to
clarify the minimum content of part 70 permits with respect to section
112(r) ``applicable requirements.'' EPA also intends to revise the
definition in part 70 of ``applicable requirement'' relative to section
112(r). This definition will include the requirements of part 68,
[[Page 13536]] when promulgated, to which part 70 sources are subject.
EPA expects to define this term to mean Secs. 68.10 to 68.58 or
specific provisions within those sections. The part 70 rulemaking would
be done as part of the phase II rulemaking addressing remaining issues
raised by the part 70 litigants. This rulemaking is expected to be
proposed this fall and finalized in early 1996.
EPA does not believe that each permit must restate every
requirement in section 112(r) or part 68 as a permit condition to
comply with the part 70 applicable requirement definition. The permit
could instead meet this requirement by containing a set of standard
conditions that require compliance by the source with applicable
section 112(r) requirements.
These permit conditions are proposed in Sec. 68.58 and would
require that each permit contain, at a minimum, conditions that require
source action consistent with the following:
(1) Registration with the implementing agency (EPA or the appropriate
state or local agencies) and submittal of an RMP, or a revised plan, to
the part 70 permitting authority or other state or local agency
designated by the state for this purpose, by the deadline under this
part and certification upon submission that the plan is complete and
accurate;
(2) Submittal of any additional information required for completeness;
(3) Annual certification of implementation of the risk management
program as described by the RMP; and
(4) If the permit is issued prior to the RMP submittal date, a
compliance schedule for submittal of the RMP.
In addition, the RMP would be a reporting and recordkeeping requirement
under part 70. There is no requirement to include the RMP in the
permit.
EPA proposes that a ``complete'' RMP would be one certified by the
source to contain all necessary elements in sufficient detail to meet
part 68. The necessary elements of an RMP are contained in proposed
Sec. 68.50, and new Secs. 68.13 and 68.14. As general criteria for
completeness, an RMP would need to address all aspects of the three
main elements of the risk management program, i.e., hazard assessment,
prevention program, and emergency response program. EPA intends to
issue guidance to assist sources and permitting authorities in
determining completeness of RMPs, including a checklist addressing the
required elements of an RMP.
The completeness review of the RMP would be independent of the
completeness determination for the permit application. While the RMP
may be submitted with the permit application, in most situations the
RMP will be submitted separately on its own deadline, since almost all
permit applications will have been submitted well in advance of the RMP
deadline. Accordingly, if another state or local agency has received
112(l) delegation as the implementing agency for section 112(r), EPA
presumes that agency, under a cooperative agreement with the permitting
authority, could determine completeness of the RMP. In this situation,
the state should establish appropriate procedures to ensure review of
the plan for completeness. For example, the agreement could specify
that the permit authority would not be obligated to review the RMP for
completeness and could write the permit to require submittal of the RMP
only to the state or local implementing agency, rather than to the
permitting authority. Or, the state might decide that the permitting
authority should retain the responsibility to review the RMP for
completeness, even if another state or local agency has been designated
as the implementing agency. EPA requests comment on this approach and
whether a designated agency should also include EPA, provided that EPA
and the permitting agency agree that EPA should take on the
completeness review responsibility as the implementing agency.
The proposed permit conditions should ensure a complete RMP
submittal, because failure to comply with these conditions would be
enforceable as a permit violation. Other permit conditions would call
for the source to submit a compliance schedule if it has not yet
completed its RMP, to provide any information requested to determine
the RMP's completeness, and to revise, update, and resubmit existing
RMPs according to part 68 criteria. For example, when a source covered
by section 112(r) and part 70 revises its process to add or eliminate a
regulated substance, the source would need to prepare a revised RMP
according to Sec. 68.50(h) and submit it to the air permitting agency
within 6 months. Failure to do so would potentially be a violation of
both parts 68 and 70. Further, the permit would require a certification
of the source's implementation of its risk management program, as
described by the RMP. With the possible exception of the compliance
schedule, EPA believes these permit conditions will be standard terms
applicable to all part 70 sources subject to 112(r). EPA believes these
standard terms would live on in the permit after submittal of the RMP,
and there would be no reason to change them after an RMP is submitted
or revised.
EPA is not proposing any specific requirements for part 70 permit
applications beyond those already required in Sec. 70.5, particularly
the requirements that sources must cite and describe all applicable
requirements, certify compliance with those requirements, or submit
compliance schedules as necessary. Sources that submit applications
after promulgation of part 68 would cite and describe part 68 as the
applicable requirement, certify compliance (or that the source will
comply in the future), and submit a compliance schedule for meeting
section 112(r) deadlines. Sources that handle greater than threshold
quantities of section 112(r) regulated substances should be able to
identify themselves as potentially subject to section 112(r) in their
initial part 70 applications. EPA is not requiring that the RMP be
submitted with the permit application. Given the expected promulgation
date of part 68 and the three-year compliance date for submittal of the
RMP, EPA expects submittal of permit applications and issuance of most
permits will occur long before the submittal deadline for RMPs (with
the possible exception of part 70 programs with source-category limited
interim approvals where it could take five years from interim approval
to issue all permits).
EPA also believes it is not necessary to require submittal of the
RMP as a permit revision at the submittal deadline for the RMP. EPA is
concerned that permitting authorities may be required by state law or
regulation to process the application and to incorporate RMP
information in the permit if the RMP were included as part of the
formal permit application. This result obviously would not be desired.
The purpose of reviewing the RMP for completeness is to obtain a
complete RMP, not to initiate any form of permit action. EPA seeks
comment, however, on whether it should require the RMP as part of the
permit application, or as an addendum to the application or to allow
the permitting authority the option to ask for the RMP in either form
for permit applications after the date plans must be submitted.
Role of Part 70 Permitting Authority
Under today's proposal the part 70 permitting authority or the
designated agency (for completeness review) would be responsible for:
[[Page 13537]] (1) Verifying that an RMP was submitted when required
and that it is complete, i.e., it contains the elements required under
Secs. 68.50, 68.13, or 68.14;
(2) Verifying that the source has submitted an annual certification
that it is properly implementing a risk management program as required
by part 68 and as described by the RMP;
(3) Taking enforcement action (including penalties) for failure to
submit a complete RMP revised plan, or the annual certification; and
(4) Incorporating and enforcing permit conditions specifying a
compliance schedule for submittal of a complete RMP.
These four tasks are the extent of the responsibilities of the
permitting authority, unless it is granted delegation under section
112(l) as the implementing agency. Tasks (1) and (2) could be
transferred to another state or local agency designated by the state
under a cooperative agreement.
