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					federal register
                   June 20, 1996

                   Part III

                   Protection Agency
                   40 CFR Part 68
                   Accidental Release Prevention
                   Requirements: Risk Management
                   Programs Under the Clean Air Act,
                   Section 112(r)(7); List of Regulated
                   Substances and Thresholds for
                   Accidental Release Prevention, Stay of
                   Effectiveness; and Accidental Release
                   Prevention Requirements: Risk
                   Management Programs Under Section
                   112(r)(7) of the Clean Air Act as
                   Amended, Guidelines; Final Rules and

31668                 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION                                                    Processes in industry categories with a                 Chemical Emergency Preparedness and
AGENCY                                                                      history of accidental releases and                      Prevention Office, U.S. Environmental
                                                                            processes already complying with                        Protection Agency, 401 M St. SW,
40 CFR Part 68                                                              OSHA’s Process Safety Management                        Washington, DC 20460, or the
                                                                            Standard will be subject to a prevention                Emergency Planning and Community
                                                                            program that is identical to parallel                   Right-to-Know Hotline at 1–800–424–
RIN 2050–AD26                                                               elements of the OSHA Standard. All                      9346 (in the Washington, DC,
                                                                            other processes will be subject to                      metropolitan area, (703) 412–9810).
Accidental Release Prevention                                               streamlined prevention requirements.                    SUPPLEMENTARY INFORMATION:      Judicial
Requirements: Risk Management                                               All sources must prepare a risk                         Review. Accidental Release Prevention
Programs Under Clean Air Act Section                                        management plan based on the risk                       Requirements: Risk Management
112(r)(7)                                                                   management programs established at the                  Programs Under Clean Air Act Section
                                                                            source. The source must submit the plan                 112(r)(7) were proposed in the Federal
AGENCY:  Environmental Protection
                                                                            to a central point specified by EPA; the                Register on October 20, 1993 (58 FR
                                                                            plan will be available to state and local               54190). A supplemental notice was
ACTION: Final rule.                                                         governments and the public. These                       issued on March 13, 1995 (60 FR
SUMMARY: The Clean Air Act requires
                                                                            regulations will encourage sources to                   13526). This Federal Register action
EPA to promulgate regulations to                                            reduce the probability of accidental                    announces the EPA’s final decisions on
prevent accidental releases of regulated                                    releases of substances that have the                    the rule. Under section 307(b)(1) of the
substances and reduce the severity of                                       potential to cause immediate harm to                    Act, judicial review of the Accidental
those releases that do occur. EPA is                                        public health and the environment and                   Release Prevention Requirements: Risk
promulgating rules that apply to all                                        will stimulate the dialogue between                     Management Programs is available only
stationary sources with processes that                                      industry and the public to improve                      by the petition for review in the U.S.
contain more than a threshold quantity                                      accident prevention and emergency                       Court of Appeals for the District of
of a regulated substance. Processes will                                    response practices.                                     Columbia Circuit within 60 days of
be divided into three categories based                                      DATES: The rule is effective August 19,                 today’s publication of this final rule.
on: the potential for offsite                                               1996.                                                   Under section 307(b)(2) of the Act, the
consequences associated with a worst-                                       ADDRESSES: Supporting material used in                  requirements that are the subject of
case accidental release; accident history;                                  developing the proposed rule,                           today’s notice may not be challenged
or compliance with the prevention                                           supplemental notice, and final rule is                  later in civil or criminal proceedings
requirements under OSHA’s Process                                           contained in Docket No. A–91–73. The                    brought by the EPA to enforce these
Safety Management Standard. Processes                                       docket is available for public inspection               requirements.
that have no potential impact on the                                        and copying between 8:00 a.m. and 5:30
                                                                            p.m., Monday through Friday (except                     Regulated Entities
public in the case of an accidental
release will have minimal requirements.                                     government holidays) at Room 1500,                         Entities potentially regulated by this
For other processes, sources will                                           401 M St. SW, Washington, DC 20460.                     action are those stationary sources that
implement a risk management program                                         A reasonable fee may charged for                        have more than a threshold quantity of
that includes more detailed                                                 copying.                                                a regulated substance in a process.
requirements for hazard assessment,                                         FOR FURTHER INFORMATION CONTACT:                        Regulated categories and entities
prevention, and emergency response.                                         Craig Matthiessen at (202) 260–8600,                    include:

                                     Category                                                                            Examples of regulated entities

Chemical Manufacturers ....................................................                  Industrial organics & inorganics, paints, pharmaceuticals, adhesives, sealants, fibers
Petrochemical .....................................................................          Refineries, industrial gases, plastics & resins, synthetic rubber
Other Manufacturing ...........................................................              Electronics, semiconductors, paper, fabricated metals, industrial machinery, furniture,
Agriculture ..........................................................................       Fertilzers, pesticides
Public Sources ...................................................................           Drinking and waste water treatment works
Utilities ................................................................................   Electric and Gas Utilities
Others .................................................................................     Food and cold storage, propane retail, warehousing and wholesalers
Federal Sources .................................................................            Military and energy installations

   This table is not intended to be                                         FR 16598, April 15, 1996) and the stay                     A. Statutory Authority
exhaustive, but rather provides a guide                                     of implementation of the affected                          B. Background
for readers regarding entities likely to be                                 provisions until the proposed                           II. Discussion of Final Rule
                                                                            modifications are final published                          A. Applicability
regulated by this action. This table lists
                                                                                                                                       B. Program Criteria and Requirements
the types of entities that EPA is now                                       elsewhere in today’s Federal Register,
                                                                                                                                       C. Hazard Assessment
aware could potentially be regulated by                                     and the applicability criteria in § 68.10                  D. Prevention Programs
this action. Other types of entities not                                    of today’s rule. If you have questions                     E. Emergency Response
listed in the table could also be                                           regarding the applicability of this action                 F. Risk Management Plan (RMP)
regulated. To determine whether a                                           to a particular entity, consult the person                 G. Air Permitting
stationary source is regulated by this                                      listed in the preceding FOR FURTHER                        H. Other Issues
                                                                            INFORMATION CONTACT section.                            III. Discussion of Comments
action, carefully examine the provisions
                                                                               The following outline is provided to                    A. Tiering
associated with the list of substances                                                                                                 1. Rationale
and thresholds under § 68.130 (59 FR                                        aid in reading this preamble:                              2. Program 1 vs. Program 2 and Program 3
4478), the proposed modifications (61                                       I. Introduction and Background                                Criteria
           Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                              31669

a. Potential for Offsite Impact                 P. Coverage by Other Regulations               Section 112(r)(7) mandates that EPA
b. Accident History                             1. General Issues                           promulgate regulations and develop
c. Other                                        2. DOT Transportation Regulations           guidance to prevent, detect, and
3. Program 2 vs. Program 3 Criteria             3. Other EPA Regulations                    respond to accidental releases.
a. Number of Employees                          4. Other Federal Regulations
b. SIC Code                                     5. State and Local Regulations
                                                                                            Stationary sources covered by these
c. Site-specific, Risk-based Criteria           Q. Industry-Specific Issues                 regulations must develop and
d. Accident History                             1. Oil and Gas Facilities                   implement a risk management program
e. Other                                        2. Retail Facilities                        that includes a hazard assessment, a
4. Program 1 Requirements                       a. Propane Retailers                        prevention program, and an emergency
a. Certification of No Environmental            b. Ammonia Retailers                        response program. The risk management
   Impact                                       3. Refrigeration Systems                    program must be described in a risk
b. Signs                                        4. Other Operations                         management plan (RMP) that must be
c. Emergency Response Program                   R. Implementing Agency Delegation           registered with EPA, submitted to state
d. Other                                        S. Accident Reporting
5. Program 2 Requirements                                                                   and local authorities, and made
                                                T. Other Issues
a. Streamlined Program                          1. OSHA VPP
                                                                                            available to the public. On October 20,
b. Other Regulations                            2. Qualified Third Party                    1993, EPA published a Notice of
c. Emergency Response Program                   3. Documentation                            Proposed Rulemaking (NPRM) for the
B. Offsite Consequence Analysis               IV. Section-by-Section Analysis of the Rule   section 112(r)(7) regulations (58 FR
1. Worst-Case Release Scenario                V. Required Analyses                          54190). (For a summary of the statutory
2. Mitigation Systems                           A. E.O. 12866                               requirements of section 112(r) and
a. Worst-Case Release Scenario                  B. Regulatory Flexibility Act               related statutory provisions, see the
b. Alternative Scenarios                        C. Unfunded Mandate Reform Act              October 20, 1993, NPRM).
3. Populations Affected                         D. Paperwork Reduction Act                     Following publication of the proposed
4. Number of Scenarios                          E. Submission to Congress and the General
5. Technical Guidance
                                                                                            rule, EPA held four public hearings and
                                                   Accounting Office                        received approximately 770 written
6. Modeling Parameters
a. Endpoints                                  I. Introduction and Background                comments. Because of these comments,
b. Meteorology                                                                              EPA issued a supplemental notice of
C. Consideration of Environmental Impact      A. Statutory Authority                        proposed rulemaking (SNPRM) on
1. Inclusion of Environmental Impacts           This rule is promulgated under              March 13, 1995 (60 FR 13526) for
2. Environments to be Considered                                                            comment on: approaches for setting
                                              sections 112(r), 301(a)(1), Title V of the
3. Level of Analysis Required                                                               different requirements for sources that
D. Program 3 Consistency with OSHA PSM        Clean Air Act (CAA) as amended (42
                                              U.S.C. 7412(r), 7601(a)(1), 7661–7661f).      pose different levels of hazard (tiering);
                                                                                            worst-case releases and other hazard
1. Prevention Program                         B. Background
2. Enforcement
                                                                                            assessment issues; accident information
3. Exemptions                                    The CAA Amendments of 1990                 reporting; public participation;
E. Relationship to Air Permits                amend section 112 and add paragraph           inherently safer approaches; and
1. General Relationship between the Part      (r). The intent of section 112(r) is to       implementation and integration of
   68 and Part 70 programs
                                              prevent accidental releases to the air        section 112(r) with state programs,
2. Impact of EPA’s Proposal on Air                                                          particularly state air permitting
   Permitting Programs                        and mitigate the consequences of such
                                                                                            programs. EPA held a public hearing on
3. Part 68 as an ‘‘Applicable Requirement’’   releases by focusing prevention
                                                                                            March 31, 1995, in Washington, DC, and
   under Part 70                              measures on chemicals that pose the
                                                                                            received more than 280 written
4. Role of the Air Permitting Authority       greatest risk to the public and the
                                                                                            comments. Today’s rule reflects EPA’s
5. Air Permit Application Contents            environment. Section 112(r)(3)
6. Air Permit Contents
                                                                                            consideration of all comments; major
                                              mandates that EPA promulgate a list of
7. Completeness Review                                                                      issues raised by commenters and EPA’s
                                              regulated substances, with threshold
8. Interaction of the Implementing Agency                                                   response are briefly discussed in
                                              quantities; this list defines the
   and the Permitting Authority                                                             Section III of this preamble. A summary
                                              stationary sources that will be subject to
9. Designated Agency                                                                        of all comments submitted and EPA’s
10. Reopening Air Permits to Incorporate
                                              accident prevention regulations               response to them is available in the
   Section 112(r) Requirements                mandated by section 112(r)(7). EPA            Docket (see ADDRESSES).
11. Use of Air Funds                          promulgated its list of substances on            EPA has proposed to delist explosives
12. Other Issues                              January 31, 1994 (59 FR 4478) (‘‘List         from § 68.130. Consequently, explosives
F. General Definitions                        Rule’’).                                      are not addressed in this rule. EPA had
1. Significant Accidental Release                As noted elsewhere in today’s Federal      also requested at the time of the final
2. Stationary Source                          Register, EPA has stayed certain
3. Process                                                                                  List Rule comments on whether
4. Offsite
                                              provisions of part 68 that were               flammable substances, when used as
5. Other Definitions                          promulgated as part of the List Rule.         fuel, posed a lesser intrinsic hazard than
G. Risk Management Plan (RMP)                 The stayed provisions are being               the same substance handled otherwise
1. Level of Detail                            addressed in amendments to the List           (59 FR 4500, January 31, 1994). The
2. RMP Content                                Rule, which were proposed in 61 FR            comments submitted lacked data that
3. Submission                                 16598 (April 15, 1996). Therefore, EPA        would justify a lesser level of hazard
4. Other Issues                               has not taken final action on provisions      consideration for flammable fuels;
H. Prevention Program                         of the Risk Management Program rule           hence, the Agency will not adopt a fuel
I. Accident History                           that apply to regulated substances,
J. Emergency Response Program
                                                                                            use exemption for purposes of threshold
K. Registration
                                              mixtures, and stationary sources              quantity determination.
L. Model Risk Management Programs             addressed by the stayed provisions.              With today’s rule, EPA continues the
M. Implementing Agency Audits                 Final action will be deferred until EPA       philosophy that the Agency embraced in
N. Public Participation                       takes final action on the proposed            implementing the Emergency Planning
O. Inherently Safer Technologies              amendments to the List Rule.                  and Community Right-to-Know Act of
31670              Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

1986 (EPCRA). Specifically, EPA                                   develop model RMPs for other                                                  EPA has adopted the term ‘‘Program’’ to
recognizes that regulatory requirements,                          processes, thereby reducing costs for                                         replace the term ‘‘Tier’’ found in the
by themselves, will not guarantee safety.                         individual sources. Finally, today’s rule                                     SNPRM to avoid confusion with Tier I
Instead, EPA believes that information                            requires industry to submit RMPs                                              and Tier II forms submitted under
about hazards in a community can and                              centrally in a format and method to be                                        EPCRA, also known as Title III of the
should lead public officials and the                              determined by EPA. Working with                                               Superfund Amendments and
general public to work with industry to                           stakeholders, EPA will develop                                                Reauthorization Act of 1986 (SARA
prevent accidents. For example, today’s                           mechanisms to allow industry to use                                           Title III). Eligibility for any given
rule requires covered sources to provide                          appropriate electronic technology to                                          Program is based on process criteria so
information about possible worst-case                             register with EPA and submit RMPs. In                                         that classification of one process in a
scenarios. EPA intends that officials and                         turn, all interested parties will be able                                     Program does not influence the
the public use this information to                                to access electronically the data in                                          classification of other processes at the
understand the chemical hazards in the                            RMPs. This method of submission and                                           source. For example, if a process meets
community and then engage in a                                    access avoids a potentially significant                                       Program 1 criteria, the source need only
dialogue with industry to reduce risk. In                         amount of paperwork for all involved                                          satisfy Program 1 requirements for that
this way, accident prevention is focused                          parties and promotes uniformity. Users                                        process, even if other processes at the
primarily at the local level where the                            will be able to develop databases for                                         source are subject to Program 2 or
risk is found. Further, today’s rule                              specific purposes and compare RMPs                                            Program 3. A source, therefore, could
builds on existing programs and                                   for various sites across the country. In                                      have processes in one or more of the
standards. For example, EPA has                                   turn, industries’ use of the data will                                        three Programs.
coordinated with Occupational Safety                              promote continuous improvement, for                                              Program 1 is available to any process
and Health Administration (OSHA) and                              example, through new safety                                                   that has not had an accidental release
the Department of Transportation (DOT)                            technologies. As the method for                                               with offsite consequences in the five
in developing this regulation. To the                             submitting RMPs is developed, EPA                                             years prior to the submission date of the
extent possible, covered sources will not                         invites the participation of all                                              RMP and has no public receptors within
face inconsistent requirements under                              stakeholders, including industry, state                                       the distance to a specified toxic or
these agencies’ rules. EPA is                                     and local governments, local emergency                                        flammable endpoint associated with a
encouraging sources to use existing                               planning committees, environmental                                            worst-case release scenario. Program 3
emergency response programs, rather                               groups, and the general public.                                               applies to processes in Standard
than develop a separate and duplicative                                                                                                         Industrial Classification (SIC) codes
                                                                  II. Discussion of Final Rule
program under this rule. In addition,                                                                                                           2611 (pulp mills), 2812 (chlor-alkali),
today’s rule scales requirements based                            A. Applicability                                                              2819 (industrial inorganics), 2821
on the potential risk posed by a source                              The owner or operator of a stationary                                      (plastics and resins), 2865 (cyclic
and the steps needed to address the risk,                         source that has more than a threshold                                         crudes), 2869 (industrial organics), 2873
rather than imposing identical                                    quantity of a regulated substance in a                                        (nitrogen fertilizers), 2879 (agricultural
requirements on all sources.                                      process must comply with these                                                chemicals), and 2911 (petroleum
   To accommodate the concerns of                                 requirements no later than June 21,                                           refineries). Program 3 also applies to all
small businesses, EPA is providing                                1999; three years after the date on which                                     processes subject to the OSHA Process
guidance with reference tables that                               a regulated substance is first listed                                         Safety Management (PSM) standard (29
covered sources can use to model the                              under § 68.130; or the date on which a                                        CFR 1910.119), unless the process is
offsite consequences of a release. EPA is                         regulated substance is first present in                                       eligible for Program 1. Owners or
providing a model RMP guidance for the                            more than a threshold quantity in a                                           operators will need to determine
ammonia refrigeration industry, and                               process, whichever is later.                                                  individual SIC codes for each covered
will develop similar guidance for                                                                                                               process to determine whether Program 3
propane handlers and drinking water                               B. Program Criteria and Requirements                                          applies. All other covered processes
systems. As today’s rule is                                         Under today’s rule, processes subject                                       must satisfy Program 2 requirements.
implemented, EPA hopes that other                                 to these requirements are divided into                                        Program requirements and differences
industry sectors will work with EPA to                            three tiers, labeled Programs 1, 2, and 3.                                    are illustrated on Tables 1 and 2:

                                                                 TABLE 1—PROGRAM ELIGIBILITY CRITERIA
                        Program 1                                                             Program 2                                                           Program 3

No offsite accident history ................................         ......................................................................     Process is subject to OSHA PSM.
No public receptors in worst-case circle ...........              The process is not eligible for Program 1 or 3                                Process is in SIC code 2611, 2812, 2819,
                                                                                                                                                  2821, 2865, 2869, 2873, 2879, or 2911.
Emergency response coordinated with local re-                          ......................................................................

                                                     TABLE 2—COMPARISON OF PROGRAM REQUIREMENTS
                        Program 1                                                             Program 2                                                           Program 3

Hazard Assessment:
Worst-case analysis ..........................................    Worst-case analysis .........................................                 Worst-case analysis.
                                                                  Alternative releases ..........................................               Alternative releases.
5-year accident history ......................................    5-year accident history .....................................                 5-year accident history.
Management Program:
                                                                  Document management system .......................                            Document management system.
                     Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                                                                             31671

                                               TABLE 2—COMPARISON OF PROGRAM REQUIREMENTS—Continued
                          Program 1                                                                 Program 2                                                         Program 3

Prevention Program:
Certify no additional steps needed ...................                  Safety Information ............................................              Process Safety Information.
                                                                        Hazard Review .................................................              Process Hazard Analysis.
                                                                        Operating Procedures ......................................                  Operating Procedures.
                                                                        Training .............................................................       Training.
                                                                        Maintenance .....................................................            Mechanical Integrity.
                                                                        Incident Investigation ........................................              Incident Investigation.
                                                                        Compliance Audit .............................................               Compliance Audit.
                                                                            ......................................................................   Management of Change.
                                                                            ......................................................................   Pre-startup Review.
                                                                            ......................................................................   Contractors.
                                                                            ......................................................................   Employee Participation.
                                                                            ......................................................................   Hot Work Permits.
Emergency Response Program:
Coordinate with local responders .....................                  Develop plan and program ...............................                     Develop plan and program.
Risk Management Plan Contents:
Executive Summary ..........................................            Executive Summary. .........................................                 Executive Summary
Registration .......................................................    Registration .......................................................         Registration.
Worst-case data ................................................        Worst-case data ...............................................              Worst-case data.
5-year accident history ......................................          Alternative release data ....................................                Alternative release data.
Certification .......................................................   5-year accident history .....................................                5-year accident history.
                                                                        Prevention program data ..................................                   Prevention program data.
                                                                        Emergency response data ...............................                      Emergency response data.
                                                                        Certification .......................................................        Certification.

   The owner or operator of a covered                                   coordinate oversight of worker and                                           Catastrophic accidental releases are
process must: (1) prepare and submit a                                  public safety and environmental                                              typically rare events; the words ‘‘more
single risk management plan (RMP),                                      protection programs.                                                         likely’’ suggests certainty of occurrence.
including registration that covers all                                                                                                               Consequently, the scenarios other than
                                                                        C. Hazard Assessment
affected processes and chemicals; (2)                                                                                                                worst case provided in the hazard
conduct a worst-case release scenario                                      EPA has adopted the worst-case                                            assessment are called alternative release
analysis, review accident history, ensure                               definition proposed in the SNPRM. For                                        scenarios. For alternative scenarios,
emergency response procedures are                                       all substances, the worst-case release                                       sources may consider the effects of both
coordinated with community response                                     scenario will be defined as the release                                      passive and active mitigation systems.
organizations to determine eligibility for                              of the largest quantity of a regulated                                          One worst-case release scenario will
Program 1 and, if eligible, document the                                substance from a vessel or process line                                      be defined to represent all toxics, and
worst case and complete a Program 1                                     failure, including administrative                                            one worst-case release scenario will be
certification for the RMP; (3) conduct a                                controls and passive mitigation that                                         defined to represent all flammables held
hazard assessment, document a                                           limit the total quantity involved or the                                     above the threshold at the source.
                                                                        release rate. For most gases, the worst-                                     Additional worst-case release
management system, implement a more
                                                                        case release scenario assumes that the                                       scenario(s) must be analyzed and
extensive, but still streamlined
                                                                        quantity is released in 10 minutes. For                                      reported if such a release from another
prevention program, and implement an
                                                                        liquids, the scenario assumes an                                             covered process at the source
emergency response program for
                                                                        instantaneous spill; the release rate to                                     potentially affects public receptors that
Program 2 processes; and (4) conduct a
                                                                        the air is the volatilization rate from a                                    would not be potentially affected by the
hazard assessment, document a
                                                                        pool 1 cm deep unless passive                                                first scenario. EPA recognizes that this
management system, implement a
                                                                        mitigation systems contain the                                               approach may be problematic for some
prevention program that is                                              substance in a smaller area. For                                             sources such as batch processors and
fundamentally identical to the OSHA                                     flammables, the worst case assumes an                                        warehouses where use of listed
PSM Standard, and implement an                                          instantaneous release and a vapor cloud                                      substances or inventory may vary
emergency response program for                                          explosion.                                                                   considerably within an RMP reporting
Program 3 processes.                                                       For the final rule, EPA has adopted                                       period. EPA suggests that owners or
   Measures taken by sources to comply                                  the term ‘‘alternative release scenarios’’                                   operators of such processes develop a
with OSHA PSM for any process that                                      to replace the term ‘‘other more likely                                      worst-case scenario for future chemical
meets OSHA’s PSM standard are                                           scenarios’’ found in the NPRM and                                            use and inventory based on past
sufficient to comply with the prevention                                SNPRM. The non-worst-case accidental                                         practices to minimize the need for
program requirements of all three                                       releases for the hazard assessment                                           frequent revision of their worst-case
Programs. EPA will retain its authority                                 portion of the risk management plan                                          scenario. For alternative release
to enforce the prevention program                                       were presumed ‘‘more likely to occur’’                                       scenarios, one scenario is required for
requirements and the general duty                                       and ‘‘more realistic’’ than the worst                                        each toxic substance and one to
requirements of CAA Section 112(r)(1).                                  case. EPA believes sources should have                                       represent all flammable substances held
EPA and OSHA are working closely to                                     flexibility to select non-worst-case                                         in covered processes at the source.
coordinate interpretation and                                           scenarios that are the most useful for                                          An endpoint is needed for the offsite
enforcement of PSM and accident                                         communication with the public and first                                      consequence analysis. Appendix A of
prevention programs. EPA will also                                      responders and for emergency response                                        today’s rule lists the endpoints for toxic
work with state and local agencies to                                   preparedness and planning.                                                   substances that must be used in worst-
31672        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

case and alternative scenario                demographic information published by         (§ 68.56), compliance audits (§ 68.58),
assessment. The endpoint for a toxic         EPA and the Bureau of Census. The            and incident investigation (§ 68.60).
substance is its Emergency Response          presence of schools, hospitals, other        Most Program 2 processes are likely to
Planning Guideline level 2 (ERPG–2)          institutions, public arenas, recreational    be relatively simple and located at
developed by the American Industrial         areas, and large commercial and              smaller businesses. EPA believes
Hygiene Association (AIHA). If a             industrial developments that can be          owners or operators of Program 2
substance has no ERPG–2, then the            identified on street maps within this        processes can successfully prevent
endpoint is the level of concern (LOC)       circle must be noted in the RMP, but the     accidents without a program as detailed
from the Technical Guidance for              number of people occupying them need         as the OSHA PSM, which was primarily
Hazards Analysis, updated where              not be enumerated. The presence of           designed for the chemical industry. EPA
necessary to reflect new toxicity data.      environmental receptors within this          combined and tailored elements
EPA recognizes the limitations               circle must also be listed. EPA has          common to OSHA’s PSM and EPA’s
associated with ERPG–2 and LOC values        defined environmental receptors as           NPRM to generate Program 2
and is working with other agencies to        natural areas such as national or state      requirements and applied them to non-
develop Acute Exposure Guideline             parks, forests, or monuments; officially     petrochemical industry processes. EPA
Limits (AEGLs). When these values have       designated wildlife sanctuaries,             is also developing model risk
been developed and peer-reviewed, EPA        preserves, refuges, or areas; and Federal    management programs (and RMPs) for
intends to adopt them through                wilderness areas, that can be exposed to     several industry sectors that will have
rulemaking as the toxic endpoints for        an accidental release. All of these can be   Program 2 processes. These model
this rule. For flammables, vapor cloud       identified on local U.S. Geological          guidances will help sources comply by
explosion distances will be based on an      Survey maps or maps based on USGS            providing standard elements that can be
overpressure of 1 psi; for alternative       data.                                        adopted to a specific source. EPA
flammable releases, radiant heat               The five-year accident history will        expects that many Program 2 processes
distances will be based on an exposure       cover all accidents involving regulated      will already be in compliance with most
of 5 kW/m2 for 40 seconds. For vapor         substances, but only from covered            of the requirements through compliance
cloud fires and jet fires, the lower         processes at the source that resulted in     with other Federal regulations, state
flammability limit provided by the           serious on site or certain known offsite     laws, industry standards and codes, and
National Fire Protection Association         impacts in the five years prior to the       good engineering practices.
(NFPA) or other sources shall be used.       submission of each RMP. EPA has
   EPA selected 1.5 meter per second         replaced the definition of significant          The Program 3 prevention program
(m/s) wind speed and F atmospheric           accidental release with specific             includes the requirements of the OSHA
stability class as the default worst-case    definitions of the types of releases to be   PSM standard, 29 CFR 1910.119 (c)
scenario meteorological conditions. If       covered under each of the specific           through (m) and (o), with minor
the owner or operator has                    requirements previously associated with      wording changes to address statutory
meteorological data that show that           this definition.                             differences. This makes it clear that one
higher minimum wind speeds or less                                                        accident prevention program to protect
                                             D. Prevention Programs                       workers, the general public, and the
stable atmospheric class conditions
existed at the source at all times in the       EPA has retained the management           environment will satisfy both OSHA
previous three years, then the higher        system requirement proposed in the           and EPA. For elements that are in both
wind speed and different stability class     NPRM, but only for Program 2 and 3           the EPA and OSHA rules, EPA has used
may be used. Alternative release             processes. EPA has moved the                 OSHA’s language verbatim, with the
analyses may use site-specific, typical      management system requirement from           following changes: the replacement of
meteorological conditions. If the owner      the prevention program section to the        the terms ‘‘highly hazardous substance,’’
or operator has no data on typical           general requirements section because it      ‘‘employer,’’ ‘‘standard’’ and ‘‘facility’’
meteorological conditions, then              should be designed to oversee the            with ‘‘regulated substance,’’ ‘‘owner or
conditions used in the RMP Offsite           implementation of all elements of the        operator,’’ ‘‘part or rule,’’ and
Consequence Analysis Guidance (3 m/s         risk management program. The owner or        ‘‘stationary source’’; the deletion of
and D stability), may be used. Although      operator must designate a qualified          specific references to workplace impacts
EPA is providing technical guidance          person or position with overall              or to ‘‘safety and health;’’ changes to
and reference tables for worst-case and      responsibility for the program and           specific schedule dates; and changes to
alternative release scenario assessments,    specify the lines of authority if            references within the standard. The
owners or operators may use any              responsibility for implementing              ‘‘safety and health’’ and ‘‘workplace
generally recognized, commercially or        individual requirements is assigned to       impacts’’ references occur in OSHA’s
publicly available air dispersion            other persons or positions.                  PSM standard in process safety
modeling techniques, provided the               In the SNPRM, EPA proposed a              information (29 CFR 1910.119 (d)(2)(E)),
modeling parameters specified in the         Program 2 prevention program that            process hazards analysis (29 CFR
rule are used.                               covered training, maintenance, safety        1910.119(e)(3)(vii)), and incident
   For the hazard assessment and the         precautions, and monitoring, but did         investigation (29 CFR 1910.119(m)(1)).
RMP, populations potentially affected        not specify any particular actions. EPA      These changes are designed to ensure
are defined as those within a circle that    solicited comment on whether specific        that OSHA retains its oversight of
has as its center the point of release and   prevention activities should be required     actions designed to protect workers
its radius the distance to the toxic or      for Program 2 sources, such as any of        while EPA retains its oversight of
flammable endpoint. Owners or                the specific activities initially proposed   actions to protect public health and the
operators may use Census data to define      in the NPRM. For today’s rule, EPA has       environment and to remove possible
this population, and may update those        developed seven specific elements for        interpretations that certain elements of
data if they are inaccurate. EPA suggests    the Program 2 prevention program:            process safety management fail to
that owners or operators use LandView,       safety information (§ 68.48), hazard         account for offsite impacts. Commenters
an electronic publication of                 review (§ 68.50), operating procedures       were particularly concerned about the
environmental, geographic and                (§ 68.52), training (§ 68.54), maintenance   phase-in of process hazard analyses
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31673

(PHAs). Under the final rule, PHAs            other National Response Team agencies        through review of the RMP, whether the
conducted for OSHA are considered             have prepared Integrated Contingency         source is in compliance with the rule.
adequate to meet EPA’s requirements.          Plan Guidance (‘‘one plan’’) (NRT, May       EPA, however, believes that the RMP
They will be updated on the OSHA              1996). The NRT and the agencies              must serve another function; to provide
schedule (i.e., by the fifth anniversary of   responsible for reviewing and approving      information to the public in a form that
their initial completion). This approach      federal response plans to which the one      will be understandable and will
will eliminate any need for duplicative       plan option applies agree that integrated    encourage the public to use the
analyses. Documentation for the PHA           response plans prepared in the format        information to improve the dialogue
developed for OSHA will be sufficient         provided in this guidance will be            with sources on issues related to
to meet EPA’s purposes.                       acceptable and be the federally              prevention and preparedness.
   EPA anticipates that sources whose         preferred method of response planning.          To meet both of these purposes, the
processes are already in compliance           An emergency response plan that              RMP will consist of the source’s
with OSHA PSM will not need to take           includes the elements specified in this      registration; an executive summary that
any additional steps or create any new        guidance can be used to meet the             will provide a brief description of the
documentation to comply with EPA’s            requirements in today’s rule. The final      source’s activities as they relate to
Program 3 prevention program. Any             rule also provides relief for sources that   covered processes and program
PSM modifications necessary to account        are too small to respond to releases with    elements; and data elements that
for protection of public health and the       their own employees; these sources will      address compliance with each of the
environment along with protection of          not be required to develop emergency         rule elements. While the public and
workers can be made when PSM                  response plans provided that                 implementing agencies could make use
elements are updated under the OSHA           procedures for notifying non-employee        of all sections of the RMP, the executive
requirements. EPA has modified the            emergency responders have been               summary will provide text descriptions
OSHA definition of catastrophic release,      adopted and that appropriate responses       and give the source a chance to explain
which serves as the trigger for an            to their hazards have been addressed in      its programs in a format that will be
incident investigation, to include events     the community emergency response             easy for communities to read and
‘‘that present imminent and substantial       plan developed under EPCRA (42 U.S.C.        understand. The data elements will
endangerment to public health and the         11003) for toxics or coordinated with        provide the implementing agency with
environment.’’ As a result, this rule         the local fire department for                the basic data it needs to assess
requires investigation of accidental          flammables.                                  compliance without asking for detailed
releases that pose a risk to the public or                                                 documentation. The Agency is
the environment, whereas the OSHA             F. Risk Management Plan (RMP)                considering development of an RMP
rule does not. EPA recognizes that               Owners or operators must submit           form where the data elements of the
catastrophic accidental releases              their first RMP by the date specified in     form would provide the implementing
primarily affect the workplace and that       § 68.10. After the RMP is submitted,         agency with the basic data it needs to
this change will have little effect on        changes at the source may require            assess compliance without asking for
incident investigation programs already       updates to the RMP other than the            detailed documentation. All data
established. However, EPA needs to            standard update every five years. If a       elements would be checkoff boxes, yes/
ensure that deviations that could have        new substance or new process is added,       no answers, or numerical entries.
had only an offsite impact are also           the RMP will need to be revised and             This approach will provide data that
addressed.                                    submitted by the date the substance is       anyone can download or search. States,
                                              first in the process above the threshold     communities, trade associations, or
E. Emergency Response                         quantity. If changes to processes require    public interest groups may want to use
   EPA has adopted the emergency              revised hazard assessments or PHAs, or       the data or a subset of the data to create
response requirements found in the            if a process changes Program level, the      databases that allow them to compare
statute, without additional specific          source must submit a revised RMP             sources in the same industry or same
planning requirements beyond those            within six months.                           area. For example, a local entity will be
necessary to implement the statute. This         EPA intends that the RMP will be          able to download data from all reporting
action is consistent with the Agency’s        submitted in a method and format to a        sources that are similar to ones in its
effort to develop a single Federal            central point as specified by EPA.           community to determine whether the
approach for emergency response               States, local entities including local       quantities stored and process controls
planning. The Presidential Review of          emergency planning committees                used are typical. The information will
Federal release prevention, mitigation,       (LEPCs), and the public will be able to      provide the public with data that will
and response authorities (required            access all RMPs electronically. This         enhance their dialogue with sources. It
under section 112(r)(10) of the Clean Air     process will relieve states and local        will also help sources and trade
Act) found that there is seldom harmony       entities of the burden of filing             associations to understand practices in
in the required formats or elements of        documents and providing public access        their industries and identify practices
response plans prepared to meet various       to them without limiting these agencies’     that could be used to reduce risks. The
Federal regulations. Accordingly, EPA         or the public’s access to the information.   risk management program
has committed not to specify new plan            The RMP is a multi-purpose                documentation will remain at the source
elements and/or a specific plan format        document. The CAA requires that the          and will be available for review by EPA
in today’s rule beyond those that are         RMP indicate compliance with the             and the implementing agency.
statutorily required. EPA believes that       regulations and also include the hazard
plans developed to comply with other          assessment, prevention program, and          G. Air Permitting
EPA contingency planning requirements         emergency response program. EPA is             The SNPRM discussed the
and the OSHA Hazardous Waste and              mandated to develop a program for            relationship between section 112(r) and
Emergency Operations (HAZWOPER)               auditing RMPs and requiring revisions,       CAA air permitting requirements for
rule (29 CFR 1910.120) will meet most         where appropriate. The RMP, therefore,       sources subject to both provisions.
of the requirements for the emergency         must include enough data to allow the        Under the CAA, air permitting
response program. In addition, EPA and        implementing agency to determine,            authorities must ensure that sources are
31674        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

in compliance with applicable                 causes and impacts of accidents could           EPA is considering the development
requirements to issue a permit. Because       be useful, the Agency has decided to         of incentives and awards to stimulate
section 112(r) is an applicable               limit such reporting required under this     inherently safer alternative research and
requirement, EPA has identified in the        rule to the five-year accident history       development, public outreach and
final rule the permit conditions and the      mandated by the CAA. When necessary,         education, and risk communication
actions owners or operators and air           EPA will use its authority to investigate    efforts. The Agency welcomes ideas and
permitting authorities must take to           individual accidents and to seek             participation in this effort.
ensure compliance. The permit must            additional information to the extent
                                                                                           III. Discussion of Comments
identify part 68 as an applicable             authorized by CAA section 114 (i.e., to
requirement and establish conditions          determine compliance with this rule             EPA received 1220 comments,
that require the owner or operator of the     and CAA section 112(r)(1), to support        including 180 relevant comments
source to submit either a compliance          further rule development, and to assist      submitted for the List Rule, 757
schedule for meeting the requirements         research on hazard assessment).              comments on the NPRM, and 283
of part 68 by the date specified in              Secondly, the Agency encourages           comments on the SNPRM. The
§ 68.10(a) or, as part of the compliance      sources, the public, and local entities to   commenters represented 92 chemical
certification submitted under 40 CFR          work together on accident prevention         manufacturers, 81 other chemical users,
70.6(c)(5), a certification statement that,   issues, but believes that the wide variety   111 petroleum industry companies, 174
to the best of the owner or operator’s        and large number of sources subject to       industry trade associations, 40 other
knowledge, the source is in compliance        this rule make any single mandatory          trade associations, 58 agricultural
with all requirements of this part,           approach to public participation             supply retailers, 102 propane retailers,
including the registration and                inappropriate. RMP information should        132 explosives users, 29 water treatment
submission of the RMP. The owner or           be used as the basis for dialogue            facilities, 26 utilities, 66 state agencies,
operator must also submit any                 between the community and sources on         63 local governments, 8 other Federal
additional relevant information               accidental release prevention, risk          agencies, 52 academics and consultants,
requested by the air permitting authority     reduction and preparedness for               61 environmental groups, 6 labor
or designated agency to ensure                emergency response. Industry and the         unions, and 31 private citizens. The
compliance with the requirements of           public should continue to use the LEPC       remaining 88 letters were requests for
this section. If a permit is already issued   as a mechanism for this dialogue.            extensions of the comment period,
that does not contain the provisions             Finally, EPA does not believe that a      interim or duplicate sets of comments,
described above, then, the owner or           requirement that owners or operators         or had been sent to the incorrect docket.
operator or air permitting authority shall    conduct searches or analyses of              The major issues raised by the
initiate permit revision or reopening         alternative process technologies for new     commenters are briefly addressed
according to the procedures in 40 CFR         or existing processes will produce           below; a complete presentation of the
70.7 or 71.7 to incorporate the terms and     significant additional benefits. Many        Agency’s response to the comments
conditions as described above. EPA also       commenters, including those who              received on this rulemaking is available
allows the state to assign the authority      support these analyses, indicated that       in the Risk Management Program Rule:
to implement and enforce these                an assessment of inherently safer design     Summary and Response to Comments in
requirements to another agency or             alternatives has the most benefit in the     the docket (see ADDRESSES).
agencies (the ‘‘designated agency’’) to       development of new processes. Industry          Many commenters requested that
take advantage of resources or accident       generally examines new process               EPA’s list be identical to OSHA’s list of
prevention expertise that might be            alternatives to avoid the addition of        highly hazardous substances and no
available in these other agencies.            more costly administrative or                thresholds should be less than OSHA’s.
Finally, the air permitting authority or      engineering controls associated with a       These comments were addressed in the
designated agency must: (1) Verify that       design that may be more hazardous in         final list rule (59 FR 4478; January 21,
the source owner or operator has              nature. Although some existing               1994) and background material related
registered and submitted an RMP or a          processes may be judged to be                to these issues is available in docket
revised plan when required; (2) verify        inherently less safe than others, EPA        number A–91–74 (see ADDRESSES).
that the source owner or operator has         believes most of these processes can be
                                                                                           A. Tiering
submitted the proper certification or         safely operated through management
compliance schedule; (3) for some or all      and control of the hazards without              Commenters on the NPRM suggested
sources, use one or more mechanisms           spending resources searching for             that EPA create different levels of
such as, but not limited to, a                unavailable or unaffordable new process      requirements for sources that pose
completeness check, source audits,            technologies. Application of good PHA        different risks. In the SNPRM, EPA
record reviews or facility inspections to     techniques often reveals opportunities       proposed three tiers: a low hazard tier
ensure that permitted sources are in          for continuous improvement of existing       for sources whose worst-case release
compliance; and (4) initiate enforcement      processes and operations without a           would not affect any public or
action, based on the requirements of this     separate analysis of alternatives. EPA       environmental receptors of concern; a
section, as appropriate.                      encourages owners or operators to            medium hazard tier for sources that
                                              continue to examine and adopt viable         were not eligible or covered by the low
H. Other Issues                               alternative processing technologies,         or high hazard tiers; and a high hazard
  In the SNPRM, EPA discussed three           system safeguards, or process                tier based on either industry sector
other issues raised by commenters:            modifications to make new and existing       accident history and number of
accident information reporting, public        processes and operations inherently          employees or simply based on the
participation, and inherently safer           safer. Through the process and               number of employees. Generally,
technologies. EPA has decided not to          prevention program information in the        commenters were concerned that all
develop any requirements related to           RMP, sources can demonstrate, and            processes at a source would need to be
these issues at this time. Although EPA       users of the RMP information can             eligible for Program 1 before any process
continues to believe that accident            observe and promote, progress toward         could be. EPA has revised the rule to
reports that provide more detail on the       safer processes and operations.              clarify that eligibility for any tier
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31675