The first task of the permitting authority or designated agency
would be to determine if the RMP is complete. The permit would require
the source to submit the RMP by the part 68 deadline; part 68 would
require the source to certify as to the RMP's completeness. If the RMP
or any revisions were determined to be incomplete, the permitting
authority or designated agency would notify the source that the
submittal was incomplete, state the deficiencies, and give the source a
deadline to submit the requested information and/or revise the RMP. EPA
requests comment on the definition of a complete RMP.
The obligation to submit an RMP to the permitting authority or
designated agency is a reporting requirement of a permit, but the
contents of the RMP are not permit terms or conditions. Under today's
rule, the completeness determination required under proposed
Sec. 68.58(b)(1) is independent of the completeness determination
required by CAA section 502(b)(6). It is not necessary for the
permitting authority to provide public notice of completeness findings.
The permitting authority may, however, wish to document and provide the
public with a notice of completeness findings using electronic bulletin
boards or other mechanisms. EPA seeks comments on this approach. EPA
also seeks comment on whether it should establish deadlines for the
determination of completeness by the permitting authority. EPA could
select the 60-day deadline used for part 70 application completeness;
however, EPA is aware that some states may find this deadline too short
if a high number of part 70 sources are subject to 112(r). EPA solicits
comments on other possible deadlines: six months, one year, or by
permit renewal.
The permitting authority or designated agency must be able to
determine if a source is subject to the requirement to submit an RMP.
EPA believes that this capability is already required under part 70
since, under that regulation, a permitting authority must be able to
ask for any specific information that may be necessary to implement and
enforce other applicable requirements or to determine the applicability
of such requirements [Sec. 70.5(c)(5)]. Thus, if a source fails to
mention whether it is subject to 112(r) in its permit application, the
permitting authority must have the authority to ask for information on
the application to determine section 112(r) applicability. This
information must be included in permit applications due before the
promulgation of part 68, since the permitting authority or designated
agency must determine which permits will require reopening after part
68 is promulgated if standard permit conditions reflecting part 68 are
not added. EPA believes this approach is sufficient and is prepared to
rely on the resourcefulness of permitting authorities in identifying
sources subject to 112(r), but solicits comment on whether EPA should
make more specific demands of permitting authorities in determining
applicability with respect to section 112(r) requirements.
The implementing agency will have the authority under Sec. 68.60 to
require revisions to the RMP. Permitting authorities may find, as a
result of the completeness review or during regular part 70
inspections, that revisions are necessary. The permitting authority
should share this information with the implementing agency for
appropriate action. The implementing agency should also share findings
from RMP reviews and source audits with the permitting authority. EPA
requests comment on whether the permitting authority should be able to
require sources to make revisions to an RMP whenever the permitting
authority determines revisions are necessary.
In light of the possibility that at least some permitting
authorities may need to expand their capabilities to meet these new
responsibilities, states should reexamine several aspects of their
current part 70 program. First, states should assess whether they have
adequate legal authority to review RMPs for completeness, or to require
their submission if not part of a permit application. Second, states
should determine if they have adequate statutory and regulatory
authority to determine whether a source is subject to part 68. This
authority may be vested in an emergency response agency. Third, many
permitting authorities may face resource or budget constraints if
additional workload were taken on to implement section 112(r)
requirements. This might require an adjustment in fee schedules,
because there is no reason to assume a decrease in other workload
costs. States may wish to consider raising title V fees for all
sources, raising permit fees only for sources subject to both parts 70
and 68, or imposing a fee on all sources subject to part 68 to provide
resources for state and local program implementation. Permitting
authorities may be limited on the amount of fees collectable for permit
activities. EPA requests comment on alternative funding mechanisms or
the resource reductions in other programs that may be necessary to
complete the responsibilities described in this notice. Fourth, some
permitting agencies may need to obtain technical training in the
implementation of section 112(r) requirements. EPA intends to provide
training and technical assistance to implementing agencies and
permitting authorities.
Given these expectations, EPA is prepared to presume that approved
part 70 permit programs are adequate to carry out the additional
section 112(r) requirements proposed today, unless the Agency receives
specific information to the contrary. EPA also assumes that if
modifications to state part 70 permit programs are necessary, they can
be made with minimal burden.
Finally, under the CAA provisions, permitting authority liability
would generally be determined by state law. Congress's intent in
enacting section 112(r) was not to expand liability for any government
entity. Liability associated with implementation of section 112(r) is
addressed below.
Incorporation of Part 68 Requirements Into Part 70 Permits
According to the CAA, once part 68 requirements are promulgated,
existing sources have three years to comply with these requirements.
New sources constructed after promulgation of part 68 must comply by
three years after promulgation except that sources constructed later
than 3 years after promulgation must comply upon startup. However,
until the risk management program rule is promulgated, the only
applicable requirement for sources is the List of Regulated Substances
and their Thresholds rule under section 112(r)(3)-(5). Thus, EPA
expects that when a [[Page 13538]] source submits a part 70 application
before part 68 is final, it would identify to the permitting authority
those activities at the source that are subject to the part 68
requirements according to the list rule criteria, but state that the
risk management program requirements are not yet applicable to it. This
identification is consistent with the requirement in Sec. 70.5(c)(5)
for the permit application to include specific information necessary to
determine whether the source is subject to applicable requirements.
Permits issued before promulgation of part 68 will presumptively
need to be reopened at the time of promulgation of part 68 and revised
within 18 months to include the part 68 permit requirements.
Alternatively, the permitting authority could place the standard part
68 permit conditions in a permit issued before promulgation of part 68
and make the conditions effective upon promulgation of part 68. Unlike
most MACT standards, EPA believes the part 68 permit requirements will
be essentially standard conditions with little source-to-source
variation. Consequently, incorporating part 68 requirements (unless
they were included during initial permit issuance) should require only
the part 70 administrative amendment process. As proposed in the part
70 revisions for MACT standards, the permitting authority or designated
agency should provide to the public a list of sources whose permits are
proposed to be reopened. Public comment on the list of sources could
help the permitting authority identify other sources subject to section
112(r).
Reopened and reissued permits would include all permit requirements
of Sec. 68.58, including a compliance schedule for submittal of the RMP
according to part 68 deadlines. After part 68 is promulgated, part 70
permits and applications will be required to contain compliance
schedules which, in part, require the submittal of a complete RMP.
Solicitation of Comment on Alternatives
Although no specific alternatives are proposed, EPA seeks comment
on two other approaches for the definition of applicable requirements,
permitting authority responsibilities, and permit content with respect
to section 112(r). EPA will consider various alternatives offered by
commenters between these two approaches as alternatives to the approach
described above.
The first option places no additional responsibilities on the
permitting authority beyond those set forth in EPA's guidance contained
in an April 13, 1993, policy memorandum from John Seitz, Director of
the Office of Air Quality Planning and Standards (OAQPS), to EPA
Regional Air Division Directors (available in the docket). In that
memorandum, EPA required part 70 permitting authorities to obtain legal
authority sufficient to: (1) Determine whether a source is obligated to
register and submit an RMP; (2) secure verification from part 70
sources that any required submittal was prepared and submitted; (3)
obtain annual certifications from sources that the plan is being
implemented; and (4) include as a permit condition a compliance
schedule for submitting a plan if the source fails to submit the plan
when originally due. Unlike today's proposal, this option does not
require the permitting authority to determine completeness of the plan.
It does not make specific requirements with respect to the content of
part 70 permits. This option would not rely significantly on part 68 to
expand or clarify the April 13 guidance.
An advantage of this approach is that it imposes no additional
expectation on part 70 agencies or sources subject to both part 68 and
part 70 beyond the April 13, 1993, policy memorandum. Therefore,
permitting authorities would not be expected to reassess current legal
authority, resources or fee structure for adequacy in implementing
section 112(r).
However, the April 13 policy guidance was prepared before the risk
management program rule was proposed and before public comments were
received indicating that the relationship between part 70 and part 68
was not clear. Further, the April 13 criteria do not account for
implementation of the risk management program by the source (as opposed
to implementation of the plan) and there is no review of the RMP by the
permitting authority to ensure that the plan contains the elements
required by part 68. Consequently, in a June 24, 1994, memorandum
(available in the docket) from John Seitz and Jim Makris, Director of
the Chemical Emergency Preparedness and Prevention Office (CEPPO), to
EPA Regional Division Directors, EPA indicated that the ``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.'' By not requiring a review of the RMP
for completeness or setting forth standard permit conditions that would
assure compliance with part 68, the permitting authority's role in
implementing section 112(r) relies mainly on the certification of
submittal of the RMP by the source. Air permitting authorities would be
unable to assure compliance with the requirements of part 68 as
required unless another state or Federal implementing agency agrees to
become the designated agency for that state and is willing to certify
for the air permitting authority that the RMP is complete. Such a
program may fall short of minimal title V statutory requirements of
assuring compliance with all applicable requirements. The Agency
requests comment on whether the permitting agency may be able to
satisfy title V by certification by the implementing agency.
A second approach at the opposite end of the spectrum would require
permits to address all the hazard assessment, prevention program, and
emergency response program activities under part 68, in addition to the
registration, RMP submission, program implementation and plan revision
requirements. Each requirement in part 68 would be specified as a
permit condition. For example, the permit would include a requirement
for pre-startup safety reviews of all process changes or that
accidental release mitigation equipment at the source (e.g., spray
curtains) be tested monthly. Upon part 68 promulgation, all existing
permits at part 70 sources would need to be reopened to add permit
conditions relative to section 112(r). The permitting authority would
need to examine carefully each RMP and risk management program at each
permitted source to make sure it is complete and to craft the permit
conditions specific to each source and then issue a new permit.
Permitting authorities would be expected to perform periodic
inspections of each permitted source to verify whether the risk
management program was being implemented as described by the RMP, to
examine program implementation to verify compliance with permit
conditions, and to determine whether the RMP needed to be revised as a
result of permit conditions or changes at the source.
This approach would be consistent with approaches for
implementation of emission standards or other air toxics provisions
under titles III and V of the Clean Air Act because it would
consolidate the essential elements of the source's compliance
requirements in the permit and would ensure the full involvement of the
permitting authority in chemical accident prevention. It also would
provide significant enforcement leverage through the permit and through
inspections to ensure compliance with the source's risk management
program and with the part 68 requirements.
This approach still does not call for the permitting authority to
perform [[Page 13539]] audits or to examine the quality of the RMP or
program, which EPA believes is the responsibility of the implementing
agency. It does, however, impose considerable resource and expertise
burden on the permitting authority. EPA does not believe it is
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 program.
The permit would need to be changed every time the program or plan
changed. This approach appears to go well beyond the need for part 70
permits to assure compliance with applicable section 112(r)
requirements and duplicates other local, state, and Federal efforts.
There may be alternatives to the two extremes described in this
section and to the proposed approach. EPA requests comment on other
alternatives. EPA also requests that if other approaches are offered,
commenters address the advantages and disadvantages of the approach
with respect to the parts 68 and 70 programs and to the overall
chemical emergency prevention, preparedness, and response effort.
Implementation of Section 112(r) for All Sources
Congress intended a Federal-state partnership in implementing all
of section 112, including section 112(r). The implementation envisioned
by Congress for accident prevention focuses on coordination and sharing
of accident prevention information among various state and local
agencies within the same state. Implementation of section 112(r) means
that the implementing agency takes responsibility for the compliance
and enforcement of section 112(r) requirements. Further, section
112(r)(7)(B)(iii) indicates that EPA shall establish, by rule, an
auditing system to review regularly and, if necessary, require revision
in RMPs. Although permitting authorities are responsible for assuring
part 70 source compliance with part 68 requirements, EPA believes that
the implementing agency should take responsibility for RMP reviews and
audits. Consequently, EPA believes the implementing agency must: (1)
Receive part 68 registrations; (2) inspect sources for compliance,
regulatory development, and enforcement; (3) receive, review, and
periodically audit RMPs according to Sec. 68.60; and (4) require
revision of plans when necessary to ensure compliance with the
requirements of part 68.
In the proposed rule, ``implementing agency'' was not defined. EPA
is proposing to define implementing agency as the state or local agency
that obtains delegation for an accidental release prevention program
under subpart B of part 63 under section 112(l). The implementing
agency could, but is not required to be the state or local air
permitting authority. EPA encourages the permitting authority to assess
its capabilities with respect to carrying out the duties of the
implementing agency and, if appropriate, seek delegation for part 70
sources. If a state or local agency does not take delegation, EPA would
assume the responsibility for implementation of section 112(r).