(Program) is based on process criteria,      commenters want EPA to allow site-           proposed definition of significant
not source. If a process meets Program       specific modeling for the offsite            accidental release, arguing that many
1 criteria, the owners or operators need     consequence analysis, rather than look-      companies and emergency responders
only meet Program 1 requirements for         up tables.                                   conservatively evacuate or shelter-in-
that process even if other processes at         In today’s rule, EPA specifically         place during minor incidents. Under the
the source are subject to Program 2 or       allows owners or operators to use site-      proposed definition, these actions
Program 3.                                   specific air dispersion modeling for         disqualify a process from Program 1
   1. Rationale. Only 2 of the 57            their offsite consequence analyses. EPA      even if there were no offsite impacts.
commenters opposed tiering arguing           disagrees that offsite impacts should be     Some commenters stated that the
that the CAA mandates that all covered       limited to ‘‘considerable’’ impacts.         accident history provision was
sources be required to complete a full       When offsite impacts are possible, it        unnecessary because, by definition, a
prevention program and that Congress         may be reasonable to implement some          Program 1 process is not capable of an
had considered and rejected                  additional measures to reduce                accidental release that could affect
exemptions. One commenter argued that        accidental releases, especially when the     public receptors.
EPA had already accounted for                burden of measures such as additional           EPA has decided to retain the
‘‘differences in size, operations,           training or safety precautions is low.       accident history criterion for Program 1
processes, class and categories of           Programs 2 and 3 provide flexibility to      processes, excluding events with
sources’’ in developing the list and         allow source-specific consideration of       evacuations and shelterings in place,
thresholds. Most commenters supported        the appropriate level of effort. Program     and to drop the definition of significant
tiering as an appropriate way to             1 requires no additional prevention
                                                                                          accidental release. Program 1 eligibility
recognize different levels of risks and to   measures, which is only categorically
                                                                                          is not a one-time exercise; owners or
allow sources and emergency                  justifiable if such measures would not
                                                                                          operators must certify in each RMP that
responders to focus on the highest risk      reduce offsite impact. It is reasonable to
                                                                                          no qualifying releases have occurred
processes.                                   couple a no impact criterion with a
   EPA disagrees that the CAA requires                                                    since the previous RMP submission and
                                             conservative worst-case scenario to
all covered processes to comply with                                                      provide current worst-case release data
                                             conclude categorically the public would
the same detailed risk management                                                         indicating no offsite impacts are
                                             not benefit from additional prevention
program. EPA listed regulated                                                             anticipated in the future. Program 1
                                             measures. If no impact can be
substances because of their inherent                                                      criteria and accident history provide
                                             demonstrated for a conservative worst-
hazards, such as toxicity and volatility.    case release, then no impact is likely to    owners or operators an opportunity to
EPA did not consider, nor does the CAA       occur for any other release event, and       demonstrate to the community ongoing
indicate that it may consider,               the process could be judged to pose a        excellence in accident prevention and
‘‘differences in size, operations,           low threat to the surrounding area.          an incentive to search for and
processes, class and categories of              EPA has decided that potential impact     implement ways, such as inventory
sources’’ in selecting chemicals or          on environmental receptors resulting         reduction, to reduce the potential for
setting thresholds. In establishing          from a worst-case scenario will not be       offsite impacts associated with large
section 112(r)(7) requirements, however,     a criterion to determine eligibility for     scale accidental releases. Further, the
Congress clearly recognized that a ‘‘one-    Program 1. EPA agrees that very little,      unique circumstances surrounding past
size-fits-all’’ approach may not be          if any, data exist on the potential acute    accidents can provide a reality check on
appropriate for these regulations and        environmental impacts or                     the theoretical modeling and worst-case
directed EPA to consider these factors in    environmental endpoints associated           scenario claims used for the offsite
the development of the accident              with listed chemicals upon accidental        consequence assessment and serve to
prevention regulations. Furthermore,         release. In addition, the offsite            verify that administrative controls and
EPA strongly disputes the assertion that     consequence distances estimated using        passive mitigation measures work as
it has exempted any source from              human acute toxicity or overpressure         intended. EPA decided to delete public
regulation by creating different             effects may not be directly relevant to      evacuations or shelterings-in-place as
programs for different sources. As noted     environmental effects. However, owners       criteria for Program 1 eligibility. EPA is
below, all covered processes will be         or operators will be required to             that inclusion of these criteria in
addressed in RMPs that contain hazard        document in the RMP the presence of          Program 1 eligibility may create a
assessment, prevention, and response         such receptors within the distance           perverse incentive not to report releases
information, as required by statute.         determined for the worst case. EPA           and it may encourage sources and local
   2. Program 1 vs. Program 2 and            believes that natural resource agencies      emergency officials to take more
Program 3 Criteria. Commenters               and the public will be able to benefit       chances during an event when there
generally supported Program 1 for low-       from the environmental receptors             may be potential exposures that do not
risk sources, but argued that few, if any,   information in the RMP in discussions        rise to the endpoint specified in this
sources would qualify because the            with the source.                             rule but would otherwise be worthy of
requirements were too stringent.                b. Accident History for Program 1.        precautionary actions by the source or
   a. Potential for Offsite Impact.          Many commenters objected to accident         by local officials. If the evacuation or
Commenters generally agreed that             history as a Program 1 criterion, arguing    sheltering takes place because of a
sources that can demonstrate no offsite      that a process that had a significant        concern for public exposure to an
impact should be eligible for Program 1,     accidental release in the previous five      endpoint as specified in this rule, then
but only public health should be             years may have been changed to reduce        public receptors necessarily would be
considered, not environmental impacts.       or eliminate future events and public        under the worst case distance and the
Others stated that only sources posing a     impact. Several commenters suggested         process would not be eligible for
threat of ‘‘considerable’’ impacts should    that such processes that otherwise meet      Program 1 under the criteria of the rule.
not be eligible for Program 1. One           Program 1 criteria should remain             Owners or operators of processes that
commenter stated that EPA’s worst-case       eligible, but be required to justify and     meet Program 1 eligibility requirements
scenario is unrealistic and its use as a     document the changes. Some                   are required to report a 5 year accident
Program 1 trigger is unreasonable. Other     commenters also objected to EPA’s            history for that process. If local
31676        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

emergency planners, first responders or            EPA does not agree that non-PSM           number of employees; a highly
the public have concerns about                  sources should be assigned to Program        automated process may involve fewer
processes in Program 1 because of a past        1. Many of these sources could have an       employees and be more complex than a
evacuation or sheltering-in-place event,        accidental release that can affect the       more labor intensive process. Quantity,
then mechanisms under EPCRA could               community. OSHA exempted retailers           if relevant, can be directly measured
be used to gather more information from         because they are covered by other            rather than indirectly by number of
the source about its prevention program         OSHA or state regulations that address       employees. In addition, EPA was
(such as EPCRA sections 302(b)(2)               workplace safety, not because they are       concerned that the data on which the
[designation of a facility if it does not       incapable of having offsite impacts. All     Agency based its proposed approach
already handle extremely hazardous              retailers are in Program 2 unless they       may not be representative of all
substances listed under section 302] and        can meet Program 1 criteria; thus, they      accidental releases. These data, drawn
303(d)(3) [provision of information to          should be taking prevention steps and        from reports to the National Response
the emergency planning committee])              will be providing the community with         Center and EPA regions, appear to
and involve the source in emergency             information. Compliance with other           indicate that larger sources have more
planning. Sources and local first               existing Federal and state programs may      and larger accidental releases than do
responders should be discussing                 satisfy many Program 2 prevention            smaller sources. This finding, however,
evacuation and sheltering-in-place              requirements, thereby limiting the           may in part reflect different levels of
criteria and decisions as part of               burden. In addition, EPA expects to          reporting, rather than different levels of
emergency response planning.                    develop model risk management                accidents. Both Federal and state
   c. Other. Many commenters asked that         programs for these sectors. Public           officials report that the number of
specific industries such as ammonia             sources in states without delegated          releases has risen in recent years as
refrigeration, retail fertilizer outlets, all   OSHA programs are not covered by             more sources learn about their reporting
flammables, and all non-PSM sources be          OSHA PSM because OSHA is barred by           obligations. EPA has decided that,
assigned to Program 1. EPA disagrees            law from regulating them. Nonetheless,       because the processes within the SIC
because each source has unique                  these sources may pose a threat to the       codes basically handle the same
surroundings that must be considered in         community. Today’s rule places these         chemicals in the same way, smaller
the worst-case assessment and each              sources in Program 2.                        sources should not be moved to a
source must demonstrate favorable                  3. Program 2 vs. Program 3 Criteria. In   different Program based on the number
                                                the SNPRM, EPA’s preferred approach          of employees.
accident history. All ammonia
                                                assigned sources to Program 3 based on          b. SIC Code. Fifty-seven commenters,
refrigeration units covered by this rule
                                                SIC code and number of employees;            particularly those in the oil industry,
are already subject to OSHA PSM; many
                                                sources in specified SIC codes with 100      utilities, and public systems, supported
of these have had accidents that affected
                                                or more full-time employees (FTE)            the use of SIC codes based on accident
the community and should be required
                                                would have been subject to the full          history; 28 commenters opposed it.
to complete the requirements of the
                                                program in 3 years; sources in a subset      Supporters argued that industry
hazard assessment and emergency
                                                of these SIC codes with 20 to 99 FTEs        accident records represented a
response program and provide the
                                                would have been subject to the full          reasonable criterion for identifying high-
community with full RMP information.
                                                program in 8 years. The alternative was      risk sources. If an entire industry has a
According to the industry, a typical            to impose the full program on all            long history without accidental release,
ammonia fertilizer retailer handles 200         sources with more than 100 FTEs. Most        it may indicate that the materials
tons of ammonia. Some retailers may be          SNPRM commenters submitted                   handled and handling conditions
very geographically isolated and can            suggestions and arguments about this         generate a smaller potential for serious
qualify for Program 1, but EPA expects          approach.                                    releases or that the industry is
that most will be subject to Program 2.            a. Number of Employees. Only two          effectively controlled by government or
Given the large quantity of ammonia             commenters supported using the               industry standards. Some commenters
involved, EPA considers it important            number of employees as the sole              argued that industry accident histories
that the community have information on          criterion, arguing it would be the easiest   reflect underlying risk better than
offsite consequences from these sources         approach to implement with the greatest      individual source accident histories
and that the owner or operator takes the        amount of industry participation.            because accidents are rare events; a
necessary steps to address accidental           Commenters opposed it because the            source with no accidental releases over
release prevention and emergency                number of employees proposed does not        the previous five years is not necessarily
response.                                       reliably correlate with risk, hazard, or     safe.
   EPA expects that some sources                quantity on site, and because it could          Commenters opposing the use of SIC
handling flammables will qualify for            act as an incentive to reduce                codes stated that the approach is
Program 1 because the distance to a 1           employment. In addition, some                arbitrary, that accidents with only onsite
psi overpressure is generally less than         commenters stated that smaller sources       effects should not be used, that sources
distances to toxic endpoints.                   may have fewer resources to manage           in other industry sectors handle similar
Nonetheless, those sources handling             hazards and, therefore, may pose a           quantities and pose similar risks, and
flammables in sufficient quantity to            greater risk to the public.                  that sources within an industry that
generate a potential offsite impact                EPA agrees and has deleted the            have successful risk management
should provide the community with               number of employees as a Program 3           practices are penalized by a few isolated
information on hazards and address              criterion. Although size of a source in      sources within the industry.
prevention and response steps. Many             the manufacturing sectors may be                EPA has decided to retain the use of
sources handling flammables are                 related to the quantities on site and        SIC codes, adding SIC 2865 based on
already subject to PSM; the only                complexity of the processes, many other      further review of accident histories, and
additional steps required under this rule       sources may have similar characteristics     to add coverage by the OSHA PSM
are completion of the hazard assessment         with fewer employees. Complexity is          standard as a separate criterion for
and emergency response programs and             more directly associated with the type       Program 3. EPA selected the SIC codes
submission of an RMP.                           of industry (i.e., SIC code) than with       by analyzing accident data filed by
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31677

sources in response to EPA’s request for    requirements imposes little additional       site-specific considerations affect the
information in the Accidental Release       burden.                                      extent of potential exposure to a worst-
Information Program (ARIP). ARIP               EPA decided to include all covered        case release, and thus are reflected in
collects data from certain sources that     processes currently subject to the OSHA      the Program 1 eligibility criteria.
report releases under CERCLA section        PSM standard in Program 3 to eliminate       Elements of risk such as process
103. EPA selected the SIC codes that        any confusion and inconsistency              complexity and accident history are also
showed a high frequency of the most         between the prevention requirements          reflected the design of Program 2 and
serious accidents across a significant      that the owners or operators of such         Program 3 requirements and the
percentage of all sources within the SIC    processes must meet. EPA’s Program 3         assignment of processes to these
code to avoid mischaracterizing an          prevention program is identical to the       Programs. Program 2 sources generally
industry based on isolated, problematic     OSHA PSM standard. Including OSHA            handle and store regulated substances,
sources. Data on the selection criteria     PSM processes in Program 3, therefore,       but do not react or manufacture them.
were summarized in the SNPRM and            imposes no additional burden on these        EPA believes Program 2 sources can
the docket at the time of the SNPRM.        processes; the only new requirements         take prevention steps that are less
The accident history of the cyclic crudes   for such processes are the hazard            detailed than those in the OSHA PSM
industry (SIC code 2865) is similar to      assessment, emergency response               standard and still accomplish accident
that of the categories selected. EPA        program, and the RMP, which are the          prevention that is protective of any
disagrees that only offsite impacts         same under Programs 2 and 3.                 population nearby. Program 3 is
should be considered; accidental               c. Site-Specific, Risk-based Criteria.    reserved for processes already subject to
releases that caused death,                 Many commenters stated that Program          the OSHA PSM standard and processes
hospitalizations, or injuries on site are   assignment should be based on site-          with high accidental release histories.
also of concern because they indicate       specific risk-based criteria. Accident       The SIC codes with an accident history
significant safety problems that could      history is one such criterion and is         selected by EPA for Program 3 are
lead to releases that cause impacts         discussed separately in Section              typically complex processes. The PSM
offsite. The SIC codes selected by EPA      III.A.3.d. Other criteria suggested          standard was designed for, and is
are basically the same ones OSHA            include population density or                particularly appropriate for, these
selected for its PSM program inspection     proximity, quantity on site, number of       processes.
focus. EPA disagrees that sources are       substances held above the threshold,            EPA takes issue with the
‘‘penalized’’ by this approach because      process conditions, toxicity, volatility,    appropriateness of some of the
owners or operators of processes in         alternative release scenario results, or     suggested factors. Meteorological
these SIC codes have an opportunity to      combinations of these factors as a risk      conditions vary too much to be
                                            index.                                       considered in determining a risk level.
present their safety record, demonstrate
                                               EPA agrees with commenters that           Chemical quantity alone does not
the success of their accident prevention
                                            Program assignments should be risk-          accurately relate to risk because the
programs, and communicate with the          based to the extent possible; however, as
local community the basis for their risk                                                 location and handling conditions can
                                            the variety of suggestions indicates, a      dramatically change the potential for
management practices. Sources that          considerable number of variables would
receive Merit or Star status in the OSHA                                                 exposures.
                                            need to be considered. EPA knows of no          In addition, EPA has implementation
Voluntary Protection Program will be        standard approach or equation that is        concerns about a detailed, national,
favorably distinguished from others in      used and generally accepted. The             multi-factor, risk-based approach, were
the same industry when implementing         variety of suggestions indicate the          it to be feasible. States such as Delaware
agencies are selecting sources for audits   likelihood that any proposed formula         have used a simple version of a risk-
(see section III.T.1 below).                would meet opposition. No commenter          based approach and found that it
   EPA agrees that serious accidents        provided a method to comprehensively         created serious problems for the state
occur infrequently even at sources with     address these factors on a nation-wide       and the sources. Smaller sources and
poor safety practices and that industry-    basis.                                       those without technical staff have had
wide accident records provide a better         An important consideration for EPA        great difficulty in implementing the
mechanism than the accident history at      in developing the rule provisions for        approach and have had to rely on state
a single source for identifying those       Program assignment was to avoid undue        officials to determine applicability for
sectors whose chemicals and processes       complexity, confusion, and resource          them. Delaware specifically
may lead to serious releases. A high        expenditure by sources and                   recommended that EPA not attempt
proportion of the sources in some SIC       implementing agencies implementing           implementing a similar approach on a
codes reported releases; EPA’s analysis     the rule’s criteria. To some extent, EPA     national basis because of the burden it
specifically took into account the          has incorporated risk factors, including     imposes on the state and the confusion
number of reports from individual           site-specific factors, in determining        and uncertainty it creates for sources.
sources to avoid selecting an SIC code      which sources are eligible for which         Delaware has fewer than 100 sources;
because of a small number of sources        Program. For example, Program 1              nationally, EPA estimates that 66,000
with serious safety problems.               eligibility already considers the            sources will be subject to the rule,
   The OSHA PSM already applies to          potential for offsite impacts; any process   approximately 62,000 of which are
most covered processes in the selected      for which there are no public receptors      outside of the chemical and refining
SIC codes. EPA expects that there will      within the distance to an endpoint from      sectors. If implementing agencies had to
be fewer than 400 additional processes      a worst-case release may be eligible for     help most of these sources determine
assigned to Program 3 that are not          Program 1, provided there have been no       the index score and Program for each
already subject to the OSHA PSM             releases with certain offsite                process, not only would the burden on
standard at the approximately 1,400         consequences within the previous five        the agencies be extreme, but
sources in these SIC codes and that all     years. Today’s rule allows sources to        implementation would also be delayed.
of these sources will already have other    consider passive mitigation and              Furthermore, were EPA to simply
processes covered by OSHA PSM.              administrative controls in conducting        identify risk factors without an index
Consequently, fulfilling the RMP            the worst-case release analysis. Such        and leave the determination of Program
31678        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

level to sources or implementing             difficulties in developing a ‘‘risk index’’    approach than those reflected by a risk
agencies, the process for such site-         for determining Program assignments            index approach.
specific determinations would be even        would apply to an attempt to                      d. Accident History. Some
more complex and resource intensive          incorporate likelihood in a more               commenters argued that EPA should
for sources and implementing agencies;       sophisticated manner than EPA was              assign sources to Program 3 based on
it would create disincentives for a state    able to do in its analysis of accident         the accident history of the source. One
to become involved and to take on the        history by SIC code. In addition to the        commenter suggested that any source
role of an implementing agency. EPA          substance-specific properties considered       with no accidental release that exceeded
believes it is better to have sources and    as part of the chemical listing criteria,      a reportable quantity (as defined in
agencies focus their resources on            the site-specific likelihood of a release      CERCLA) for the previous five years
prevention activities.                       depends on a number of factors,                should be in Program 2. Others argued
   EPA considered, but decided against,      including the appropriateness of the           that a source should be in Program 2 if
a less comprehensive risk-based              equipment in use, the maintenance of           it had no significant accidental release
approach using proximity or population       that equipment, operator performance,          in the previous five years. Some
density as criteria for distinguishing       and safety systems and their                   commenters said that a one-release
between Program 2 and 3. EPA                 performance. Evaluating site-specific          standard was too stringent and that two
recognizes that accidental releases from     likelihood of release requires data on         or more significant accidental releases
sources near or in densely populated         each of these items; such data rarely          should be allowed before a source was
areas may harm more individuals and          exist especially for complex processes         assigned to Program 3. Another
be perceived to pose a greater risk than     where a variety of equipment must be           commenter suggested that a source with
other sources. However, as stated above,     evaluated along with the performance of        no significant accidental releases in the
EPA believes that the type of process, its   multiple operators and maintenance             past five years and with few potentially
complexity and accident history should       workers. Using surrogate data (e.g.,           impacted neighbors should be placed in
be considered for Program 2 or 3             manufacturer’s failure rate data)              Program 2.
assignment, regardless of the number of      introduces error of an unknown                    Other commenters opposed this
people potentially exposed. In other         magnitude to the analysis. Such                approach, arguing that, in many cases,
words, EPA does not believe the              analyses are very costly and produce           sources take steps to prevent
streamlined Program 2 prevention             results that are, at best, questionable.       recurrences following a serious release.
elements should apply to a complex                                                          In some cases, the offsite impacts from
                                                EPA also believes that assessing the
Program 3 process just because fewer                                                        releases are minor and would not justify
                                             likelihood of a release at most sites for
persons could be potentially exposed or                                                     assigning a source to a particular
                                             site-specific individualized Program-          Program. Other commenters stated that
that the Program 3 prevention elements
                                             level determinations is neither                the absence of an accidental release can
should apply to a Program 2 process
                                             technically feasible nor cost-effective. In    be indicative of lower risk, but it can
because more people could be
                                             most cases, the data do not exist to           also simply mean that a release has not
potentially exposed. EPA believes that
                                             conduct a meaningful analysis; where           yet occurred. Several commenters noted
populations offsite should be protected
                                             they do exist, the cost of developing a        that a five-year time period is
from harm based on the type of process;
                                             defensible analysis and overseeing it          statistically insignificant because
the Program 2 prevention elements,
                                             could well exceed the cost of                  accidental releases are infrequent
properly applied to the expected types
of Program 2 processes, serves to protect    compliance with the rule. Such an              events.
off-site populations, just as the Program    approach would resemble a permit                  EPA agrees that source-specific
3 prevention elements for complex            program, which would be resource-              accident history is not a reasonable
processes serves to protect offsite          intensive for sources and implementing         basis for assigning processes to
populations.                                 agencies. EPA determined that the              Programs 2 and 3. Given the relative
   If Program assignments were based on      simpler approach for assigning sources         infrequency of serious accidents, a five-
the alternative release scenario results,    to Program 1 would provide regulatory          or even ten-year period without an
sources would not have the flexibility       relief for those sources that could not        accident may not be indicative of safe
and latitude in today’s rule for these       affect the public while allowing other         operations. In addition, the criteria
scenarios because more definite criteria     sources to devote their resources to           necessary to define the types of past
would need to be considered to ensure        prevention activities rather than to           accidental release for the purposes of
the proper scenarios and results are         analyses that would be subject to legal        program classification would need to be
assessed. This places more emphasis          challenges.                                    based on a wide variety of variables and
and burden for sources on the offsite           EPA notes that sources have the             site-specific factors, which would lead
consequence assessment rather than on        flexibility to implement appropriate           to confusion and unnecessary
accident prevention and communication        accident prevention measures based on          complexity. Factors such as weather
with the public and first responders.        the hazards and risks discovered in the        conditions at the time of the release,
Furthermore, because active mitigation       hazard review or process hazard                rather than the size of a source or its
includes process and control equipment       analysis. The structure of Programs 2          management practices, often determine
that may fail, considering such              and 3, therefore, reflect site-specific risk   whether a release has offsite
equipment in evaluating risk would not       criteria. Further, the purpose of the risk     consequences. EPA believes that
be appropriate without detailed review       management program and RMP effort is           accident history is appropriately used
by the source and oversight by the           to prevent accidents and facilitate local      on an industry-wide basis as described
implementing agency.                         level dialogue about the risks,                above for selection of Program 3
   Some commenters suggested yet             prevention measures, and emergency             sources. If accidental releases with
another variation of a less                  response effort in place at the source.        consequences appear to occur at a large
comprehensive, ‘‘risk’’-based approach       The local community and first                  proportion of sources within an SIC
that would have EPA use a site-specific      responders may have far different              code, where similar processes,
analysis of likelihood of release to         concerns that should, and can be               equipment and chemicals are used, then
assign Program levels. Many of the same      addressed better through today’s               it is reasonable to conclude that
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                              31679

processes in that SIC code pose a greater      or OSHA regulation or state law or             the distance potentially affected by the
likelihood of a high hazard release than       complying with the model.                      worst case.
others. This approach removes the need         Consequently, EPA decided it was better           b. Signs. Commenters generally
for at least one accident to occur at          to have models available as guidance,          opposed the SNPRM requirement that
every source that EPA believes ought to        but not require compliance with them.          sources with Program 1 processes post
be assigned to a particular Program,           Further, EPA believes that the key             signs warning of the hazards on site if
especially when such accidents are rare        elements of good accident prevention           the only regulated substances present at
events. EPA is also concerned that using       practices are captured within the              the site above the threshold quantity
source-specific accident history as a          requirements of the Program 2                  were listed for flammability.
criterion would create an incentive for        prevention program. Model programs             Commenters stated that local and state
sources to fail to report releases. Finally,   and plans are likely to build on these         fire and safety codes often already
as EPA has stated, assignments to              approaches, making it easier for sources       require such signs. In addition, sources
Program 2 and 3 also consider the              in Program 2 to use models that are later      are already required under EPCRA
appropriateness of the prevention steps        developed by others.                           section 312 to file annual inventories
for the types of sources. EPA believes            EPA is working with industry to             with the LEPC and fire department that
that both Programs move sources to             develop model risk management                  identify hazards on site. Signs would
greater accident prevention.                   programs and RMPs for ammonia                  have fulfilled the emergency response
   e. Other. Some commenters asked that        refrigeration systems, propane                 program requirements for a source.
the implementing agency be given               distributors and users, and water              Because Program 1 eligibility will now
discretion to move a source into a             treatment systems. EPA also expects to         be determined on a by-process basis
different Program based on local               develop models for ammonia retailers           rather than by source-wide criteria and
concerns and knowledge. EPA notes              and wastewater treatment systems. EPA          because EPA has revised the emergency
that states have the authority, under the      encourages other industrial sectors to         response program provisions as noted
CAA, to impose more, but not less,             work together on additional model              below, EPA has dropped the
stringent standards than EPA (see CAA          development.                                   requirement for signs.
section 112(r)(11)).                              4. Program 1 Requirements.                     c. Emergency Response Program. In
   A few commenters suggested that             Commenters were generally opposed to           the SNPRM, EPA asked whether
Program 2 be limited to sources for            posting signs, and certification of no         additional emergency response planning
which a model risk management                  environmental impact.                          and coordination should be required for
program had been developed. The                   a. Certification of No Environmental        Program 1 processes. Some commenters
models would be designed to reflect            Impact. Many commenters stated that it         supported this requirement, while
risks associated with categories of            would be ‘‘virtually impossible’’ to           others stated that most sources are
sources that all use the same type of          certify ‘‘no potential for environmental       already covered by EPCRA and
equipment and handle the substances in         impacts,’’ as required by the SNPRM.           participate in community response
the same way (e.g., propane retailers          Commenters said that the definition of         planning. Commenters stated that
and users, ammonia retailers). EPA             environmental impact was too vague,            because the worst-case release could not
considered this approach and decided           that the list of environments suggested        reach public receptors, such efforts were
that the Program 2 prevention program          in the SNPRM was too broad, and that           not necessary.
provides a better, generic prevention          the language seemed to require a full             In the final rule, EPA is requiring the
approach for processes for which the           environmental consequence assessment,          owner or operator of a Program 1
more detailed PSM program would be             making the requirement impossible.             process to ensure that any necessary
inappropriate. Limiting Program 2 to           One commenter noted that companies             response actions have been coordinated
those industrial sectors where industry-       would find it difficult to assert that         with local response agencies. EPA
specific models are feasible would place       there could be ‘‘no environmental              believes that local responders may
some manufacturing sources at a                impacts’’ even after an environmental          become involved in an incident, even if
disadvantage simply because their              consequence assessment reveals                 the public is not threatened. No
chemical uses, processes, and                  insignificant impacts. Two commenters          additional CAA-related planning
equipment were too varied to allow             suggested that EPA substitute ‘‘low            activities are required, however.
development of a model or because              potential for environmental impact’’ or           d. Other. Many commenters stated
there are too few sources to justify use       ‘‘no potential for long-term, adverse          that, since Program 1 processes generate
of EPA or industry resources to develop        environmental impact.’’ Other                  no offsite impact, they should be
a model. In addition, if EPA were to           commenters requested that                      exempt from this rule. One commenter
limit Program 2 to sources with model          environmental impact be dropped or             objected to Program 1 because members
programs, Program 2 regulations would          that the requirement be changed to             of the public, particularly first
need sufficient specificity to enforce the     mirror the Program 1 eligibility criteria      responders and business visitors, could
use of these models; otherwise, sources        with an indication in the RMP that no          still be hurt by a release. Other
would be able to ignore both PSM and           environmental receptors of concern             commenters suggested that the annual
the models. EPA is also concerned that         were within the worst-case distance to         EPCRA section 312 form could be
codifying the model plans could stifle         an endpoint.                                   amended to indicate that a source was
innovation in safety practices. If                As described above in section               covered by the rule, replacing the RMP
industry codes or other Federal                III.A.2.a. Potential for Offsite Impact,       registration form.
regulations on which parts of the              EPA has decided not to make the                   The CAA requires that all sources
models may be based were updated,              presence of environmental receptors a          with more than a threshold quantity of
EPA would have to revise its models;           part of the eligibility criteria for Program   a listed substance register an RMP,
given the time needed to propose and           1 and has deleted the certification            perform a hazard assessment, and
adopt regulations, sources might have to       requirement. Instead, owners or                develop accidental release prevention
delay implementation of new systems            operators of all covered processes will        and emergency response programs.
and, in some cases, might be caught            have to identify in the RMP any                Therefore, total exemption of processes
between complying with a revised EPA           environmental receptors that are within        that meet Program 1 criteria is not
31680        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

possible. See S. Rep. No. 228, 101st          sources affected by the rule are already    that can be performed independently,
Cong., 1st session, at 208 (‘‘Senate          covered by OSHA PSM and chemical            hazard assessment results can enhance
Report’’) (precursor of RMP provision         industry standards, the Program 2           PHA or process hazards reviews and in
mandating hazard assessments for              requirements do not satisfy the CAA         turn, the results of the PHA or review
sources that exceed threshold for listed      mandate, and that only a full process       can enhance the hazard assessment.
substance); 136 Congressional Record          hazard analysis would meet the hazard       EPA encourages owners or operators to
S16927 (daily ed. October 27, 1990)           assessment requirements under section       make maximum use of the PHA or
(remarks of Sen. Durenburger, sources         112(r). Another commenter argued that       review and hazard assessment
with more than a threshold quantity are       EPA’s statement that sources must           information to manage risks and prevent
subject to regulations); 136 Cong. Rec.       comply with the CAA’s general duty          accidents.
H12879 (daily ed. Oct. 26,                    clause was inadequate because EPA has         Finally, sources with Program 2
1990)(remarks of Rep. Barton)(all users       not used, and has no policy about, the      requirements, as well as sources with
of hazardous chemicals are required to        clause.                                     Program 1 or 3 requirements, must
plan for accidents). Moreover, even if an        EPA agrees that the preferred            comply with the general duty clause of
exemption for processes that exceed a         approach in the SNPRM did not provide       CAA Section 112(r)(1). The general duty
threshold were permissible, the owner         sufficient detail on Program 2              clause provides that owners and
or operator would need to take steps          prevention requirements to distinguish      operators have a general duty to identify
that are equivalent to the hazard             it from Program 3. EPA solicited            hazards that may result from accidental
assessment to establish eligibility for the   comments on whether Program 2 should        releases, design and maintain a safe
exemption. The offsite consequence            require additional, specific prevention     facility, and minimize the consequences
analysis is the most significant burden       steps. Today’s rule provides specific       of any releases that occur. The general
for a Program 1 process under this rule.      requirements as discussed in section I.D    duty clause is a self-executing statutory
The minimal additional actions required       above and in Section IV below. In the       requirement: it requires no regulations
in today’s rule for Program 1 simply          RMP, the owner or operator will be          or other EPA action to take effect. The
establish a record of eligibility and a       required to report on other Federal or      clause provides a separate statutory
response coordination mechanism.              state regulations, industry codes, and      mechanism that EPA will use in
   EPA recognizes that emergency              standards used to comply with               appropriate circumstances to ensure the
responders and site visitors could be         prevention elements as well as any          protection of public health and the
hurt by an accidental release from any        major hazards, process controls,            environment. To date, EPA has
process, but notes that responder safety      mitigation systems, monitoring and          undertaken several inspections designed
is covered by OSHA and EPA under the          detection systems examined in the           in part to determine compliance with
HAZWOPER regulations. It is the               hazard review. This streamlined             Section 112(r)(1). As appropriate at a
owners’ or operators’ responsibility to       prevention program addresses many of        future date, EPA may issue policies or
inform visitors about the hazards and         the PSM elements as the basis for sound     guidance on application of the general
the appropriate steps to take in the          prevention practices, but is tailored to    duty clause.
event of an accidental release from any       processes with less complex chemical          b. Other Regulations. Commenters
process subject to today’s rule.              uses; this program provides                 generally agree that OSHA PSM,
   Finally, EPA has based the                 considerable regulatory relief by           HAZWOPER, the OSHA hazard
registration information requirements in      substantially reducing the                  communication standard (29 CFR
today’s rule on the EPCRA section 312         documentation and recordkeeping             1910.1200), and NFPA–58 are examples
Tier II form. The CAA requires that the       burden of PSM. In addition, EPA will        of other regulations or voluntary
RMP be registered with EPA. Because           provide guidance and model risk             industry standards that could be cited to
the EPCRA form is not submitted to            management programs to further assist       meet the requirements of a Program 2
EPA, it would not substitute for              Program 2 processes in developing and       prevention program. Commenters
registration with EPA either in its           maintaining good prevention program         requested that EPA provide a matrix or
present or amended form. Completion of        practices.                                  crosswalk that indicates which other
the registration portion of the RMP              EPA disagrees that only a full PHA       regulations, standards, and codes met
should impose little additional burden        would meet the requirements of the Act.     specific requirements. One commenter
on owners or operators. However, EPA          Section 112(r) does not contain detailed    opposed the use of other regulations or
recognizes the information overlap            requirements for the hazard assessment,     referencing of voluntary industry
between the Tier II form and the RMP          beyond the key components of                standards, stating that, other than OSHA
registration and is considering use of the    accidental release scenarios and a five-    PSM, no other OSHA standard
RMP registration for the Tier II reporting    year accident history. EPA believes that    addresses safety precautions or
requirement.                                  a PHA is more appropriately considered      maintenance. Another commenter
   5. Program 2 Requirements.                 an element of a prevention program,         objected that this approach creates
Commenters were generally concerned           such as PSM. The statute does not           another documentation burden without
about the lack of specific requirements       mandate detailed PHA engineering            any commensurate benefit.
for the Program 2 streamlined                 analyses for all sources, whether as part     EPA agrees that the SNPRM preferred
prevention program and emergency              of the hazard assessment or the             approach for Program 2 was not specific
response requirements, and how                prevention program. EPA believes PHAs       enough and has provided more detailed
compliance with other regulations             involve a more detailed engineering         requirements in this rule as noted
would be incorporated.                        analysis than is necessary to prevent       above. EPA continues to believe that
   a. Streamlined Program. Commenters         accidents at Program 2 sources. The         many of the Program 2 prevention
stated that the Program 2 prevention          ‘‘hazard review’’ provisions of Program     requirements are already met through
program does not provide much, if any,        2 should be sufficient to detect process    industry compliance with existing
regulatory relief because sources would       hazards at these simpler processes. EPA     regulations and voluntary standards. For
need to address most of the ten elements      recognizes that although hazard             example, ammonia retailers whose
of the Program 3 prevention program.          assessments and PHAs or process             processes are designed to meet the
Others said that the majority of the          hazard reviews are discreet elements        OSHA ammonia handling rule (29 CFR
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31681