EPA is also proposing that implementing agencies develop their own
scheme to prioritize RMP reviews, audits, and source inspections using
criteria as proposed in Sec. 68.60. EPA would not specify the number of
inspections, reviews, or audits to be completed. Alternatively, EPA
could require that an implementing agency review all RMPs within five
years of submission, or that no less than all Tier 3 submissions be
reviewed and audited within five years of submission, or that a certain
percentage (for example, 1.5 percent of all plans or only those in
certain tiers), be reviewed and audited within five years of
submission. In addition, while paper reviews of the RMPs are important,
it is critical that implementing agencies perform audits at facilities
to examine and compare actual prevention practices at the source with
information contained in the RMP. EPA recognizes that this effort can
consume considerable resources and require particular expertise for
implementing agencies. EPA plans to issue guidance for implementing
agencies on review and audit criteria and to develop training for
inspections, reviews, and audits. In addition, EPA would propose that
implementing agencies make use of safety audits performed by sources,
as required by OSHA PSM (29 CFR part 1910.119(o)) and proposed
Sec. 68.38, as part of this inspection process. The implementing agency
can use this information not only to determine whether the source is
making progress toward accident prevention, but also to offer
assistance to sources. EPA requests comment on whether a minimum number
of reviews and audits should be established and, if so, the minimum
number, Tier and the basis for the minimum number and Tier, and the
tools and training that should be developed to assist implementing
agencies with audits at sources.
State and local involvement in the implementation of the section
112(r) requirements for all sources is critical to the success of the
accident prevention program. In addition, air pollution control, worker
safety, pollution prevention, and public safety goals can be achieved
most effectively only through the direct involvement of state and local
officials. EPA expects that SERCs, LEPCs, and other state and local
emergency preparedness and response organizations will make full use of
the chemical emergency prevention, preparedness, and response
information in the RMP, regardless of which agency is implementing the
section 112(r) requirements.
A streamlined and cohesive section 112(r) program will be best
achieved if a state or local agency takes delegation to be the
implementing agency for all section 112(r) sources. The use of tiered
approaches to implement the 112(r) program would assist states by
enabling them to focus their greatest accident prevention efforts on
those sources that pose the greatest potential risk to the community.
These approaches attempt to minimize the additional effort needed by
states to cover all section 112(r) sources. Table 1 below shows the
kinds of effort and expertise necessary for review and audit of RMPs.
If a state or local organization has the resources and expertise and is
willing to become an implementing agency for part 70 sources, EPA
encourages it to consider becoming an implementing agency for all
112(r) sources, since the organization would have had the experience of
dealing with the most complex RMPs, reviews, and audits of part 70
sources. EPA believes that divided implementation of 112(r) for part 70
sources and non-part 70 sources, between EPA and state and local
agencies, could cause considerable confusion for the regulated
community and lead to ineffective and uncoordinated chemical accident
prevention. Implementation for all sources by one state organization
could serve to bring the state and local coordination needed to achieve
broad environmental, worker, and public safety goals.
[[Page 13540]]
Table 1.--Costs to Implementing Agency
----------------------------------------------------------------------------------------------------------------
National annualized implementation costs ($mm)
Risk management -----------------------------------------------------------------------------------------------
program and plan Until 1999 1999 to 2004 Yearly after 2004
activity -----------------------------------------------------------------------------------------------
Approach 1 Proposed rule Approach 1 Proposed rule Approach 1 Proposed rule
----------------------------------------------------------------------------------------------------------------
Program
management..... 1.3 1.3 1.8 1.8 1.8 1.8
Auditor training 0.3 0.3
Technical help
for sources.... 0.5 0.5 0.3 0.3 0.08 0.08
Workshops/
training....... 0.4 0.4 0.15 0.15
RMP filing...... 0.06 0.06 0.05 0.05
Initial review
of plan........ 0.5 1.1 0.5 1
Audits.......... 0.6 1.9 0.5 1.6
Totals.... 2.6 2.6 3.5 5.4 2.6 4.2
----------------------------------------------------------------------------------------------------------------
[Note that the columns do not add to the total because EPA-only activities including registration and regional
oversight are not included in the table. All costs are annualized and discounted at a 4 percent rate. Approach
1 refers to the Tiering section. It assumes accident history is used to segregate sources into tiers. The
initial review and audits of Tier 2 sources should take 1 hour and 2 hours, respectively and that all Tier 2
manufacturers would be audited every 10 years. Non-manufacturers would be audited every 10 or 20 years. These
figures are likely to be upper-bound estimates; actual costs will vary based on the degree of selective
program oversight necessary and cost savings as experience is gained.]
State or local organizations that want to become an implementing
agency for section 112(r) can seek delegation under section 112(l).
Section 112(l) contains the processes for (1) formally transferring
implementation and enforcement responsibility from EPA to a state or
local agency; (2) transferring responsibility for ensuring source
compliance with section 112 requirements to an agency other than the
permitting authority; and (3) allowing states to implement and enforce
their own toxics requirements in lieu of Federally promulgated section
112 requirements. EPA's implementing regulations for section 112(l)
outline several mechanisms for approval of state and local air toxics
programs and for delegation of federal authorities to state or local
agencies (58 FR 62262; November 26, 1993). Permitting authorities with
approved part 70 programs are well equipped to seek delegation as the
implementing agency for part 70 sources, since the state's permit
program contains adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule as required
under section 112(l)(5).
Each state has the flexibility to place the program in an
appropriate agency, including with the air permitting agency if it so
desires. A state may want to consolidate both its occupational safety
and process safety management programs in its worker safety agency.
Some states may wish to have an agency that is currently a member of
the SERC, but not the air permitting authority, serve as the
implementing agency, provided it can meet the approval criteria of
section 112(l) and coordinate its activities with other affected state/
local programs. In states where the SERC itself is a state agency, the
state may want the SERC to be the implementing agency. EPA is
requesting that states that provide comments on this notice indicate if
they plan to implement the program, and if so, whether an agency that
currently is a member of the SERC, or if the SERC itself will take
responsibility.
EPA recognizes that states have concerns about resources,
availability of expertise, and possible liability associated with
accidental release prevention. EPA plans to develop guidance and
training and provide assistance to states to help build expertise and
to illustrate how effective programs can be developed and implemented.
EPA seeks input on the types of training and technical assistance
states and local agencies will need to promote efficient and effective
implementation of section 112(r) regulations for all sources. The model
RMPs being developed for specific industry sectors and technical
guidance to help sources comply with the accidental release prevention
requirements also are designed to minimize the burden on state and
local programs. EPA seeks input on the types of guidance in support of
program implementation that would be most useful to states.
EPA agrees that Congress did not provide funding for implementation
of non-part 70 sources. EPA is exploring the possible expansion of CAA
section 105 grants to fund state programs that will cover non-part 70
112(r) sources. State and local organizations may also wish to consider
opportunities for collecting fees specifically for section 112(r)
activities, similar to fee-based systems used for funding EPCRA
activities. Some states have established ``polluter-pays'' type fee
systems that are based on multiples of the threshold quantity of
extremely hazardous substances or section 112(r)(3) regulated
substances handled at the source. Sources could be required to submit a
fee to the implementing agency with their registration or with their
RMP. EPA seeks comment on these approaches, particularly with respect
to the experience of states that have tried or are developing user fee
systems.
Finally, states have raised concerns about possible liability
associated with the section 112(r) program. Section 112(r), unlike
other CAA requirements that deal primarily with chronic hazards,
involves acute hazards with the potential for catastrophic accidents
resulting in immediate deaths and injuries. Generally, the liability of
state and local entities for their actions in handling section 112(r)
information would be controlled by state law concerning governmental
immunity. As the CAA and the legislative history of section 112(r) make
clear, Congress did not intend to create new liability for governmental
entities when it enacted the accident prevention provisions.
Specific language in section 112(r)(1) was included to provide
liability protection to governments and to avoid arguments from
industry that the filing of plans with emergency planners somehow
immunized a company from liability. Section 112(r)(1) states that,
``Nothing in [section 112(r)] shall be interpreted, construed, implied,
or applied to create any liability or basis for compensation for bodily
injury or any other injury or property damages to any person which may
result from accidental release of such substances.'' The Environment
and Public Works Committee inserted the above-quoted provision into the
Senate's version of the CAA Amendments explicitly because of EPA's
concern that the general duty clause and other portions of the accident
prevention provisions would create some governmental
[[Page 13541]] liability in the event of an accidental release. (S.
Rep. No. 228, 101st Cong., 1st sess., at 210 (1989).) EPA expressed
concern that liability in the event of an accident would shift to the
government if a source identified a potential event in a hazard
assessment, and the Agency failed to require the source to remove or
reduce the hazard. (Id.) Another fear was that an owner or operator
would argue that the Agency's failure to require a hazard to be
addressed would be a defense for a source in a liability suit for
injuries or damages caused to a third party. (Id.) To prevent either
result, the Environment and Public Works Committee included in the
precursor of section 112(r)(1) virtually identical language to that
quoted above. (Id.)
State and local agencies are encouraged to work with their
attorneys general to determine the extent of their sovereign immunity
under state law. Under common law or statute, nearly all states have
retained some immunity from tort suit. One common law theory of
sovereign immunity that may apply in several states would be the
immunity that extends to purely governmental activities, as
distinguished from proprietary activities. Emergency prevention and
response activities would be examples of traditional governmental
activities under this theory. Another immunity theory that may apply
provides immunity for discretionary activities (activities that involve
judgment). Other states may have enacted specific legislation that
prevents governments from being sued for activities connected to
emergency response. If a state, in the judgment of its attorney
general, lacks sufficient sovereign immunity to ensure state and local
agencies will not be subject to liability for bodily injury or property
damage in the event of an accidental release, then EPA encourages the
state to enact legislation specifically providing immunity for state
and local agencies carrying out functions under section 112(r). Of
course, even with sovereign immunity from tort suits, EPA, states, and
local entities may remain subject to FOIA suits, penalties for
violation of trade secret protections under section 114(c), or
mandatory duty suits (such as EPA's failure to promulgate regulations
or act on listing petitions) that may allow for attorney's fees.
III. Required Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735; October 4, 1993), EPA
must determine whether the regulatory action is ``significant,'' and
therefore subject to OMB review and the requirements of the Executive
Order. 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;
(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 Executive Order.
Under the terms of the Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.''
EPA prepared a draft regulatory impact analysis for the proposed
list rule and an addendum to the analysis for the proposed risk
management program rule. EPA has prepared a revised economic impact
analysis (EIA) for the risk management program rule to reflect the
final list rule, the impacts of the options being considered in this
notice, and comments on the draft regulatory impact analysis. The
revised EIA is available in the docket.
In developing its supplemental notice, EPA considered creating
three tiers for risk management program requirements described above.
EPA analyzed the three options for assigning sources to the tiers,
approaches 1 and 2 described in Section IIA above and the application
of the proposed rule to all sources as approach 3. Total annual costs
and benefits for each approach are presented in Table 2. This table
does not include projected costs or benefits associated with three
issues upon which EPA is taking comment in this notice: public
participation, accident reporting, and inherently safer approaches
because EPA's preferred approaches on these issues would impose no
additional requirements on sources.
Table 2.--Total Annualized Costs and Benefits
------------------------------------------------------------------------
Annual cost of Annual benefits
Approach Number of sources program of programs
------------------------------------------------------------------------
1................ 49,200 (Tier 1).. $104 million.... $121.5 million.
72,100 (Tier 2)..
1,300 (Tier 3)...
2................ 49,200 (Tier 1).. $339 million.... $175 million.
57,100 (Tier 2)..
16,300 (Tier 3)..
3................ 122,600 (Tier 3). $696 million.... $299 million
------------------------------------------------------------------------
Based on the final list and thresholds, EPA estimates that
approximately 122,600 sources would be affected by the proposed rule.
The primary cost for Tier 2 was assumed to be the RMP. Tier 3 costs are
strongly influenced by the tiering assumptions and by whether sources
are expected to be covered by the OSHA PSM standard. The analysis
assumed that a source in compliance with the OSHA PSM standard for a
process would incur no additional costs to comply with many elements of
EPA's prevention program. In addition, for some prevention program
elements (e.g., training), some sources were assumed to be in
compliance because of current activities; the only additional cost for
these sources was documentation for the element. Large chemical
companies and all refineries were assumed to be complying with industry
standards that are the equivalent of the prevention program. These
sources were assumed to bear no additional costs for some elements of
the prevention program (for processes not covered by OSHA). Because EPA
will require sources to submit, in the RMP, information on their
hazards and steps being taken to reduce risks, EPA expects that sources
and processes currently implementing PSM under OSHA or industry
standards will take additional steps to ensure that their PSM programs
are effective. Specifically, the EIA assumed that
[[Page 13542]] sources covered by other programs would provide more
program oversight, would conduct more training and refresher training,
and carry out more maintenance activities; sources were also assumed to
implement more capital improvements. EPA notes that because of a lack
of data, the EIA made a number of assumptions on which the cost
estimates are based. For example, the analysis assumed the number of
listed toxic substances at large chemical companies ranged from 4 to
12; the analysis also assumed that the number of covered processes was
equal to the number of substances. EPA seeks comments and any data
commenters may be able to provide on whether these assumptions are
reasonable.