1910.111) should be able to meet the         B. Offsite Consequence Analysis                 Under the SNPRM, worst-case liquid
Program 2 requirement that the process                                                    spills were assumed to form a pool in
design meets good engineering                   1. Worst-Case Release Scenario. EPA       10 minutes, with the release rate to the
practices. This effectively allows           proposed in the NPRM to define the           air determined by volatilization rate.
sources to cite compliance with these        worst-case release as the ‘‘loss of all of   EPA recognized that this approach
other regulations and standards instead      the regulated substance from the process     differs from the use of an instantaneous
of developing specific, duplicative          * * * that leads to the worst offsite        release in the Technical Guidance,
elements solely to comply with Program       consequences’’ and that the scenario         which EPA cited as an alternative to its
2. EPA will also use these existing          should assume ‘‘instantaneous release.’’     favored approach. The few comments
regulations and standards as it develops     Hundreds of commenters stated that           received were divided between support
model programs.                              instantaneous loss of the total process      of this approach and arguments that the
   c. Emergency Response Program.            contents is not technically feasible for     10-minute time frame was unrealistic
Commenters supported considering             complex systems and, therefore,              for liquid releases (particularly for
HAZWOPER programs as adequate to             represents a non-credible worst case         pipelines and connected equipment)
meet the Program 2 emergency response        that would provide no useful                 and thus did not properly account for
program. A few commenters said that          information to the public or the source      process-specific conditions.
HAZWOPER is inadequate because it            for risk communication, accident                EPA’s approach for the liquid worst-
does not consider offsite impacts or the     prevention, and emergency                    case scenario in the final rule is similar
environment. Some commenters also            preparedness. Many commenters also           to the Technical Guidance methodology,
said that coverage of a source by an         argued that this approach differed from      in which the total quantity of liquid in
EPCRA community emergency response           the release modeling assumptions             a vessel or pipeline is instantaneously
plan should be sufficient. Others said       contained in EPA’s Technical Guidance        spilled upon failure, considering
that any contingency plan developed          for Hazards Analysis, which has been         administrative controls or passive
under Federal or state law should be         the basis for community emergency            mitigation discussed below. The rate of
considered sufficient because the            planning activities under EPCRA.             release to the air is not instantaneous; it
requirements under these programs are        Although some commenters were                is determined by the volatilization rate
generally consistent with EPA’s              generally opposed to the concept of          of the spilled liquid, which depends on
proposed emergency response program;         worst case, most of the commenters           the surface area of the pool formed after
one commenter noted that, for                were supportive of an approach similar       the spill. The pool surface area is
flammable processes, compliance with         to that taken in the Technical Guidance.     determined by assuming the spilled
29 CFR 1910.38 should be adequate               In response to these comments, EPA        liquid rapidly spreads out and forms a
                                             proposed in the SNPRM to redefine a          one-centimeter deep pool, unless
because the response is usually
                                             worst-case scenario as the release, over     passive mitigation systems contain the
evacuation of employees. Five
                                             a 10-minute period, of the largest           pool to a smaller area. EPA believes this
commenters opposed any requirement
                                             quantity of a regulated substance            approach is reasonable because total
that sources with Program 2 processes
                                             resulting from a vessel or process piping    vessel or pipeline failure will generally
conduct drills or exercises because they
                                             failure. The 10-minute release time is       lead to immediate and rapid spillage
represent lower hazards.
                                             drawn from the Technical Guidance for        followed by pool volatilization. Further,
   Consistent with its efforts to                                                         if the liquid were assumed to spill over
consolidate Federal emergency planning       Hazards Analysis. EPA believes this
                                             duration is reasonable and accounts for      a particular time frame rather than
requirements, EPA has included                                                            instantaneously, owners or operators
language in the final rule that will allow   comments arguing that an
                                             ‘‘instantaneous’’ release is unrealistic     would need to calculate the amount of
any source in compliance with another                                                     vapor emitted to the air as the liquid is
Federal emergency response program           for large-scale releases.
                                                                                          spilled, in addition to the volatilization
that includes the elements specified in         EPA has decided to adopt the SNPRM        rate as the pool spreads out and reaches
this rule to use that program to meet        approach for worst-case toxic vapor          its maximum size. Computer-based
these requirements. In particular, this      releases in the final rule because most      models are available for such
applies to response plans prepared in        of the SNPRM comments agreed that the        calculations, but they are complex and
accordance with the National Response        redefinition is generally more credible      require considerable data input to use.
Team’s Integrated Contingency Plan           and that the 10-minute time frame            EPA believes that liquid spillage from a
Guidance (‘‘one plan’’) (NRT, May            particularly applies to vapor releases.      worst-case scenario is likely to be
1996). EPA believes that sources should      Although some commenters argued that         extremely rapid such that the most
have a single response plan; creation of     this approach still does not account for     significant portion of the release rate is
multiple response plans to meet slightly     all process-specific conditions, EPA         given by pool volatilization;
different Federal or state standards is      believes it is reasonable and                consequently, liquid release time is not
counterproductive, diverting resources       representative of accident history. EPA      necessary. Liquid spill rates and times
that could be used to develop better         notes that owners or operators may use       could be reflected in alternative
response capabilities.                       air dispersion modeling techniques that      scenarios discussed below.
   EPA recognizes that some sources will     better account for site-specific                As proposed, the worst-case for
only evacuate their employees in the         conditions, provided modeling                flammables assumes that the total
event of a release. For these sources,       parameters as specified in the rule are      quantity of the substance in the vessel
EPA will not require the development of      applied. This release scenario will apply    or pipeline vaporizes, resulting in a
emergency response plans, provided           to substances that are gases at ambient      vapor cloud explosion. If the vapor
that appropriate responses to their          conditions, including those liquefied        cloud explosion is modeled using a
hazards have been discussed in the           under pressure. Gases liquefied by           TNT-equivalent methodology, then a 10
community emergency response plan            refrigeration only may be analyzed as        percent yield factor must be used.
developed under 42 U.S.C. 11003 for          liquids if the spill would be contained         EPA requested comment in the
toxics or coordinated with the local fire    by passive mitigation systems to a depth     SNPRM on whether the worst-case
department for flammables.                   greater than 1 cm.                           scenario should include an additional
31682        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

amount of substance that could                 container that is loaded or unloaded at      greater distances to the endpoint than
potentially drain or flow from process         the source (See section P.2).                the distance generated by the largest
equipment interconnected with the                 A few commenters supported the            vessel or pipeline scenario. Owners or
failed vessel or pipeline. Many                other options, noting that administrative    operators need to consider releases from
commenters opposed this option,                controls may fail, potentially generating    smaller vessels if those vessels contain
suggesting that it is technically              a larger scenario. However, the majority     the substance at higher temperature or
uncertain and would have little value in       of commenters supported EPA’s                pressures or if they are closer to public
terms of what they saw as EPA’s                preferred approach based on the              receptors. In some cases, the largest
intended purpose for the worst-case            historical reliability of such controls at   vessel will be a storage vessel where the
assessment. Other commenters                   many sources and the role that such a        substance is held at ambient conditions.
requested that ‘‘interconnected                provision could play in encouraging          A reactor vessel may hold a smaller
equipment’’ be defined and clarified.          their use at additional locations. Other     quantity, but at high pressures and
Given the assumption of rapid release          commenters asked whether mechanical          temperatures, generating a release that
                                               controls, alone or in combination with       could travel farther offsite to an
associated with initial equipment
                                               administrative controls, should be           endpoint. Vessel location is important,
failure, EPA agrees that determination of
                                               incorporated into the proposal.              especially at large sources. A smaller
the spill rate from connected piping and
                                               Although mechanical controls may also        vessel located nearer to the stationary
equipment is likely to be technically          serve to limit the quantity, EPA has         source boundary may generate a greater
complex, very different from that of the       decided not to include them in the           impact distance than a larger vessel
quantity in the vessel or failed pipeline,     quantity determination for the worst-        farther away. This difference may be
and likely to extend the duration of           case release scenario because the            particularly important for flammables,
volatilization rather than affecting the       definition for administrative control as     because impact distances for
rate overall. Therefore, EPA has not           ‘‘written procedural mechanisms used         flammables are generally shorter than
included this requirement in the final         for hazard control’’ provides a backup       those for toxic releases.
rule.                                          for possible failure of mechanical
                                               controls. For more discussion of             2. Mitigation Systems
   EPA also sought comment in the
SNPRM on options for the                       mechanical controls, see section                a. Worst-case scenario. In the NPRM
determination of the relevant quantity of      III(B)(2), mitigation systems, below.        worst-case scenario, EPA indicated that
regulated substance in a vessel or                In the SNPRM, EPA considered              sources must assume that both active
process piping for a worst-case release        providing the implementing agency            and passive systems fail to mitigate the
scenario: the maximum possible vessel          with the discretion to determine the         release. Commenters were generally
inventory (design capacity) at any time        appropriate quantity for the worst-case      split between those who wanted passive
without regard for operational practices       release scenario on a site-specific or       (as well as certain redundant active)
and administrative controls; the               industry-specific basis. EPA noted in        mitigation systems to be included and
maximum possible vessel inventory              the SNPRM, and most of the few               those who argued that historical
unless there are internal administrative       comments received on this issue agreed,      evidence from catastrophic releases
controls (written procedural                   that implementing agency discretion          suggests that the worst case should
restrictions) that limit inventories to less   would result in increased administrative     assume the failure of all such systems.
                                               burden on the implementing agency and        Those who supported mitigation argued
than the maximum; or historic or
                                               cross-jurisdictional differences in the      that inclusion provides a more credible
projected maximum operating
                                               methodology used for the worst-case          scenario for improved risk
inventories without regard to
                                               analyses. EPA has decided not to             communication, accident prevention,
administrative controls. EPA preferred
                                               incorporate this approach in the final       and emergency planning.
that the maximum vessel inventory                                                              EPA proposed in the SNPRM to
                                               rule. States, however, may impose more
including administrative controls that                                                      include passive mitigation systems in
                                               stringent requirements, such as
might limit or raise the vessel quantity       additional modeling, under state             the worst-case release scenario as long
to be used in the worst-case assessment        authority.                                   as the system is capable of
and reported in the worst-case release            In the NPRM worst-case definition,        withstanding, and continuing to
analysis section of the RMP. If the            EPA did not specify what constitutes or      function as intended during and after a
quantity used in the assessment were           how to determine the worst offsite           destructive event, such as an
exceeded (e.g., an administrative control      consequences. Some commenters                earthquake, storm, or explosion, which
were ignored), then the source would be        indicated that without clear direction,      causes a vessel or pipeline to fail.
in violation of the rule (i.e., failure to     EPA’s proposed worst case might not          Passive systems such as dikes, catch
perform a worst-case analysis) and RMP         actually capture the scenario that leads     basins, and drains for liquids, and
reporting unless the administrative            to the most severe offsite impact. In the    enclosures for both liquids and gases,
control was revised, the worst-case            SNPRM, EPA indicated that the worst-         could be assumed to mitigate the
analysis updated to reflect any changes        case scenario should be the scenario         release. Some commenters opposed this
in the analysis, and a revised RMP             that generates the greatest distance to a    approach, arguing again that the worst
submitted. This approach acknowledges          specified endpoint (i.e., the toxic vapor    case should account for the possibility
the efforts by sources to increase process     cloud or blast wave from a vapor cloud       of passive mitigation failure. The
safety by intentionally reducing the           explosion that travels the farthest).        majority supported this approach
inventory of regulated substances (e.g.,          EPA recognizes that there may be          because the assumption that passive
vessels kept at half capacity to allow for     other release scenarios that could           systems specifically designed and
process upsets, emergency shutdowns,           generate a greater distance than the         installed as protection against a
and deinventorying or maintenance              release from the largest vessel or           potential catastrophe fail is unrealistic.
turnarounds). EPA notes that at some           pipeline. Consequently, EPA has added        Furthermore, the approach recognizes
sources, as a result of inventory              paragraph (h) to § 68.25 to require          and encourages prevention through
reduction measures, the largest quantity       owners or operators to consider other        additional passive mitigation and
may be held in a transportation                scenarios if those scenarios generate        supports more realistic emergency
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31683

planning. A few commenters also               § 68.28, EPA provides guidance in its        recreational areas or arenas, and major
suggested that active mitigation              RMP Offsite Consequence Analysis             commercial or industrial areas, are
measures that were unlikely to fail (e.g.,    Guidance on how passive and active           within the distance to an endpoint.
redundant or backup systems) should be        mitigation would affect release rate and     These institutions and areas are those
considered, for similar reasons.              distance to endpoints.                       that can generally be found on local
Historical data, however, indicate that          3. Populations Affected. EPA              street maps. Sources will not be
certain events compromise active              described in the NPRM preamble certain       required to estimate the number of
mitigation systems (e.g., explosions          locations (e.g., schools and hospitals)      people who might be present at these
have destroyed fire water piping              where sensitive populations might be         locations. EPA provides further
systems).                                     present and proposed in the rule that        guidance on the identification of
   For the final rule, EPA has decided to     owners or operators identify potentially     affected populations in its RMP Offsite
adopt the SNPRM approach. Passive             exposed populations as part of the           Consequence Analysis Guidance.
mitigation systems would be defined as        offsite consequence assessment.                 4. Number of Scenarios In the NPRM.
those systems that operate without            Commenters generally opposed                 EPA required a worst-case release
human, mechanical, or other energy            requirements for population surveys;         scenario for each regulated substance.
input and would include building              several commenters suggested that            Commenters requested clarification,
enclosures, dikes, and containment            Census data or other readily available       because one substance could be present
walls. EPA also agrees that reservoirs or     population information should be             in more than one process at the source
vessels sufficiently buried underground       sufficient, while other commenters           and sources would need to select the
are passively mitigated or prevented          indicated that the LEPC or other local       ‘‘worst’’ worst case for substances in
from failing catastrophically. In this        planning entities were the appropriate       multiple processes. In addition, one
case, sources should evaluate the failure     entity to prepare these data.                process may have several, similar listed
of piping connected to underground               EPA believes owners or operators          substances and multiple worst-case
storage for the worst case or alternative     need to be aware of the magnitude of         analyses of similar substances (e.g.,
case scenarios. In addition to the            impact on populations associated with        flammables) would not provide
requirements outlined in § 68.25, EPA         the worst-case and alternative scenarios.    additional useful information to the
provides guidance on how passive              However, EPA learned that, although          public.
mitigation would affect release rate and      much of this information is readily             EPA proposed in the SNPRM that
distance to endpoints in its RMP Offsite      available, identification of some            sources report in the RMP one worst-
Consequence Analysis Guidance.                sensitive populations could require          case release scenario representative of
   b. Alternative scenarios. EPA initially    considerable effort, especially if the       all toxic substances present at the
proposed that sources could include           distance to an endpoint generated in the     source and one worst-case release
passive mitigation systems in their           offsite consequence assessment is large      scenario representative of all flammable
alternative scenario assessments, but         or crosses several jurisdictions.            substances present at the source. Even
that active mitigation systems (e.g.,         Consequently, EPA proposed in the            though additional screening analyses to
excess flow valves, fail-safe and             SNPRM that offsite populations be            determine the appropriate worst-case
automatic shutdown valves, scrubbers,         defined using available Census data;         scenario might be necessary, this
flares, deluge systems, and water             information on the number of children        approach reduces to a maximum of two
curtains) would be assumed to fail.           and people over 65 could be considered       the number of worst-case analyses
Some commenters generally opposed             a proxy for sensitive populations,           reported in the RMP by a source. In
inclusion of any mitigation systems in        thereby accomplishing the same               general, commenters favored this
the hazard assessment, while other            objective as the proposed rule. EPA also     approach, particularly for flammables,
commenters noted that the alternative         indicated that it has developed a            which do not produce markedly
release scenario should recognize and         geographic information system,               different adverse effects. A few
encourage industry accident prevention        LandView, that will facilitate analysis of   commenters argued that a single toxic
efforts, specifically the installation of     resident populations. (LandView can be       substance should not be considered
additional mitigation systems, and            ordered from the U.S. Bureau of the          representative of all toxic substances at
support more realistic emergency              Census customer service at (301) 457–        a source, since there are considerable
planning.                                     4100.) In general, commenters agreed         differences in toxic endpoint and
   EPA proposed in the SNPRM to allow         with the SNPRM approach. However,            adverse affect.
sources to consider passive and active        some commenters questioned the                  EPA has decided to adopt the
mitigation measures in the alternative        accuracy of potentially ten-year-old         approach outlined in the SNPRM for the
release scenario assessment.                  Census data and requested additional         final rule: report one worst-case release
Commenters supported this approach            flexibility, or a greater role for local     scenario for all flammables and one
and EPA has decided to retain it in the       government, in this analysis.                worst-case release scenario for all toxics
final rule. EPA agrees that the                  EPA has decided to adopt the              at the source. EPA notes that the worst-
assumption that both passive and active       approach outlined in the SNPRM for the       case scenario is designed principally to
mitigation measures fail when such            final rule. Sources will be allowed to       support a dialogue between the source
measures are specifically designed and        use available Census data to estimate        and the community on release
installed to mitigate catastrophic            populations potentially affected.            prevention, and not to serve as the sole
releases is unrealistic for the alternative   Sources may update these data if they        or primary basis for local emergency
scenarios. Although not required, EPA         believe the data are inaccurate, but are     planning. The ‘‘worst’’ worst-case
notes that sources may choose to apply        not required to do so. Populations shall     release scenario will inform the broadest
passive and active mitigation measures        be reported to two significant digits.       range of individuals that they may be
to a worst-case type scenario to              Because Census data are limited to           impacted by the source so that they may
illustrate the capabilities of such           residential populations, sources will        participate in dialogue with the source
systems to reduce the potential impact        also have to note in the RMP whether         about prevention, preparedness, and
of a worst-case accidental release. In        other, non-residential populations, such     emergency response actions. Lesser
addition to the requirements outlined in      as schools, hospitals, prisons, public       worst-case release scenarios would not
31684        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

inform any person not already within         echoed, the differences in the hazards       by the rule. EPA believed that the
the range of the ‘‘worst’’ worst case even   posed by individual toxic regulated          Technical Guidance could be revised,
though the health effects may be             substances are significant and should be     expanded, and updated to address the
different; consequently, EPA believes        reflected in the alternative scenarios.      rule requirements. The methodologies
that only a single toxic worst case is       This information has significant value       and tables would be subject to public
necessary. However, sources must also        for emergency planning purposes and          review prior to publication of the final
analyze and report another worst-case        could increase public interest in            rule; once finalized, the tables would
release scenario (for flammables or          prevention at the source.                    replace the Technical Guidance. EPA
toxics) if such a release from another          5. Technical Guidance The proposed        added that sources that wish to conduct
location at the source potentially affects   rule required sources to evaluate the        more sophisticated modeling could do
public receptors different from those        consequences (vapor cloud dispersion,        so, provided the techniques used
potentially affected by the first scenario   blast wave, or radiant heat modeling         account for the modeling parameters
(e.g., if a large-sized source is located    calculations) associated with the worst-     described in the rule. Alternatively, EPA
between two communities and has a            case and alternative release scenarios.      proposed that only Program 2 sources
covered process adjacent to each             EPA did not specify a methodology or         use the guidance; Program 3 sources
community).                                  models, expecting that sources would         would be required to conduct their own
   In the NPRM, EPA did not specify the      have, contract for, or find the expertise    dispersion modeling.
number of alternative scenarios to be        and modeling tools needed to perform            Most commenters supported the
reported for each regulated substance.       potentially complex modeling                 SNPRM approach, especially if sources
EPA noted in the preamble that this          calculations. Because of the potential
                                                                                          were given the option to use their own
approach, while providing flexibility,       burden associated with this approach,
                                                                                          site-specific modeling. Some
may also create uncertainty about what       EPA began working on the development
                                                                                          commenters argued that the generic
EPA will consider to be an adequate          of a set of simple, generic tools that
                                                                                          methodology and reference tables and
number of scenarios. While a few             could provide useful results and become
                                                                                          the option for site-specific modeling
commenters argued against scenarios          part of the technical guidance for the
                                                                                          should be applied to processes in all
beyond the worst case, many                  rule. Based on its experience in
                                                                                          three Programs, while others suggested
commenters supported a requirement           developing the Technical Guidance for
                                                                                          that they be applied only to a specific
for a maximum of two: the worst case         Hazards Analysis and on advice from
                                                                                          Program. In recognition of these
plus one additional scenario; others         commenters, EPA understands that a
supported a maximum of three. Many of        generic methodology depends on               comments, EPA prepared draft
the commenters noted that local entities     approximations to capture a wide             modeling methodologies and reference
could request further information under      variety of situations, will likely ignore    tables, provided an opportunity for their
EPCRA section 303(d)(3) authority if         site-specific conditions, and potentially    review (see 61 FR 3031, January 30,
they desired. At the same time, a            may generate overly conservative or less     1996), and has published them as the
number of commenters suggested that          realistic estimates of offsite impacts. In   RMP Offsite Consequence Analysis
this determination should be made by         spite of these limitations, EPA believes     Guidance. EPA intends to conduct peer
the source based on their scenario           that generic modeling tools are capable      review of the RMP Offsite Consequence
analysis, perhaps in coordination with a     of supporting greater understanding of       Analysis Guidance and will revise it as
local agency.                                the hazards posed by substances and          appropriate. For the final rule, EPA will
   In the SNPRM, EPA proposed to             emergency planning. Commenters               allow sources in all Programs to use the
require one alternative release scenario     agreed this approach would reduce the        guidance or conduct their own site-
for all flammable substances at the          burden on smaller sources unfamiliar         specific modeling, provided the
source and one alternative scenario for      with such activities as long as use of the   modeling techniques used account for
each toxic substance at the source. As       guidance was not mandatory, and the          the parameters described in the rule. For
discussed above, the listed flammable        guidance addressed specific industry         example, EPA’s Office of Air Quality
substances behave similarly upon             sectors or was used as part of a             Planning and Standards has prepared a
release and have the same endpoint,          screening process to focus resources on      publicly available modeling tool called
while each toxic substance has a             significant problem areas. Many              TScreen that can assist owners and
different endpoint and different             commenters recommended that sources          operators with consequence
atmospheric behavior. EPA sought             be given the flexibility to use any          assessments. EPA also encourages local
comment on whether one toxic                 appropriate modeling techniques for the      emergency planners, fire departments,
substance alternative scenario could         offsite consequence analysis to take         and others who use tools such as
represent all toxic substances at a source   advantage of expertise and to apply site-    CAMEO/ALOHA or other modeling
or in a process. Although commenters         specific considerations to the hazard        techniques to assist businesses in their
generally agreed with the approach for       assessment. Other commenters argued          community who may need help in their
flammables, only a few argued that a         that EPA should establish mandatory          modeling efforts. EPA believes the final
single alternative scenario for all toxics   guidelines or specify certain dispersion     rule approach takes advantage of the
was also appropriate; most others            modeling tools to make release scenario      broad range of expertise and modeling
supported EPA’s proposal.                    results more comparable across sources.      tools already available and will provide
   Upon review of the comments, EPA          Some commenters were concerned               more useful results at the local level for
has decided to adopt the approach            about the development of modeling            chemical emergency prevention,
outlined in the SNPRM: an alternative        tools by EPA outside of the rulemaking       preparedness, and response. This
release scenario must be reported in the     process and requested the opportunity        approach will also stimulate accidental
RMP for each toxic held above the            to participate in their development.         release modeling research, new and
threshold at the source, and one                In the SNPRM, EPA stated it would         existing model development, and model
alternative scenario must be reported        develop a generic methodology and            validation to generate new tools for
that represents all flammables held          reference tables in an offsite               better understanding of hazards and the
above the threshold. As EPA noted in         consequence assessment guidance to           behavior of substances in accidental
the SNPRM preamble and commenters            assist sources with the analyses required    release situations.
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31685

   6. Modeling Parameters. a. Endpoints.     by a scientific committee for emergency      conditions prevailing at the source. EPA
In the NPRM, EPA did not specify toxic       planning to protect the general public in    did not revise the meteorological
or flammable substance endpoints that        emergency situations. The ERPG–2             assumptions in the SNPRM.
must be used in the offsite consequence      represents the maximum airborne                Several commenters argued that the
assessment modeling. Most commenters         concentration below which the                worst-case meteorological conditions
recommended that EPA specify                 committee judges that nearly all             were too conservative or not applicable
endpoints to provide a consistent basis      individuals could be exposed for up to       on a national basis and that site-specific
for modeling; many favored the use of        an hour without experiencing or              conditions should be used, while others
existing standards or guidelines,            developing irreversible or other serious     agreed that for worst case, minimum
primarily the emergency response             human health effects or symptoms that        wind speeds and the most stable
planning guidelines (ERPGs) developed        could impair their ability to take           atmospheric conditions should be used.
by the American Industrial Hygiene           protective action. EPA rejected the          In the final rule, EPA has decided that
Association for toxic substances. For        ERPG–3, which is a lethal exposure           sources must conduct worst-case
flammables, commenters suggested             level, because it is not protective          dispersion modeling using an F
overpressure, heat radiation, and            enough of the public in emergency            atmospheric stability class and a 1.5
explosion or flammability limits. In         situations. About 30 listed toxic            m/s wind speed. A higher wind speed
addition to other specific standards, a      substances have ERPGs. EPA chose to          or less stable atmospheric stability class
few commenters recommended a                 use LOC levels for substances with no        may be used if the owner or operator
hierarchy of values if certain levels for    ERPG because LOCs have been peer             has local meteorological data applicable
some chemicals were not available.           reviewed by EPA’s Science Advisory           to the source that show that the lowest
   In the SNPRM, EPA indicated that it       Board, they are intended to be               recorded wind speed was always greater
would select one endpoint for each           protective of the general public for         or the atmospheric stability class was
toxic substance for use in the offsite       exposure periods of up to an hour, they      always less stable during the previous
consequence assessment methodology           are widely used by the emergency             three years.
and sought comment on whether it             response planning community, and, for          In the final rule, EPA also requires
should use a single endpoint to the          a majority of the listed toxic substances,   sources to conduct alternative release
extent possible (e.g., the Immediately       there are no acceptable alternatives.        scenario dispersion modeling using the
Dangerous to Life and Health (IDLH)          EPA notes that, for substances with both     typical meteorological conditions
value developed by the National              values, the LOC is comparable to, and        applicable to the source. If
Institute for Occupational Safety and        in some cases is identical to, the ERPG–     meteorological data are not available,
Health (NIOSH), unless one does not          2.                                           typical conditions in the RMP Offsite
exist for a substance), or a hierarchy of       EPA recognizes potential limitations      Consequence Analysis Guidance may be
endpoints (e.g., ERPGs; if one does not      associated with the ERPG and LOC and         used. EPA believes typical
exist, then the IDLH; and finally toxicity   is working with other agencies to            meteorological conditions should be
data if no other value is available). EPA    develop Acute Exposure Guideline             used to generate realistic hazard
also asked whether overpressure or both      Limits (AEGLs). See Establishment of a       assessments for communication with
overpressure and radiant heat effects        National Advisory Committee for Acute        the public and first responders and for
should be used for flammable substance       Exposure Guideline Levels (AEGLs) for        emergency planning.
endpoints. Some commenters supported         Hazardous Substances, (60 FR 55376;          C. Consideration of Environmental
the use of ERPG values for the toxic         October 31, 1995). When these values         Impact
substance endpoint, or a hierarchy of        have been developed and peer-
values beginning with the ERPG. Others       reviewed, EPA intends to adopt them,            The issue of whether and how
opposed IDLH or the IDLH divided by          through rulemaking, as the toxic             environmental impacts should be
10 for technical reasons.                    endpoint for substances under this rule.     addressed in the hazard assessment and
   EPA agrees with commenters that one          As proposed, vapor cloud explosion        the rule in general drew considerable
toxic endpoint should be set for each        distances will be based on an                comment. The comments divide into
substance. The endpoint for each listed      overpressure of 1 psi, and for analysis      three questions: Should EPA consider
toxic substance is provided in Appendix      of worst-case releases, a yield factor of    environmental impacts from accidental
A to the final rule. The endpoint,           10 percent. Yield factors (the percentage    releases? If so, which environments
applicable whether the source uses the       of the available energy released in the      should be identified? What constitutes
EPA guidance or conducts site-specific       explosion process) can vary                  an environmental impact?
modeling described below, is the AIHA        considerably. EPA selected 10 percent           1. Inclusion of Environmental
ERPG–2 or, if no ERPG–2 is available,        to generate conservative worst-case          Impacts. Environmental groups argued
the level of concern (LOC) developed for     consequences. For flammables, EPA            that the CAA requires assessment of
the Technical Guidance, corrected            selected a radiant heat exposure level of    potential impacts to the environment
where necessary to account for new           5 kW/m2 for 40 seconds as                    and that the environmental receptors
toxicity data. The LOCs that were based      recommended by the commenters, and,          listed in the SNPRM should be
on IDLHs have been updated only if the       for vapor cloud fire and jet fire            broadened. One commenter stated that
IDLHs were revised between the original      dispersion analysis, the lower               since the CAA Amendments of 1990
LOC listing in 1987 and the 1995 IDLH        flammability limit (LFL) as specified by     strengthened limits of continuous air
revisions. The most recent IDLH              NFPA or other recognized sources.            toxic emissions, wildlife is now
revisions were not used because they            b. Meteorology. In the NPRM, EPA          threatened more by accidental releases.
are based on a methodology that EPA          proposed that sources model the              However, the majority of commenters
has not reviewed; the previous IDLH          downwind dispersion of the worst-case        on this issue, principally industry
methodology was reviewed by EPA’s            release scenario using an F atmospheric      groups, opposed consideration of the
Science Advisory Board for use as            stability class and 1.5 m/s wind speed       environment because it is adequately
LOCs. EPA chose the ERPG–2 first             and model the alternative release            protected by other environmental
because ERPGs are subject to peer            scenarios using both the worst-case          statutes, environmental protection in
review and are specifically developed        conditions and the meteorological            section 112(r) relates only to emergency
31686       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

response, and Congress intended in          prevent accidental releases that could       that can be exposed to an accidental
section 112(r) for the environment to be    cause environmental damage. Although         release. All such receptors typically can
addressed only to the extent that human     the consequences may not be precisely        be found on local U.S. Geological
health is protected. Several commenters     known, EPA believes that impacts could       Survey (USGS) maps or maps based on
argued that flammable substances were       occur at environmental receptors             USGS data. Habitats of endangered or
unlikely to generate environmental          located within the distance to a human       threatened species are not included
impacts. Commenters also stated that        acute exposure endpoint associated           because the locations of these habitats
many industries have voluntarily            with a worst-case or alternative scenario    are frequently not made public to
developed nature reserves around their      because wildlife may be more sensitive       protect the species. Natural resource
sources, often at the urging of             or require less exposure to cause an         agencies will have access to the RMP
government agencies. Additional             adverse effect than humans.                  information and can raise concerns with
regulations based on ‘‘environmental’’         2. Environmental Receptors to Be          local officials about potential harm to
impact consideration would ‘‘penalize’’     Considered. In the SNPRM, EPA                these habitats, as necessary. Local
these sources for their efforts. Finally,   proposed that sources report in their        emergency planners and responders
two commenters noted that EPA’s             RMP which sensitive environments             may want to consult with
endpoints are based on acute human          listed by the National Oceanographic         environmental management agencies as
effects; applying these to the              and Atmospheric Administration               part of emergency preparedness.
environment may not be valid.               (NOAA) for the Clean Water Act are              3. Level of Analysis Required. In the
                                            within the distance determined by the        SNPRM, EPA proposed that sources
   EPA disagrees that section 112(r) was
                                            worst-case or alternative case scenario.     only identify sensitive environments
not intended to protect the environment
                                            A few commenters argued that the list        within the area of the worst-case release,
as well as human health. Although
                                            should include state and local level         rather than analyzing potential impacts.
section 112(r)(5) links the threshold
                                            analogues to Federal entities (e.g., state   A few commenters opposed this
quantity to human health, section
                                            parks), all surface waters that are          approach, stating that the CAA requires
112(r)(3) requires EPA to select
                                            fishable or swimmable or supply              that sources analyze impacts. Most
substances that could impact human
                                            drinking water, and ground water             commenters supported EPA’s position
health and the environment. EPA agrees
                                            recharge areas. Many commenters              because extensive expertise at
that the only time sections
                                            opposed the NOAA list, arguing that the      considerable cost is required to
112(r)(7)(B)(I) and (ii) mention            list is extremely broad, covers millions     adequately assess all environmental
protection of the environment is in         of acres in primarily rural areas, and       impacts associated with the
conjunction with emergency response;        contains areas that are difficult for both   environments list EPA provided.
however, this is also true for protection   the regulated community and the              Commenters stated that this cost would
of human health. Congress did not           government to clearly identify (e.g.,        make fewer resources available for
intend to limit concern about either        habitat used by proposed threatened or       prevention activities and providing no
impact strictly to emergency response       endangered species, cultural resources,      benefit. Other commenters noted that
procedures; Congress may not have           and wetlands). They stated that the          much of the data needed for such
mentioned either impact relative to         NOAA list is not appropriate for this        analyses is not available.
prevention because the act of preventing    rule because it represents guidance             EPA agrees that extensive
an accident eliminates the impact on        applicable to offshore sources, and to a     environmental analysis is not justified.
both. When accidents occur, human           limited number of very large onshore         Irreversible adverse effect exposure
health and the environment need             sources, that could have catastrophic oil    level data for the wide variety of
protection. By mentioning both impacts      spills. A few commenters suggested           environmental species potentially
in the response or post accident phase,     limiting the list to Federal Class I areas   exposed in an accidental release event
Congress was stressing its concern for      designated under the CAA prevention of       are not available for most of the listed
the environment as well as human            significant deterioration program, or        substances. EPA believes that
health. Given the integrated nature of      reducing the list of sensitive areas to      identification of potentially affected
the RMP, it would be an inappropriately     national parks and the designated            environmental receptors in the RMP is
narrow reading of CAA section               critical habitat for listed endangered       sufficient for purposes of accident
112(r)(7)(B) to say environmental           species, and limiting environmental          prevention, preparedness, and response
impacts must be ignored in hazard           concern to those accidents that generate     by the source and at the local level.
assessments and in the design of the        a significant and long-term impact, such
prevention program, but must be                                                          D. Program 3 Consistency with OSHA
                                            as an actual ‘‘taking’’ of an endangered
accounted for in emergency response. In                                                  PSM Standard
addition, section 112(r)(9) provides           For the final rule, EPA has not used        1. Prevention Program. In EPA’s
authority for EPA to take emergency         the NOAA list. Instead EPA requires          original proposal, the prevention
action when an actual or threatened         owners or operators to indicate in the       program requirements were based on
accidental release of a regulated           RMP the environmental receptors              the elements of OSHA’s PSM standard
substance may cause imminent and            located within circles whose radii are       (29 CFR 1910.119), and some
substantial endangerment to human           the distances to an endpoint for the         commenters supported this approach.
health, welfare, or the environment.        worst-case and alternative release           But EPA added a paragraph to each
Clearly, section 112(r)(9) allows EPA to    scenarios. EPA agrees with commenters        OSHA prevention program element to
take action to prevent, as opposed to       that the locations of certain natural        explain the purpose of the provision
simply respond to, accidental releases to   resources are difficult to identify.         and, in some instances, added
protect the environment. Because            Consequently, EPA has defined                additional recordkeeping, reporting, or
section 112(r)(7) is intended to prevent    environmental receptors as natural areas     substantive provisions to ensure that
situations that could lead to emergency     such as national or state parks, forests,    statutory requirements were met.
orders under section 112(r)(9), it is       or monuments; officially designated          Several commenters argued that these
logical to conclude that Congress meant     wildlife sanctuaries, preserves, refuges,    additions cause confusion and appear to
EPA to develop regulations that would       or areas; and Federal wilderness areas,      require sources to create two separate
                      Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                                                                        31687

prevention programs, which could                                            and that the majority of accident                               requirements without an EPA
cause conflicting inspection and                                            prevention steps taken to protect                               rulemaking under CAA § 307(d). The
enforcement actions and greater cost for                                    workers also protect the general public                         Senate explicitly considered and
sources that must comply with both the                                      and the environment; thus, a source                             rejected the possibility of the
OSHA and EPA requirements. Many                                             owner or operator responsible for a                             Administrator delegating to OSHA
commenters suggested that EPA simply                                        process in compliance with the OSHA                             responsibility for hazard assessment.
reference the OSHA requirements.                                            PSM standard should already be in                               Senate Report at 226. As that term was
  EPA agrees that the Program 3                                             compliance with the Program 3                                   used in the Senate bill, hazard
prevention program requirements                                             prevention program requirements.                                assessment included many of the
should be identical to OSHA’s PSM                                              EPA did not cross-reference sections
                                                                                                                                            elements of PSM.
standard to avoid confusion and                                             of the PSM standard in today’s rule
redundant requirements and to ensure                                        because, under Office of Federal                                  With the exception of some key terms
that sources develop one accidental                                         Register requirements at 1 CFR                                  and phrases, the Program 3 prevention
release prevention program that protects                                    21.21(c)(2), EPA cannot adopt OSHA’s                            program language in the final rule is
workers, the general public, and the                                        requirements. EPA and OSHA have                                 identical to the OSHA standard
environment. Therefore, EPA has moved                                       separate legal authority to regulate                            language (the rulemaking docket
the Management System requirement                                           chemical process safety to prevent                              contains a side-by-side analysis of the
(see section I.D) supported by most                                         accidental releases. Furthermore, cross-                        OSHA standard and EPA rule text with
commenters to a section separate from                                       referencing the OSHA standard would                             word differences highlighted). Most of
the Prevention Program and deleted the                                      be tantamount to a delegation of                                the differences are terms based on
introductory paragraphs and                                                 authority to set standards in this area                         specific legislative authorities given to
modifications to the PSM language. The                                      from the Administrator of EPA to the                            OSHA or EPA that have essentially the
Agency recognizes that many workplace                                       Secretary of Labor, because OSHA                                same meaning:
hazards also threaten public receptors                                      would be able to modify the PSM

                                              OSHA term                                                                                           EPA term

Highly hazardous substance ....................................................................                    Regulated substance.
Employer ...................................................................................................       Owner or operator.
Facility .......................................................................................................   Stationary source.
Standard ...................................................................................................       Rule or part.

    EPA also agrees with commenters that sound process safety management systems ideally address chemical accident
prevention in a way that protects workers, the public, and the environment. Since OSHA’s responsibility is to protect
workers, there are phrases in the OSHA standard that are designed to focus employer attention on accidents that
affect the workplace. It could be argued that these phrases inadvertently exclude consideration of offsite impacts. EPA
has deleted the phrases noted below to ensure that all sources implement process safety management in a way that
protects not only workers, but also the public and the environment:

                                    OSHA PSM requirement                                                                                 EPA program 3 requirement

1910.119(d)(2)(E) An evaluation of the consequences of deviations, in-                                             68.65(c)(1)(v) An evaluation of the consequences of deviations.
  cluding those affecting the safety and health of employees.
1910.119(e)(3)(ii) The identification of any previous incident which had                                           68.67(c)(2) The identification of any previous incident which had a like-
  a likely potential for catastrophic consequences in the workplace.                                                 ly potential for catastrophic consequences.
1910.119(e)(3)(vii) A qualitative evaluation of a range of the possible                                            68.67(c)(7) A qualitative evaluation of a range of the possible safety
  safety and health effects of failure of controls on employees in the                                               and health effects of failure of controls.
1910.119(m)(1) The employer shall investigate each incident which re-                                              68.81(a) The owner or operator shall investigate each incident which
  sulted in, or could reasonably have resulted in a catastrophic release                                             resulted in, or could reasonably have resulted in a catastrophic re-
  of a highly hazardous chemical in the workplace.                                                                   lease of a regulated substance.

  EPA also made changes to specific                                         works to prevent accidents affecting                            recognizes that most catastrophic
schedule dates to coordinate with the                                       workers, the public, and the                                    accidental releases affect workers first.
OSHA PSM requirements, made internal                                        environment.                                                    However, the Agency also believes that
references consistent, and added a                                            EPA also modified the OSHA                                    there are accidental release situations
provision to the PHA section                                                definition of catastrophic release, which                       where workers are protected but the
specifically grandfathering all OSHA                                        serves as a trigger for an accident                             public and the environment are
PHAs and allowing sources to update                                         investigation, to include events ‘‘that                         threatened, e.g. vessel
and revalidate these PHAs on their                                          present imminent and substantial                                overpressurizations that cause
OSHA schedule. EPA believes these                                           endangerment to public health and the                           emergency relief devices to work as
modifications do not cause source                                           environment.’’ This modification, in                            designed and vent hazardous
owners or operators to make major                                           combination with the changes noted                              atmospheres away from the workplace
adjustments to their PSM systems                                            above, ensure that sources covered by                           and into the air where they are carried
established under OSHA. These minor                                         both OSHA and EPA requirements must                             downwind. Although many sources
modifications ultimately lead to the                                        investigate not only accidents that                             through the PHA process will have
development of one comprehensive                                            threaten workers, but also those that                           recognized and addressed the potential
process safety management system                                            threaten the public or the environment.                         impact offsite associated with safety
satisfying both OSHA and EPA that                                           EPA agrees with commenters and                                  measures that protect workers (e.g. an
31688       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

emergency vent scrubber system), EPA        E. Relationship to Air Permitting           potential for confusion and burden on
believes that the requirements in today’s      Several commenters on the NPRM           sources and air permitting authorities
rule ensure that all sources routinely      requested that EPA clarify the              associated with section 112(r). EPA
consider such possibilities and integrate   relationship between the risk               believes that the requirements in today’s
the protection of workers, the public,      management program and the air permit       rule are flexible, impose minimal
and the environment into one program.       program under Title V of the CAA for        burden, address the concerns raised by
   2. Enforcement. Many commenters          sources subject to both requirements. In    commenters and satisfy the CAA
expressed concern for conflicting audit     the SNPRM, EPA indicated that in Title      requirement for assurance of
procedures, interpretations, and            V, section 502(b)(5)(A), Congress clearly   compliance with section 112(r) as an
enforcement actions when EPA and            requires that permitting authorities must   applicable requirement for permitting.
OSHA auditors inspect the same                                                          The requirements apply only to sources
                                            have the authority to ‘‘assure
processes. EPA has no authority to                                                      subject to both part 68 and parts 70 or
                                            compliance by all sources required to
exempt a source covered under the PSM                                                   71; there are no permitting requirements
                                            have a permit under this title with each
standard and today’s rule from any                                                      on sources subject solely to part 68. EPA
                                            applicable standard, regulation or
prospect of an EPA enforcement action                                                   agrees that ideally, one authority should
                                            requirement under this Act.’’ EPA
for violations of section 112(r) and EPA                                                implement part 68 oversight; however,
                                            further states in part 70.2 that
regulations issued under it. EPA and                                                    air permitting authorities should not be
                                            ‘‘Applicable Requirement means * * *
OSHA are working closely to ensure                                                      responsible for implementation just as
                                            (4) Any standard or other requirement
that enforcement actions are based on                                                   implementing agencies should not be
                                            under section 112 of the Act, including
consistent interpretations and                                                          responsible for permitting (see
                                            any requirement concerning accident         implementing agency discussion in
coordinated to avoid overlapping audits.    prevention under section 112(r)(7) of the
Such coordination in enforcement was                                                    Section R, below). The air permitting
                                            Act; * * *’’ Consequently, EPA must         authority has the flexibility under
recognized as an appropriate method for     require that air permitting authorities
exercising the Administrator’s duty to                                                  today’s rule to obtain assistance,
                                            implementing Title V permit programs        expertise or resources from other
coordinate the EPA program with OSHA        be able to assure compliance with
(Senate Report at 244).                                                                 agencies in fulfilling its responsibilities
                                            section 112(r). In the SNPRM, EPA           with respect to section 112(r). This will
   3. Exemptions. Many commenters           attempted to identify the section 112(r)
suggested that the Agency exempt small                                                  foster interaction and coordination of air
                                            ‘‘applicable requirements,’’ clarify the    pollution, pollution prevention, public
businesses or certain industry sectors      minimum content of part 70 permits
because the rule is too costly, some                                                    and worker safety and health and
                                            with respect to these requirements, and     environmental programs at the state and
industries are already subject to           to specify the role and responsibilities    local levels leading to more effective
substantial regulation by other Federal     of the part 70 permitting authority in      oversight.
or state agencies, OSHA exempts certain     assuring compliance with these                2. Impact of EPA’s proposal on air
industries from the PSM standard, and       requirements.                               permitting programs. Several
some sources have effective self-              The sections below address the major     commenters stated that EPA’s proposal
policing regimes in place.                  issue areas raised by commenters on the     places an unreasonable burden on air
   Regardless of whether the source is      SNPRM. More detail can be found in the      permitting programs because states
covered under some other Federal, state,    Risk Management Program Rule:               would need to amend or develop new
or local program, EPA has no authority      Summary and Response to Comments in         legislative authority and implementing
to exempt a source that has more than       the Docket. The SNPRM also addressed        regulations which diverts limited state
a threshold quantity of a regulated         the role and responsibilities of the        resources away from the development
substance from complying with the risk      implementing agency with respect to         and operation of more important routine
management program rule (CAA section        section 112(r). This issue is addressed     emissions permit programs.
112(r)(7)(B)(ii)). EPA established the      separately in Section R below.                EPA disagrees that today’s rule places
tiered approach to acknowledge that            1. General relationship between the      an unreasonable burden on air
different industries pose different         part 68 and air permitting programs.        permitting programs. Part of the
potential risks to human health and the     Some commenters agreed with EPA’s           approval process for a state air
environment and that elements of other      proposed role for the air permitting        permitting program is confirmation that
regulatory programs may serve to            authority with respect to section 112(r),   states have the authority to ensure that
prevent accidents. EPA believes that        but encouraged EPA to avoid new,            sources are in compliance with air
owners or operators can indicate in their   confusing, and duplicative state and        toxics requirements under section 112
Program and RMP how compliance with         source permitting requirements. A few       including section 112(r). The provisions
other particular regulations and            commenters suggested that all part 68       of section 68.215 are sufficient to meet
standards satisfies Program or RMP          requirements should become permit           the obligations under part 70. Thus, for
elements, thereby, avoid duplication.       conditions, that it be fully enforced       state and local agencies that have
Only those processes in certain SIC         through the part 70 permitting program,     approved part 70 programs, states
codes or covered by OSHA’s PSM              and that anything less violates the CAA.    would need to develop new legislative
standard must implement the full PSM        Most commenters (state air permitting       authorities only if they seek delegation
program under Program 3. A source           authorities and industry), opposed          to implement part 68 beyond the narrow
owner or operator can demonstrate           EPA’s proposal stating that Congress did    responsibilities provided in § 68.215
compliance with the Program 2 or 3          not intend, and legislative history does    (see Section R, below). State obligations
prevention program under today’s rule       not support, section 112(r) to be           under § 68.215, which should be
for a covered process by showing that it    implemented or enforced through the         covered by permit fees (see section E.11,
complies with the PSM standard. This        Title V permit program.                     below), should not impose a substantial
approach is consistent with the                EPA agrees that Congress did not         burden on state resources because the
authority to set different standards for    intend for section 112(r) to be             rule streamlines the RMP requirements
different types of sources under CAA        implemented and enforced primarily          and establishes centralized
section 112(r)(7)(B)(I).                    through Title V and recognizes the          recordkeeping for RMPs.
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                            31689

  3. Part 68 as an ‘‘applicable              flexibility to establish additional terms     the SNPRM would affect the role of the
requirement’’ under part 70. As              for the permit if it so chooses.              permitting authority, suggested that EPA
described above, the CAA requires that          4. Role of the air permitting authority.   develop a process to inform states of the
air permitting authorities ensure that       In the SNPRM, EPA proposed certain air        tiering approach and to exclude
sources are in compliance with               permitting authority responsibilities         Program 1 and 2 sources from additional
applicable requirements as a condition       necessary to ensure that sources are in       permitting requirements.
of permitting. In the preamble of            compliance with part 68 for purposes of          EPA believes that part 68 should more
previous rulemakings for part 70 (57 FR      permitting. Commenters stated that the        clearly define the role of the air
32301), EPA indicated that the               role of the Title V permitting authority      permitting authority with respect to
definition of ‘‘applicable requirement’’     should be defined in part 70, not in part     section 112(r). Part 70 requirements
under Title V includes ‘‘any                 68 and opposed EPA’s proposal arguing         were established well before part 68 and
requirement under section 112(r) to          that it causes unnecessary confusion for      are therefore vague. Consequently, EPA
prepare and register a risk management       sources. Commenters also argued that          is using part 68 to clarify the applicable
plan (RMP).’’ This explanatory               air permitting authorities do not have        requirements, to specify permit terms
statement preceded development of part       the relevant expertise needed and that        and to establish the minimum permit
68, which implements section 112(r)(7).      states should have the flexibility to         conditions and activities to avoid
In the SNPRM, EPA proposed more              implement risk management programs            misinterpretations and to ensure
specific provisions to assure compliance     in whichever agency they see fit. Other       compliance with part 68. EPA agrees
with applicable requirements for section     commenters argued that air permitting         that air permitting authorities may not
112(r) than the part 70 preamble so that     authorities, without section 112(l)           have the expertise necessary with
air permitting authority responsibility is   delegation, could not accept the              respect to part 68; consequently, the
clear. EPA believed that all elements of     responsibilities assigned by the SNPRM        requirements in today’s rule only
part 68 are applicable requirements;         and that EPA was unlawfully attempting        specify the actions the state must take
however, compliance with applicable          to delegate the responsibility for            to assure that sources have met their
requirements could be assured by             implementing section 112(r) to the state      part 68 responsibilities while giving the
including generic terms in permits and       permitting authorities. Several               state flexibility to assign or designate by
certain minimal oversight activities.        commenters believed the permitting            agreement entities other than the
Together, these steps ensure that            authority should have no                      permitting authority to carry out these
permitted sources fulfill their accident     responsibilities beyond those set forth       activities. The elements in today’s rule
prevention and information sharing           in EPA’s April 13, 1993, policy               are the minimal components of a
responsibilities.                            memorandum from John Seitz, Director          successful compliance program;
                                             of the Office of Air and Quality              anything less falls short of the statutory
  EPA proposed standard permit
                                             Planning and Standards (OAQPS), to            requirements of assuring compliance
conditions that would allow air
                                             EPA Regional Air Division Directors,          with all applicable requirements. EPA
permitting authorities to verify
                                             available in the docket because states        also disagrees that it is forcing
compliance with part 68. Commenters
                                             invested significant resources and effort     delegation on air permitting authorities
stated that alteration of the part 70 rule
                                             into the development of their programs,       to implement section 112(r). As
definition of the term ‘applicable
                                             guided by this EPA memorandum.                described in the SNPRM and above, air
requirement’ under the part 68               However, a state permitting authority         permitting authorities must ensure that
rulemaking is inappropriate and that the     stated that the EPA memorandum did            sources are in compliance with
role of the air permitting authority with    not account for many of the key program       applicable requirements for purposes of
respect to section 112(r) should be          elements, including the necessary             permitting. This is not section 112(r)
defined in part 70 rulemakings rather        incorporation of standard permit              implementation (see section R below).
than in part 68.                             conditions. Many commenters also              EPA is merely specifying more clearly
  EPA’s action today does not alter the      opposed requiring extensive details or        the requirements already upon air
definition of ‘‘applicable requirements’’    all aspects of part 68 compliance in the      permitting authorities; without the
under 40 CFR 70.2, which already             permit, finding this approach excessive       specification given in today’s rule, it
includes ‘‘any requirement concerning        and overly burdensome on both state air       could be argued that air permitting
accident prevention under section            permitting authorities and sources and        authorities are obligated to review and
112(r)(7).’’ Rather, EPA is establishing     contrary to the law and Congressional         evaluate the adequacy of RMP
very simple permit terms and flexible,       intent in that it would have required         submissions. EPA agrees that oversight
minimal oversight responsibilities that      section 112(r)(7) to be fully                 of the adequacy of part 68 compliance,
will assure compliance with part 68.         implemented by state permit programs.         including RMPs, is not an appropriate
EPA disagrees that part 68 cannot               Several commenters were concerned          activity for the air permitting authority
establish more specific terms for permits    that a single violation of part 68 could      and is more appropriately an
than those given in part 70 or 71 with       potentially be enforced by both the           implementing agency duty. Delegation
respect to section 112(r). As mentioned      permitting authority and the                  of these implementing agency activities
in the SNPRM preamble, part 70 does          implementing agency. One commenter            can only be accomplished through a
not preclude EPA from clarifying or          suggested that the only case where a          delegation consistent with part 63,
even expanding air permitting                violation of a part 68 requirement            subpart E.
responsibilities. Specific permit            should also be considered a violation of         EPA also maintains that the air
requirements are useful to clearly           part 70 would be the failure to register      permitting authority role should be
establish the minimum permit                 an RMP on time under the requirements         more specifically defined than that
conditions and state responsibilities        of § 68.12. Another commenter                 offered by the April 13, 1993,
essential to ensuring compliance with        requested that, at § 68.58(b)(3), EPA         memorandum. The April 1993 policy
part 68 and to reduce uncertainties that     should allow the state the discretion to      was prepared prior to the NPRM and
may lead to overly broad interpretations     determine whether a penalty should be         SNPRM, it does not account for
of the requirements. However, air            assessed. Several commenters, uncertain       implementation of the risk management
permitting authorities still have the        how the Programs proposed by EPA in           program by the source (as opposed to
31690        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

implementation of the plan), and there           Finally, the tiering (Program)            included while most others indicated
is no mechanism, such as a review of          approach benefits sources as well as air     that it should not or that the air
the RMP by the permitting authority, to       permitting authorities. EPA has              permitting authority should decide.
ensure that the plan contains the             simplified the tiering provisions so         Several commenters supported no more
elements required by part 68. These           sources and air permitting authorities       than the four conditions proposed in the
deficiencies were previously indicated        should be able to readily determine the      SNPRM while others suggested
by EPA in a June 24, 1994,                    Program requirements each process            requirements including: prompt
memorandum from John Seitz and Jim            must satisfy, leading to more effective      development and updating of a
Makris, Director of the Chemical              oversight. EPA has also streamlined the      complete RMP; no conditions other than
Emergency Preparedness and                    RMP reporting requirements and is            an indication that a source is subject to
Prevention Office (CEPPO) to EPA              working on electronic submission of          part 68; provisions stating the need to
Regional Division Directors, which            RMP information which serve to reduce        register according to § 68.12; a condition
stated that ‘‘approval criteria in the        the burden on air permitting authorities     stating that the source will comply with
April 13 memorandum may not be                and implementing agencies.                   all part 68 requirements; and a standard
sufficient to ensure compliance with all         5. Title V permit application contents.   provision recognizing that the
‘applicable requirements’ established’’       Many commenters stated that sources          implementing agency has the section
in the risk management program rule.          regulated under parts 70 or 71 and part      112(r) enforcement authority.
EPA acknowledges that states may have         68 should only be required to certify           Except for the provisions of
invested considerable resources and           whether they are subject to section          § 68.215(a), EPA does not believe that
effort in development of air permitting       112(r) in their initial permit application
                                                                                           the RMP or all or any portion of the
programs based on the April 13, 1993          to allow timely processing. Although
                                                                                           remainder of part 68 should become
policy. However, EPA also believes that       EPA indicated that it did not want the
                                                                                           permit conditions because the RMP and
the minimum requirements and                  RMP included in permit applications or
                                                                                           part 68 elements will be highly source-
flexibility offered by today’s rule allow     in the permit, many commenters stated
                                                                                           specific and subject to frequent change
air permitting authorities to fold these      their opposition because the additional
                                                                                           introducing unnecessary complexity
activities into their programs with           time required for RMP review could
                                                                                           and delaying permit implementation.
minimal burden. EPA recognizes that           delay permit grants and, in some states,
                                                                                           The provisions of § 68.215 should allow
there may be multiple agency oversight        the RMP could be included in the
                                                                                           the air permitting authority to
related to permitting and part 68. As         source’s permit. Several commenters
                                              suggested that the air permitting            implement the conditions in a
mentioned above, today’s rule allows
                                              authority should decide whether it           standardized way across many sources
the air permitting authority the
                                              wants the RMP; one commenter stated          with minimal burden. EPA has revised
flexibility to use other agencies, such as
                                              that sources would have a significant        § 68.215 to require that all permits
the implementing agency or a
                                              incentive to comply with such a request,     contain a statement listing part 68 as an
designated agency (upon agreement), to
                                              given the permitting authority’s ability     applicable requirement and that
better coordinate at the state and local
                                              to withdraw an application shield.           conditions shall be added that require
level. In addition, EPA must note that
there is no ‘approval’ of either initial or   Others stated that the permitting            the source to submit a compliance
revised RMP submissions.                      authority should be prohibited from          schedule for meeting the requirements
   EPA agrees that requiring the permit       asking for the RMP as part of the permit     of part 68 or, as part of the compliance
to contain extensive details of part 68       application.                                 certification all permitted sources must
compliance goes well beyond the need             As EPA has indicated, the RMP             submit under 40 CFR 70.6(c)(5), a
for part 70 permits to assure compliance      should not be submitted with the permit      certification statement that, to the best
with applicable section 112(r)                application or made part of the permit.      of the owner or operator’s knowledge,
requirements and it would impose              EPA is working to streamline permit          the source is in compliance with all
considerable resource and expertise           application requirements and has             requirements of this part, including the
burdens on the permitting authority.          indicated that the minimum with              registration and submission of the RMP.
EPA has maintained that it is not             respect to section 112(r) is a ‘‘check       EPA had amended the authority citation
appropriate to include risk management        box’’ for the source to note whether it      for part 68 to include CAA Title V
program elements as permit conditions         is subject to section 112(r), and either     because EPA is promulgating permit
since these elements will be highly           certification that the source is in          terms and oversight duties. Consistent
source-specific and subject to change as      compliance with part 68 or has a plan        with parts 70 and 71, the permit shield
the source develops and implements its        for achieving compliance. Any other          provisions of parts 70 and 71 would not
programs.                                     requirements are up to the air               apply to the substantive requirements of
   While enforcement would primarily          permitting authority. All sources will be    part 68 because the detailed substantive
occur using part 68 authority, EPA            required to submit their RMP to a            requirements of part 68 are not
agrees that the permitting authority also     central point to be specified by EPA and     addressed in the Title V permit or
has the authority to pursue violations        will be immediately available to local       permit application. If a permit without
under part 70 and sources could be            responders and the state which may           these conditions has already been
subject to multiple violations. This is no    elect to make it available to air            issued, then when the permit comes up
different from any other standard             permitting authorities.                      for renewal under part 70 or 71
promulgated by EPA that becomes an               6. Air permit contents. EPA proposed      requirements (40 CFR Part 70.7), the
applicable requirement for permitting.        in the SNPRM that each permit contain        owner or operator shall submit an
EPA agrees that the air permitting            standard conditions that address key         application for a revision to its permit
authority has the discretion to               compliance elements in part 68 and           to incorporate these conditions. The
coordinate with the implementing              mechanisms for compliance plans,             suggested alternative conditions, not
agency with respect to penalty                certifications and revisions. Although       adopted, generally help assure
assessment associated with § 68.58(b)(3)      EPA indicated it did not believe the         compliance only with portions of part
in the SNPRM (§ 68.215(e)(4) under            RMP should be part of the permit, two        68, such as registration or the
today’s rule).                                commenters suggested that it should be       preparation of the RMP, or omit critical
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                            31691

information, such as whether the source     completeness checks) and time-frame in        compliance’’ with the applicable
is subject to part 68 or what its           conjunction with source certifications,       requirement under part 70. Other
compliance status is. The implementing      to ensure that permitted sources are in       commenters suggested that the
agency’s enforcement authority is           compliance with the part 68                   permitting authority could simply
apparent on the face of the CAA.            requirements. Without some kind of            consult with the implementing agency
   7. Completeness review. As part of       oversight, source self-certification is not   when it believes there is a problem
ensuring compliance, EPA proposed in        a sufficient means of compliance              requiring attention or that the
the SNPRM that within a certain time-       assurance, given that an RMP contains         implementing agency should notify the
frame the air permitting authority must     information essential at the local level      permitting authority of any problems in
verify that an RMP containing the           for emergency prevention,                     part 68 compliance, so that the
required elements had been submitted        preparedness, and response and is not         permitting authority may then expand
and indicated in the preamble that it       subject to routine, case-by-case review       the permit conditions accordingly.
would assist air permitting authorities     for quality. These oversight mechanisms          EPA does not believe it is necessary
by developing a checklist. EPA stated       do not need to be used on each source         to define the interaction between the
that this review is independent of          in order to be effective. EPA agrees that     permitting authority and the
completeness reviews required for           the review for quality or adequacy of the     implementing agency. Ideally, this
permit applications to avoid interfering    RMP is best accomplished by the               coordination and interaction should
with the permit process. Further, air       implementing agency on a frequency            occur at the state or local level.
permitting authorities could arrange for    and scope that may vary. EPA is willing       Coordination of other CAA programs
other agencies, including the               to work with air permitting authorities       (Title V, SBAP, and other 112 programs)
implementing agency, to perform the         on guidance, checklists or other tools to     with the 112(r) program will ensure that
completeness review. EPA also               assist in the development of compliance       the programs are more consistently
requested comment on whether the            mechanisms related to the RMP. In             implemented and enforced, while
permitting authority should be able to      addition, EPA is willing to assist air        easing regulatory burden and providing
require sources to make revisions to an     permitting authorities in electronic          the public greater access to information.
RMP.                                        checks once the electronic system for         However, when EPA is the
   Most commenters disagreed with this      RMP submittal is developed. EPA               implementing agency, it stands ready to
proposal arguing that if a completeness     emphasizes that if an RMP                     work with air permitting authorities on
check is necessary, it should be            completeness check is used by the air         oversight associated with permitting
performed by the implementing agency        permitting authority, it should remain        and enforcement of the part 68
since most air permitting authorities       independent of the completeness               requirements. Today’s rule also
will not have the technical expertise       determination for the permit
(e.g., chemical process safety) required                                                  provides the state the flexibility to
                                            application. The RMP will most likely         assign some or all of its responsibilities
to adequately review RMPs for technical
                                            be submitted at a different time than a       by prior cooperative agreements or
completeness. Commenters also argued
                                            permit application, since almost all          memoranda of understanding to the
that a completeness review would be
                                            permit applications will have been            implementing agency or another state,
merely procedural, it duplicates effort
                                            submitted well in advance of the risk         local, or Federal ‘‘designated agency.’’
without creating any real benefit, it
                                            management program rule deadline. If          EPA recognizes that each state is
consumes scarce resources, and it leads
                                            the completeness check determines that        structured differently and will have
to inconsistent RMP review without
                                            an incomplete RMP has been submitted,         different impediments and
ensuring the source is in compliance
                                            the permitting authority can request          opportunities; therefore each state has
with risk management program
requirements. Some commenters               additional information under                  the flexibility to place the program in an
suggested that the completeness review      § 68.215(b) and should coordinate with        appropriate agency or department,
could be better defined only as a review    the implementing agency on necessary          including the air permitting agency.
of source self-certification that a         RMP revisions. The completeness                  9. The ‘‘designated agency.’’ In the
complete RMP was submitted rather           checks are facial reviews of RMPs to          SNPRM, EPA proposed to define the
than a substantive review. Some             verify that there are no omissions. Such      designated agency as the state or local
commenters generally agreed that            checks could be performed on a select         agency designated by the air permitting
completeness checks should be               basis and occasionally integrated with a      authority as the agency responsible for
completed within sixty days. Finally,       multi-purpose source inspection               the review of an RMP for completeness.
most commenters argued that only the        conducted to ensure that the air source       This provision was designed to give the
implementing agency should be able to       is in compliance with its permit.             air permitting authority the flexibility to
require revisions to the RMP. Otherwise,       8. Interaction of the implementing         obtain expertise from other agencies to
another revision review, appeal and         agency and the permitting authority. In       fulfill its responsibilities. Several
verification process would be necessary,    the SNPRM, EPA attempted to delineate         commenters believed the SNPRM does
duplicating the process already             the specific requirements unique to the       not clearly allow the permitting
established for the implementing            air permitting authority and the              authority to delegate tasks to a
agency.                                     implementing agency. The role of the          designated agency and the permitting
   Based on these comments, EPA has         state is described in more detail in E.4      authority should be able to delegate
decided not to require that air             while the implementing agency is              more than the completeness review, e.g.,
permitting authorities perform a            discussed in R. Commenters on the             enforcement. Some commenters
completeness check as part of the           SNPRM suggested that EPA should               requested that EPA redefine the term to
verification of compliance with part 68.    require the implementing agency to            allow permitting authorities to delegate
EPA has modified the rule requirements      certify to permitting authorities whether     tasks to EPA or other Federal agencies;
so that the air permitting authority may    part 68 sources regulated under part 70       while one commenter argued that EPA
select for itself one or more appropriate   are in compliance with part 68                should not allow the permitting
mechanisms (such as source audits,          requirements. Such certification should       authority to designate EPA as the
record reviews, source inspections or       be deemed sufficient to ‘‘assure              designated agency.
31692        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

   EPA agrees that the definition should       would need to be reduced in other             permitting authority requirements could
be revised to give the air permitting          programs to allow completion of part 68       be more sharply focused to minimize
authority more flexibility. EPA has            responsibilities.                             the burden. EPA believes that today’s
dropped the mandatory completeness               Several commenters raised concerns          rule is the product of many hours of
review, added broader implementation           about the impact of the section 112(r)        hard work with state and local air
and enforcement activities, and                requirements on state and local air           permitting authorities to recognize their
included Federal agencies in the               permitting authorities because funding        concerns and to develop a rule that is
designated agency definition. Thus, a          will be needed and it may not be              effective, flexible and imposes the least
‘‘designated agency’’ may be any state,        possible in the current political climate     economic burden possible.
local, or Federal agency designated by         for the permitting authorities to raise the
                                               necessary fees through Title V. Some          F. General Definitions
the state as the agency to carry out the
provisions of § 68.215, provided that          commenters argued that funding                   1. Significant Accidental Release. In
such designation is in writing and, in         decisions should be left up to the air        the NPRM, EPA proposed to define
the case of a Federal agency, consented        permitting authorities.                       significant accidental release as ‘‘any
to by the agency. The parties to any             EPA agrees that funding decisions           release of a regulated substance that has
such designation should negotiate the          regarding the part 68 program should be       caused or has the potential to cause
terms and details of any agreements.           made at the discretion of the state and       offsite consequences such as death,
   10. Reopening part 70 permits to            local agencies. However, air permitting       injury, or adverse effects to human
incorporate section 112(r) requirements.       authorities need to be aware that the         health or the environment or to cause
In the preamble to the SNPRM, EPA              CAA requires states to impose permit          the public to shelter in place or be
indicated that part 68 requirements            fees that are sufficient to cover the         evacuated to avoid such consequences.’’
should be incorporated into part 70 or         direct and indirect costs of                  This definition was key to the
71 permits using the part 70                   implementing the permit program,              applicability of a number of rule
administrative amendment process               including part 68 activities and              requirements, including hazard
because of the timing difference               activities conducted by state designated      assessment, accident history, and
between part 68 and air permitting.            agencies. EPA believes the straight-          accident investigation. Only four of
Most commenters agreed with this               forward and flexible requirements             more than 115 commenters supported
approach or indicated that permits             established in today’s rule impose            this proposal arguing that the definition
should not be reopened at all; instead,        minimal additional burden on air              should be protective of the public and
sources that submitted permit                  permitting authorities. Funding               should consider inconvenience to the
applications prior to promulgation of          associated with section 112(r)                public and precautionary measures
the final section 112(r) regulations           implementation is addressed in section        taken. Other commenters argued that
should not be subject to enforcement           R, below.                                     Congress intended for the section 112(r)
action under Title V until after the first       12. Other issues. In the SNPRM              rules to address catastrophic releases,
renewal of the permit (i.e., after 5 years).   preamble, EPA stated that it worked           not those with minor impacts, and that
   As discussed under section E.6, if a        closely with and directly involved            this definition overly broadens the
permit without the necessary part 68           several state and local air program           scope of the rule diverting resources and
conditions has already been issued, then       officials and state emergency response        increasing cost for little additional
the owner or operator or air permitting        and prevention representatives in the         benefit. Many commenters stated that
authority shall initiate a permit revision     development of the preamble and               ‘‘injury’’ and ‘‘adverse effects’’ are
or reopening according to the                  regulatory language to prepare the            undefined and could mean any health
procedures detailed in 40 CFR 70.7 or          approaches described. EPA stated that         impact from irreversible effects to minor
71.7 to incorporate the terms and              the proposed approaches ‘‘best reflect        irritation requiring no medical
conditions under paragraph (a) of              the concerns of the states about air          treatment. ‘‘Potential to cause’’ was also
§ 68.215. Although EPA has not                 permit program implementation and the         considered too vague. As discussed in
completed part 70 permit streamlining          needs for comprehensive participation         Section III.C, many commenters
efforts, the requirements for permit           in chemical accident prevention,              objected to consideration of
revisions or reopenings should be              preparedness, and response at the state       environmental impacts. Commenters
complete by the time sources will be           and local level.’’ Two commenters             also opposed sheltering-in-place and
required to be in compliance with the          disagreed, arguing that in January 1995,      evacuation as criteria because these
part 68 requirements. Under the most           the National Governors Association            actions are often precautionary and, in
recent part 70 proposal, the part 68           (NGA) and ECOS (organization of state         many cases, are later viewed as
requirements would be classified as            environmental officials) presented            unnecessary and may discourage
‘‘less environmentally significant’’ and       numerous recommendations to EPA               owners or operators from making
the associated procedures would be             Assistant Administrator Mary Nichols          recommendations to evacuate or shelter-
followed. Sources with such permits            for changes in several clean air              in-place. Several commenters submitted
shall be subject to enforcement under          programs; regarding section 112(r),           alternative definitions where injuries
authorities other than Title V.                NGA/ECOS recommended that Title V             were limited to those that require
   11. Use of Title V funds. In the            permitting authorities be required only       hospitalization, adverse effects were
SNPRM, EPA indicated that activities           to certify that an RMP has been               limited to serious effects, and
conducted by air permitting authorities        submitted. These commenters believe           environmental effects were limited to
should be covered by fees collected            that the SNPRM fails to adequately            those that generate human deaths or
under part 70 since part 68 is an              address states’ central concern;              hospitalizations. Some suggested that all
‘‘applicable requirement.’’ EPA also           requiring permitting authorities to           environmental effects be dropped.
acknowledged that air permitting               review RMPs will encumber an already             EPA agrees that the definition as
authorities may not have planned for           overtaxed system.                             proposed was too vague and subject to
section 112(r) activities and requested          Although EPA disagrees that the             a wide variety of interpretations. In
input on alternative funding                   proposal fails to adequately address          addition, EPA decided that a single
mechanisms or whether resources                states’ concerns, EPA agreed that the air     definition does not adequately address
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                            31693

the criteria needed for all affected          distribution terminals be excluded.           which the public has routine and
sections of the rule. For example, the        Many commenters sought clarification          unrestricted access at any time.
five-year accident history requirement        of ‘‘close proximity’’ and                       5. Other Definitions. Commenters
depends on the offsite impacts                ‘‘interconnected vessel.’’ Commenters         raised questions about several other
generated by the accident while               also wanted the definition to be              definitions. Three commenters
endpoint criteria are used for the worst-     consistent with OSHA.                         suggested changes or clarifications to
case and alternate scenario offsite              EPA adopted OSHA’s definition of           the definition of accidental release.
consequence assessments.                      process in the original proposal and for      EPA’s definition is the statutory
Consequently, EPA has decided to drop         the final rule. This definition               definition. Commenters also proposed
the definition and instead identify the       specifically covers storage (as well as       modifications to the definition of
criteria for the types of releases or         handling and processing) of regulated         ‘‘analysis of offsite consequence.’’ As
impacts that should be addressed by the       substances. EPA disagrees that storage-       noted above, EPA has determined that
appropriate requirement. EPA has              only sources are adequately covered by        this definition is not needed and has
considered the suggestions offered by         SPCC regulations since the regulations        deleted it from the final rule.
commenters and added definitions of           under SPCC and OPA–90 cover oil                  Commenters sought clarification of
the terms ‘‘environmental receptor,’’         terminals and releases to water. This         the definition of mitigation systems and
‘‘injury,’’ ‘‘medical treatment,’’ and        rule is directed at accidental releases of    whether personnel should be
‘‘public receptor’’ and adopted (with         regulated substances (not including oil)      considered an active mitigation system.
modifications as described above) the         to the ambient air. Generally, OSHA           Others asked for a list of passive
OSHA definition of catastrophic release.      PSM also covers these chemical                mitigation systems and provided
EPA notes that sources should be aware        terminals; consequently, the only             proposals. These commenters also
that within the definition of Injury,         additional steps these sources will need      objected to limiting passive systems to
direct consequences include effects           to take will be to conduct the hazard         those that capture or control released
caused by shrapnel and debris set in          assessment and submit the RMP, as             substances; they suggested that systems
motion by a vapor cloud explosion. EPA        existing emergency response plans may         that are designed to prevent releases or
adopted its Medical Treatment                 meet the emergency response program           control the volume or rate of a release,
definition from one OSHA uses for                                                           such as vent/catch tanks, quench tanks,
logging occupational injuries and                                                           blowdown tanks, elevated stacks and
                                                 Since EPA’s definition is identical to
illness. Finally, under the                                                                 high velocity stacks, adsorbents
                                              OSHA’s, EPA will coordinate
environmental and public receptor                                                           including carbon beds, neutralization
                                              interpretations of the definition of
definitions, sources should note that                                                       tanks, double-walled vessels or
                                              process with OSHA to ensure that the          pipelines, chemical sewers, closed drain
certain parks and recreational areas may      rule is applied consistently. OSHA has
be both if the public could be exposed                                                      header systems for flammables, vapor-
                                              stated that processes are in ‘‘close          liquid separators, fire barriers,
as a result of an accidental release.         proximity’’ if a release from one could
   2. Stationary Source. Commenters                                                         explosion-resistant walls, isolation
                                              lead to a release from the other. Owners      distances, barriers to prevent free access
requested that EPA state whether the
                                              or operators must be able to demonstrate      of air flow after a release, containment
term stationary source covers the entire
                                              that an ‘‘effective barrier’’ exists to       buildings, pre-charged water spray
‘‘facility’’ or simply a single process and
                                              prevent a release from one process from       systems, closed vent systems, and filters
provide guidance on which
requirements apply source-wide and            affecting another. OSHA has interpreted       should also be considered passive
which are process-specific. EPA also          ‘‘interconnected vessel’’ to mean vessels     mitigation. One commenter suggested
received comments regarding the               connected by any means, such as               that active mitigation systems should be
relationship or overlap between the           piping, valves or hoses, even if these are    defined as those that require manual
stationary source definition and DOT          occasionally disconnected. EPA will           activation or an energy source (other
regulations. These are discussed in           also adhere to these interpretations.         than gravitational attraction) to perform
section III.P.2 below.                           4. Offsite. One commenter stated that      their intended function.
   In the List and Thresholds rule, EPA       EPA’s proposed definition of offsite             For the final rule, EPA has decided to
defined stationary source to include an       should be expanded to include the air         define passive mitigation systems as
entire ‘‘facility.’’ Sources will be          above and below the point of release to       those systems that operate without
required to submit one RMP and one            cover exposure to the upper atmosphere        human, mechanical, or other energy
registration as part of that RMP for all      and groundwater. Another asked EPA to         input and would include building
processes at the source with more than        limit the definition to areas frequented      enclosures, dikes, and containment
a threshold quantity of a regulated           by the public. Two commenters                 walls but excludes active mitigation
substance. Although the management            opposed including areas on site where         systems such as excess flow valves, fail-
system applies to all Program 2 and 3         the public has access because OSHA            safe systems, scrubbers, flares, deluge
processes, the prevention program             already covers these areas.                   systems, and water curtains. In addition
elements are process-specific. The               In the final rule, EPA has retained a      to the requirements outlined in §§ 68.25
hazard assessment requirements apply          definition of offsite as ‘‘areas beyond the   and 68.28, EPA provides further
to the regulated substances, but only in      property boundary of the stationary           guidance on the consideration of the
covered processes. As a practical matter,     source or areas within the property           effect of passive mitigation in its RMP
the emergency response program will           boundary to which the public has              Offsite Consequence Analysis Guidance.
probably apply to the entire source           routine and unrestricted access during        EPA does not believe that all systems
although technically it applies only to       or outside business hours.’’ OSHA’s           designed to prevent releases or control
covered processes.                            jurisdiction includes visitors that may       the volume or rate of a release should
   3. Process. Several commenters             be on the property of a facility who are      be considered passive mitigation,
argued that the definition of process was     conducting business as employees of           consistent with its intent to reflect the
susceptible to overly expansive               other companies but does not                  potential for failure of any system that
interpretations and asked that certain        necessarily extend to casual visitors or      requires human, mechanical, or other
activities such as storage at sources or      to areas within a facility boundary to        energy inputs.
31694        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

G. Risk Management Plan (RMP)                  requirement that the RMP provide             generally can be reported by numerical
   In the NPRM, EPA proposed that              certain information about the risk           information, yes/no answers, and check
owners or operators of stationary              management programs at a source. EPA         boxes. For the offsite consequence
sources covered by the requirements            notes that its previous use of the word      analyses, owners or operators will be
submit an RMP summarizing the key              summary was not intended to imply            asked to provide distance to the
elements of its risk management                that the source prepares a ‘‘full’’ RMP      endpoint, populations and
program. In the NPRM preamble, EPA             document from which a source extracts        environments affected, and enough of
indicated that summaries of the                summary information that is shared           the data used to determine these
information requested (e.g., hazard            with the public. Rather, the source is       distances so that local entities and the
assessment and emergency response              obligated to develop certain information     public can check the distance against
                                               about the hazards, prevention, and           the distance derived from EPA’s
program) would provide the most useful
                                               emergency response programs from the         reference tables or a model identified in
information to the public and local
                                               array of documentation at the source to      the RMP. If EPA’s guidance was not
agencies without overburdening them
                                               prepare an RMP. EPA believes it would        used, sources will need to indicate
with unneeded detailed information.
                                               be impractical to require sources to         which models were used. Many of the
EPA further stated that the RMP should
                                               share all documentation used for the         parameters for modeling are set in the
serve to provide local and state agencies
                                               safe operation of the processes at a         rule and do not need to be respecified
and the public with sufficient
                                               source. Not only is much of this             in the RMP. The rule requires only one
information to determine if additional
                                               information likely to be confidential,       alternative release scenario per toxic
details are needed. These details would
                                               but significant technical expertise and      substance and one for all flammables;
be available, if needed, to implementing       time are necessary to extract,
agency officials conducting audits or                                                       owners or operators may submit
                                               understand, and to make meaningful           additional scenarios.
compliance inspections.                        judgments about the adequacy of the
   1. Level of Detail. Most commenters                                                         For prevention programs, owners or
                                               information. The RMP will consist of an      operators must provide information
agreed with EPA’s proposal noting that
                                               executive summary and required data          (primarily dates) that will allow the
the public should be able to identify key      elements addressing all elements of the
hazard and risk management                                                                  implementing agency to assess whether
                                               risk management program as described
information from the RMP without                                                            the source is in compliance with the
                                               below. Detailed supporting
being overwhelmed by extraneous                                                             rule elements. For the PHA, owners or
                                               documentation will be maintained on
documentation that is more                                                                  operators must state which technique
                                               site available to the implementing
appropriately maintained on site. A                                                         was used for each covered process, the
                                               agency for review.
detailed submission would not be cost-            2. RMP Contents. Most commenters          general hazards associated with the
effective and could threaten plant             requested that EPA generally limit the       chemicals and process, the process
security; these commenters expressed           level of detail required, the number of      controls in use, mitigation and
fears of terrorism, thieves, and               scenarios, or the number of pages in the     monitoring or detection systems in use,
saboteurs.                                     RMP. Other commenters recommended            and changes instituted since the last
   Other commenters disagreed and              EPA require submission of only               PHA (Program 3) or hazard review
argued that summaries would not                information specified in the CAA and         (Program 2) update. Through lists and
provide enough information while ‘‘full        incorporate other detailed information       checkoff boxes, EPA can collect a
disclosure’’ would support an informed         by reference. Commenters also noted          significant amount of information on
public. Some commenters argued that            that documenting each action taken to        current safety practices without
the public could be misled by a                address a hazard, the date on which the      requiring sources to develop lengthy
summary derived from a ‘‘full’’ RMP            action started (or is scheduled to start),   documentation that would have proved
withheld from the public by the source.        and the actual or scheduled completion       a burden to both the source and any
Further, several commenters made the           date would prove impractical. EPA            government or public data user and
general argument that right-to-know            received many comments stating that          reduced the potential for electronic
provisions should be strengthened and          the requirement that exact dates on          submission. EPA believes this approach
that the public should be given full           which training, emergency exercises, or      provides the Agency and others with a
access to all risk management program          rescue drills, are conducted would be        mechanism for identifying industry
information including PHAs and actual          impractical and unnecessary.                 practices and controls from almost
operating procedures. Individual                  Commenters seeking more                   70,000 sources that would not be
commenters also requested public               comprehensive RMPs argued in favor of        feasible otherwise. EPA notes that some
access to specific information regarding       requiring an index or bibliography of        of the largest chemical sources and
such details as worst-case scenarios and       detailed information or a catalog of all     refineries may be providing data on 30
descriptions of chemical accidents.            available documents, an investigation        or more processes. In the format
Some commenters argued that an                 and analysis of all other credible release   proposed in the NPRM, these sources
informed public and public scrutiny, in        scenarios, and submission of                 might have submitted several thousand
general, can act as a powerful force in        assumptions, methodology, and                pages each; analyzing such submissions
reducing risk and preventing accidents         modeling methods used to determine           would have been a daunting task for the
at stationary sources.                         worst-case accidents.                        implementing agencies and probably
   EPA agrees that an informed public is          As described above, EPA is                would have made it impossible for
a key element of sound chemical                considering development of a reporting       public interest groups to review an
emergency prevention, preparedness,            mechanism and form to collect key data       industry as a whole. With electronic
and response. However, EPA also                elements. As discussed below, this           submission, such reviews will be easier.
believes that it is essential for the public   approach will foster electronic              The implementing agency or EPA can
to focus on the information essential at       submission and immediate availability        seek additional details from individual
the local level for prevention,                to Federal, state and local entities, and    sources, as needed. EPA has eliminated
preparedness, and response and has             the public. To make such submission          the requirement to provide dates of
decided to maintain its proposed               possible, EPA wants to collect data that     training and emergency exercises or
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31695

drills because the Agency agrees that       information on compliance with the           number of updates required. For PHAs,
this amount of detail is unnecessary and    regulations to the implementing agency,      only major changes to a process or
impractical.                                EPA believes the specific value of RMP       installation of new processes is likely to
   3. Submission. In the NPRM               information is for the local community       trigger a revised PHA. EPA expects that
preamble, EPA proposed that computer        to understand its community’s risk from      relatively few sources will need to
software be developed that would            chemical accidents and to help them          update either their offsite consequence
provide sources with a standard format      work with sources using these                analyses or PHAs/hazard reviews more
for completing the information required     chemicals to reduce such risks. The          frequently than once every five years
in the RMP; that local authorities be       Agency believes this objective would         because the majority of sources have
allowed to designate the state as the       not be served well with a centralized        simple processes that do not change
receiving entity; or that RMPs be           paper information source and that using      frequently. Chemical industry sources
submitted only on request from the          an electronic medium would support           may need to submit more updates if
state, or local entity.                     better access to information. With           processes are changing significantly.
   Many commenters, particularly those      electronic submission of RMPs to a           The RMP should reflect such significant
in the potentially regulated community,     central point, states, local entities, and   changes.
supported submission of the RMP upon        the public will have access to all RMPs         EPA proposed that RMPs be
request or mandatory submission to the      electronically. RMP information may          submitted to implementing agencies,
implementing agency with submission         also be made available on-line via           SERCs, and LEPCs, and be made
by request to other organizations. Others   libraries and other institutions.            available to the public. Several
recommended submission to the LEPC          Electronic submissions further address       commenters recommended that
and public with submission by request       the issue of standardized RMPs. The          additional parties, local fire officials in
to the implementing agency, and SERC.       RMP data elements included in the            particular, also receive RMPs. One
Most commenters favored reducing the        submission will be checkoff boxes, yes/      commenter stated that EPCRA requires
paperwork burden and electronic             no answers, or numerical entries to ease     various reports go to local fire
submission because it would reduce          the burden of submission and reception       departments, and another commenter
time and errors, provide more               and will promote consistency and             noted that RMP information may be
consistency, and make information           uniformity. The Agency intends to            better used by emergency management
more useful for the LEPC and regulatory     develop technical guidance for the           agencies, fire departments, and
agencies. Only two commenters               submission of the RMPs, which will           hazardous materials teams. Because
opposed electronic filing because all       provide for submission and receipt of an     EPA plans to have RMPs submitted to
sources may not have the computer           electronic formatted document                and available from a central point in
capability.                                 containing the data elements outlined in     electronic format, any agency that wants
   Commenters also supported the            §§ 68.160 through 68.180.                    the information will be able to access it
development of a standard RMP format           4. Other Issues. In the NPRM, EPA         directly on-line. The RMP will be
regardless of whether the RMP is            proposed that RMPs be resubmitted            immediately available to local
submitted electronically because            within six months of an information          responders and the state. Thus, this
standardization would ensure                change. Several commenters argued it         manner of submission fulfills the
submissions were manageable and             would generate a continual flow of           requirements of CAA section
useful and would ease burdens on both       paperwork and recommended an update          112(r)(7)(B)(iii). Additional submission
regulated and reviewing entities.           frequency requirement of once a year.        requirements are, therefore,
   EPA has decided to work toward              EPA has retained the requirement that     unnecessary.
electronic submission of RMPs. The          the RMP be resubmitted within six               The Department of Defense (DOD)
Agency believes this will meet              months of the elimination of a substance     commented concerning the lack of a
numerous objectives of the program and      in a process or at the source, a change      rule provision explicitly declaring that
will address several issues. First,         in Program status for a process, or if a     information that is classified under
electronic submission would reduce the      process change at the source requires a      applicable laws and Executive Orders
burden on regulated and receiving           revised hazard assessment or hazard          (E.O.s) is not to be included in the RMP.
entities. The Agency has noted that         review/PHA. To be consistent with the        EPA is clarifying that such classified
information management of regulatory        statutory requirements for compliance,       information is protected from disclosure
documents is not a cost-free                the RMP would also have to be updated        by including a specific regulatory
requirement, and that duplication of        on the date an already regulated             exemption for such information.
effort, including system development,       substance becomes present in a process       Furthermore, EPA is clarifying that no
personnel resources, and storage and        above the threshold or within three          provision of part 68 requires the
maintenance efforts could be significant.   years of the date when EPA lists a new       disclosure of classified information in
Electronic submissions would reduce         substance. EPA believes that with a          violation of Federal law, regulations, or
the paperwork burden on sources and         standardized format and electronic           E.O.s. Finally, EPA is also promulgating
state and local governments and would       filing, updates can be rapidly and easily    a definition of ‘‘classified information’’
further serve to comply with the            made, and this information should be         that adopts the definition under the
Paperwork Reduction Act of 1995,            promptly shared. EPA changed the             Classified Information Procedures Act.
which supports the maximum feasible         update schedule for hazard assessments          EPA has found no relevant statutory
use of electronic submission. Second,       to make them consistent with the RMP         language superseding or impliedly
EPA wishes to limit the information         update. EPA also specified when offsite      repealing the Classified Information
management burden on local entities so      consequence analyses require update;         Procedures Act or applicable E.O.s
they can focus on the chemical safety       the rule states that these analyses need     regarding disclosure of classified
issues raised by this rule.                 to be reviewed and changed if on-site        information, nor has EPA found any
   Third, electronic submissions would      changes may be reasonably expected to        legislative history indicating that
benefit affected communities and the        change the distance to an endpoint by        Congress intended to supersede or
general public. Besides having the RMP      a factor of two or more. EPA notes that      repeal these provisions when it
provide the statutorily required            this change is likely to reduce the          established the requirement to prepare
31696        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