The draft RIA prepared for the proposed list rule based its
benefits calculations on the assumption that manufacturers and certain
other sources would have two significant releases per year. Many
commenters stated that this assumption was not justified, based on
existing accident data. Consequently, the benefits analysis has been
revised to reflect actual accident data and is based on EPA databases,
other accident databases, and searches of newspaper reports. Based on
these data, the annualized cost of all U.S. accidents involving listed
toxic substances was estimated at $245 million; the annualized cost of
all accidents involving listed flammables was estimated at $767
million. The costs of accidents includes deaths, injuries, evacuations,
property damage, lost business, environmental damage, and litigation.
Benefits attributable to the risk management program rule are
affected by two factors: The extent to which other, similar rules
already provide the benefit and the expected effectiveness of these
rules when fully implemented. Most of the processes covered by EPA's
rule are also covered by the OSHA PSM rule. When OSHA adopted the PSM
standard, it estimated, based on anecdotal evidence, that by 1997 the
standard would prevent 80 percent of the accidents at OSHA-covered
sources. EPA believes that the risk management program rule will
increase compliance with the OSHA standard and cause many OSHA- and
EPA-affected sources to achieve a higher level of safety because of the
public availability of the RMP and the reviews and audits that will be
conducted by implementing agencies. The RMP submission will provide
implementing agency officials with a better basis for identifying and
targeting problem sources; EPA expects that the RMP information will
also benefit state and Federal OSHA inspectors.
Based on an industry study, the analysis estimated that the
effectiveness of the EPA standard in accident reduction would be 50
percent. Accident reduction from the EPA standard applies to processes
not covered by the OSHA standard and to the 20 percent of accidents not
prevented by the OSHA standard. EPA estimates that the annual,
quantifiable benefits of the rule will range from $121.5 million to
$299 million, depending on the approach.
The quantifiable benefits are probably understated. Although the
EIA assigns a value to the likelihood of a Bhopal-scale accident
occurring in the U.S. in any single year, the analysis did not attempt
to assign values to other catastrophic accidents that have occurred
elsewhere in the world, but have not as yet occurred in the U.S. For
example, the 1984 explosion at a LPG gas terminal in Mexico City killed
more than 400 people offsite; an explosion in Flixborough, England,
damaged more than 1,000 buildings offsite. Similar sources exist in the
U.S. and have the potential to have catastrophic accidents with offsite
impacts. Because of the difficulty of assigning probabilities and
values to such incidents, the EIA does not include them among the
quantifiable benefits, but these sources are covered by the proposed
rule, and compliance with the rule will reduce the likelihood of such
catastrophic accidents.
Other, intangible benefits are also attributable to the rule. For
example, the definition of offsite populations, using Census data, will
assist both sources and the public to identify areas where
environmental justice concerns need to be addressed. The process hazard
analysis is likely to identify areas where pollution prevention steps
can be implemented, which may produce cost savings and reduce potential
health effects offsite.
Most importantly, the information available in the RMP will have an
intrinsic value to the public. EPA has not attempted to measure the
value of this information, but experience with EPCRA Toxic Release
Inventory (TRI) data indicates that such information creates many
benefits. The simple requirement to make information public under TRI
has stimulated industry to take steps to reduce emissions to avoid
public concern and assure the local community that the source is a good
neighbor. The public benefits from the reduced risk; the source
benefits from better relations with the community. The latter can have
direct, economic benefits to the source. Industry commenters on the
rule noted that when the public distrusts a source, the public has
resisted permit changes or zoning variances that the source needs to
improve operations. Better information and the public-industry dialogue
that follows can make it easier for sources to gain public support for
needed changes. Government agencies and public interest groups can
target their efforts at those sources that pose the greatest potential
risk, rather than assuming that all sources pose a high level of risk
or misdirecting their efforts toward sources that have effective safety
programs.
B. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, Federal
agencies must evaluate the effects of the rule on small entities and
examine alternatives that may reduce the effects. EPA has prepared an
analysis of the effects on small entities, available as Chapter 8 of
the EIA. EPA believes that the rule as proposed in 1993 would create a
severe, adverse effect on small manufacturers. For the smallest
chemical manufacturers, the initial costs of the initial proposed rule
could equal their annual net income; for chemical companies with 20 to
99 employees, the initial cost of the proposed rule would approach
their annual net incomes. The initial proposed rule imposes lower costs
on non-manufacturers and, therefore, is less likely to create an
adverse impact on them. The tiering approach considered in this notice
would reduce the impact on small businesses significantly. Under the
tiering approach, the impact on small business would be small. The
tiering approach would also substantially reduce the impact on small
communities.
C. Enhancing the Intergovernmental Partnership
The Clean Air Act requires EPA to develop chemical accident
prevention regulations under section 112(r)(7) that include release
prevention and response provisions, including RMPs. As discussed above,
Congress intended the states to play a key role in implementing the
rule. Both state and local agencies are mandated to receive the RMPs.
This interrelationship of Federal, state, and local agencies is a
continuation of the philosophy developed under EPCRA, where each level
of government is seen as a stakeholder with important roles to play. To
consult in a regular and meaningful way with state, local, and tribal
officials in the development of the risk management program rule, EPA
has met with state and local officials. Before [[Page 13543]] the
proposed rule was drafted, EPA conducted focus groups with state and
local officials in three states that had risk management program laws.
EPA invited these states and several others to attend a two-day seminar
to elicit further information. EPA has held meetings with states
several times during the rule-making process, working through its
Regions and through associations of state officials likely to be
involved in implementing the rule. In addition, a large number of state
and local agencies attended the four public hearings and submitted
comments on the proposed rule. During the development of the
implementation and integration provisions (Sec. 68.58), EPA consulted
with state and local air and emergency planning agencies. EPA will seek
further input from states during development of the final rule.
D. Paperwork Reduction Act
The information collection requirements in this notice have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et sec. An
Information Collection Request document has been prepared by EPA (EPA
No. 1656.02) and a copy may be obtained from Sandy Farmer, Information
Policy Branch; EPA, 401 M Street, SW (Mail Code 2136), Washington, DC
20460 or by calling (202) 260-2740.