publicly-available RMPs. The provision       clearances. Furthermore, EPA is              addressed in the Response to Comments
for exemptions from standards and            promulgating § 68.210(b) to clarify that     Document.
limitations established under CAA            disclosure of classified information is         Management. In the NPRM preamble,
section 112 narrowly addresses the           controlled by the Classified Information     EPA stated the purpose of its proposed
procedures for an exemption when ‘‘the       Procedures Act, E.O.s 12958 and 12968,       management system is to ensure
President determines that the                and other laws, regulations, and E.O.s       integration of all prevention program
technology to implement such standard        applicable to classified information.        elements. EPA proposed that owners or
is not available and * * * it is in the      Finally, in § 68.3, EPA is defining          operators identify a single person or
national security interests of the United    classified information by promulgating       position that has the overall
States to do so.’’ CAA § 112(i)(4). The      the definition under the Classified          responsibility for the development,
focus of section 112(i)(4) is on the         Information Procedures Act.                  implementation, and integration of the
technical capability to meet a limitation;                                                risk management program requirements.
                                             H. Prevention Program                        When responsibility for implementing
for example, the provision would apply
when an emission standard requires a           In the NPRM preamble, EPA noted            individual requirements of the risk
control device that precludes national       that the CAA requires the risk               management program is assigned to
security-related equipment from              management program to include a              persons other than the person
functioning. Section 112(i)(4) does not      prevention program that covers safety        designated, the names or positions of
consider or address the availability or      precautions and maintenance,                 these people shall be documented and
distribution of classified information to    monitoring, and employee training            the lines of authority defined through an
the public, nor does the legislative         measures. Because OSHA PSM covers            organization chart or similar document.
history demonstrate that such disclosure     this same set of elements, EPA proposed         Several commenters agreed with this
was contemplated.                            a prevention program that adopted and        approach because it serves a useful
                                             built on OSHA PSM. The proposed              purpose and many PSM sources already
   The requirement of section                                                             implement management systems. Many
112(r)(7)(B)(iii) to make RMPs publicly      requirements for EPA’s prevention
                                             program included a management system         commenters opposed the requirement
available must read in congruence with                                                    for submission of an organization chart
the provisions prohibiting disclosure of     requirement and sections covering nine
                                             elements: process hazard analysis,           of their source because it would be of
classified information. ‘‘Classified                                                      no value to EPA and that continual
information,’’ as defined by the             process safety information, operating
                                             procedures (SOPs), training,                 updating would waste company
Classified Information Procedures Act,                                                    resources.
18 U.S.C. App. 3, section 1(a), is ‘‘any     maintenance, pre-startup review,
                                                                                             EPA has decided to maintain its
information or material that has been        management of change, safety audits,
                                                                                          management system requirements in the
determined by the United States              and accident investigation.
                                                                                          final rule for sources with processes in
Government pursuant to an Executive            To assist in describing its prevention     Program 2 and 3, but has moved it to
order, statute, or regulation, to require    program, EPA included a section in its       general requirements (§ 68.15) because it
protection against unauthorized              preamble comparing its prevention            is the entire risk management program
disclosure for reasons of national           program to OSHA PSM standard. EPA            that should be managed, not just the
security. * * *’’ ‘‘National security        noted that with the exception of the         prevention program. EPA has also
* * * means the national defense and         management system requirement, the           revised the requirement to provide
foreign relations of the United States’’     proposed prevention program covered          flexibility in indicating lines of
18 U.S.C. App. 3, section 1(b). Criminal     the same elements as OSHA’s PSM and          authority; an organization chart is not
penalties exist for unauthorized             generally used identical language except     absolutely required and is not included
disclosure of classified information that    where the statutory mandates of the two      in the RMP.
has been designated by the Department        agencies dictated differences. EPA              Management of Change. Some
of Defense or defense agencies for           added introductory paragraphs to most        commenters objected to EPA’s
limited or restricted dissemination or       sections to provide additional               definition of replacement in kind,
distribution. 18 U.S.C. 793. It is not       information. Further, in some of the         asking that EPA adopt the OSHA PSM
reasonable to interpret the CAA to           sections, EPA proposed additional            definition. Other commenters stated that
require the disclosure of classified         requirements and established different       management of change procedures
information in violation of criminal law.    deadlines. The majority of comments          should only be implemented when the
It has been EPA’s long-standing policy       EPA received concerned conflicts and         changes had the potential to increase
to interpret information disclosure          differences between EPA’s proposed           the risk (e.g., an increase in inventory,
provisions in its statutes as being          requirements and OSHA PSM standard.          an introduction of a new substance).
consistent with national security law to       In the final rule, the Program 3              As part of its efforts to strengthen
the maximum extent possible and to           prevention program is the OSHA PSM           coordination between the two programs,
require such information to be               standard for parallel elements, with         EPA will use the OSHA definition for
maintained in accordance with the            minor wording changes to address             ‘‘replacements in kind’’: ‘‘a replacement
originating agency’s requirements.           statutory differences. For elements that     which satisfies the design
Federal Facilities Compliance Strategy       are in both the EPA and OSHA rules,          specification.’’ OSHA defined this term
(November 1988), at page V–6.                EPA has used OSHA’s language                 to address a concern expressed by
Therefore, EPA is promulgating               verbatim, changing only certain              commenters on its standard that failing
language in § 68.150(d) to clarify its       regulatory terms (e.g., highly hazardous     to define ‘‘replacements in kind’’ could
intent with respect to the disclosure of     chemical to regulated substance and          result in misunderstandings such as
classified information in RMPs by            employer to owner/operator) and dates.       employers believing that only a
specifically exempting classified            The sections of the OSHA PSM standard        replacement with the same brand and
information from the RMP except by           were not cross-referenced for the            model number could be characterized as
means of a classified annex submitted to     reasons discussed in section III.D of this   a ‘‘replacement in kind.’’ OSHA
appropriately cleared Federal or state       preamble. Key issues under PSM are           promulgated a definition in recognition
representatives with proper security         discussed below; the remainder are           of these comments, and EPA
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31697

understands it to reflect a concept          is important to the implementation of an      accidents with only the potential for
understood in industry.                      effective prevention program. Worker          offsite consequences (that did not meet
   Further, EPA does not agree that          participation in PHAs and other               any of the previous criteria) would not
management of change requirements            elements is critical to the success of        need to be included. Because the
should exclude changes that reduce the       process safety because workers are            accident history is, by statute, an aspect
risk of an accidental release. The           intimately familiar with the process and      of the hazard assessment, and the
Agency does not believe that only            equipment operation, possible failure         hazard assessment provisions apply
changes to ‘‘critical systems’’ should be    modes and consequences of deviations.         only to covered processes, EPA believes
subject to management of change              It also serves as a mechanism for greater     that requiring the accident history to
procedures. As EPA stated in the NPRM        communication and understanding of            address accidental releases from
preamble, most process changes               specific process hazards (as opposed to       processes not covered by this rule
improve process safety or efficiency.        the general chemical hazards) and the         would be inconsistent with the structure
However, even these changes may result       importance of developing and following        of part 68. EPA notes that such releases
in unintended effects when source            proper procedures. Similarly, contract        may be subject to reporting under other
owners and operators fail to evaluate the    employees have been involved in a             statutes; the Agency may investigate
consequences of the change. Therefore,       number of major accidents in recent           such releases to determine the need for
the Agency continues to believe that a       years; for example, the explosion in          a response action under CERCLA and to
change that reduces the risk of an           Pasadena, Texas, in 1989, which killed        determine whether CAA section
accidental chemical release may,             23 workers, has been attributed to            112(r)(1) has been violated.
nonetheless, be an appropriate subject       improper maintenance practices by
for a management of change procedure.                                                      J. Emergency Response Program
                                             contractor employees. Oversight of
Failure to subject such changes to a         contractors, therefore, can be critical for      In the proposed rule, EPA required
management of change process could           accident prevention. Finally, hot work        sources to develop an emergency
inadvertently result in a change that was    permits ensure that use of flame or           response plan that defines the steps the
believed to lower risk when such a           spark-producing equipment is carefully        source and each employee should take
change, in fact, increases risk. Regarding   controlled. Not only are many of the          during an accidental release of a
the comment about critical systems,          listed substances highly flammable, but       regulated substance. EPA noted that
EPA notes that chemical processes are        fires in the vicinity of vessels or pipes     most sources are already required to
integrated systems, and that a change in     containing the toxic substances can lead      have at least part of the emergency
one part of the process can have             to releases of these substances.              response plan in place as a result of
unintended effects in other parts of the                                                   other EPA (Spill Prevention, Control,
system—irrespective of whether the           I. Accident History                           and Countermeasures and Resource
system is ‘‘critical.’’ Consequently, EPA       In the NPRM, EPA required sources to       Conservation and Recovery Act) and
agrees with OSHA that source owners          document a five-year history of releases      OSHA (emergency action plans and
and operators must establish and             that caused or had the potential to cause     HAZWOPER) regulations and requested
implement written management of              offsite consequences for each regulated       comment on how the proposed
change procedures for any change to a        substance handled at the source. EPA          requirements could best be integrated
regulated substance, process technology,     specified that the accident history           with these existing programs to
or equipment and any change to a             should include the nature of any offsite      minimize duplication. Many of the
source that affects the covered process.     consequences, such as deaths, injuries,       commenters were particularly
   Other Provisions. Several commenters      hospitalizations, medical treatments,         concerned with the potential for
stated that EPA should include in its        evacuations, sheltering-in-place, and         increased duplication of emergency
risk management program the OSHA             major offsite environmental impacts           planning requirements at the state and
PSM provisions on contractors,               such as soil, groundwater, or drinking        Federal levels that would require
employee participation, and hot work         water contamination, fish kills, and          expenditure of additional resources
permits that EPA had not proposed in         vegetation damage.                            without improving source emergency
its prevention program. The NPRM                A few commenters argued that               response capabilities. Most of these
solicited comment on whether to              releases with only the potential for          commenters suggested that EPA allow
include these provisions (58 FR 54205;       offsite consequences should not be            compliance with other Federal
October 20, 1993). Commenters argued         included, while other commenters were         regulatory programs to meet the
that contractors have been responsible       evenly divided on whether near-miss           mandate of the Clean Air Act for an
for a number of accidents that have          events should be included in the              emergency response program, while
affected the public and the                  accident history. A number of                 other commenters recommended that
environment. Commenters presented            commenters indicated that releases with       EPA work with other agencies to
the same argument to support inclusion       on-site consequences should be added          develop a format for a single,
of the hot work permit requirements. A       to the accident history. Several              comprehensive response plan for the
substantial number of commenters also        commenters requested that EPA clarify         source. Some commenters addressed
argued that employee participation is a      that the accident history applies only to     related concerns with respect to state
key factor in successful implementation      covered processes.                            program or voluntary initiatives.
of PSM. A few commenters supported              In recognition of these comments, in          EPA has decided to adopt the
EPA’s initial position that these            the final rule, only those accidents from     emergency response requirements found
requirements were more properly OSHA         covered processes that resulted in            in the statute, without additional
concerns.                                    deaths, injuries, or significant property     specific planning requirements. This
   In response to the former commenters’     damage on-site, or known offsite deaths,      action is consistent with the Agency’s
arguments and to ensure consistency          injuries, evacuations, sheltering in          effort to develop a single Federal
between the elements of the two rules,       place, property damage, or                    approach for emergency response
EPA has decided to add these sections        environmental damage need to be               planning. The Review of Federal
to its Program 3 prevention program.         included in the five-year accident            Authorities for Hazardous Materials
EPA believes that each of these elements     history. Near-miss accidents or               Accident Safety, (required under section
31698        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

112(r)(10) of the Clean Air Act) reported    chemicals prior to the first RMP due         program, EPA today is issuing a
little harmony in the required formats or    date and, consequently, will not be          guidance on a model program for this
elements of response plans prepared to       subject to the rule. If EPA required a       industry (see Model Risk Management
meet various Federal regulations.            pre-registration, these sources would        Program for Ammonia Refrigeration).
Accordingly, EPA has committed not to        have to deregister at that time. Further,    EPA encourages other industry groups
specify new plan elements or a specific      states and local agencies already have       to work with the Agency to develop
plan format in today’s rule. EPA             information gathered under EPCRA             models for their sectors. EPA notes that
believes that plans developed to comply      section 312 that could be used for early     the models are particularly relevant to
with other EPA contingency planning          identification and outreach to sources       sources with Program 2 processes.
requirements and the OSHA Hazardous          covered by this rule. EPA is also            Because EPA has adopted the OSHA
Waste and Emergency Operations               working with trade associations and          PSM standard, EPA has not provided an
(HAZWOPER) rule (29 CFR 1910.120)            other representatives of affected            EPA guidance on PSM compliance. EPA
will meet the requirements for the           industries to ensure that sources are        will also publish general technical
emergency response program provided          aware of the rule. Instead, in today’s       guidance to help sources understand
that they address the elements in            rule, the registration is included as part   and comply with the rule which will
section 68.95(a). EPA believes that          of the RMP to limit the number of filings    include Program 2 prevention program
coordination of the emergency response       made by sources.                             guidance. The RMP Offsite Consequence
plan with the community emergency               EPA also proposed that sources            Analysis Guidance contains reference
response plan will help ensure that          submit written registration information.     tables for the offsite consequence
offsite response issues are addressed. In    A number of commenters advocated             analysis, which can be used instead of
addition, EPA and other National             either the modification of existing forms    site-specific modeling. EPA emphasizes
Response Team agencies have prepared         (e.g., the EPCRA Tier II form) or an         that the models are guidance, not
Integrated Contingency Plan Guidance         electronic filing system for the             regulations; sources are not required to
(‘‘one plan’’) (NRT, May 1996). An           submission of this information. Since        use them.
emergency response plan that includes        the RMP and the registration are
                                             consolidated into one submission, this       M. Implementing Agency Audits
the elements specified in this guidance
can be used to meet the requirements in      issue is addressed generally in Section         EPA originally proposed in § 68.60
today’s rule. The final rule also provides   III.G.                                       seven criteria an implementing agency
relief for sources that are too small to        Under the proposed rule sources           could use to determine whether to audit
respond to releases with their own           would need to submit an amended              a source’s RMP. EPA also proposed that
employees; these sources will not be         notice to the Administrator and the          the implementing agency have the
required to develop emergency response       implementing agency within 60 days if        authority to determine whether an RMP
plans provided that appropriate              information in the registration is no        should be revised and to direct the
responses to their hazards have been         longer accurate. Many commenters             owner or operator to make revisions.
discussed in the community emergency         argued that six months or a year is          Many commenters suggested that the
response plan developed under EPCRA          needed to ensure compliance with the         Agency lacked statutory authority to
(42 U.S.C. 11003) for toxics or              certification requirements. EPA agrees       specify measures to correct risk
coordinated with the local fire              with commenters and in the final rule        management program elements through
department for flammables.                   has lengthened the time for submission       the RMP, and that RMP changes based
                                             of an amended registration to six            on implementing agency directives will
K. Registration                              months which should be enough time to        be costly.
   In the NPRM, EPA proposed that            modify the information and to                   EPA or other implementing agencies
sources register with the EPA                electronically resubmit the registration     have general inspection and
Administrator by three years after the       and RMP.                                     enforcement authority under CAA
publication date of the final rule, or                                                    sections 112(r)(7)(E), 113, and 114 to
within three years of the date on which      L. Model Risk Management Programs            compel source owners and operators to
a source becomes subject to the risk            Commenters supported the                  correct deficiencies in the risk
management program requirements as           development of model risk management         management program. EPA intends to
mandated by the CAA. While a number          programs and RMPs, stating that the          use the audit process as a way to verify
of commenters agreed with this               models were needed by smaller                the quality of the program summarized
proposal, a greater number requested         businesses and public systems that lack      in the RMP. When it is reasonable, EPA
that EPA accelerate the registration to      the expertise to implement process           will require modifications to the RMP
between six months and two years of          safety management. Commenters                that may lead to quality improvements
promulgation of the rule so that             specifically supported development of        in the underlying program.
implementing agencies could better           models for industries with well-                EPA notes that many commenters
determine resource allocation and            understood processes and practices,          were uncertain of the distinction among
conduct more extensive outreach and          such as chlorination systems, propane        audits conducted under § 68.220,
technical assistance to sources              and ammonia retailers, and refrigeration     reviews by the permitting authority
developing risk management programs          systems. A few commenters asked that         under § 68.215, and inspections. CAA
and preparing RMPs.                          the models be made available for public      section 112(r)(7)(B)(iii) requires EPA to
   EPA agrees that earlier registration      review. Others said the models should        develop, by regulation, a system for
could aid outreach efforts and help          be published as guidance, not                auditing RMPs. These audits will review
implementing agencies focus resources.       regulations.                                 the information submitted by sources to
However, since the first RMP need not           EPA is working with industry groups       determine whether the source is in
be submitted until June 21, 1999, an         to develop model programs for ammonia        compliance with the rule elements. For
earlier, pre-registration would impose       refrigeration, propane handling, and         example, the implementing agency will
an additional burden on sources. Some        water treatment. After having provided       consider whether the dates for reviews
sources may reduce inventories, make         the public with an opportunity to            and revisions of various elements are
process modifications or switch              review a draft of the ammonia model          consistent with the steps sources are
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31699

required to take. If a source reported a   responsibilities under EPCRA, although          EPA has not included public petitions
major change on a date later than the      funding for LEPCs was a concern.              as a mechanism for periodic audits of
last date on which safety information         A number of commenters opposed             sources under § 68.220. States, however,
and operating procedures were              this approach because some LEPCs are          are able to adopt more stringent
reviewed, the implementing agency          not functional and that LEPCs are not a       requirements.
could seek further information about       substitute for public participation. A
                                           few LEPCs also objected to assuming           O. Inherently Safer Technologies
why such reviews had not been
conducted and require updates if the       any additional role. Commenters                  In response to the NPRM, a number of
agency determined that the source          suggested that EPA should require             commenters stated that EPA should
should have reviewed the documents.        public participation in the development       require sources to conduct ‘‘technology
Audits may be detailed paper reviews or    of the RMP and require all major              options analyses’’ to identify inherently
may be done at a source to confirm that    sources to have a public participation        safer technologies. In the SNPRM, EPA
on-site documentation is consistent        strategy. Industry commenters generally       solicited comments on this issue, but
with reported information.                 opposed any mandated public                   did not propose a requirement for such
   In contrast, the air permitting         participation requirements because            analyses.
                                           direct involvement in risk management            A number of commenters stated that
authority or its designated agency may
                                           program development would delay the           EPA should require analyses of
be reviewing the RMP for completeness,
                                           process and would represent an                inherently safer technologies, at least for
rather that the quality of the RMP
                                           unwarranted and inappropriate                 sources with Program 3 processes or
contents. Inspections are generally more
                                           interference in management and site           new processes. Some commenters
extensive in scope than audits although
                                           control responsibilities. A few               argued that inherent safety is primary
they may include a review of the                                                         prevention (directed at the source of the
accuracy of the RMP information.           commenters supported the SNPRM
                                           suggestion that public participation be       hazard), while EPA’s proposed
Inspections will consider whether the                                                    requirements are secondary prevention
source is in compliance with part 68 as    limited to sources with Program 3
                                           processes because these sources               (control of the hazard). One commenter
a whole, not just with the RMP                                                           asked that sources be required to
requirements, and may review both the      represent the greatest risk. Other
                                           commenters opposed this idea,                 provide full economic and technical
documentation kept at the source and                                                     analyses of options. Commenters argued
operating practices.                       preferring the decision to be left to local
                                           authorities.                                  that without a technology options
   Regarding comments that making             EPA has not adopted any specific           analysis requirement, industry will not
changes to the RMP would be too costly,    public participation requirements. EPA        conduct these analyses because, unlike
EPA has endeavored to ameliorate the       plans to make the RMP immediately             its pollution prevention efforts, EPA has
cost burden of this rule by using a        available to any member of the public.        provided no incentive for safer plants.
tiering approach to make the risk          LEPCs and others will be able to                 Other commenters strongly opposed
management program elements on             compare their sources with similar            any requirement for these analyses
which the RMP rests appropriate for        sources in other areas to determine           because PHA teams regularly suggest
sources of various sizes and complexity.   whether quantities on sites, process          viable, effective (and inherently safer)
In addition, EPA is considering            controls, mitigation systems, and             alternatives for risk reduction, which
development of a standard RMP              monitoring systems are significantly          may include features such as inventory
reporting format and data elements,        different. This information will give the     reduction, material substitution, and
which should significantly reduce the      public an opportunity to gain a better        process control changes. These changes
time and effort necessary to revise the    understanding of local industries and         are made as opportunities arise, without
RMP. Any source owner or operator can      carry on a more informed dialogue with        regulation or adopting of completely
further limit the costs associated with    sources on their prevention practices.        new and unproven process
revising its RMP by submitting a timely,   EPA continues to encourage sources to         technologies. Commenters said that
complete, and valid plan in the first      work with the LEPCs and other                 similar analyses are frequently
instance.                                  community groups to provide                   conducted during the design phase of a
N. Public Participation                    information to the public and ensure an       process or source where there are
                                           on-going dialogue during and after RMP        sufficient economic incentives to design
  In the SNPRM, EPA requested              development and submission. The               a process with as few costly additional
comments on how public participation       public is a valuable resource and a key       safety features as possible without new
in the risk management program process     stakeholder in chemical accident              EPA requirements. Commenters also
might be encouraged. EPA’s preferred       prevention, preparedness, and response        said that a requirement would prove
approach was to encourage the public       at the local level.                           costly, without providing commensurate
and sources to use existing groups,           A number of commenters said that           benefits.
primarily the LEPC, as a conduit for       EPA should prohibit the public from              EPA has decided not to mandate
communications between the source          triggering an audit through petitions         inherently safer technology analyses.
and the public throughout the RMP          because this approach would open the          EPA does not believe that a requirement
development process. A substantial         process to litigation; a petition process     that sources conduct searches or
number of commenters supported this        would be expensive, time-consuming,           analyses of alternative processing
approach, stating that the LEPC was        and increase the time needed to               technologies for new or existing
well placed to interpret the RMP           complete the RMP. Some commenters             processes will produce additional
information for the public. Commenters     said it would impose an excessive             benefits beyond those accruing to the
said that LEPCs and their member           burden on the implementing agency.            rule already. As many commenters,
organizations have considerable            Two commenters favored public                 including those that support such
experience and have established rapport    petitions to trigger audits. One said that    analyses, pointed out, an assessment of
in dealing with the community. Others      the audits should be conducted by             inherently safer design alternatives has
stated that this role is a logical         qualified third parties, subject to           the most benefit in the development of
extension of current LEPC                  community selection and supervision.          new processes. Industry generally
31700       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

examines new process alternatives to        commenters stated that EPCRA                regulations do not adequately address
avoid the addition of more costly           reporting requirements provide ample        risk management of loading and
administrative or engineering controls      information to local entities and no        unloading. The other commenters,
to mitigate a design that may be more       further reporting is needed.                however, said that loading and
hazardous in nature. Although some             EPA disagrees with some of these         unloading were covered by DOT
existing processes may be superficially     comments. Except for the OSHA PSM           regulations and should not be subject to
judged to be inherently less safe than      rule, no other rule cited by the            this rule. They noted that DOT has
other processes, EPA believes these         commenters addresses accidental             adopted regulations requiring training
processes can be safely operated            releases of regulated substances to the     for anyone who loads or unloads
through management and control of the       extent that today’s rule does. Some         hazardous materials. They further said
hazards without spending resources          Federal and state rules for certain         that at distribution centers, regulated
searching for unavailable or                industries provide design standards;        substances are not used or processed,
unaffordable new process technologies.      compliance with these rules will satisfy    and, if in packages, the containers are
Good PHA techniques often reveal            parts of today’s rule. For example,         not opened.
opportunities for continuous                sources in compliance with 29 CFR              Several commenters were concerned
improvement of existing processes and       1910.111 for handling of anhydrous          that EPA regulation in this area could
operations. EPA encourages sources to       ammonia may not need to take                create problems with DOT’s preemption
continue to examine and adopt viable        additional steps to ensure the safe         of state rules. Under U.S. law, states
alternative processing technologies,        design of the process. These other          may not adopt regulations in certain
system safeguards, or process               standards generally do not cover            specified areas that are not substantively
modifications to make new and existing      training, maintenance, hazards analysis,    the same as DOT rules or in other areas
processes and operations inherently         and accident investigation, which are all   that pose an obstacle to DOT goals
safer. EPA included questions related to    key elements in process safety              under Federal Hazardous Materials
process modifications in the RMP so         management. In addition, none of the        Transportation Law. If state laws are
that sources can demonstrate, and users     Federal rules require offsite               authorized by Federal law, however,
of the RMP information can observe,         consequence analyses or reporting to the    states could develop different
progress toward safer processes and         public on the results of these analyses     requirements than DOT imposes. In this
operations.                                 and on prevention steps. Information        case, the commenter said, if EPA were
                                            submitted under EPCRA, which consists       to regulate loading and unloading under
P. Coverage by Other Regulations            primarily of annual inventories, is not     the CAA, the states would have the
  A large number of commenters              equivalent to the RMP information.          authority under the CAA to impose
expressed concerns about duplication           Nevertheless, EPA agrees with            more stringent requirements on this
between the risk management program         commenters that duplication should be       activity.
rule and other Federal and state            minimized, which is why the                    EPA disagrees with the commenters
regulations. Issues related to overlap      emergency response and Program 2            concerning the scope of the Hazardous
between this rule and OSHA PSM are          prevention program steps recognize that     Materials Transportation Act
discussed in Section III.D of this          meeting other requirements will satisfy     preemption authority in this area. EPA’s
preamble; issues related to overlap         elements of this rule. The model risk       definition of stationary source clearly
between this rule and other emergency       management programs that EPA is             covers transportation containers only
response planning regulations are           developing with industry will explicitly    when they are no longer in
discussed in Section III.J of this          cite other regulations, as well as codes    transportation in commerce and was
preamble.                                   and standards, that satisfy specific        addressed in the List Rule. EPA believes
  1. General Issues. A substantial          elements of this rule.                      commenters have overstated the extent
number of commenters stated that EPA           2. DOT Transportation Regulations.       of any preemption problem. EPA’s
had failed to consider other regulations    Commenters concerned with overlap           interpretation today is consistent with
to which sources are subject that cover     with DOT regulations focused on two         DOT’s, as explained in ‘‘California and
some of the same requirements as this       issues: pipeline regulations, and           Los Angeles County Requirements
rule. They noted that many sources are      loading/unloading and storage               Applicable to the On-Site Handling and
covered by DOT rules, other EPA rules,      regulations. Commenters asked EPA to        Transportation of Hazardous
OSHA rules, and, in some cases, other       exclude pipelines and transportation        Materials—Preemption Determination’’
agency or state rules. Some commenters      containers connected for loading or         (60 FR 8774, 8776–78, February 15,
argued that these other regulations         unloading since these are adequately        1995). EPA notes that in many cases
essentially prevent accidents and,          covered by DOT regulations. Some            warehouses and wholesalers take
therefore, this rule is not needed.         commenters disagreed and wanted             delivery of materials and resell them;
Commenters stated that EPA should           loading and unloading of transportation     EPA considers this storage to be covered
define jurisdictional and enforcement       containers to be included because many      by today’s rule. EPA believes that DOT
boundaries so that sources subject to       accidents occur during these                standards for container integrity satisfy
multiple regulations are not subjected to   procedures.                                 process safety information
multiple enforcement actions for the           In the final List Rule, EPA defined      requirements. The same applies to DOT
same violation. Other commenters said       stationary source to include                standards for training requirements for
that EPA should clearly identify which      ‘‘transportation containers that are no     loading and unloading; that training
similar requirements imposed by other       longer under active shipping orders and     satisfies the training requirements of
programs satisfy this rule and what         transportation containers that are          this rule for loading and unloading.
additional steps are needed. Some           connected to equipment at the               Requirements for the PHA only apply to
commenters said that any source             stationary source for the purposes of       connections to transportation containers
covered by another, similar rule should     temporary storage, loading, or              and for storage of containers.
be excluded from this rule. Others          unloading.’’ One commenter stated that         3. Other EPA Regulations. Many
suggested that EPA explicitly cross-        the 1993 oleum release in Richmond,         commenters stated that other EPA
reference other applicable rules. A few     California, demonstrated that DOT           regulations cover the same activities and
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                         31701

should be deferred to or referenced to      today’s Federal Register, EPA has               EPA believes that substitution of the
prevent duplicative requirements and        stayed implementation of the affected        RMPP for the RMP for California
enforcement. A number of commenters         provisions until these changes are           sources is not feasible. The California
said that regulations under the Clean       finalized. OCS sources are not subject to    RMPPs are voluminous documents,
Water Act, specifically the Spill           part 68 because the connection between       submitted per process, not per source.
Prevention, Control, and                    this part and protection of ambient air      These documents could not be
Countermeasure (SPCC) and Oil               quality is too remote; therefore, CAA        submitted electronically. Because EPA
Pollution Act of 1990 (OPA–90) rules,       section 328 proscribes EPA’s                 is concentrating on submission of data
duplicate many of the provisions of this    jurisdiction.                                elements, EPA believes that its RMP
rule. Other commenters argued the              5. State and Local Regulations.           requirements can be met quickly by any
Underground Storage Tank (UST) rules        Commenters sought clarification of how       source that has completed an RMPP.
require sources to comply with              risk management programs                     Completion of the RMP will not impose
requirements equivalent to many of the      implemented under state laws in              a large burden on sources. If the RMPP
notification, prevention, and emergency     Delaware, New Jersey, California, and        has summary sections, these may be
response provisions. A few commenters       Nevada would be treated. Some                directly transferable for use as the
stated that EPCRA already covers the        commenters said sources complying            executive summary.
right-to-know provisions; others stated     with these state rules should be                In regard to other state laws, states
that the risk management program            grandfathered into EPA’s rule for at least   may include them as part of their CAA
regulations should support existing         five years. California commenters asked      section 112(l) submission for EPA’s
EPCRA rules. Three commenters said          that risk management prevention              review and approval. These laws,
that EPA should exempt any source           programs (RMPPs) developed and               however, must be as stringent as EPA’s;
covered by the Resource Conservation        submitted under California’s rule be         that is, they must cover all elements of
and Recovery Act (RCRA) because the         considered in lieu of the required RMP.      the rule with requirements that at least
rules under that act already impose         Some commenters asked that                   match EPA’s. EPA notes that state
comprehensive risk management               documentation created to meet the state      propane laws are generally based on
requirements.                               requirements be considered adequate to       NFPA–58, which EPA is using to help
   As discussed in Section III.J,           meet EPA’s program so that additional        develop its model risk management
emergency response plans developed          documentation need not be created just       program for propane distributors and
under SPCC, OPA–90, or RCRA can be          to meet slightly different rules. A few      users. Therefore, sources in compliance
used to meet the emergency response         commenters suggested that EPA should         with NFPA–58 requirements may meet
requirements of this rule. EPA notes,       explicitly preempt any state risk            many of the requirements of Program 2,
however, that SPCC, OPA–90, and UST         management program regulations that          as defined in the model.
rules do not address storage, handling,
                                            are not submitted to and approved by         Q. Industry-Specific Issues
and release prevention for regulated
                                            EPA. Other states said that EPA should
substances. SPCC and OPA–90 rules                                                           A number of industries submitted
                                            defer to state rules on hydrogen sulfide
apply to oil; UST rules apply to oil and                                                 comments on issues that were particular
                                            and propane.
gasoline. The processes addressed by                                                     to them, in many cases seeking
these rules, therefore, do not overlap         None of the four state risk
                                            management program rules is identical        exemption from the rule.
with the processes covered by today’s                                                       1. Oil and Gas Facilities. Industry
rule.                                       to EPA’s or each other. The Delaware,
                                                                                         commenters argued that components of
   RCRA requirements apply only to          New Jersey, and Nevada programs
                                                                                         the oil and gas industries should be
certain activities undertaken at sources    closely parallel the OSHA PSM rule; the
                                                                                         excluded from EPA’s risk management
that may be subject to the requirements     California program is less specific. EPA
                                                                                         program; in particular, that EPA should
of today’s final rule. As noted above,      expects that sources in compliance with
                                                                                         exempt the following operations and
EPA anticipates that emergency              these state programs will have
                                                                                         facilities from RMP requirements:
                                            completed most of the steps required
response plans developed under RCRA                                                         • Atmospheric storage and transfer of
can be used to meet the emergency           under EPA’s rule. EPA notes that these
                                                                                         flammable liquids;
response requirements of this rule. In      sources are generally also covered by           • Retail facilities;
addition, certain training and other        OSHA PSM and, therefore, should be in           • Marketing terminals and bulk
release prevention activities required      compliance with a significant portion of     plants;
under RCRA may satisfy certain of the       EPA’s rule.                                     • Remote, low-risk petroleum
prevention program requirements for            In relation to the request for            operations;
Program 2 processes.                        grandfathering, EPA does not have the           • Oil and gas exploration, production
   4. Other Federal Regulations. A          authority to grandfather compliance          and processing facilities;
number of commenters stated that EPA        with programs that the Agency has not           • Crude oil separation, handling, and
should not cover outer continental shelf    reviewed and approved. EPA expects           storage operations;
(OCS) sources because they are              that these four states will seek                • Subsurface hydrocarbon reservoirs;
adequately regulated under the Marine       delegation of the 112(r) program under          • All transportation and facilities
Mineral Service, Pipeline Safety Act,       CAA section 112(l). At that time, EPA        incident to transportation; and
and OPA–90. The mining industry said        will review the state programs and              • Outer continental shelf facilities.
that they should not be covered because     approve them if they are as stringent as     Commenters noted that these industries
their handling of explosives is regulated   EPA’s rule and meet other section 112(l)     and facilities pose a low risk to the
in great detail by the Mine Safety and      requirements. If states are granted          public for a number of reasons.
Health Administration and the Bureau        delegation, they will have the authority     Significant accidental releases are
of Alcohol, Tobacco, and Firearms. In       to grandfather previous compliance.          highly unlikely because these facilities
its proposed rule (61 FR 16598, April       Because the CAA specifically grants          handle materials which, given site
15, 1996), EPA has proposed to delist       states the right to impose more stringent    conditions, have limited potential for
explosives and proposed a stay of the       regulations, EPA cannot preempt state        release to the air or offsite impacts.
affected list provisions; elsewhere in      programs as one commenter requested.         Existing regulations reduce the potential
31702       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

for significant accidental releases.           2. Retail Facilities. The rule is         assure continuing compliance and no
Additionally, commenters argued that        expected to cover a substantial number       requirements under NFPA 58 for
the RMP provisions extend beyond            of retail facilities, specifically those     training distribution plant operators or
EPA’s statutory authority and run           handling propane and ammonia as a            mechanics, written maintenance
counter to the Domestic Natural Gas and     fertilizer. Approximately 100                programs, or procedures to control
Oil Initiative established by President     commenters requested that EPA exempt         change. During our inspections, we have
Clinton.                                    propane retailers from coverage under        identified some facilities that were not
   Commenters stated that most of the       the risk management program, primarily       in conformance with NFPA 58.
exploration and production facilities are   due to the effectiveness of the existing        EPA does not agree with commenters
remotely located and argued that even       regulatory structure for the industry (in    who are seeking exemption of propane
the tiering approach that EPA proposed      particular, NFPA Standard 58). At the        retailers and users. In a supplemental
in the SNPRM did not provide adequate       same time, more than 50 commenters           notice, EPA sought comment on
relief for these sources, which pose        requested that EPA exempt agricultural       whether flammable substances, when
minimal risks. They noted that OSHA         chemical retailers (with inventories of      used as a fuel, posed a lesser intrinsic
specifically excludes remotely located      ammonia fertilizer) from coverage under      hazard than the same substances
sources, retail facilities, DOT-regulated   the risk management program because          handled otherwise; no data were
sources, and atmospheric storage tanks.     of the existing state and Federal            submitted to EPA to justify this
A number of commenters said that EPA        regulation of these operations.              position. Further, EPA has considerable
had never included most of these               a. Propane Retailers. Commenters          accident data for propane that illustrates
sources in its economic analysis,           argued that the primary thrust of the        its potential to affect the public located
implying that EPA did not intend to         proposed regulations is to preclude          nearby. As a result, EPA continues to
cover them in these regulations; they       unwarranted risk to the surrounding          believe that the hazard posed by
requested an explicit statement to that     community from an accidental failure of      propane is inherent and does not vary
effect. One commenter opposed an            a storage tank. They stated that the basic   with its use. Because of a lack of data
exemption for oil and gas sources and       purpose of NFPA 58, the Storage and          justifying a different level of hazard for
pipeline and other transportation           Handling of Liquefied Petroleum Gases,       flammables used as fuel, the Agency
companies, arguing that these sources       is to prevent such releases through          will not adopt a fuel use exemption
have some of the most common or worst       design and engineering. This standard        similar to that provided by OSHA.
                                            requires fire safety analyses, distance         Furthermore, EPA notes that many
                                            separation between the storage tank and      propane retailers are relatively close to
   EPA does not agree that marketing        surrounding exposures, and approval of       other commercial buildings and the
terminals or bulk plants should be          plans for new or existing facilities by      community. Should a fire or explosion
excluded if there are regulated             local authorities. They noted that NFPA      occur, the community could be
substances present above their threshold    58 has been adopted as state law in 48       substantially impacted. EPA believes
quantities. Although EPA did not            of the 50 states and that the two            the community and sources need to be
specifically exempt gasoline and            remaining states (California and Texas)      aware of the potential risk and
naturally occurring hydrocarbons (e.g.,     have similar rules. They said that           understand the steps the source is
crude oil), it did not intend to cover      propane storage containers are               taking to limit the potential for a release.
regulated flammables in these mixtures.     manufactured strictly to the                 Because EPA recognizes that the full
In its proposed rule (61 FR 16598, April    specifications of the American Society       PSM standard is not appropriate for
15, 1996), EPA has proposed to revise       of Mechanical Engineers. According to        propane retailers, EPA has assigned
the criteria for flammable mixtures and     commenters, emergency response               propane retailers and users to Program
to exclude naturally occurring              planning is already covered by NFPA–         2. Compliance with most aspects of
hydrocarbons prior to processing at a       58, OSHA, and DOT. Because of                Program 2 should be simple. For
gas processing plant or refinery.           compliance with this standard and state      example, use of tanks that meet relevant
Flammable mixtures would be covered         law, commenters argued that the rule         ASME standards and retention of the
only if they met all of the NFPA–4          would not provide any improvement in         material safety data sheets required by
criteria. Gasoline and crude oil are        safety. A number of commenters argued        OSHA will satisfy the safety information
listed with NFPA 3 flammability ratings     that propane was a heating fuel, not a       requirements of § 68.48. Furthermore,
in NFPA 325 M, Fire Hazard Properties       chemical, and did not pose the same          EPA is developing a model risk
of Flammable Liquids, Gases, and            level of risk as larger quantities of        management program to help sources
Volatile Solids, 1991. Elsewhere in         propane held and used as a chemical          comply. This model is being based on
today’s Federal Register, EPA has           feedstock. One commenter noted that          NFPA–58 standards, where they apply,
stayed implementation of the risk           OSHA had exempted retailers and              so that sources already in compliance
management program rule for                 propane when used as a fuel.                 with NFPA–58 will be in substantial
substances and processes that would be         In contrast, one state, which also        compliance with Program 2. The model
affected by the proposed changes. As        regulates propane under its state risk       will help sources comply with other
EPA explained in the preamble to the        management program law, argued that          elements in a cost-effective manner.
final list rule, the Agency has not         propane is not sufficiently regulated. It       b. Ammonia Retailers. Ammonia is
adopted OSHA’s exemption for                stated:                                      sold as a fertilizer from agricultural
atmospheric storage of flammables              Fire authorities inspect each new         retailers, primarily in the Middle West,
because, unlike OSHA, EPA has listed        facility before propane is introduced.       Great Plains, and West. Commenters
only flammable gases and highly             They concentrate on adequate fire water      stated that the retail fertilizer industry is
volatile flammable liquids. EPA             supply, electrical code compliance, and      already governed by OSHA’s Health and
considers these substances to be            distance separation requirements. Some       Safety Standards, which are specifically
intrinsically hazardous, regardless of      fire authorities are not technically         applicable to the storage and handling
storage conditions and, therefore, does     capable of determining if the facility       of anhydrous ammonia. They noted that
not believe it is appropriate to provide    piping system complies with NFPA 58.         this standard (29 CFR 1910.111) is based
an exemption for such tanks.                There are no follow-up inspections to        on ANSI K61.1 and sets forth extensive
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31703

requirements applicable to the design,        exemption of farmers can be extended to     program that would help sources
construction, location, installation, and     non-farmers. See 136 Cong. Rec. S2284       develop a hazard assessment process
operation of anhydrous ammonia                (March 7, 1990) (colloquy between Sens.     that can account for potentially
facilities. Measures designed to              Kerrey and Chafee).                         changing contents of a warehouse.
adequately provide for the prevention of         3. Refrigeration Systems. A number of       Batch processors face related
and response to accidental releases are       commenters stated that ammonia used         problems with changing chemicals on
an integral part of this standard. Some       in a refrigeration system should be         site. EPA is willing to work with
commenters said that if EPA did not           exempted from this rule because these       industry to develop a generic approach
exempt retail sources, ammonia retailers      systems pose little risk to the public.     to risk management programs. EPA
should be deemed to be in compliance          One commenter said that EPA should          believes, however, that most batch
with the prevention program. In               exempt roof-mounted air handlers,           processors will already be covered by
addition, commenters said they are            pipes, and components. Some                 OSHA PSM. The RMP Offsite
regulated under state laws and are            commenters said that the industry was       Consequence Analyses Guidance will
subject to EPCRA reporting                    already overregulated and the               reduce the burden of developing
requirements. Many commenters argued          imposition of this rule would be a          multiple release scenario analyses. To
that retail fertilizer sources have an        burden.                                     minimize the need for continual
excellent safety record. They stated that        The CAA requires EPA to impose this      revision of their worst-case scenario to
retail fertilizer facilities are limited in   rule on any source with more than a         accommodate periodic inventory
size, do not involve complex processing       threshold quantity of a regulated           changes, sources such as warehouses
and manufacturing operations, and are         substance. Therefore, EPA cannot            and batch processors may want to
located in rural areas; consequently,         exempt ammonia refrigeration systems        analyze their expected chemical
they present a low risk to the                that contain more than 10,000 pounds of     inventory in developing a scenario that
surrounding communities. Commenters           ammonia. In addition, ammonia               represents the worst case for the
objected to the regulations because they      refrigeration plants have had a             foreseeable future, even if the substance
would impose a substantial burden on          substantial number of accidents where       is not currently in use at the source.
what are small operations. Some               the ammonia has migrated offsite,              A number of commenters raised
commenters argued that, because               indicating that these systems do pose a     questions about coverage of POTWs. A
Congress had granted EPA the authority        risk to the public. At the same time, it    specific concern was EPA’s statement in
to exempt ammonia when held by a              should be noted that all of these           the NPRM that substances in waste
farmer for use as a fertilizer, EPA could     refrigeration systems are already           streams would not be covered by the
grant retail ammonia sources the same         covered by the OSHA PSM standard.           rule. This statement is based on the
                                              Consequently, the only additional steps     belief that the regulated toxic substances
                                              sources will have to take are to conduct    will not constitute more than one
  Although EPA recognizes that other          the hazard assessment, comply with the      percent of any waste stream received by
regulatory programs address safety for        emergency response requirements, and        a POTW. Consequently, they will not be
agricultural retailers and that such          file the RMP. EPA worked with the           considered in calculations of threshold
operations do not involve complex             International Institute of Ammonia          quantities. No waste stream is likely to
processing or manufacturing, EPA              Refrigeration to develop a model risk       meet EPA’s flammability criteria.
disagrees with the conclusions of these       management program that will facilitate     POTWs are likely, however, to be
commenters. According to the industry,        compliance and reduce the burden on         covered because of regulated substances
the typical ammonia retailer has 200          sources (Model Risk Management              they use to treat wastes.
tons of ammonia on site at times. Even        Program for Ammonia Refrigeration).
in rural areas, release of even a fraction                                                R. Implementing Agency Delegation
                                              For most of these sources, which have
of this quantity could affect the             only one chemical, the RMP will be a           EPA received a number of comments
community. Sources constructed and            very brief document.                        to the NPRM regarding the role and
operated consistent with the relevant            4. Other Operations. Comments were       potential burden on LEPCs, SERCs, and
ANSI standard will meet the EPA rule          submitted on a range of other industries.   other local agencies that may result from
for subjects addressed by both. EPA              The warehouse industry said that it      implementation of the risk management
recognizes the OSHA standard for              should be exempted where material is        program. In the SNPRM preamble, EPA
anhydrous ammonia handling and                received and shipped in packages that       indicated that EPA and the states share
hopes to work with the ammonia                are not opened; commenters noted that       the responsibility for protecting public
industry to develop a model risk              they are covered by DOT packaging           health and the environment and
management program for ammonia                regulations. EPA believes that              encouraged state and local agencies to
retailers. This model would be based on       warehouses must be covered if they          seek delegation for this program because
the OSHA standard, where applicable.          have more than a threshold quantity of      their participation is essential to
The standard, however, does not               a regulated substance. Under the OSHA       successful chemical accident
include some elements mandated by the         definition of process, which EPA has        prevention, preparedness and response
CAA as part of the prevention program,        adopted, packages of a substance stored     and recognized by the legislative history
specifically training and maintenance         in the same room may be counted             and the CAA section 112(r)
programs. In addition, EPA believes that      toward the threshold quantity if the        requirements by requiring that RMPs be
there is a further need to convey             packages could release their contents in    submitted to states and local planning
information on hazards and risk               the same event. EPA notes that              entities. States are already involved in
management practices of these                 warehouse fires have created major          chemical emergency preparedness and
operations to the public and local            incidents in the past 10 years, and the     planning through the requirements of
entities. The model will provide              Agency believes that warehouses should      EPCRA.
guidance to help sources comply with          take the steps necessary to prevent and        Commenters on the SNPRM requested
these elements in a cost-effective            mitigate such incidents. EPA is             that the final rule clearly state that EPA
manner. Finally, EPA does not agree           interested in working with the industry     is the implementing agency unless a
that the Congressionally allowed              to create a model risk management           state or local agency is granted a
31704        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

delegation of authority under section         today’s rule because the Agency already        Since states are not required to seek
112(l). Several commenters indicated          promulgated sufficient provisions for       delegation of this program, it does not
that EPA should allow states the              delegation of accident prevention           constitute an unfunded mandate (see
flexibility to designate the most             programs under section 112(r) to states     also section V.C). Before EPA grants
appropriate implementing agency, such         and local authorities under 40 CFR part     delegation, state or local agencies must
as OSHA or the state agency that              63, subpart E, which implements CAA         show that they have the resources to
administers and enforces the OSHA             § 112(l). As EPA discussed in the           implement and enforce the risk
PSM standard, rather than mandating           SNPRM, implementing agencies will be        management program rules. EPA
the air permitting authority or a SERC        responsible for such tasks as reviewing     recognizes that there is no Federal
agency in the final rule. A number of         RMP information, auditing and               funding associated with implementation
commenters on the SNPRM and NPRM              inspecting a percentage of sources          of section 112(r) but believes that the
suggested that existing local emergency       annually, requiring revisions to the RMP    tiered program levels and centralized
planning agencies (e.g., LEPCs, fire          as necessary, and assisting the             electronic submission of RMPs in
departments) would be best suited to          permitting authority in ensuring            today’s rule substantially reduces the
serve as implementing agencies, in part       compliance. States have the flexibility     cost and resource demand for state and
because they are closest to the               to implement their own programs,            local entities seeking delegation. State
communities at risk. However, many            however the CAA requires that state or      and local agencies that fully implement
commenters (including LEPCs that              local program requirements must be as       section 112(r) will be able to develop
commented) argued that LEPCs would            stringent as EPA’s and must include         and operate a program that best fits their
be unprepared to take on such a burden        EPA regulated substances and                individual needs, resources, and
and that even a minimal role in               processes. This means that California,      structures. As part of consideration of
implementing section 112(r), including        Delaware, Nevada, and New Jersey will       the costs to implement section 112(r),
mere storage of RMPs, would                   need to revise their existing program       state and local agencies should also
overwhelm their limited resources and         requirements, substance lists, and in       weigh the benefits of integrating
technical expertise. In addition,             some cases, thresholds, to meet EPA’s       accident prevention with pollution
commenters indicated that LEPCs, as           requirements and to obtain section          prevention, environmental protection,
mostly volunteer agencies, would not          112(r) delegation. EPA intends to issue     and worker and public health and safety
and could not have the authority              additional guidance that will help state    at the state level, and the benefits to
necessary to implement and enforce the        and local agencies obtain program           local industry associated with state,
RMP rule.                                     delegation. EPA must review delegation      rather than Federal, implementation of
   The implementing agency is the state       requests submitted under 40 CFR part        this program. Many states and local
or local agency that obtains delegation       63, subpart E to ensure that state and      agencies have established a close
of the section 112(r) program under           local programs requirements are as          working relationship with the sources in
section 112(l). As stated in the              stringent as EPA’s. With respect to         their jurisdiction. In addition, a number
definition of Implementing Agency in          nationwide uniform implementation,          of state and local publicly owned
today’s rule, until a state or local agency   EPA notes that the CAA specifically         sources are covered by this rule; state
is granted delegation of the risk             grants states the right to develop more     implementation can serve to enhance
management program under CAA                  stringent requirements; consequently,       compliance that may otherwise require
section 112(l), EPA will serve as the         there may be state-to-state variations.     increased coordination with EPA.
implementing agency. States may select
                                              Many states, however, are prohibited        Although other states have successfully
any state or local agency to implement
                                              under their state laws from adopting        ‘‘self-funded’’ their accident prevention
this program, including an air
                                              regulations that are more stringent than    programs with various state authorized
permitting authority or a state OSHA
                                              Federal rules.                              fees, EPA recognizes that it may be
program, provided the agency has the
                                                 One commenter on the NPRM                difficult for state or local agencies to
expertise, legal authority and resources
                                              indicated that EPA’s estimation of the      generate the resources necessary to fund
to implement the program; the state
                                              costs of implementing the section 112(r)    full section 112(r) implementation.
must also have the authority to enforce
the program. EPA realizes that, in most       program is extremely low, representing         Several commenters on the SNPRM
cases, LEPCs will not have the authority      demands that are 65 to 75 percent lower     requested guidance and training for
to be implementing agencies, but they         than those experienced by states            sources, local entities, and
should be involved as much as possible        implementing similar programs. LEPCs        implementing agencies on
in the program.                               and state governments were concerned        understanding hazard assessments, and
   Commenters on the SNPRM suggested          about the imposition of section 112(r)      conducting program inspections,
that EPA should avoid adding specific         requirements on state and local             reviews, and audits. EPA recognizes the
implementation details to the final rule      governments as an unfunded mandate.         need for guidance and training for
so that states would have the flexibility     Several state agencies indicated that the   implementing agencies and sources.
to develop or continue programs that          considerable financial burden imposed       EPA plans to modify and to continue
meet local needs. Other commenters,           by section 112(r) implementation would      offering its four-day Chemical Safety
however, suggested that EPA should            prohibit them from seeking section          Audit workshop to other federal agency
issue delegation guidance and to define       112(l) delegation. Commenters               representatives, state and local
the elements of an adequate state             encouraged EPA to develop guidance on       government officials, and industry
program to avoid inconsistent                 potential funding mechanisms,               representatives as an introduction to
interpretations and implementation of         including descriptions of the fee           chemical process safety, current
the rule. Commenters representing             systems used by existing state programs     industry chemical accident prevention
companies that operate in several states      for accidental release prevention.          practices and understanding the
were particularly concerned about             Several commenters indicated that the       elements of the risk management
maintaining uniform implementation.           political climate at the state and local    program. EPA is ready to assist state and
   EPA has not added specific state or        level would make it impossible to levy      local agencies through its regional
local implementation requirements to          new, or raise existing, fees.               offices to coordinate state and local
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31705

programs and to help in obtaining            would have no benefit, it generates          thus provides a similar degree of benefit
program delegation and development of        significant liability issues, and it would   with respect to EPA auditing as it does
resources to fund state or local             divert limited resources away from           with respect to OSHA auditing. EPA
programs. Region 4 in Atlanta, Georgia,      activities with greater public health        agrees that VPP sources would gain no
for example, has developed an                benefit. Commenters supported the use        benefit by assignment to Program 2. EPA
integrated section 112(r) work group of      of existing reports since this approach      does not believe it is appropriate to
state and local air pollution control,       should not generate an additional            adjust the hazard assessment
SERC, and LEPC representatives who           burden, such reports are available           requirements for VPP sources; this
participate in workshops, seminars, and      through EPA and OSHA under other             information is essential to local
pilot studies designed to foster local       regulations and they should be adequate      emergency preparedness and response
program implementation and to build a        for the objectives outlined by EPA.          and for public dialogue.
support network. EPA also continues to         EPA agrees with commenters and has            2. Qualified Third Party. In the
work with NOAA to enhance modeling           decided not to adopt any additional          SNPRM, EPA sought comments on
and information management tools             accident reporting requirements. EPA         whether sources should be allowed to
contained in the Computer Aided              will rely on the five-year accident          have qualified third parties assist them
Management of Emergency Operations           history for the immediate future and,        in achieving and maintaining
(CAMEO) and Areal Locations of               based on that information, determine         compliance. Eight commenters
Hazardous Atmospheres (ALOHA)                whether additional information and           supported third party reviews as a way
software for local emergency planners        requirements are needed. EPA has the         to reduce implementing agency efforts.
and responders.                              authority under CAA section 114 to           One commenter stated that sources
   Two commenters on the NPRM                investigate releases and seek additional     should be required to hire a qualified
requested that EPA address the issue of      information as needed.                       third party to assess their activities.
tort liability in the event that an                                                       Most commenters, however, expressed
                                             T. Other Issues
accidental release occurs after an RMP                                                    some reservations including greater cost
has been submitted to the implementing         1. OSHA VPP. In the SNPRM, EPA
                                                                                          if sources were required to hire third
agency. One other commenter believed         asked whether the OSHA Voluntary
                                                                                          parties, when many sources already
that the implementing agency must be         Protection Program (VPP) protects
                                                                                          have staff qualified to implement the
held accountable for RMP content while       public health and the environment and
                                             suggested that one approach to third         risk management program. Commenters
another believed that EPA must ensure                                                     said that a third party review would be
that adequate limits to implementing         party review (discussed below) would
                                             be to assign sources that participate in     particularly costly for retailers who will
agency liability exist.                                                                   have model programs and stated that
   The primary responsibility for            VPP to Program 2. Many commenters
                                             supported VPP participation as a             use of third parties would add another
accident prevention rests with the
                                             criterion for assigning a source to          layer of bureaucracy to the process. A
owners or operators of sources. Section
                                             Program 2. Several of these commenters       number of commenters said that EPA
112(r) does not create a basis for
                                             noted, however, that because VPP             should fund third parties. Commenters
implementing agency tort liability under
                                             sources are probably already covered by      also stated that use of third parties
federal law. CAA § 112(r)(1). When EPA
                                             OSHA PSM, assigning them to Program          might confuse the issue of who was
is the implementing agency, it is
immune from tort liability under state       2 would provide no reduction in burden       responsible for safety and for
law. States that are implementing            or regulatory relief. One commenter          enforcement; they said that EPA must
agencies generally will have protection      suggested that EPA could allow VPP           make it clear that the owner or operator
from liability under their state laws. If    sources the flexibility to determine,        of the source remains responsible for
a state has waived its sovereign             with the LEPC, what the offsite              accidents and that the implementing
immunity, EPA cannot take steps to           consequence analysis would cover.            agency retains enforcement authority.
alter that situation. EPA encourages         Seven commenters opposed VPP                 Finally, several commenters asked who
states concerned about this issue to         participation as a Program 2 criterion       would determine the qualifications of a
discuss the matter with their attorneys      because VPP does not address offsite         qualified third party.
general to determine whether state law       consequences, no evidence was                   EPA is not requiring use of qualified
protects them from liability.                presented that PSM is being carried out      third parties in this rule. EPA, however,
                                             adequately at VPP sources, and this          endorses the concept of offering sources
S. Accident Information Reporting            approach would discriminate against          the option of using third parties to assist
   In the SNPRM, EPA discussed the           other voluntary programs.                    owner/operators in meeting their
possibility of additional accident             After consideration of the comments,       obligations under the rule. Based on the
reporting to support a variety of future     EPA has decided not to use VPP               comments, EPA recognizes that any
accident prevention activities. EPA          participation as a Program 2 criterion,      third party proposal must:
proposed that sources either submit an       but has adopted language in the final           • Not weaken the compliance
OSHA PSM or Program 3 investigation          rule to exempt sources with a Star or        responsibilities of source owner/
report for certain accidental releases or    Merit ranking under OSHA’s VPP from          operators;
a survey form that collects certain          selection for audits based on the criteria      • Offer cost savings and benefits to the
accident data. Otherwise EPA could use       in § 68.220 (b)(2) and (b)(7); such a        industry, community, and
existing authorities to collect additional   source may be audited if it has an           implementing agencies that significantly
accident data from existing information,     accidental release that requires an          exceed the cost of implementing the
as needed.                                   accident investigation under these           qualified third party approach;
   Most commenters opposed EPA’s             regulations. This decision recognizes           • Lead to a net increase in process
proposal for additional accident             that such sources have active accident       safety, particularly for smaller, less
reporting requirements, especially the       prevention programs and should not be        technically sophisticated sources; and
collection of accident investigations        regarded in the same way as other               • Promote cost-effective agency
prepared under Program 3 or OSHA             sources within the same industry or as       prioritization of implementing agency
PSM, because it increases costs, it          other sources in general. In addition, it    oversight resources.
31706               Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

   Several key issues need further                                    maintaining records supporting the                        implementing agency and EPA will
discussion before the use of a qualified                              implementation of the risk management                     have access to all on-site documentation
third party may be offered as an option.                              program, the owner or operator should                     when needed. Much of the on-site
These include qualification criteria,                                 submit the records to the implementing                    documentation will be confidential and
certification procedures, liability, and                              agency. A third commenter said that the                   protected under Section 114(c) of the
other critical issues associated with the                             rule should require that all records                      CAA. The burden on the implementing
use of a qualified third party. Therefore,                            supporting compliance with the rule be                    agency will be substantially reduced
following promulgation of this rule,                                  organized and readily available through                   because it will not have to establish
EPA proposes to call a meeting to solicit                             the designated contact person at the                      protected trade secret files and
input from trade associations,                                        source to the implementing agency for                     procedures.
professional and technical societies,                                 inspection.
states, and other interested parties to                                  Other commenters said the proposed                       Finally, EPA agrees with commenters
address these issues and investigate the                              recordkeeping was excessive. One stated                   that level of recordkeeping should be
need for developing a process and a                                   that EPA is forcing industries towards                    kept as low as possible consistent with
national exam to qualify third parties.                               ‘‘defensive universal recordkeeping,’’                    EPA’s statutory mandate. EPA has
   3. Documentation. Commenters                                       retaining mountains of documents                          reduced the documentation
expressed a number of concerns about                                  because EPA has not specified what                        requirements for Program 2 processes
the level of recordkeeping and the                                    records need to be kept. Another                          (particularly with respect to the
availability of information. Some                                     commenter said that an examination of                     prevention program) because it believes
commenters stated that records need to                                the proposal indicated that no fewer                      that for these sources, the benefit of the
be maintained for longer than five years;                             than about 22 separate written                            records does not offset the cost of
commenters suggested 10 years, 20                                     documents are required to be                              creating and maintaining files.
years, and the life of the source. One                                maintained on site or submitted to the
commenter suggested that records                                      responsible regulatory agency and other                   IV. Section-by-Section Analysis of the
should be kept for the life of the process                            parties. One commenter noted that more                    Rule
and then seven years thereafter to                                    resources will be spent on filling out                      This section discusses specific
ensure that records would be available                                paperwork than on actual spill                            changes to the rule that are not
if a lawsuit was initiated. Industry                                  prevention.                                               otherwise described in this preamble.
commenters said that only current                                        In the final rule, EPA has adopted the
                                                                      OSHA PSM language for Program 3                           The rule has been renumbered to
documents and data should be
                                                                      processes; therefore, documentation for                   include new sections and subparts. The
maintained to prevent confusion from
                                                                      PSM elements is dictated by that rule.                    hazard assessment requirements have
having multiple versions of the same
document. One commenter stated that                                   For other elements of the risk                            been divided into separate sections in
policies and procedures should be kept                                management program and for processes                      subpart B. The Program 2 prevention
until they are superseded, then they                                  in other tiers, EPA has set a period of                   program requirements are in subpart C;
should be destroyed; retaining old,                                   five years for the maintenance of                         Program 3 prevention program elements
superseded information is unsafe and                                  supporting documentation. EPA agrees                      are in Subpart D. Emergency response
unacceptable and can result in                                        with commenters that only current                         requirements are in subpart E, RMP
accidents.                                                            versions of documents and procedures                      requirements in subpart G. The
   One commenter said that sources                                    should be retained. On the issue of                       registration requirement, proposed
should be required to develop and                                     records submitted to the implementing                     § 68.12, has been moved to the RMP
maintain a master index or catalogue of                               agency, EPA believes that the provisions                  subpart. Tables 3 and 4 present the
documents relevant to the proposed rule                               outlined in the final rule (as described                  distribution of NPRM and SNPRM
to support public access. Another                                     in Subpart G to part 68) will limit the                   sections and derivation of final rule
commenter stated that, in addition to                                 volume of such documentation. The                         sections.

                                                                             TABLE 3.—DISTRIBUTION TABLE
                              NPRM and SNPRM citations                                                                            Final rule citations

68.3  Definitions .....................................................................................   68.3   Definitions.
68.10 Applicability ..................................................................................    68.10 Applicability.
68.12 Registration ..................................................................................     68.160 Registration.
68.13 No Impact Sources (Tier 1) .........................................................                68.10(b) Applicability.
                                                                                                          68.12(b) General Requirements.
68.14      Streamlined Risk Management Program (Tier 2) ........................                          Subpart C Program 2 Prevention Program (68.48–68.60).
68.15      Hazard Assessment .....................................................................        Subpart B Hazard Assessment (68.20–68.42).
68.20      Prevention Program—Purpose ....................................................                Deleted.
68.22      Prevention Program—Management System ...............................                           68.15 Management.
68.24      Prevention Program—Process Hazard Analysis .........................                           68.67 Process Hazard Analysis.
68.26      Prevention Program—Process Safety .........................................                    68.65 Process Safety Information.
68.28      Prevention Program—Standard Operating Procedures ..............                                68.69 Operating Procedures.
68.30      Prevention Program—Training .....................................................              68.71 Training.
68.32      Prevention Program—Maintenance (mechanical integrity) .........                                68.73 Mechanical Integrity.
68.34      Prevention Program—Pre-Startup Review ..................................                       68.77 Pre-Startup Review.
68.36      Prevention Program—Management of Change ...........................                            68.75 Management of Change.
68.38      Prevention Program—Safety Audits ............................................                  68.58 Compliance Audits.
                                                                                                          68.79 Compliance Audits.
68.40      Prevention Program—Accident Investigation ..............................                       68.60 Incident Investigation.
                                                                                                          68.81 Incident Investigation.
68.45      Emergency Response Program ...................................................                 68.95 Emergency Response Program.
                     Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                                                                 31707

                                                                     TABLE 3.—DISTRIBUTION TABLE—Continued
                               NPRM and SNPRM citations                                                                                   Final rule citations

68.50      Risk Management Plan ................................................................                Subpart G Risk Management Plan (68.150–68.190).
68.55      Recordkeeping Requirements ......................................................                    68.200 Recordkeeping.
68.58      Permit Content and Air Permitting Authority Requirements ........                                    68.215 Permit Content and Air Permitting Authority or Designated
                                                                                                                  Agency Requirements.
68.60      Audits ...........................................................................................   68.220 Audits.

                                                                                  TABLE 4.—DERIVATION TABLE
                                       Final rule citations                                                                          NPRM and SNPRM citations

68.3   Definitions .....................................................................................        68.3   Definitions.
68.10 Applicability ..................................................................................          68.10 Applicability, SNPRM 68.13.
68.12 General Requirements .................................................................                    SNPRM 68.13, 68.14.
68.15 Management ................................................................................               68.22 Prevention Program—Management.
68.20 Applicability (Hazard Assessment) ..............................................                          68.10 Applicability.
68.22 Offsite Consequence Analysis Parameters (Hazard Assess-                                                   68.15(e) Hazard Assessment.
68.25 Worst-Case Release Analysis (Hazard Assessment) .................                                         68.15(c) Hazard Assessment.
68.28 Alternative Release Analysis (Hazard Assessment) ...................                                      68.15(d) Hazard Assessment.
68.30 Defining Offsite Impacts—Population (Hazard Assessment) ......                                            68.15(e)(3) Hazard Assessment.
68.33 Defining Offsite Impacts—Environment (Hazard Assessment) ...                                              68.15(e)(4) Hazard Assessment.
68.36 Review and Update (Hazard Assessment) ..................................                                  68.15(g) Hazard Assessment.
68.39 Documentation (Hazard Assessment) .........................................                               68.15(h) Hazard Assessment.
68.42 Five-year Accident History (Hazard Assessment) .......................                                    68.15(f) Hazard Assessment.
68.48 Safety Information (Program 2) ...................................................                        68.14(b) Streamlined Risk Management Program (Tier 2); 68.26 Proc-
                                                                                                                  ess Safety Information.
68.50      Hazard Review (Program 2) ........................................................                   68.14(b) Streamlined Risk Management Program (Tier 2); 68.24 PHA.
68.52      Operating Procedures (Program 2) .............................................                       68.14(b) Streamlined Risk Management Program (Tier 2); 68.28 SOPs.
68.54      Training (Program 2) ....................................................................            68.14(b) Streamlined Risk Management Program (Tier 2); 68.30 Train-
68.56      Maintenance (Program 2) ............................................................                 68.14(b) Streamlined Risk Management Program (Tier 2); 68.32 Main-
68.58      Compliance Audits (Program 2) ...................................................                    68.38 Prevention Program—Safety Audits.
68.60      Incident Investigation (Program 2) ...............................................                   68.40 Prevention Program—Incident Investigation.
68.65      Process Safety Information (Program 3) .....................................                         68.26 Prevention Program—Process Safety.
68.67      Process Hazard Analysis (Program 3) ........................................                         68.24 Prevention Program—Process Hazard Analysis.
68.69      Operating Procedures (Program 3) .............................................                       68.28 Prevention Program—Standard Operating Procedures.
68.71      Training (Program 3) ....................................................................            68.30 Prevention Program—Training.
68.73      Mechanical Integrity (Program 3) .................................................                   68.32 Prevention Program—Maintenance (mechanical integrity).
68.75      Management of Change (Program 3) ..........................................                          68.36 Prevention Program—Management of Change.
68.77      Pre-Startup Review (Program 3) .................................................                     68.34 Prevention Program—Pre-Startup Review.
68.79      Compliance Audits (Program 3) ...................................................                    68.38 Prevention Program—Safety Audits.
68.81      Accident Investigation (Program 3) ..............................................                    68.40 Prevention Program—Accident Investigation.
68.83      Employee Participation (Program 3) ............................................                      68.24(f) Process Hazard Analysis.
68.85      Hot Work Permit (Program 3) ......................................................                   NPRM Preamble (58 FR 54205).
68.87      Contractors (Program 3) ..............................................................               NPRM Preamble (58 FR 54205).
68.90      Applicability (Emergency Response) ...........................................                       68.45(a) Emergency Response Program.
68.95      Emergency Response Program ...................................................                       68.45(b)–(f) Emergency Response Program.
68.150      Submission (Risk Management Plan) ........................................                          68.50(a) Risk Management Plan.
68.155      Executive Summary (Risk Management Plan) ..........................                                 68.50(a) Risk Management Plan.
68.160      Registration (Risk Management Plan) .......................................                         68.12 Registration.
68.165      Offsite Consequence Analysis (Risk Management Plan) ..........                                      68.50(c) Risk Management Plan.
68.168      Five-Year Accident History (Risk Management Plan) ...............                                   68.15(f) Hazard Assessment.
68.170      Prevention Program/Program 2 (Risk Management Plan) ........                                        68.14(b) Streamlined Risk Management Program (Tier 2); 68.50(g).
68.175      Prevention Program/Program 3 (Risk Management Plan) ........                                        68.50(g) Risk Management Plan.
68.180      Emergency Response Program (Risk Management Plan) ........                                          68.50(e) Risk Management Plan.
68.185      Certification (Risk Management Plan) .......................................                        68.50(g) Risk Management Plan.
                                                                                                                68.13(a) No Impact Sources.
68.190 Updates (Risk Management Plan) .............................................                             68.50(h) Risk Management Plan.
68.200 Recordkeeping ...........................................................................                68.55 Recordkeeping Requirements.
68.210 Availability of Information to the Public ......................................                         42 U.S.C. 7412.
68.215 Permit Content and Air Permitting Authority or Designated                                                68.58 Permit Content and Air Permitting Authority Requirements.
  Agency Requirements.
68.220 Audits .........................................................................................         68.60 Audits.
Appendix A—Table of Toxic Endpoints ....................................................                        68.15(h)(3)(iii) Hazard Assessment.

  Section 68.3, Definitions, has been                                     definitions. A definition of                                  that is derived from the definition used
revised to add or delete a number of                                      administrative controls has been added
31708       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

by the Center for Chemical Process             A definition of population has been         day they bring the substance on site
Safety (CCPS).                              added. Population is defined as the            above a threshold quantity.
   The definition of analysis of offsite    public.                                           The Program 1 eligibility
consequences has been deleted.                 A definition of public has been added       requirements have been revised to
   A definition of catastrophic release     to state that all persons except               clarify that the criteria are applied to a
has been added that is adapted from         employees and contractors at the               process, not the source as a whole, as
OSHA’s definition of catastrophic           stationary source are members of the           discussed above. EPA has deleted
release (29 CFR 1910.119); OSHA’s           public. A number of commenters stated          requirements for explosives because the
language on danger to employees in the      that employees at other facilities should      Agency is proposing to delist
workplace has been changed to               not be considered part of the public.          explosives. The types of accidents that
imminent and substantial endangerment       EPA disagrees because these employees          will disqualify a process from Program
to public health and the environment.       may not be trained in protective actions       1 are now specified in the rule as those
   A definition of classified information   or have protective equipment                   accidental releases of a regulated
has been added. The definition is           appropriate for releases from covered          substance that led to offsite exposure to
adopted from the Classified Information     processes.                                     the substance, its reaction products,
Procedures Act.                                A definition of public receptor has         overpressure generated by an explosion
   The proposed definition of covered       been added. Some commenters stated             involving the substance, or radiant heat
process is unchanged.                       that EPA should include public roads           generated by a fire involving the
   The proposed definition of designated    within this definition. EPA decided that       substance which resulted in offsite
agency has been revised to indicate that    inclusion of public roads was                  death or injury (as defined by the rule),
the state, not the state air permitting     unwarranted. EPA recognizes that               or response or restoration activities at an
                                            people on public roads may be exposed          environmental receptor. These
authority, shall select an agency to
                                            during a release. In most cases,               accidental release criteria eliminate the
conduct activities required by § 68.215.
                                            however, vehicles on public roads will         need for a definition of significant
   As discussed above, a definition of
                                            be able to leave the area quickly and          accidental release, which has been
environmental receptor has been added
                                            further access can be blocked, especially      deleted. Offsite environmental response
to list the receptors of concern.
                                            in isolated areas. If public roads were        or restoration would include such
   The definition of full-time employee
                                            included, almost no sources would be           activities as collection, treatment and
has been deleted.
                                            eligible for Program 1 because there will      disposal of soil, shutoff of drinking
   A definition of hot work has been
                                            be public roads leading to the source. In      water, replacement of damaged
adopted verbatim from the OSHA PSM
                                            those cases where public roads are             vegetation, or isolation of a natural areas
                                            heavily traveled, there will be other          due to contamination associated with an
   The definition of implementing
                                            public receptors near the source and,          accidental release. The distance
agency is adopted as proposed in the
                                            therefore, the source’s processes will not     calculation equation for flammables has
SNPRM.                                                                                     been dropped, and the worst-case
                                            qualify for Program 1.
   A definition of injury has been added.      OSHA’s definition of replacement in         release endpoint for flammables is
   A definition of major change has been    kind has been adopted.                         specified which allows the source to use
added to clarify the types of changes          The definition of significant               the reference tables or their own
that necessitate actions to manage          accidental release has been deleted.           methodology to determine the distance
change. The definition will help sources       A definition of typical meteorological      to the endpoint. The requirement that
understand when they are required to        conditions has been added which means          the community have an EPCRA
take steps to review their activities for   the temperature, wind speed, cloud             emergency response plan has been
new hazards.                                cover, and atmospheric stability class         replaced by a requirement that the
   A definition of mechanical integrity     prevailing at the source. Data on the first    source coordinate emergency response
has been added to clarify the               three of these are available from local        procedures with local community
requirements of maintenance sections.       meteorological stations (e.g., airports).      responders.
   A definition of medical treatment has    Atmospheric stability class can be                As discussed above, the eligibility
been added to clarify what constitutes      derived from cloud cover data.                 criteria for Program 2 and 3 have been
an injury. The definition is adapted           The definition of worst-case release        changed. Both apply to processes, not
from an OSHA definition used by             has been revised to clarify that the           sources.
sources in logging occupational injuries    release is the one that leads to the              Paragraph (e) states that if a process
and illnesses.                              greatest distance to the applicable            no longer meets the eligibility criteria of
   The proposed definition of mitigation    endpoint.                                      its Program level, the source must
has been changed by adding a definition        Section 68.10, Applicability, has been      comply with the requirements of the
of active mitigation.                       revised to change the term ‘‘tier’’ to         new Program level and the update the
   A definition of offsite has been         ‘‘Program.’’ The section now details the       RMP according to § 68.190. This
changed to clarify that areas within the    eligibility criteria for all three programs.   paragraph clarifies the responsibility of
source would be considered offsite if the   Paragraph (a) has been revised to be           the source when a process becomes
public has routine and unrestricted         consistent with statutory language on          ineligible for a Program level (e.g.,
access during or outside of business        compliance dates. Sources must comply          public receptors move within the
hours. Areas within a source’s              with the requirements by June 21, 1999,        distance to an endpoint for a Program 1
boundaries that may be considered           three years after EPA first lists a            process or OSHA changes the
offsite are public roads that pass          substance, or the date on which a source       applicability of its PSM standard).
through sections of the site and natural    first becomes subject to this part,               Proposed § 68.12, Registration, has
areas owned by the source to which the      whichever is latest. After June 21, 1999,      been dropped. Registration
public has unrestricted access. For some    sources that begin using a regulated           requirements are now part of the RMP
sites, parking lots within the boundary     substance that has been listed for at          requirements in subpart G, § 68.160.
may be offsite if the source cannot         least three years must be in compliance           New § 68.12, General Requirements,
restrict access.                            with the requirements of part 68 on the        has been added to provide a roadmap
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                            31709

for sources to use to identify the             temperature and humidity for worst           into account the possibility that at large
requirements that apply to processes in        case (highest daily maximum over the         sources, vessels at opposite ends of the
each of the three tiers. The Program 1         previous three years and average             source may expose different
requirements, in proposed § 68.13, have        humidity); if a source uses the guidance,    populations.
been included in this section. Owners or       it may use average temperature and              The section specifies how maximum
operators of Program 1 processes are           humidity (25° C and 50 percent) as           quantity in a vessel or pipe is to be
required to analyze and document in the        default values. EPA recognizes that          determined, the scenarios to be
RMP the worst-case release to ensure           these values are less conservative than      considered for toxic gases, toxic gases
that they meet the eligibility criteria of     the worst-case meteorological                liquefied by refrigeration only, toxic
no public receptors within the distance        conditions, but determined that they         liquids, and flammables, the parameters
to the endpoint. As discussed above, the       represent a reasonable average to be         to be used, consideration of passive
requirement to post signs has been             used for developing tables. Providing        mitigation, and factors to be considered
dropped. The certification statement has       tables for a variety of temperatures and     in selecting the worst-case scenario. The
been revised to be consistent with the         humidity would have made the                 section also specifies that sources may
eligibility requirements. If a source has      guidance much more voluminous and            use proprietary models if the source
more than one Program 1 process, a             difficult to use. EPA is requiring sources   provides the implementing agency
single certification may be submitted to       that use dispersion models instead of        access to the model and explains
cover all such processes.                      the guidance to use actual temperature       differences between the model and
   The Program 2 requirements specify          and humidity data applicable to the site.    publicly available models, if requested.
the sections of the rule that apply to         EPA believes this approach represents a      This approach will allow sources to use
these processes.                               reasonable tradeoff. The guidance            the most appropriate models available,
   The Program 3 requirements specify          generates conservative results even with     while preserving the transparency of the
the sections of the rule that apply to         the less conservative assumptions about      results.
these processes.                               temperature and humidity; air                   A new § 68.28 has been added on
   Proposed § 68.22, Management, has           dispersion modeling will generally           alternative release scenario analysis. As
been moved from the prevention                                                              discussed above, the section requires
                                               produce less conservative results and,
program to § 68.15 in subpart A-General.                                                    one alternative release analysis for all
                                               therefore, should be based on actual
The section has been adopted as                                                             flammables held above the threshold in
                                               data for these variables. Average data
proposed except that the purpose                                                            processes at the source and one
                                               applicable to the source may be used for
sentence in paragraph (a) has been                                                          alternative release analysis for each
                                               alternative scenarios. Paragraph (d)
dropped and a phrase at the beginning                                                       toxic held above the threshold in
                                               requires that the release height for
of paragraph (b) has been deleted as                                                        processes. For each scenario, the owner
                                               worst-case be at ground level (zero feet).
unnecessary.                                                                                or operator shall select a scenario that
   A new subpart B has been created to         Paragraph (e) specifies that urban or
                                                                                            is more likely to occur than the worst
cover the hazard assessment                    rural topography be used as appropriate
                                                                                            case; and that will reach an endpoint
requirements. The proposed § 68.15 has         in modeling. Paragraph (f) requires
                                                                                            offsite, unless no such scenario exists.
been divided into separate sections to         sources to use models or tables
                                                                                            The section includes a list of scenarios
cover the parameters, the different types      appropriate for the density of the
                                                                                            that owners/operators may want to
of analyses, the identification of offsite     substance being released (e.g., dense
                                                                                            consider, but does not dictate a
populations and environments,                  gases must be modeled using tables or
                                                                                            particular scenario. EPA has provided
documentation and updates, and the             models that account for the behavior of
                                                                                            additional direction and suggestions for
five-year accident history. EPA believes       dense gases). Dense gases are typically      defining these scenarios in the RMP
that limiting each section to a single         those that are heavier than air as well as   Offsite Consequence Analysis Guidance.
topic will make the rule easier to             those that form aerosols and behave as       As noted above, the section references
understand.                                    if they are heavier than air upon release.   the parameters to be used and allows
   Section 68.20 has been added to             For worst-case releases, liquids (other      consideration of both passive and active
specify which hazard assessment                than gases liquefied by refrigeration        mitigation systems. The section
requirements apply to Program 1, 2, and        only) shall be considered to be released     specifies factors to be considered in
3 processes. All sources are required to       at the highest daily maximum                 selecting alternative scenarios;
complete a worst-case release analysis         temperature or at process temperature,       specifically, sources shall consider
for regulated substances in covered            whichever is higher. For alternative         releases that have been documented in
processes, based on the requirements of        scenarios, substances may be considered      the five-year accident history; or failure
§ 68.25. Program 2 and 3 processes must        to be released at ambient or process         scenarios identified through the PHA or
also perform alternative release analyses      temperatures as appropriate. Owners or       hazard review.
required by § 68.28. All sources must          operators may choose to use EPA’s RMP           A new § 68.30 has been added on
complete the five-year accident history        Offsite Consequence Analysis Guidance        defining offsite impacts—population.
for all covered processes.                     for their offsite consequence analyses.      The section specifies that populations
   A new § 68.22 has been added to list        All of the parameters specified here are     are to be defined for a circle with a
the parameters to be used in the offsite       reflected in this guidance.                  radius that is the distance to the
consequence analyses. Owners or                   A new § 68.25 has been added on the       endpoint. Owners or operators are
operators who choose to use their own          worst-case release analysis. As              required only to estimate the residential
air dispersion modeling tools must use         discussed above, the section requires        population within the circle to two
the parameters specified in paragraphs         one worst-case release for toxics and        significant digits and may use Census
(a), (e), (f), and (g) of this section; they   one for flammables. If additional            data to make these estimates. Owners or
must use the meteorological parameters         scenarios, for either class of substances,   operators are also required to note, in
specified in paragraph (b) of this section     would potentially expose receptors not       the RMP, the presence of any major
unless they can demonstrate that the           exposed by the worst-case release, the       institutions, such as schools, hospitals,
conditions do not exist at their site.         additional scenario shall be analyzed        prisons, public recreational areas,
Paragraph (c) specifies the ambient            and reported. This provision is to take      arenas, and major commercial and
31710       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