This collection of information has an estimated reporting burden
averaging 3 to 4 hours per response for Tier 1, 16 to 30 hours per
response for Tier 2, and for Tier 3 10 to 88 hours per response for
non-chemical manufacturers and 392 to 3720 hours per response for
chemical manufacturers. There is no annual recordkeeping burden for
Tiers 1 and 2; in Tier 3 there is an estimated annual recordkeeping
burden per respondent averaging 11 hours (for the non-chemical
industry) to 1000 hours (for the chemical industry). These estimates
include time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA, 401 M Street, SW (Mail
Code 2136), Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.'' The final Rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Hazardous substances,
Intergovernmental relations.
Dated: February 28, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, the proposal published on
October 20, 1993 (58 FR 54190) is amended as set forth below.
PART 68--[AMENDED]
1. The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601.
2. Section 68.3 as proposed is now amended by revising the
introductory text, adding five definitions and revising one proposed
definition ``Worst case release'' to read as follows:
Sec. 68.3 Definitions.
As used in this part, all terms not defined shall have the meaning
given to them by the Clean Air Act (42 U.S.C. 7401 et seq.). For
purposes of Sec. 68.58 of this part, terms such as ``permitting
authority,'' ``applicable requirement'' and ``source'' have the same
meaning given to them in part 70 of this chapter unless otherwise
defined in this section.
* * * * *
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 or local agency designated by the
air permitting authority as the agency responsible for the review of an
RMP for completeness.
Full-time employee means 2,000 hours per year of full-time
equivalent employment. A source would calculate the number of full-time
employees by totaling the hours worked during the calendar year by all
employees, including contract employees, and dividing that total by
2,000 hours.
Implementing agency means the state or local agency that obtains
delegation for an accidental release prevention program under section
112(l) of CAA which is subpart E of part 63. The implementing agency
may, but is not required to be, the state or local air permitting
agency. If a state or local agency does not take delegation, EPA will
be the implementing agency for that state.
Mitigation means activities, technologies or equipment that are
designed to capture or control substances after they are released to
the environment or upon loss of containment. Passive mitigation means
equipment, devices or technologies that function without human,
mechanical or other energy input.
* * * * *
Worst case release means the release of the largest quantity of a
regulated substance resulting from a vessel or process line failure.
3. Section 68.10 as proposed is revised to read as follows:
Sec. 68.10 Applicability.
(a) Tier 1. The owner or operator of a stationary source with a
covered process that meets the eligibility criteria of Sec. 68.13 shall
comply with Secs. 68.12--68.13 no later than [three years from the date
of final rule publication].
Alternative 1 for paragraphs (b), (c) and (d):
(b) Tier 2. Except as provided in paragraphs (a), (c), and (d) of
this section, the owner or operator of a stationary source with a
covered process shall comply with Secs. 68.12 and 68.14 no later than
[three years after the date of final rule publication].
(c) Tier 3. Except as provided in paragraph (a) of this section,
the owner or operator of a stationary source with 100 or more full-time
employees shall comply with Secs. 68.12 and 68.15 through 68.55 no
later than [three years from the date of final rule publication] for
any covered process in Standard Industrial Classification Code 2611,
2812, 2819, 2821, 2869, 2873, 2879, or 2911. For all other covered
processes at the stationary source, the owner or operator shall comply
with Secs. 68.12 and 68.14.
(d) Deferred Tier 3. Except as provided in paragraph (a) of this
section, the owner or operator of a stationary source that has 20 or
more full-time employees and a covered process in Standard Industrial
Classification Code 2812, 2819, 2869, 2873, or 2911 shall:
(1) Comply with Secs. 68.12 and 68.14 no later than [three years
from the date of final rule publication]; and
(2) Comply with Secs. 68.12 and 68.15 through 68.55 no later than
[eight years from the date of final rule publication]. Alternative 2
for paragraphs (b) and (c):
(b) Tier 2. Except as provided in paragraphs (a) and (c) of this
section, the owner or operator of a stationary source with a covered
process shall comply with Secs. 68.12 and 68.14 no later than [three
years after the date of final rule publication].
(c) Tier 3. Except as provided in paragraph (a) of this section,
the owner or operator of a stationary source with [[Page 13544]] a
covered process shall comply with Secs. 68.12 and 68.15 through 68.55
no later than [three years from the date of final rule publication] if
the stationary source has 100 or more full-time employees.
4. Section 68.13 is proposed to be added to subpart B to read as
follows:
Sec. 68.13 No impact sources (Tier 1).
(a) Sources that exceed a threshold quantity only for flammable or
explosive regulated substances.
(1) Eligibility. The owner or operator of a stationary source that
is subject to this part and that does not exceed the threshold quantity
for a toxic substance shall comply with paragraph (a)(2) of this
section if the source has not had significant accidental release for 5
years and:
(i) For a source that exceeds the threshold for an explosive
regulated substance, the source is subject to 27 CFR part 55 or 30 CFR
parts 56, 57, or 77 and the distance from the process to a public or
environmental impact is no closer than the distance to inhabited
buildings provided in the American Table of Distances (27 CFR 55.218)
for the quantity of explosives in the process; or
(ii) For a source that exceeds the threshold for a flammable
regulated substance, the distance from the point of release under the
worst case release scenario to a public or environmental impact is
greater than the distance as calculated using the following formula for
the maximum quantity present in the process:
Distance (meters) = 0.15 x (0.1 x mass x hc)1/3
where mass is the quantity of flammable substance in kilograms, and hc
is the heat of combustion in Joules per kilogram.
(2) Program and plan requirements. (i) The owner or operator shall
place a sign at all normal access routes that warns the public and
emergency responders concerning the hazard presented by the regulated
substance at the site and provides an emergency contact telephone
number. Such sign shall be in English and any other language commonly
spoken as a primary language in the area.
(ii) The owner or operator shall submit the following as a risk
management plan to the implementing agency, the State Emergency
Response Commission (if the implementing agency is not a member of such
Commission), the Local Emergency Planning Committee with jurisdiction
for the area where the source is located:
(A) A copy of the registration required by Sec. 68.12 (this copy
may be before the certification required by Sec. 68.12(b)(6));
(B) The following statement:
Based on the criteria in 40 CFR 68.13(a)(1), the worst case
accidental release for the source described on the attached form
(registration) presents no potential for public or environmental
impact given the nature of the process and the chemicals stored at
the source. For the past 5 years, this source has not had a
significant accidental release, as defined in 40 CFR 68.3. No
additional measures are necessary to prevent public and
environmental impacts from accidental releases. In the event of a
fire or a release of the regulated substance indicated on the
registration, entry within [distance for given quantity of regulated
substance under American Table of Distances or paragraph (a)(1)(ii)
of this section] of the source may pose a danger to public emergency
responders. Therefore, public emergency responders should not enter
this area except as arranged with the contact person indicated on
the registration. 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].