industrial developments, but they are       rates, and durations of release. The        Concentration at the point of release is
not required to estimate the number of      owners or operators shall also identify     assumed to be 100 percent except for
people present at such sites. These         the methodology used to determine           substances in solution, where the
additional locations are those that         distance to endpoints (i.e., EPA’s          concentration at the point of release is
would normally be shown on area street      guidance or an air dispersion model)        assumed to be the percentage of the
maps.                                       and the data used to estimate               solution as held or processed. The data
  A new § 68.33 has been added on           population and environmental receptors      provided will allow the source or the
defining offsite impacts to the             potentially affected. EPA has deleted the   public to estimate the concentration
environment. As discussed above, the        proposed requirement for                    offsite.
owners or operators are required only to    documentation of endpoints because             Because the five-year accident history
identify any environmental receptors        these are now dictated by the rule. EPA     will initially cover releases that
within the circle with a radius             has also dropped the requirement for        occurred before this rule is
determined by the distance to the           documentation of distance calculations;     promulgated, EPA is requiring reports
endpoint. The owners or operators are       distances will either be determined from    on weather conditions only if the source
not required to assess the potential        EPA’s reference tables or by an air         has a record. For future releases, EPA
types or degree of damage that might        dispersion model.                           encourages the owners or operators keep
occur from a release of the substance.         A new § 68.42 has been added to          a record of wind speed and temperature
The environmental receptors are those       detail the requirements for the five-year   if possible as these conditions have a
that can be identified on U.S. Geological   accident history. As discussed above,       significant impact on the migration of a
Survey local topographical maps or          the accident history is limited to          release offsite. The rule specifies that
maps based on U.S.G.S. data.                accidental releases of listed substances    the source must document known
  A new § 68.36 has been added to list      from covered processes only. The only       offsite impacts. The source is not
the requirements for reviewing and          accidental releases that must be            required to conduct research on this
updating the offsite consequence            included in the history are those that      subject, but must report impacts of
analysis. As proposed, if no changes        resulted in deaths, injuries, or            which it is aware through direct
occur at the site, the analyses must be     significant property damage on site, or     reporting to the source or claims filed,
reviewed and updated at least once          known offsite deaths, injuries,             or reasonably should have been aware of
every five years. If changes at the site    evacuations, sheltering in place,           from publicly available information.
occur that would reasonably be              property damage, or environmental           The source is not required to verify the
expected either to increase or decrease     damage. Although language related to        accuracy of public or media reports.
the distance to the endpoint by a factor    the types of environmental damage              A new subpart C has been created to
of two or more, owners/operators are        listed in the proposed rule has been        include the requirements of the
required to update the offsite              dropped, EPA intends that                   prevention program for Program 2
consequence analysis within six             environmental damage not be limited to      processes.
months. The time for the reanalysis has     environmental receptors; events where          New § 68.48 details the safety
been changed to six months to make it       any known environmental impact of any       information that sources will be
consistent with the update requirements     kind (e.g., fish or animal kills, lawn,     required to develop. The information is
for the RMP. The proposed requirement       shrub, or crop damage), should be           a subset of the information required
for reviewing the analyses based on         included in the history.                    under the OSHA rule and is limited to
offsite changes has been deleted. A            The data required on each accident       those items that are likely to apply to
number of commenters objected to the        include date, time, and approximate         Program 2 processes: MSDSs, maximum
requirement because it would have           duration of the release; chemical(s)        intended inventory, safe upper and
compelled them to track changes over        released; estimated quantity in pounds;     lower process parameters, equipment
very large areas. Because the distance to   the type of release event and its source;   specifications, and the codes and
the endpoints, especially for toxics, may   weather conditions (if known); on-site      standards used to design, build, and
be as much as 40 km, the area affected      impacts and known offsite impacts; the      operate the process. Because Program 2
could easily exceed 1,000 square miles.     initiating event and contributing factors   processes are generally simple, EPA
EPA agreed with commenters that there       (if known); whether offsite responders      determined that items such as process
was little benefit from requiring sources   were notified (if known); and               chemistry, process flow diagrams,
to track offsite changes and redo           operational or process changes that         detailed drawings on equipment, and
analyses because the public is aware of     resulted from the release. Estimates may    material and energy balances are not
the changes.                                be provided to two significant digits.      necessary for these processes.
  A new § 68.39 has been added to list      EPA expects that for accidents that         Evaluation of consequences of
the documentation related to the offsite    occur after the publication of this rule,   deviations will be handled under the
consequence analyses that must be           sources will be able to document            process review and the offsite
retained on site. For both types of         weather conditions, initiating events       consequence analysis.
scenarios, the documentation shall          and contributing factors, and                  Paragraph (b) of § 68.48 requires
include a description of the scenarios      notification of offsite responders as       owners or operators to ensure that the
identified, assumptions and parameters      these items would be part of the            process is designed in compliance with
used, the rationale for the selection of    incident investigation. The Agency          good engineering practices. The
specific scenarios; assumptions shall       recognizes, however, that for incidents     paragraph states that compliance with
include use of mitigation and any           that occur before the rule is final,        Federal or state regulations that address
administrative controls that were           sources may not have this information       industry-specific safe design or with
assumed to limit the quantity that could    unless OSHA PSM already would               industry-specific design codes may be
be released. Documentation shall            require the source to gather such           used to demonstrate compliance.
include the effect of the mitigation and    information (e.g., initiating event and     NFPA–58 for propane handlers and
controls on the release quantity. The       contributing factors). EPA has dropped      OSHA’s rule for ammonia handling (29
documentation shall also include the        the requirement that the concentration      CFR 1910.111) are examples of such
estimated quantities released, release      of the released substance be reported.      design codes.
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31711

   The final paragraph of § 68.48            will have simple processes and few           reflect the appropriate EPA section
requires owners or operators to update       employees involved in the process, the       numbers; the phrase ‘‘highly hazardous
the safety information if a major change     level of documentation required by           chemical’’ has been changed to
makes it inaccurate.                         OSHA PSM is not needed. The section          ‘‘regulated substance’’; the word
   New § 68.50 sets the requirements for     specifically states that training            ‘‘standard’’ has been changed to ‘‘rule’’
a hazard review. The section lists the       conducted to comply with other Federal       in paragraph (a); and the date when
hazards and safeguards that the owners       or state rules or industry codes may be      material and energy balances are needed
or operators must identify and review.       used to demonstrate compliance with          for new processes has been changed to
The section states that owners or            the section if the training covers the       June 21, 1999. The words ‘‘including
operators may use checklists, such as        SOPs for the process. Workers must be        those affecting the safety and health of
those provided in model risk                 retrained when SOPs change as a result       employees’’ has been deleted from the
management programs, to conduct the          of a major change.                           requirement for the evaluation of the
review. For processes that are designed        New § 68.56 covers maintenance and         consequences of deviations (paragraph
to industry standards (e.g., NFPA–58) or     requires owners or operators to prepare      (c)(1)(v)) because EPA has no authority
Federal/state design rules, owners or        and implement procedures for                 to regulate the workplace. Further, EPA
operators need only check their              maintenance and train workers in these       believes this change reflects EPA’s
equipment closely to ensure that it has      procedures. The owners or operators are      desire that sources implement one
been fabricated and installed according      also required to inspect and test process    prevention program that protects the
to the standards or rules and is being       equipment consistent with good               safety and health of workers, the public
operated appropriately. In this case, the    engineering practices. The OSHA list of      and the environment and should have
standard or rule-setting body has, in        equipment has been dropped because it        no effect on sources already complying
essence, conducted the hazard review         seemed too detailed for the simpler          with the OSHA PSM rule.
and designed the equipment to reduce         Program 2 processes. Similarly, the             Section 68.67, process hazard
hazards. Like the PHA required under         OSHA PSM requirements for                    analysis, has been adopted from the
PSM, the hazard review must be               documentation, equipment deficiencies,       OSHA rule with a few changes. The
documented and the findings resolved.        and quality assurance seem too               OSHA schedule for completion of PHAs
The review must be updated at least          burdensome given the type of processes       has been replaced with the compliance
once every five years or when a major        in Program 2. EPA emphasizes that            date of this rule; a new sentence has
change occurs. A streamlined version of      sources should address equipment             been added to state that PHAs
the PHA requirement, the review              deficiencies when they arise.                conducted to comply with OSHA PSM
recognizes that for simple processes           New §§ 68.58 and 68.60 on                  are acceptable as the initial PHA under
some of the OSHA requirements, such          compliance audits and accident               this rule. These PHAs shall be updated
as the requirement for a team and a          investigation are adopted directly from      and revalidated based on their OSHA
person trained in the technique, may         the OSHA PSM standard. EPA believes          completion date. This provision will
not be necessary. Most Program 2             that these two elements are critical to      ensure that sources do not need to
processes will have model risk               good prevention practices and that no        duplicate PHAs already completed or
management programs that will assist         changes are needed from the OSHA             change their update schedule.
owners or operators in conducting the        requirements. EPA has added a                   In paragraph (c)(2), the phrase ‘‘in the
review.                                      provision to clearly indicate that audit     workplace’’ has been deleted from the
   New § 68.52 covers operating              reports more than five-years old need        requirement to identify previous
procedures. The section allows owners        not be retained.                             incidents with the potential for
or operators to use standardized               The Program 3 prevention program is        catastrophic consequences because EPA
procedures developed by industry             codified in new subpart D. As explained      does not have the authority to regulate
groups or provided in model risk             above, the subpart adopts the OSHA           the work place. EPA believes that this
management programs as a basis for the       PSM standard with only minor editorial       change will have no effect on the rule;
SOPs. Owners or operators will need to       changes necessitated by the different        any incident with the potential for
review standardized SOPs to ensure that      statutory authorities of the two agencies.   catastrophic consequences in the
they are appropriate for their operations;   Throughout the subpart, ‘‘employer’’         workplace will also have had the
some may need to be tailored. The steps      has been changed to ‘‘owner or               potential for catastrophic consequences
covered in the SOP are adapted from the      operator,’’ ‘‘facility’’ to ‘‘stationary     offsite. Similarly, the phrase ‘‘on
OSHA PSM standard. Certain elements          source,’’ and ‘‘highly hazardous             employees in the workplace’’ has been
of the PSM requirement (e.g., safety and     chemical’’ to ‘‘regulated substance.’’       deleted from paragraph (c)(7), which
health consideration) were dropped           EPA has reordered the elements               requires a qualitative evaluation of a
because they are generally covered in        somewhat so that the order reflects the      range of the possible safety and health
training provided under the OSHA             progression in which sources will            effects of failure of controls. By deleting
hazard communication standard. Other         generally implement the program. For         the language, rather than changing it,
elements were not included because           example, process safety information,         EPA is consistent with its authority
they are covered by other OSHA rules         which is needed for the PHA, now             without imposing any new requirements
or may not apply to the kinds of sources     precedes that section. Pre-startup           on sources. A new sentence has been
in Program 2. The section requires that      review, which is the last step of            added to paragraph (f) to state that PHAs
the SOPs be updated whenever                 management of change procedures, now         updated and revalidated under the
necessary.                                   follows management of change. The            OSHA rule are acceptable for EPA’s
   New § 68.54 covers training and is a      reordering does not reflect any change       purposes. Throughout this section,
streamlined version of the OSHA PSM          in the content.                              internal references have been changed.
requirement. The primary difference            Section 68.65, process safety                 To maintain consistency with OSHA
with the OSHA PSM training element is        information, is adopted directly from        PSM, proposed paragraph (j), which
that the documentation requirements          OSHA. The only changes are the               would have required the evaluation of
have been dropped. EPA believes that         following: references to other               mitigation and detection systems, has
for Program 2 sources, which generally       requirements have been changed to            been dropped, as have proposed
31712       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

references to offsite consequences and      ‘‘owner or operator’’ and ‘‘highly             EPA has placed the emergency
public health and the environment.          hazardous chemical’’ to ‘‘regulated         response requirements in a new Subpart
Evaluation of mitigation and detection      substance’’ and changes to referenced       E and divided the proposed emergency
systems is normally part of the PHA         sections. Proposed paragraphs (a) and       response section into two separate
process and of management’s decisions       (b), the latter of which would have         sections, an applicability section and a
on implementing recommendations and,        required written procedures, have been      section to cover the emergency response
therefore, EPA decided that a separate      deleted to ensure consistency with          program.
requirement was not needed. EPA will        OSHA. References to significant                A new § 68.90, Applicability, has
collect information on monitoring,          accidental release have been dropped        been added. Because many sources
detection, and mitigation systems used      because the phrase is no longer used.       covered by this rule may be too small
in each Program 2 and 3 process as part     Although EPA has adopted OSHA’s             to handle emergency response
of the RMP. Proposed paragraph (a),         language, EPA has changed the               themselves, EPA has provided, in this
which was advisory, has been dropped.       definition of catastrophic release.         new section, the actions they must take
   Section 68.69, Operating Procedures,     Consequently, this section requires         if they will not respond to releases.
has been adopted verbatim from OSHA         owners or operators to investigate          Specifically, for sources with regulated
except for changing ‘‘employer’’ to         accidents that resulted in or could         toxic substances, the source must be
‘‘owner or operator.’’ Proposed             reasonably have resulted in a release       addressed in the community emergency
paragraph (a) has been deleted to ensure    that presented serious danger to public     response plan developed under EPCRA
consistency with OSHA.                      health or the environment. EPA does         section 303. Sources with regulated
   Section 68.71, Training, has been        not believe that, except in isolated        flammable substances must coordinate
adopted verbatim from OSHA except for       cases, the modification to this provision   response actions with the local fire
changing ‘‘employer’’ to ‘‘owner or         will require sources to investigate         department. These sources must also
operator’’ and changes in referenced        accidents that they would not               establish a mechanism to contact local
sections. Proposed paragraph (a) has        investigate under the OSHA rule.            emergency responders. Sources that do
been deleted to ensure consistency with        Section 68.83, Employee                  not meet these requirements must
OSHA, as has proposed paragraph (e).                                                    comply with EPA’s emergency response
                                            Participation, has been adopted
   Section 68.73, Mechanical Integrity                                                  program requirements.
                                            verbatim from OSHA except for
proposed as Maintenance, has been                                                          Section 68.95, Emergency Response
                                            changing ‘‘employer’’ to ‘‘owner or
adopted verbatim from OSHA except for                                                   Program, is adopted from § 68.45 of the
                                            operator.’’ Although EPA did not
changing ‘‘employer’’ to ‘‘owner or                                                     proposed rule. The program has four
                                            propose adopting this section, the
operator.’’ Proposed paragraph (a) has                                                  components: an emergency response
                                            Agency solicited comments on this
been deleted to ensure consistency with                                                 plan, procedures for use of response
                                            issue, and commenters convinced the
OSHA. The proposed requirements to                                                      equipment and its maintenance, training
                                            Agency that employee participation is
develop a critical equipment list,                                                      for employees, and procedures to
                                            an important component of a complete
document training, and ‘‘maintain’’ as                                                  update the plan after changes to the
                                            prevention program.                         source. The required elements of the
well as inspect and test under paragraph
(d) have been dropped to ensure                Section 68.85, Hot Work Permit, has      plan are those specified in CAA section
consistency with OSHA.                      been adopted verbatim from OSHA             112(r)(7)(B)(ii): procedures for informing
   Section 68.75, Management of             except for changing ‘‘employer’’ to         the public and local response agencies;
Change, has been adopted verbatim           ‘‘owner or operator.’’ Although EPA did     documentation of emergency medical
from OSHA except for changing               not propose adopting this section, the      treatment; and procedures and measures
‘‘employer’’ to ‘‘owner or operator’’ and   Agency solicited comments on this           for emergency response. As explained
changes to referenced sections.             provision and decided that it was           above, EPA decided that, to avoid
Proposed paragraph (a) has been deleted     valuable to maintain consistency with       inconsistency with other emergency
to ensure consistency with OSHA.            the OSHA PSM elements and that the          response planning regulations, the rule
EPA’s proposed paragraph (b), which         hot work permit was important to good       would be limited to the statutory
defined changes not covered by the          prevention practices.                       requirements. Consequently, EPA has
section, has also been dropped in favor        Section 68.87, Contractors, has been     deleted the following proposed
of OSHA’s definition of ‘‘replacement in    adopted verbatim from OSHA except for       requirements: documentation of
kind.’’                                     changing ‘‘employer’’ to ‘‘owner or         evacuation routes (which should be
   Section 68.77, Pre-Startup Review,       operator,’’ changing to referenced          covered under the emergency action
has been adopted verbatim from OSHA         sections, and deleting OSHA’s               plans required by OSHA under 29 CFR
except for changing ‘‘employer’’ to         paragraph 29 CFR 1910.119(h)(2)(vi).        1910.38); descriptions of all response
‘‘owner or operator’’ and changes to        Although EPA did not propose adopting       and mitigation technologies available at
referenced sections. Proposed paragraph     this section, the Agency solicited          the source; documentation of the
(a) and the reference to emergency          comments on this issue. Commenters          maintenance and training programs;
response training in proposed paragraph     argued that contractor practices are an     emergency response drills and
(c)(4) have been deleted to ensure          important component of a complete           exercises; revision of the plan based on
consistency with OSHA.                      prevention program. A number of major       the findings of the drills and exercises;
   Section 68.79, Compliance Audits,        accidents have resulted from contractor     and documentation of management’s
has been adopted verbatim from OSHA         mistakes. EPA agrees with the               response to findings and a schedule for
except for changing ‘‘employer’’ to         commenters and has included the             completion. EPA believes that these
‘‘owner or operator’’ and changes to        provision in the final rule. EPA has,       requirements are addressed in other
referenced sections. Proposed paragraph     however, deleted the requirement that       Federal regulations and, therefore,
(a) has been deleted to ensure              employers maintain an occupational          sources are already doing them. By not
consistency with OSHA.                      injury and illness log for contract         including them, EPA, however, avoids
   Section 68.81, Accident Investigation,   employees because the Agency does not       the possibility that slightly different
has been adopted verbatim from OSHA         have the authority to impose this           wording could lead to unnecessary
except for changing ‘‘employer’’ to         requirement.                                additional effort on the part of sources.
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                            31713

   EPA has added a paragraph (b) to this         New § 68.155 details the requirements     quantities, but still provide more precise
section to state that compliance with         for the executive summary. The               data than are currently available. EPA
other Federal contingency plan                summary shall include brief                  has added a requirement for reporting
regulations or use of the National            descriptions of the following items: the     full-time employees. These data are easy
Response Team’s Integrated                    source’s prevention and emergency            for sources to provide and will enhance
Contingency Plan Guidance (‘‘One              response approach; the stationary            the Agency’s ability to assess the impact
Plan’’) that results in a written plan that   source and regulated substances; worst-      of its rule on businesses of various sizes.
addresses the elements in paragraph (a)       case release scenario(s) and alternative     The EPA identifier will be the unique
shall satisfy the requirements of the         release scenario(s), including any           number EPA will assign to each source
rule, provided that the owner or              administrative controls applied to limit     and will allow EPA to cross reference
operator also complies with paragraph         the release quantity; the general            other reporting to the Agency. Use of the
(c) of this section.                          prevention program and chemical-             identifier also means that EPA may not
   Paragraph (c) is adopted from              specific prevention steps; the five-year     need to collect certain data on this form
proposed paragraph § 68.45(g) and             accident history; the emergency              because they will be available from the
requires coordination of the plan with        response program; and planned changes        identifier database; EPA may revise the
the local community emergency                 to improve safety. EPA anticipates that      requirements when the identifier rule is
response plan. References to the local        none of these items should require more      promulgated.
emergency planning committee (LEPC)           than a half page of text. Because this          EPA has deleted the certification
have been changed to ‘local emergency         information may be filed electronically,     statement proposed for the registration
response officials’ to recognize and          EPA is not asking sources to submit          because the RMP as a whole will have
include other local groups that may be        maps of the worst-case or alternative        a certification statement that will cover
in charge of coordinating emergency           release scenario circles. The data           all elements, including registration.
planning. LEPCs would be included in          submitted under each of these sections       Corrections to the registration will be
this category.                                will allow state or local agencies and the   treated as corrections to the RMP and
                                              public to map the circles.                   must be filed within six months of the
   A new Subpart G has been created to
                                                 Section 68.160, Registration, replaces    change, rather than the 60 days
cover the Risk Management Plan. The
                                              proposed § 68.12. The registration shall     proposed for registration changes.
Risk Management Plan includes three                                                           The registration now requires the
                                              include the following data: stationary
main sections, an executive summary,                                                       owners or operators to check off the
                                              source name, street, city, county, state,
the registration, and data elements that                                                   agency that last conducted a safety
                                              zip code, latitude, and longitude; the
provide information on the offsite                                                         inspection at the source and provide the
                                              stationary source and corporate Dun and
consequence analyses, the five-year                                                        date. The inspection does not need to
                                              Bradstreet numbers; the name,
accident history, the prevention                                                           have been related to prevention
                                              telephone number, and mailing address
program, and the emergency response                                                        practices as defined in this rule, but
                                              of the owner/operator; the name and
program. The subpart includes separate        title of the person responsible for          may instead cover fire safety, workplace
section to address each of these, plus        implementation of the risk management        safety, etc.
sections on submission, certifications,       program; the name, title, telephone             New § 68.165 covers the requirements
and updates.                                  number, and 24-hour telephone number         for reporting on the offsite consequence
   New § 68.150, Submission, has been         of the emergency contact; the stationary     analysis. As discussed in Section III.B,
added. As discussed above, an owner or        source EPA identifier; the number of         the RMP shall include data on one worst
operator shall submit a single RMP for        full-time employees at the stationary        case release scenario for each Program 1
the source, regardless of the number of       source; whether the stationary source is     process; and, for Program 2 and 3
covered processes or the tiers for which      subject to 29 CFR 1910.119; whether the      processes, one worst case release
they are eligible. All RMPs will be           stationary source is subject to 40 CFR       scenario for toxics and one for
submitted in a manner and method EPA          part 355; and the date on which the          flammables (for sources with substances
will specify by the compliance date to        stationary source last had a safety          in both hazard classes). If additional
a point designated by EPA; no other           inspection by a Federal, state, or local     worst-case release scenarios are required
submission will be required because           government agency.                           under § 68.25 for either class, data on
other agencies and the public will have          For each covered process, the source      that scenario must also be reported.
access to the submissions on-line. As         must list the regulated substances           Sources with Program 2 and 3 processes
required by the CAA, the first RMP must       present above a threshold quantity           will also provide data on one alternative
be submitted by June 21, 1999, three          (name and CAS number), the maximum           release scenario to cover all flammables
years after EPA first lists a substance, or   quantity of each substance in the            in covered processes and an alternative
the date on which a source first becomes      process, the SIC code of the process, and    release scenario for each toxic substance
subject to this part, whichever is latest.    the Program level that applies to the        held in covered processes.
As discussed above under applicability,       process. This process information               For each reported scenario, the
after June 21, 1999, sources that begin       provides a simple method for describing      owners or operators shall provide the
using a substance that has been listed        covered processes and identifying            following data: chemical name; physical
for at least three years will be required     Program levels.                              state (toxics only); basis of results and
to submit their RMPs on the date the             The reporting of the quantity has been    model (if used); scenario; quantity
substance is first on site above the          changed; rather than have sources report     released in pounds; release rate;
threshold quantity. Sources that begin        in ranges, the rule requires that the        duration; wind speed and stability
using such a regulated substance prior        quantity be reported to two significant      (toxics only); topography (toxics only);
to June 21, 1999 will need to be in           digits. EPA has found that the reporting     distance to endpoint; public and
compliance with the rule on June 21,          ranges are so broad (generally an order      environmental receptors within the
1999. The final paragraph states that,        of magnitude) that data analysis is          distance; passive mitigation considered;
except for a classified annex that would      extremely difficult. By limiting the         and active mitigation (alternative
not be publicly available, the RMP shall      reporting to two significant digits, EPA     releases only) considered. A number of
exclude classified information.               will allow sources to estimate               the data elements are not relevant to all
31714        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

flammable releases; for example, in the       recent change that triggered a review or    above a threshold quantity. If EPA lists
worst-case release flammables are             revision of prevention elements; and to     a new substance that the source has
assumed to be released and explode            provide the date of the completion of       above a threshold quantity, the RMP
almost instantly so that release rate,        any changes resulting from hazard           must be updated within three years of
duration, wind speed and stability, and       reviews, audits, or incident                the date of listing. If a change at the
topography are not factors in                 investigations. EPA recognizes that not     source leads to a revised offsite
determining distances.                        all recommendations resulting from          consequence analysis, process hazard
   The purpose of requiring these data        hazard reviews, audits, or incident         analysis or review, or a process changes
elements, rather than the proposed            investigations result in changes; some or   Program level, the RMP must be revised
summary of the assessment, is to              all may be resolved without changes.        and resubmitted within six months of
provide the public with the essential         However, if any changes are made, the       the change. Subsequent updates will be
estimates of distance to the endpoints        owners or operators shall report in the     required within five years of the update.
and provide enough data on the release        RMP the date when such changes are             A new Subpart H, Other
scenario to allow agencies or the public      complete or expected to be complete.        Requirements, has been added.
to confirm the distance estimate. With           New § 68.175, Prevention Program/           New § 68.200, Recordkeeping, simply
the data provided, a public agency will       Program 3, requires owners or operators     states that records will be maintained
be able to use EPA’s guidance to              with Program 3 processes to list the        for five years unless otherwise specified
determine the distance for a particular       name of chemical(s) in, and SIC code        in the Program 3 prevention program.
chemical release and compare that             for, the Program 3 process; to provide         New § 68.210, Availability of
distance with the one reported by the         the dates of the most recent revisions or   information to the public, has been
source. This ability will be particularly     reviews of the prevention program           added and a paragraph included to
important when a source has chosen to         elements; to provide, based on the PHA,     provide that classified information is
use an air dispersion model rather than       information on the major hazards,           protected under applicable laws,
the reference table. The proposed rule        process controls, mitigation systems,       regulations, and executive orders.
approach, which required a summary of         monitoring or detection systems, and           New § 68.215, Permit content and air
the assessment, would have resulted in        changes since the last PHA; to list the     permitting authority or designated
considerable variation in the                 type of training and competency testing     agency requirements, has been added to
information submitted, as happened in         used; to provide the date of the most       define the requirements for including
the Kanawha Valley exercise. In that          recent change that triggered a review or    part 68 in Part 70 and 71 permits, as
case, each source decided on the level        revision of prevention elements; and to     discussed above.
of information to provide; although each      provide the date of the completion of          Section 68.220, Audits, has been
provided maps, it was not possible, in        any changes resulting from PHAs,            revised to change references in
many cases, to determine how the              audits, or incident investigations. As      paragraph (a). A new paragraph (c) has
distances were estimated because much         above, EPA recognizes that not all          been added to specify the sources that
of the underlying data was not reported.      recommendations resulting from PHAs,        have achieved a star or merit rating
EPA believes that these requirements          audits, or incident investigations result   under OSHA’s VPP program will be
will impose a minimal burden on               in changes; some or all may be resolved     exempt from audits if the audit program
sources, because they will already have       without changes. However, if any            is based on industry accident history or
the data from completing the analyses,        changes are made, the owners or             on neutral random oversight and if the
will ensure that the same data are            operators shall report in the RMP the       source has not had an accidental release
reported by all sources, and will provide     date when such changes are complete or      that requires investigation under the
enough data to evaluate the results           expected to be complete.                    rule. Paragraph (h) has been revised to
using publicly available documents and           New § 68.180, Emergency Response         clarify that the source must revise the
models.                                       Program, requires owners or operators to    RMP 30 days after completion of the
   New § 68.168 on the five-year              answer questions about the required         actions detailed in the implementation
accident history simply references the        content of the emergency response plan,     plan, not 30 days after the issuance of
data elements listed in § 68.42(a). The       providing the date of the most recent       the final determination.
data elements will be reported for each       training of employees update of the            Appendix A has been added to
accidental release covered by the             plan, indicate whether the source           provide the toxic endpoints.
accident history requirement.                 emergency response plan has been            V. Required Analyses
   New § 68.170, Prevention Program/          coordinated with the LEPC plan,
Program 2, requires owners or operators       provide the name and telephone              A. E.O. 12866
with Program 2 processes to list the          number of the local agency with which         Under Executive Order (E.O.) 12866
name of chemical(s) in, and SIC code          the plan has been coordinated, and list     (58 FR 51735; October 4, 1993), EPA
for, the Program 2 process; to provide        other Federal or state emergency            must determine whether a regulatory
the dates of the most recent revisions or     planning requirements to which the          action is ‘‘significant’’ and, therefore,
reviews of the prevention program             source is subject.                          subject to OMB review and the
elements; to provide, based on the               New § 68.185, Certification, specifies   requirements of the E.O. The Order
hazard review, information on the major       the certification requirements that         defines ‘‘significant regulatory action’’
hazards, process controls, mitigation         owners or operators must complete           as one that is likely to result in a rule
systems, monitoring or detection              when the RMP is submitted.                  that may:
systems, and changes since the last              New § 68.190 details the requirements      (1) Have an annual effect on the
hazard review; to list any state or federal   for updating the RMP. The plan must be      economy of $100 million or more or
regulations of industry-specific design       updated at least once every five years.     adversely affect in a material way the
codes or standards being used to              If a new substance is added to an           economy, a sector of the economy,
demonstrate compliance with                   already covered process or a new            productivity, competition, jobs, the
prevention program elements; to list the      covered process is added, the RMP must      environment, public health or safety, or
type of training and competency testing       be updated on the date on which the         state, local, or tribal government or
used; to provide the date of the most         regulated substance is first present        communities.
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31715

   (2) Create a serious inconsistency or        Based on the final list and thresholds,   management requirements (e.g.,
otherwise interfere with an action taken     EPA estimates that approximately             training), cost estimates were adjusted
or planned by another agency;                66,100 sources will be affected by the       to account for the expected likelihood
   (3) Materially alter the budgetary        rule. EPA expects that about 360 sources     that a source is already human health
impact of entitlements, grants, user fees,   and approximately 410 processes will         (death or injury), responses to these
or loan programs or the rights and           be eligible for Program 1. These sources     threats (evacuations, sheltering in place)
obligations of recipients thereof; or        are primarily gas processors that,           threats to the environment, and
   (4) Raise novel legal or policy issues    because they are remote and unstaffed,       economic damages (lost production,
arising out of legal mandates, the           are not covered by OSHA PSM. EPA             property damages, and litigation).
President’s priorities, or the principles    also estimated that approximately 50         Additional benefits may be provided by
set forth in the E.O.                        processes using toluene di-isocyanate        making information available to the
   Under terms of E.O. 12866, EPA has        (TDI) may qualify for Program 1 based        public in the RMP. These benefits,
determined that today’s final                on the relatively low volatility of TDI.     however, cannot be quantified.
rulemaking is a ‘‘significant regulatory     Program 2 is expected to include 40,200
action.’’ EPA, therefore, has developed                                                   B. Regulatory Flexibility Act
                                             sources and 47,700 processes; these
an economic impact analysis for the          sources include all retailers, propane          In accordance with the Regulatory
final rule, (Economic Analysis in            users, public drinking water and             Flexibility Act of 1980, Federal agencies
Support of Final Rule on Risk                wastewater systems and public electric       must evaluate the impacts of rules on
Management Program Regulations for           utilities not subject to OSHA PSM,           small entities and consider less
Chemical Accidental Release                  wholesalers, processes at Federal            burdensome regulatory alternatives. As
Prevention), which is available in the       facility processes, and non-chemical         originally proposed in 1993, EPA
docket.                                      manufacturers. Program 3 is expected to      believes that the rule would have
   In developing the final rule, EPA         cover 25,500 sources and 43,800              created a severe, adverse impact on
notes that it has taken actions to           processes. These sources include             small manufacturers. In February 1995,
streamline requirements whenever             manufacturers, electric utilities, POTWs     EPA published a supplemenatal
possible and has tailored the                and drinking water sites covered by          proposal which introduced a tiering
requirements through the use of              OSHA PSM, wholesalers, ammonia               approach for this regulation. By using
Programs. This approach differed from        refrigeration systems, gas utilities, gas    the tiering approach and streamlining
the proposed rule, which imposed what        processors, and Federal facilities. All of   the Program 2 requirements, this final
are now Program 3 requirements on all        these sources are already covered by         rule significantly reduces the impact on
sources and processes. EPA has also          OSHA PSM for at least one regulated          small businesses. The tiering approach
changed substantially the requirements       substance; EPA estimates that about 370      also significantly reduces the impact on
for two elements of the rule, the offsite    non-OSHA Program 3 processes in the          small communities.
consequence analysis and the RMP. For        specified SIC codes will be covered.            EPA has developed a Regulatory
the offsite consequence analysis, EPA           Sources that already have a high          Flexibility Analysis for this final rule
decided to develop methodologies and         quality PSM program would not need to        evaluating the effects on small entities,
look-up tables so sources would not          take any additional actions to satisfy       which is presented in Chapter 7 of the
need to spend resources obtaining air        EPA’s Program 3 prevention program,          EIA. The number of small
dispersion models; EPA also reduced          but the analysis assumed that many           manufacturers was estimated to be 960
the requirements to define offsite           sources may still be in the process of       sources with fewer than 20 FTEs, and
populations by allowing sources to use       improving their PSM programs after           2,000 sources with between 20 and 99
Census data and to identify only those       achieving initial compliance. The public     FTEs. The number of small non-
institutions and developments that           scrutiny expected to follow submission       manufacturers is more difficult to
appear on local maps (as opposed to          of the RMP is likely to encourage            determine. Virtually all retailer and
identifying day care centers and nursing     sources to ensure that their prevention      wholesalers have fewer than 100 FTEs.
homes). For the RMP, EPA has limited         efforts are fully implemented and            Industry estimates, however, indicate
the requirements for information to that     effective. To account for these efforts,     that about 80 percent of the affected
which can be reported as data elements.      the analysis assumed that sources            retailers may be owned by larger
In contrast, the rule as proposed would      covered by OSHA would improve                companies; the analysis assumed that
have required sources to document for        training, maintenance, and management        3,700 retailers were small businesses.
each process all major hazards, the          oversight and, in some cases, institute      No information was available to
consequences of each of these hazards,       additional capital improvements.             estimate the percentage of wholesalers
the risk reduction steps taken to address       The rule provides sources three years     that might be owned by large
each hazard, and the consequences of         to come into compliance with the rule.       corporations. The analysis assumed that
each risk reduction step. The result         The rule, however, will impose               all wholesalers were small. The total
would have been, for large, complex          continuing costs as sources implement        number of small businesses, therefore,
sources, documents of a 1,000 pages or       their risk management programs. Initial      was estimated to be 8,160.
more.                                        compliance, therefore, covers the cost of       Public drinking water and waste
   To analyze the cost impacts of the        meeting the requirements of the rule by      water systems affected by the rule
various approaches, EPA considered           the three-year compliance date. These        generally serve a minimum of 10,000
three possible options in the final EIA:     costs are presented as a single figure,      people. Approximately 980 water
the final rule, an option that imposed       but are assumed to be incurred over a        systems are estimated to serve between
final rule Program 3 requirements on all     three-year period. Total costs to            10,000 and 25,000 people.
sources, and an option that imposed          industry were estimated by multiplying       Approximately 500 water systems are
proposed rule requirements on all            the estimated unit costs of compliance       estimated to serve between 25,000 and
sources. The last of these options was       with the risk management program             50,000 people. Consequently, 1,480
considered to evaluate the impact of         elements by the estimated number of          drinking water systems would be
changing the requirements for the offsite    affected sources. Because many sources       considered small governmental entities.
consequence analysis and RMP.                already implement some of the risk           The number of small POTWs was
31716        Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

estimated to include all systems treating    inconsistent with applicable law.           three program tiers. The public
less than 10 mgd and 59 percent of           Moreover, section 205 allows EPA to         reporting burden to prepare and submit
those treating between 10 and 25 mgd         adopt an alternative other than the least   the registration and other RMP elements
(based on the ratio of drinking water        costly, most cost-effective, or least       is estimated to be 0.5 hours for sources
systems in this category that serve          burdensome alternative if the               with only Program 1 processes, between
populations below 50,000).                   Administrator publishes with the final      6.0 and 11.25 hours for Program 2
Approximately 2,600 POTWs were               rule an explanation of why the              sources, and between 6.25 and 30.5
estimated to serve between 10,000 and        alternative was not adopted. Before EPA     hours for Program 3 sources. The RMP
25,000 people and 180 to serve between       establishes any regulatory requirements     is submitted once, at the end of the
25,000 and 50,000, for a total of 2,800      that significantly or uniquely affect       three year compliance period. The
POTWs. A total of approximately 4,300        small governments, including tribal         public recordkeeping burden to
small governmental entities would be         governments, it must have developed         maintain on-site documentation is
affected by this rule.                       under section 203 of UMRA, a small
   The total number of small entities                                                    estimated to range from 10 to 180 hours
                                             government agency plan. The plan must
affected by this rule was estimated to be                                                for Program 2 sources and from 52 to
                                             provide for notifying potentially
12,500 or 19 percent of the affected         affected small governments, enabling        1,200 hours for Program 3 sources. On-
universe. No detailed analysis of the        officials of affected small governments     site documentation must be developed
impact on small entities was performed       to have meaningful and timely input         and maintained on an ongoing basis,
because of the relatively low cost of the    into the development of the regulatory      which varies by rule element; based on
rule for small entities. Initial costs are   proposals with significant Federal          the statute of limitation for this rule,
considerably less than one percent of        intergovernmental mandates, and             documentation must generally be
sales for all small manufacturers.           informing, educating, and advising          maintained for five years. The total
Subsequent year costs will be even           small governments on compliance with        annual public reporting burden for rule
lower. Costs for non-manufacturers are       the regulatory requirements.                familiarization, to complete the RMP,
very low (less than $1,000 per year for         EPA has determined that this rule        and to maintain on-site documentation
initial compliance). These sums do not       contains a Federal mandate that may         is estimated to be about 3.36 million
impose a serious adverse burden on           result in expenditures of $100 million or   hours over three years, or an annual
these sources. Only chemical                 more for state, local, and tribal           burden of 1.119 million hours. No
manufacturers with complex processes         governments, in the aggregate, or to the    capital costs are expected to be incurred
and 20 to 99 FTEs have initial costs that    private sector, in any one year.            to maintain or submit this
exceed $6,000 per year. The costs for        Accordingly, EPA has prepared, under        documentation.
these sources, $28,000 to $30,000 per        section 202 of the UMRA, a written
year for the first three years, represent    statement which is summarized below.           Burden means the total time, effort, or
less than 0.5 percent of sales. It should       EPA is required to promulgate this       financial resources expended by persons
be noted that all of the costs for small     rule under CAA section 112(r). In the       to generate, maintain, retain, or disclose
manufacturers assume that the sources        first and third year of initial             or provide information to or for a
will take additional efforts, above their    compliance, the cost of the rule to the     Federal agency. This includes the time
actions to comply with the OSHA rule,        regulated community will exceed $100        needed to review instructions; develop,
to improve the quality of the risk           million; in all subsequent years the        acquire, install, and use technology and
management programs. If they do not          costs will be below $100 million. EPA       systems for the purposes of collecting,
take additional actions, their costs         has developed an economic impact            validating, and verifying information,
would be substantially lower.                analysis, discussed above, that evaluates   processing and maintaining
                                             several regulatory alternatives. EPA has    information, and disclosing and
C. Unfunded Mandates Reform Act              adopted the least costly of these           providing information; adjust the
   Title II of the Unfunded Mandates         alternatives. EPA estimates that            existing ways to comply with any
Reform Act of 1995 (UMRA), Public            annualized costs for state and local        previously applicable instructions and
Law 104–4, establishes requirements for      governments will be $13 million;            requirements; train personnel to be able
Federal agencies to assess the effects of    annualized costs for the private sector     to respond to a collection of
their regulatory actions on state, local,    are estimated to be $72 million.            information; search data sources;
and tribal governments and the private          Consistent with the intergovernmental    complete and review the collection of
sector. Under section 202 of UMRA,           consultation provisions of section 204 of   information; and transmit or otherwise
EPA must generally prepare a written         the UMRA and Executive Order 12875          disclose the information.
statement, including a cost-benefit          ‘‘Enhancing the Intergovernmental
analysis for proposed and final rules        Partnership,’’ EPA has involved state,      E. Submission to Congress and the
with ‘‘Federal mandates’’ that may           local and business representatives in       General Accounting Office
result in expenditures to state, local,      focus groups to develop the rule. EPA
and tribal governments, in the aggregate,    included representatives of state             Under section 801(a)(1)(A) of the
or to the private sector, of $100 million    government in the rulemaking                Administrative Procedures Act (APA) as
or more in any one year. Before              workgroup process, available to the         amended by the Small Business
promulgating an EPA rule for which a         public under CAA section 114(c) and 40      Regulatory Enforcement Fairness Act of
written statement is needed, section 205     CFR part 2; EPA does not believe that       1996, EPA submitted a report containing
of UMRA generally requires EPA to            any of the requested information will be    this rule and other required information
identify and consider a reasonable           considered confidential.                    to the U.S. Senate, the U.S. House of
number of regulatory alternatives and           The public reporting burden will         Representatives and the Comptroller
adopt the least costly, most cost-           depend on the regulatory program into       General of the General Accounting
effective, or least burdensome               which the 66,100 sources are placed.        Office prior to publication of the rule in
alternatives that achieves the objectives    The public reporting burden for rule        today’s Federal Register. This rule is a
of the rule. The provisions of section       familiarization is estimated to range       ‘‘major rule’’ as defined by section
205 do not apply when they are               from 4 to 68 hours per source for all       804(2) of the APA as amended.
               Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31717