(iii) The owner or operator shall maintain for five years
documentation of the determination of eligibility under paragraph
(a)(1) of this section and a copy of the risk management plan under
paragraph (a)(2)(ii) of this section.
(b) Sources that exceed a threshold quantity for toxic regulated
substances.
(1) Eligibility. The owner or operator of a stationary source that
exceeds the threshold quantity for a toxic substance shall comply with
paragraph (b)(2) of this section if:
(i) The stationary source has not had a significant accidental
release in the last five years,
(ii) The stationary source can demonstrate the lookup table
distance for a worst-case release is less than the distance to a public
or environmental receptor; and
(iii) The emergency response plan under 42 U.S.C. 11003 addresses
appropriate response to an accidental release at the source.
(2) Plan and program requirements. (i) The owner or operator of a
stationary source that meets the eligibility criteria of paragraph
(b)(1) of this section shall submit the following as a risk management
plan to the implementing agency, the State Emergency Response
Commission (if the implementing agency is not a member of such
Commission), and the Local Emergency Planning Committee with
jurisdiction for the area where the source is located:
(A) A copy of the registration required by Sec. 68.12 (this copy
may be before the certification required by Sec. 68.12(b)(6));
(B) The following statement:
Based on the criteria in 40 CFR 68.13(b)(1), the worst case
accidental release for the source described on the attached form
(registration) presents no potential for public or environmental
impact within ______ kilometers of the source given the nature of
the process and the chemicals stored at the source. For the past 5
years, this source has not had a significant accidental release, as
defined in 40 CFR 68.3. No additional measures are necessary to
prevent public and environmental impacts from accidental releases.
In the event of an accidental release of the regulated substance
indicated on the registration, emergency response should be
conducted according to the emergency response plan under 42 U.S.C.
11003, which is available at [location]. Therefore, public emergency
responders should not enter this area except as provided under that
plan. 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].
and
(ii) The owner or operator shall maintain for five years
documentation of the determination of eligibility under paragraph
(b)(1) of this section and a copy of the risk management plan under
paragraph (b)(2)(i) of this section.
5. Section 68.14 is proposed to be added to subpart B to read as
follows:
Sec. 68.14 Streamlined risk management program (Tier 2).
(a) The owner or operator of a stationary source eligible for this
part shall comply with Sec. 68.15.
(b) The owner or operator of a stationary source shall establish a
prevention program which includes safety precautions and maintenance,
monitoring and employee training measures to be used at the source to
prevent accidental releases. The prevention program shall identify
other federal accident prevention requirements to which the source is
subject, including national voluntary standards and measures required
by 42 U.S.C. 7412(r)(1).
(c) The owner or operator of a stationary source shall prepare an
emergency response program which documents specific actions to be taken
in an emergency response to an accidental release, including:
(1) Procedures for informing the public and local entities about
accidental releases;
(2) Procedures to be used on site to respond to an accidental release;
and
(3) A description of the employee training measures used to educate
employees regarding emergency situations.
[[Page 13545]] (d) The owner or operator of a stationary source
shall submit a risk management plan summarizing paragraphs (a) through
(c) of this section to the implementing agency, the State Emergency
Response Commission (if the implementing agency is not a member of such
Commission), and the Local Emergency Planning Committee with
jurisdiction for the area where the source is located. The owner or
operator shall retain a copy of the risk management plan for 5 years.
6. Section 68.58 is proposed to be added to subpart B to read as
follows:
Sec. 68.58 Permit content and air permitting authority requirements.
(a) The requirements in this section apply to sources subject to
both part 68 and part 70 of this Chapter. Each part 70 permit shall
contain conditions requiring the following provisions, for any activity
and/or emission unit subject to this part:
(1) By the deadlines set out in this part, the source shall
register and submit an RMP or revised plan and shall certify upon
submission that such plan is accurate and complete. Submission of the
plan by deadlines required under this part shall satisfy the reporting
requirements of 40 CFR 70.6(a)(3)(ii)(A).
(2) The source shall submit any additional information requested by
the permitting authority or other designated state or local agency
necessary to determine completeness of the RMP.
(3) The source shall annually certify compliance with, and
implementation of, risk management program requirements described in
this part and as described by the submitted RMP or revised plan.
(4) For part 70 permits that are issued prior to the deadline
required for registering and submitting the RMP and do not contain
permit conditions meeting the provisions of paragraphs (a) (1) through
(3) of this section, the source no later than [3 years from the
effective date of the final rule] shall submit an application for a
permit revision consistent with Sec. 70.7 of this chapter to establish
conditions consistent with these required in paragraphs (a)(1) through
(3) of this section.
(5) For part 70 permits issued on or after the deadline required
for registering and submitting the RMP, the source shall register and
submit any plan required by this part no later than [3 years from the
effective date of the final rule].
(6) For new emissions units or activities at previously permitted
part 70 sources which become subject to this part after [the effective
date of the final rule], the source shall submit an application for
permit revision consistent with the provisions of Sec. 70.7 of this
chapter upon startup of such units and/or activities or no later than
[3 years from the effective date of the final rule], whichever is
later.
(7) If a previously permitted part 70 source has not submitted an
RMP as required, then the source shall provide:
(i) A compliance plan, including a compliance schedule for the
submittal of the required plan; and
(ii) An application for a permit revision to establish permit
conditions meeting paragraphs (a) (1) through (7) of this section
unless such conditions are already contained within the part 70 permit.
(b) The permitting authority must, at a minimum, perform the
following tasks to meet Sec. 70.4(b)(3)(i) of this chapter with respect
to part 70 sources subject to section 112(r) of CAA and this part.
(1) Verify that an RMP or a revised plan is submitted when required
by this part, and that it is complete, i.e., it contains the elements
required under Secs. 68.50, 68.13, or 68.14;
(2) Verify that the source has submitted an annual certification
that it is properly implementing a risk management program as required
by this part and as described by the applicable RMP;
(3) Take enforcement action (including penalties) on sources that
fail to submit a complete plan or a revised plan, an annual
certification, or accidental release report as required by this part;
(4) Incorporate and enforce permit conditions that specify a
compliance schedule for submittal of a complete RMP, for permits issued
prior to reporting deadlines of this part or if a part 70 source
subject to this part fails to submit a complete plan as required.
[FR Doc. 95-5656 Filed 3-10-95; 8:45 am]
BILLING CODE 6560-50-P