List of Subjects in 40 CFR Part 68               Environmental receptor means natural           Offsite means areas beyond the
  Environmental protection, Chemicals,        areas such as national or state parks,         property boundary of the stationary
Hazardous substances,                         forests, or monuments; officially              source, and areas within the property
                                              designated wildlife sanctuaries,               boundary to which the public has
Intergovernmental relations.
                                              preserves, refuges, or areas; and Federal      routine and unrestricted access during
  Dated: May 24, 1996.                        wilderness areas, that could be exposed        or outside business hours.
Carol M. Browner,                             at any time to toxic concentrations,              OSHA means the U.S. Occupational
Administrator.                                radiant heat, or overpressure greater          Safety and Health Administration.
  For the reasons set out in the              than or equal to the endpoints provided        Owner or operator means any person
preamble, 40 CFR Part 68 is amended as        in § 68.22(a) , as a result of an accidental   who owns, leases, operates, controls, or
follows:                                      release and that can be identified on          supervises a stationary source.
                                              local U. S. Geological Survey maps.               Population means the public.
PART 68—[AMENDED]                                Hot work means work involving               *      *    *     *      *
                                              electric or gas welding, cutting, brazing,        Public means any person except
  1. The authority citation for part 68 is    or similar flame or spark-producing            employees or contractors at the
revised to read as follows:                   operations.                                    stationary source.
  Authority: 42 U.S.C. 7412(r), 7601(a)(1),      Implementing agency means the state            Public receptor means offsite
7661–7661f.                                   or local agency that obtains delegation        residences, institutions (e.g., schools,
                                              for an accidental release prevention           hospitals), industrial, commercial, and
  2. Part 68 is amended by
                                              program under subpart E, 40 CFR part           office buildings, parks, or recreational
redesignating Subpart C (§§ 68.100—
                                              63. The implementing agency may, but           areas inhabited or occupied by the
68.130) as Subpart F.
                                              is not required to, be the state or local      public at any time without restriction by
Subpart A—[Amended]                           air permitting agency. If no state or local    the stationary source where members of
                                              agency is granted delegation, EPA will         the public could be exposed to toxic
  4. Section 68.3 is amended to add the       be the implementing agency for that            concentrations, radiant heat, or
following definitions:                        state.                                         overpressure, as a result of an accidental
                                                 Injury means any effect on a human          release.
§ 68.3   Definitions.
                                              that results either from direct exposure       *      *    *     *      *
   Act means the Clean Air Act as                                                               Replacement in kind means a
amended (42 U.S.C. 7401 et seq.)              to toxic concentrations; radiant heat; or
                                              overpressures from accidental releases         replacement that satisfies the design
*     *      *    *     *                     or from the direct consequences of a           specifications.
   Administrative controls mean written       vapor cloud explosion (such as flying             RMP means the risk management plan
procedural mechanisms used for hazard         glass, debris, and other projectiles) from     required under subpart G of this part.
control.                                      an accidental release and that requires           SIC means Standard Industrial
   AIChE/CCPS means the American              medical treatment or hospitalization.          Classification.
Institute of Chemical Engineers/Center           Major change means introduction of a        *      *    *     *      *
for Chemical Process Safety.                  new process, process equipment, or                Typical meteorological conditions
*     *      *    *     *                     regulated substance, an alteration of          means the temperature, wind speed,
   API means the American Petroleum           process chemistry that results in any          cloud cover, and atmospheric stability
Institute.                                    change to safe operating limits, or other      class, prevailing at the site based on
   ASME means the American Society of         alteration that introduces a new hazard.       data gathered at or near the site or from
Mechanical Engineers.                            Mechanical integrity means the              a local meteorological station.
   Catastrophic release means a major         process of ensuring that process               *      *    *     *      *
uncontrolled emission, fire, or               equipment is fabricated from the proper           Worst-case release means the release
explosion, involving one or more              materials of construction and is               of the largest quantity of a regulated
regulated substances that presents            properly installed, maintained, and            substance from a vessel or process line
imminent and substantial endangerment         replaced to prevent failures and               failure that results in the greatest
to public health and the environment.         accidental releases.                           distance to an endpoint defined in
   Classified information means                  Medical treatment means treatment,          § 68.22(a).
‘‘classified information’’ as defined in      other than first aid, administered by a           5. Section 68.10 is added to subpart
the Classified Information Procedures         physician or registered professional           A to read as follows:
Act, 18 U.S.C. App. 3, section 1(a) as        personnel under standing orders from a         § 68.10   Applicability.
‘‘any information or material that has        physician.                                        (a) An owner or operator of a
been determined by the United States             Mitigation or mitigation system means       stationary source that has more than a
Government pursuant to an executive           specific activities, technologies, or          threshold quantity of a regulated
order, statute, or regulation, to require     equipment designed or deployed to              substance in a process, as determined
protection against unauthorized               capture or control substances upon loss        under § 68.115, shall comply with the
disclosure for reasons of national            of containment to minimize exposure of         requirements of this part no later than
security.’’                                   the public or the environment. Passive         the latest of the following dates:
   Covered process means a process that       mitigation means equipment, devices, or           (1) June 21, 1999;
has a regulated substance present in          technologies that function without                (2) Three years after the date on
more than a threshold quantity as             human, mechanical, or other energy             which a regulated substance is first
determined under § 68.115.                    input. Active mitigation means                 listed under § 68.130; or
   Designated agency means the state,         equipment, devices, or technologies that          (3) The date on which a regulated
local, or Federal agency designated by        need human, mechanical, or other               substance is first present above a
the state under the provisions of             energy input to function.                      threshold quantity in a process.
§ 68.215(d) .                                    NFPA means the National Fire                   (b) Program 1 eligibility requirements.
*     *      *    *     *                     Protection Association.                        A covered process is eligible for
31718         Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

Program 1 requirements as provided in             (1) Analyze the worst-case release        paragraph (a) of this section, the owner
§ 68.12(b) if it meets all of the following    scenario for the process(es), as provided    or operator of a stationary source with
requirements:                                  in § 68.25; document that the nearest        a process subject to Program 3, as
   (1) For the five years prior to the         public receptor is beyond the distance       provided in § 68.10(d) shall:
submission of an RMP, the process has          to a toxic or flammable endpoint               (1) Develop and implement a
not had an accidental release of a             defined in § 68.22(a); and submit in the     management system as provided in
regulated substance where exposure to          RMP the worst-case release scenario as       § 68.15;
the substance, its reaction products,          provided in § 68.165;                          (2) Conduct a hazard assessment as
overpressure generated by an explosion            (2) Complete the five-year accident       provided in §§ 68.20 through 68.42;
involving the substance, or radiant heat       history for the process as provided in         (3) Implement the prevention
generated by a fire involving the              § 68.42 of this part and submit it in the    requirements of §§ 68.65 through 68.87;
substance led to any of the following          RMP as provided in § 68.168;                   (4) Develop and implement an
offsite:                                          (3) Ensure that response actions have     emergency response program as
   (i) Death;                                  been coordinated with local emergency        provided in §§ 68.90 to 68.95 of this
   (ii) Injury; or                             planning and response agencies; and          part; and
   (iii) Response or restoration activities       (4) Certify in the RMP the following:       (5) Submit as part of the RMP the data
for an exposure of an environmental            ‘‘Based on the criteria in 40 CFR 68.10,     on prevention program elements for
receptor;                                      the distance to the specified endpoint       Program 3 processes as provided in
   (2) The distance to a toxic or              for the worst-case accidental release        § 68.175.
flammable endpoint for a worst-case            scenario for the following process(es) is      7. Section 68.15 is added to subpart
release assessment conducted under             less than the distance to the nearest        A to read as follows:
Subpart B and § 68.25 is less than the         public receptor: [list process(es)].
                                                                                            § 68.15   Management.
distance to any public receptor, as            Within the past five years, the
defined in § 68.30; and                        process(es) has (have) had no accidental       (a) The owner or operator of a
   (3) Emergency response procedures           release that caused offsite impacts          stationary source with processes subject
have been coordinated between the              provided in the risk management              to Program 2 or Program 3 shall develop
stationary source and local emergency          program rule (40 CFR 68.10(b)(1)). No        a management system to oversee the
planning and response organizations.           additional measures are necessary to         implementation of the risk management
   (c) Program 2 eligibility requirements.     prevent offsite impacts from accidental      program elements.
A covered process is subject to Program        releases. In the event of fire, explosion,     (b) The owner or operator shall assign
2 requirements if it does not meet the         or a release of a regulated substance        a qualified person or position that has
eligibility requirements of either             from the process(es), entry within the       the overall responsibility for the
paragraph (b) or paragraph (d) of this         distance to the specified endpoints may      development, implementation, and
section.                                       pose a danger to public emergency            integration of the risk management
   (d) Program 3 eligibility requirements.     responders. Therefore, public                program elements.
A covered process is subject to Program                                                       (c) When responsibility for
                                               emergency responders should not enter
3 if the process does not meet the                                                          implementing individual requirements
                                               this area except as arranged with the
requirements of paragraph (b) of this                                                       of this part is assigned to persons other
                                               emergency contact indicated in the
section, and if either of the following                                                     than the person identified under
                                               RMP. The undersigned certifies that, to
conditions is met:                                                                          paragraph (b) of this section, the names
                                               the best of my knowledge, information,
   (1) The process is in SIC code 2611,                                                     or positions of these people shall be
                                               and belief, formed after reasonable
2812, 2819, 2821, 2865, 2869, 2873,                                                         documented and the lines of authority
                                               inquiry, the information submitted is
2879, or 2911; or                                                                           defined through an organization chart or
                                               true, accurate, and complete. [Signature,
   (2) The process is subject to the OSHA                                                   similar document.
                                               title, date signed].’’
process safety management standard, 29            (c) Program 2 requirements. In              8. Subpart B—is added to read as
CFR 1910.119.                                  addition to meeting the requirements of      follows:
   (e) If at any time a covered process no     paragraph (a) of this section, the owner     Subpart B—Hazard Assessment
longer meets the eligibility criteria of its   or operator of a stationary source with      Sec.
Program level, the owner or operator           a process subject to Program 2, as           68.20 Applicability.
shall comply with the requirements of          provided in § 68.10(c), shall:               68.22 Offsite consequence analysis
the new Program level that applies to             (1) Develop and implement a                    parameters.
the process and update the RMP as              management system as provided in             68.25 Worst-case release scenario analysis.
provided in § 68.190.                          § 68.15;                                     68.28 Alternative release scenario analysis.
   6. Section 68.12 is added to subpart           (2) Conduct a hazard assessment as        68.30 Defining offsite impacts —
A to read as follows:                          provided in §§ 68.20 through 68.42;               population.
                                                  (3) Implement the Program 2               68.33 Defining offsite impacts —
§ 68.12   General requirements.                                                                  environment.
                                               prevention steps provided in §§ 68.48        68.36 Review and update.
  (a) General requirements. The owner          through 68.60 or implement the               68.39 Documentation.
or operator of a stationary source subject     Program 3 prevention steps provided in       68.42 Five-year accident history.
to this part shall submit a single RMP,        §§ 68.65 through 68.87;
as provided in §§ 68.150 to 68.185. The           (4) Develop and implement an              Subpart B—Hazard Assessment
RMP shall include a registration that          emergency response program as
reflects all covered processes.                provided in §§ 68.90 to 68.95; and           § 68.20   Applicability.
  (b) Program 1 requirements. In                  (5) Submit as part of the RMP the data      The owner or operator of a stationary
addition to meeting the requirements of        on prevention program elements for           source subject to this part shall prepare
paragraph (a) of this section, the owner       Program 2 processes as provided in           a worst-case release scenario analysis as
or operator of a stationary source with        § 68.170.                                    provided in § 68.25 of this part and
a process eligible for Program 1, as              (d) Program 3 requirements. In            complete the five-year accident history
provided in § 68.10(b), shall:                 addition to meeting the requirements of      as provided in § 68.42. The owner or
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                         31719

operator of a Program 2 and 3 process        the terrain is generally flat and              (1) For regulated toxic substances that
must comply with all sections in this        unobstructed.                               are normally gases at ambient
subpart for these processes.                    (f) Dense or neutrally buoyant gases.    temperature and handled as a gas or as
                                             The owner or operator shall ensure that     a liquid under pressure, the owner or
§ 68.22 Offsite consequence analysis         tables or models used for dispersion        operator shall assume that the quantity
                                             analysis of regulated toxic substances      in the vessel or pipe, as determined
   (a) Endpoints. For analyses of offsite    appropriately account for gas density.      under paragraph (b) of this section, is
consequences, the following endpoints           (g) Temperature of released substance.   released as a gas over 10 minutes. The
shall be used:                               For worst case, liquids other than gases    release rate shall be assumed to be the
   (1) Toxics. The toxic endpoints           liquified by refrigeration only shall be    total quantity divided by 10 unless
provided in Appendix A of this part.         considered to be released at the highest    passive mitigation systems are in place.
   (2) Flammables. The endpoints for         daily maximum temperature, based on            (2) For gases handled as refrigerated
flammables vary according to the             data for the previous three years           liquids at ambient pressure:
scenarios studied:                           appropriate for the stationary source, or      (i) If the released substance is not
   (i) Explosion. An overpressure of 1       at process temperature, whichever is        contained by passive mitigation systems
psi.                                         higher. For alternative scenarios,          or if the contained pool would have a
   (ii) Radiant heat/exposure time. A        substances may be considered to be          depth of 1 cm or less, the owner or
radiant heat of 5 kw/m2 for 40 seconds.      released at a process or ambient            operator shall assume that the substance
   (iii) Lower flammability limit. A                                                     is released as a gas in 10 minutes;
                                             temperature that is appropriate for the
lower flammability limit as provided in                                                     (ii) If the released substance is
NFPA documents or other generally                                                        contained by passive mitigation systems
recognized sources.                          § 68.25 Worst-case release scenario         in a pool with a depth greater than 1 cm,
   (b) Wind speed/atmospheric stability      analysis.                                   the owner or operator may assume that
class. For the worst-case release               (a) The owner or operator shall          the quantity in the vessel or pipe, as
analysis, the owner or operator shall use    analyze and report in the RMP:              determined under paragraph (b) of this
a wind speed of 1.5 meters per second           (1) For Program 1 processes, one         section, is spilled instantaneously to
and F atmospheric stability class. If the    worst-case release scenario for each        form a liquid pool. The volatilization
owner or operator can demonstrate that       Program 1 process;                          rate (release rate) shall be calculated at
local meteorological data applicable to         (2) For Program 2 and 3 processes:       the boiling point of the substance and at
the stationary source show a higher             (i) One worst-case release scenario      the conditions specified in paragraph
minimum wind speed or less stable            that is estimated to create the greatest    (d) of this section.
atmosphere at all times during the           distance in any direction to an endpoint       (d) Worst-case release scenario—toxic
previous three years, these minimums         provided in Appendix A of this part         liquids.
may be used. For analysis of alternative     resulting from an accidental release of        (1) For regulated toxic substances that
scenarios, the owner or operator may         regulated toxic substances from covered     are normally liquids at ambient
use the typical meteorological               processes under worst-case conditions       temperature, the owner or operator shall
conditions for the stationary source.        defined in § 68.22;                         assume that the quantity in the vessel or
   (c) Ambient temperature/humidity.            (ii) One worst-case release scenario     pipe, as determined under paragraph (b)
For worst-case release analysis of a         that is estimated to create the greatest    of this section, is spilled
regulated toxic substance, the owner or      distance in any direction to an endpoint    instantaneously to form a liquid pool.
operator shall use the highest daily         defined in § 68.22(a) resulting from an        (i) The surface area of the pool shall
maximum temperature in the previous          accidental release of regulated             be determined by assuming that the
three years and average humidity for the     flammable substances from covered           liquid spreads to 1 centimeter deep
site, based on temperature/humidity          processes under worst-case conditions       unless passive mitigation systems are in
data gathered at the stationary source or    defined in § 68.22; and                     place that serve to contain the spill and
at a local meteorological station; an           (iii) Additional worst-case release      limit the surface area. Where passive
owner or operator using the RMP Offsite      scenarios for a hazard class if a worst-    mitigation is in place, the surface area
Consequence Analysis Guidance may            case release from another covered           of the contained liquid shall be used to
use 25°C and 50 percent humidity as          process at the stationary source            calculate the volatilization rate.
values for these variables. For analysis     potentially affects public receptors           (ii) If the release would occur onto a
of alternative scenarios, the owner or       different from those potentially affected   surface that is not paved or smooth, the
operator may use typical temperature/        by the worst-case release scenario          owner or operator may take into account
humidity data gathered at the stationary     developed under paragraphs (a)(2)(i) or     the actual surface characteristics.
source or at a local meteorological          (a)(2)(ii) of this section.                    (2) The volatilization rate shall
station.                                        (b) Determination of worst-case          account for the highest daily maximum
   (d) Height of release. The worst-case     release quantity. The worst-case release    temperature occurring in the past three
release of a regulated toxic substance       quantity shall be the greater of the        years, the temperature of the substance
shall be analyzed assuming a ground          following:                                  in the vessel, and the concentration of
level (0 feet) release. For an alternative      (1) For substances in a vessel, the      the substance if the liquid spilled is a
scenario analysis of a regulated toxic       greatest amount held in a single vessel,    mixture or solution.
substance, release height may be             taking into account administrative             (3) The rate of release to air shall be
determined by the release scenario.          controls that limit the maximum             determined from the volatilization rate
   (e) Surface roughness. The owner or       quantity; or                                of the liquid pool. The owner or
operator shall use either urban or rural        (2) For substances in pipes, the         operator may use the methodology in
topography, as appropriate. Urban            greatest amount in a pipe, taking into      the RMP Offsite Consequence Analysis
means that there are many obstacles in       account administrative controls that        Guidance or any other publicly
the immediate area; obstacles include        limit the maximum quantity.                 available techniques that account for the
buildings or trees. Rural means there are       (c) Worst-case release scenario—toxic    modeling conditions and are recognized
no buildings in the immediate area and       gases.                                      by industry as applicable as part of
31720       Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

current practices. Proprietary models       § 68.28 Alternative release scenario            (1) The five-year accident history
that account for the modeling               analysis.                                     provided in § 68.42; and
conditions may be used provided the            (a) The number of scenarios. The             (2) Failure scenarios identified under
owner or operator allows the                owner or operator shall identify and          §§ 68.50 or 68.67.
implementing agency access to the           analyze at least one alternative release
                                                                                          § 68.30 Defining offsite impacts—
model and describes model features and      scenario for each regulated toxic             population.
differences from publicly available         substance held in a covered process(es)
                                                                                            (a) The owner or operator shall
models to local emergency planners          and at least one alternative release
                                                                                          estimate in the RMP the population
upon request.                               scenario to represent all flammable
                                                                                          within a circle with its center at the
   (e) Worst-case release scenario—         substances held in covered processes.
                                                                                          point of the release and a radius
flammables. The owner or operator shall        (b) Scenarios to consider. (1) For each
                                                                                          determined by the distance to the
assume that the quantity of the             scenario required under paragraph (a) of
                                                                                          endpoint defined in § 68.22(a).
substance, as determined under              this section, the owner or operator shall       (b) Population to be defined.
paragraph (b) of this section, vaporizes    select a scenario:                            Population shall include residential
resulting in a vapor cloud explosion. A        (i) That is more likely to occur than      population. The presence of institutions
yield factor of 10 percent of the           the worst-case release scenario under         (schools, hospitals, prisons), parks and
available energy released in the            § 68.25; and                                  recreational areas, and major
explosion shall be used to determine the       (ii) That will reach an endpoint           commercial, office, and industrial
distance to the explosion endpoint if the   offsite, unless no such scenario exists.      buildings shall be noted in the RMP.
model used is based on TNT-equivalent          (2) Release scenarios considered             (c) Data sources acceptable. The
methods.                                    should include, but are not limited to,       owner or operator may use the most
   (f) Parameters to be applied. The        the following, where applicable:              recent Census data, or other updated
owner or operator shall use the                (i) Transfer hose releases due to splits   information, to estimate the population
parameters defined in § 68.22 to            or sudden hose uncoupling;                    potentially affected.
determine distance to the endpoints.           (ii) Process piping releases from            (d) Level of accuracy. Population shall
The owner or operator may use the           failures at flanges, joints, welds, valves    be estimated to two significant digits.
methodology provided in the RMP             and valve seals, and drains or bleeds;
Offsite Consequence Analysis Guidance          (iii) Process vessel or pump releases      § 68.33 Defining offsite impacts—
or any commercially or publicly             due to cracks, seal failure, or drain,        environment.
available air dispersion modeling           bleed, or plug failure;                         (a) The owner or operator shall list in
techniques, provided the techniques            (iv) Vessel overfilling and spill, or      the RMP environmental receptors
account for the modeling conditions and     overpressurization and venting through        within a circle with its center at the
are recognized by industry as applicable    relief valves or rupture disks; and           point of the release and a radius
as part of current practices. Proprietary      (v) Shipping container mishandling         determined by the distance to the
models that account for the modeling        and breakage or puncturing leading to a       endpoint defined in § 68.22(a) of this
conditions may be used provided the         spill.                                        part.
owner or operator allows the                   (c) Parameters to be applied. The            (b) Data sources acceptable. The
implementing agency access to the           owner or operator shall use the               owner or operator may rely on
model and describes model features and      appropriate parameters defined in             information provided on local U.S.
differences from publicly available         § 68.22 to determine distance to the          Geological Survey maps or on any data
models to local emergency planners          endpoints. The owner or operator may          source containing U.S.G.S. data to
upon request.                               use either the methodology provided in        identify environmental receptors.
   (g) Consideration of passive             the RMP Offsite Consequence Analysis          68.36     Review and update.
mitigation. Passive mitigation systems      Guidance or any commercially or                  (a) The owner or operator shall review
may be considered for the analysis of       publicly available air dispersion             and update the offsite consequence
worst case provided that the mitigation     modeling techniques, provided the             analyses at least once every five years.
system is capable of withstanding the       techniques account for the specified             (b) If changes in processes, quantities
release event triggering the scenario and   modeling conditions and are recognized        stored or handled, or any other aspect
would still function as intended.           by industry as applicable as part of          of the stationary source might
   (h) Factors in selecting a worst-case    current practices. Proprietary models         reasonably be expected to increase or
scenario. Notwithstanding the               that account for the modeling                 decrease the distance to the endpoint by
provisions of paragraph (b) of this         conditions may be used provided the           a factor of two or more, the owner or
section, the owner or operator shall        owner or operator allows the                  operator shall complete a revised
select as the worst case for flammable      implementing agency access to the             analysis within six months of the
regulated substances or the worst case      model and describes model features and        change and submit a revised risk
for regulated toxic substances, a           differences from publicly available           management plan as provided in
scenario based on the following factors     models to local emergency planners            § 68.190.
if such a scenario would result in a        upon request.
greater distance to an endpoint defined        (d) Consideration of mitigation.           § 68.39    Documentation
in § 68.22(a) beyond the stationary         Active and passive mitigation systems           The owner or operator shall maintain
source boundary than the scenario           may be considered provided they are           the following records on the offsite
provided under paragraph (b) of this        capable of withstanding the event that        consequence analyses:
section:                                    triggered the release and would still be        (a) For worst-case scenarios, a
   (1) Smaller quantities handled at        functional.                                   description of the vessel or pipeline and
higher process temperature or pressure;        (e) Factors in selecting scenarios. The    substance selected as worst case,
and                                         owner or operator shall consider the          assumptions and parameters used, and
   (2) Proximity to the boundary of the     following in selecting alternative release    the rationale for selection; assumptions
stationary source.                          scenarios:                                    shall include use of any administrative
             Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31721

controls and any passive mitigation that      Subpart C—Program 2 Prevention                (d) The review shall be updated at
were assumed to limit the quantity that       Program                                     least once every five years. The owner
could be released. Documentation shall                                                    or operator shall also conduct reviews
include the anticipated effect of the         § 68.48   Safety information.               whenever a major change in the process
controls and mitigation on the release          (a) The owner or operator shall           occurs; all issues identified in the
quantity and rate.                            compile and maintain the following up-      review shall be resolved before startup
   (b) For alternative release scenarios, a   to-date safety information related to the   of the changed process.
description of the scenarios identified,      regulated substances, processes, and
assumptions and parameters used, and          equipment:                                  § 68.52   Operating procedures.
the rationale for the selection of specific     (1) Material Safety Data Sheets that        (a) The owner or operator shall
scenarios; assumptions shall include          meet the requirements of 29 CFR             prepare written operating procedures
use of any administrative controls and        1910.1200(g);                               that provide clear instructions or steps
any mitigation that were assumed to             (2) Maximum intended inventory of         for safely conducting activities
limit the quantity that could be released.    equipment in which the regulated            associated with each covered process
Documentation shall include the effect        substances are stored or processed;         consistent with the safety information
of the controls and mitigation on the           (3) Safe upper and lower                  for that process. Operating procedures
release quantity and rate.                    temperatures, pressures, flows, and         or instructions provided by equipment
   (c) Documentation of estimated             compositions;                               manufacturers or developed by persons
quantity released, release rate, and            (4) Equipment specifications; and         or organizations knowledgeable about
duration of release.                            (5) Codes and standards used to           the process and equipment may be used
   (d) Methodology used to determine          design, build, and operate the process.     as a basis for a stationary source’s
distance to endpoints.                          (b) The owner or operator shall ensure    operating procedures.
   (e) Data used to estimate population       that the process is designed in               (b) The procedures shall address the
and environmental receptors potentially       compliance with recognized and              following:
affected.                                     generally accepted good engineering           (1) Initial startup;
                                              practices. Compliance with Federal or         (2) Normal operations;
§ 68.42 Five-year accident history.           state regulations that address industry-      (3) Temporary operations;
   (a) The owner or operator shall            specific safe design or with industry-        (4) Emergency shutdown and
include in the five-year accident history     specific design codes and standards may     operations;
all accidental releases from covered          be used to demonstrate compliance with        (5) Normal shutdown;
processes that resulted in deaths,            this paragraph.                               (6) Startup following a normal or
injuries, or significant property damage        (c) The owner or operator shall update    emergency shutdown or a major change
on site, or known offsite deaths,             the safety information if a major change    that requires a hazard review;
injuries, evacuations, sheltering in          occurs that makes the information             (7) Consequences of deviations and
place, property damage, or                    inaccurate.                                 steps required to correct or avoid
environmental damage.                                                                     deviations; and
   (b) Data required. For each accidental     § 68.50   Hazard review.                      (8) Equipment inspections.
release included, the owner or operator         (a) The owner or operator shall             (c) The owner or operator shall ensure
shall report the following information:       conduct a review of the hazards             that the operating procedures are
   (1) Date, time, and approximate            associated with the regulated               updated, if necessary, whenever a major
duration of the release;                      substances, process, and procedures.        change occurs and prior to startup of the
   (2) Chemical(s) released;                  The review shall identify the following:    changed process.
   (3) Estimated quantity released in           (1) The hazards associated with the
pounds;                                       process and regulated substances;           § 68.54   Training.
   (4) The type of release event and its        (2) Opportunities for equipment              (a) The owner or operator shall ensure
source;                                       malfunctions or human errors that could     that each employee presently operating
   (5) Weather conditions, if known;          cause an accidental release;                a process, and each employee newly
   (6) On-site impacts;                                                                   assigned to a covered process have been
                                                (3) The safeguards used or needed to
   (7) Known offsite impacts;
   (8) Initiating event and contributing      control the hazards or prevent              trained or tested competent in the
factors if known;                             equipment malfunction or human error;       operating procedures provided in
   (9) Whether offsite responders were        and                                         § 68.52 that pertain to their duties. For
notified if known; and                          (4) Any steps used or needed to detect    those employees already operating a
   (10) Operational or process changes        or monitor releases.                        process on June 21, 1999, the owner or
that resulted from investigation of the         (b) The owner or operator may use         operator may certify in writing that the
release.                                      checklists developed by persons or          employee has the required knowledge,
   (c) Level of accuracy. Numerical           organizations knowledgeable about the       skills, and abilities to safely carry out
estimates may be provided to two              process and equipment as a guide to         the duties and responsibilities as
significant digits.                           conducting the review. For processes        provided in the operating procedures.
   9. Subpart C is added to read as           designed to meet industry standards or         (b) Refresher training. Refresher
follows:                                      Federal or state design rules, the hazard   training shall be provided at least every
                                              review shall, by inspecting all             three years, and more often if necessary,
Subpart C—Program 2 Prevention Program
                                              equipment, determine whether the            to each employee operating a process to
Secs.                                         process is designed, fabricated, and        ensure that the employee understands
68.48 Safety information.                                                                 and adheres to the current operating
                                              operated in accordance with the
68.50 Hazard review.
68.52 Operating procedures.                   applicable standards or rules.              procedures of the process. The owner or
68.54 Training.                                 (c) The owner or operator shall           operator, in consultation with the
68.56 Maintenance.                            document the results of the review and      employees operating the process, shall
68.58 Compliance audits.                      ensure that problems identified are         determine the appropriate frequency of
68.60 Incident investigation.                 resolved in a timely manner.                refresher training.
31722         Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

   (c) The owner or operator may use            (d) The owner or operator shall           operator and the employees involved in
training conducted under Federal or          promptly determine and document an           operating the process to identify and
state regulations or under industry-         appropriate response to each of the          understand the hazards posed by those
specific standards or codes or training      findings of the compliance audit and         processes involving regulated
conducted by covered process                 document that deficiencies have been         substances. This process safety
equipment vendors to demonstrate             corrected.                                   information shall include information
compliance with this section to the             (e) The owner or operator shall retain    pertaining to the hazards of the
extent that the training meets the           the two (2) most recent compliance           regulated substances used or produced
requirements of this section.                audit reports. This requirement does not     by the process, information pertaining
   (d) The owner or operator shall ensure    apply to any compliance audit report         to the technology of the process, and
that operators are trained in any            that is more than five years old.            information pertaining to the equipment
updated or new procedures prior to                                                        in the process.
startup of a process after a major change.   § 68.60   Incident investigation.
                                                                                            (b) Information pertaining to the
                                                (a) The owner or operator shall           hazards of the regulated substances in
§ 68.56   Maintenance.                       investigate each incident which resulted     the process. This information shall
  (a) The owner or operator shall            in, or could reasonably have resulted in     consist of at least the following:
prepare and implement procedures to          a catastrophic release.                        (1) Toxicity information;
maintain the on-going mechanical                (b) An incident investigation shall be      (2) Permissible exposure limits;
integrity of the process equipment. The      initiated as promptly as possible, but         (3) Physical data;
owner or operator may use procedures         not later than 48 hours following the          (4) Reactivity data:
or instructions provided by covered          incident.                                      (5) Corrosivity data;
process equipment vendors or                    (c) A summary shall be prepared at          (6) Thermal and chemical stability
procedures in Federal or state               the conclusion of the investigation          data; and
regulations or industry codes as the         which includes at a minimum:                   (7) Hazardous effects of inadvertent
basis for stationary source maintenance         (1) Date of incident;                     mixing of different materials that could
procedures.                                     (2) Date investigation began;             foreseeably occur.
  (b) The owner or operator shall train         (3) A description of the incident;
                                                                                            Note to paragraph (b): Material Safety Data
or cause to be trained each employee            (4) The factors that contributed to the   Sheets meeting the requirements of 29 CFR
involved in maintaining the on-going         incident; and,                               1910.1200(g) may be used to comply with
mechanical integrity of the process. To         (5) Any recommendations resulting         this requirement to the extent they contain
ensure that the employee can perform         from the investigation.                      the information required by this
the job tasks in a safe manner, each such       (d) The owner or operator shall           subparagraph.
employee shall be trained in the hazards     promptly address and resolve the
                                                                                             (c) Information pertaining to the
of the process, in how to avoid or           investigation findings and
                                                                                          technology of the process.
correct unsafe conditions, and in the        recommendations. Resolutions and                (1) Information concerning the
procedures applicable to the employee’s      corrective actions shall be documented.      technology of the process shall include
job tasks.                                      (e) The findings shall be reviewed
                                                                                          at least the following:
  (c) Any maintenance contractor shall       with all affected personnel whose job           (i) A block flow diagram or simplified
ensure that each contract maintenance        tasks are affected by the findings.          process flow diagram;
employee is trained to perform the              (f) Investigation summaries shall be         (ii) Process chemistry;
maintenance procedures developed             retained for five years.                        (iii) Maximum intended inventory;
under paragraph (a) of this section.            10. Subpart D is added to read as            (iv) Safe upper and lower limits for
  (d) The owner or operator shall            follows:                                     such items as temperatures, pressures,
perform or cause to be performed             Subpart D—Program 3 Prevention Program       flows or compositions; and,
inspections and tests on process             Sec.                                            (v) An evaluation of the consequences
equipment. Inspection and testing            68.65 Process safety information.            of deviations.
procedures shall follow recognized and       68.67 Process hazard analysis.                  (2) Where the original technical
generally accepted good engineering          68.69 Operating procedures.                  information no longer exists, such
practices. The frequency of inspections      68.71 Training.                              information may be developed in
and tests of process equipment shall be      68.73 Mechanical integrity.                  conjunction with the process hazard
consistent with applicable                   68.75 Management of change.                  analysis in sufficient detail to support
                                             68.77 Pre-startup review.
manufacturers’ recommendations,                                                           the analysis.
                                             68.79 Compliance audits.
industry standards or codes, good            68.81 Incident investigation.
                                                                                             (d) Information pertaining to the
engineering practices, and prior             68.83 Employee participation.                equipment in the process.
operating experience.                        68.85 Hot work permit.                          (1) Information pertaining to the
                                             68.87 Contractors.                           equipment in the process shall include:
§ 68.58   Compliance audits.                                                                 (i) Materials of construction;
  (a) The owner or operator shall certify    Subpart D—Program 3 Prevention                  (ii) Piping and instrument diagrams
that they have evaluated compliance          Program                                      (P&ID’s);
with the provisions of this subpart at                                                       (iii) Electrical classification;
least every three years to verify that the   § 68.65 Process safety information.             (iv) Relief system design and design
procedures and practices developed             (a) In accordance with the schedule        basis;
under the rule are adequate and are          set forth in § 68.67, the owner or              (v) Ventilation system design;
being followed.                              operator shall complete a compilation of        (vi) Design codes and standards
  (b) The compliance audit shall be          written process safety information           employed;
conducted by at least one person             before conducting any process hazard            (vii) Material and energy balances for
knowledgeable in the process.                analysis required by the rule. The           processes built after June 21, 1999; and
  (c) The owner or operator shall            compilation of written process safety           (viii) Safety systems (e.g. interlocks,
develop a report of the audit findings.      information is to enable the owner or        detection or suppression systems).
              Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                         31723

  (2) The owner or operator shall              (4) Consequences of failure of             shutdown is required, and the
document that equipment complies             engineering and administrative controls;     assignment of shutdown responsibility
with recognized and generally accepted         (5) Stationary source siting;              to qualified operators to ensure that
good engineering practices.                    (6) Human factors; and                     emergency shutdown is executed in a
  (3) For existing equipment designed          (7) A qualitative evaluation of a range    safe and timely manner.
and constructed in accordance with           of the possible safety and health effects       (v) Emergency operations;
codes, standards, or practices that are no   of failure of controls.                         (vi) Normal shutdown; and,
longer in general use, the owner or            (d) The process hazard analysis shall         (vii) Startup following a turnaround,
operator shall determine and document        be performed by a team with expertise        or after an emergency shutdown.
that the equipment is designed,              in engineering and process operations,          (2) Operating limits:
maintained, inspected, tested, and           and the team shall include at least one         (i) Consequences of deviation; and
operating in a safe manner.                  employee who has experience and                 (ii) Steps required to correct or avoid
                                             knowledge specific to the process being      deviation.
§ 68.67   Process hazard analysis.           evaluated. Also, one member of the              (3) Safety and health considerations:
  (a) The owner or operator shall            team must be knowledgeable in the               (i) Properties of, and hazards
perform an initial process hazard            specific process hazard analysis             presented by, the chemicals used in the
analysis (hazard evaluation) on              methodology being used.                      process;
processes covered by this part. The            (e) The owner or operator shall               (ii) Precautions necessary to prevent
process hazard analysis shall be             establish a system to promptly address       exposure, including engineering
appropriate to the complexity of the         the team’s findings and                      controls, administrative controls, and
process and shall identify, evaluate, and    recommendations; assure that the             personal protective equipment;
control the hazards involved in the          recommendations are resolved in a               (iii) Control measures to be taken if
process. The owner or operator shall         timely manner and that the resolution is     physical contact or airborne exposure
determine and document the priority          documented; document what actions are        occurs;
order for conducting process hazard          to be taken; complete actions as soon as        (iv) Quality control for raw materials
analyses based on a rationale which          possible; develop a written schedule of      and control of hazardous chemical
includes such considerations as extent       when these actions are to be completed;      inventory levels; and,
of the process hazards, number of            communicate the actions to operating,           (v) Any special or unique hazards.
potentially affected employees, age of       maintenance and other employees                 (4) Safety systems and their functions.
the process, and operating history of the    whose work assignments are in the               (b) Operating procedures shall be
process. The process hazard analysis         process and who may be affected by the       readily accessible to employees who
shall be conducted as soon as possible,      recommendations or actions.                  work in or maintain a process.
but not later than June 21, 1999. Process      (f) At least every five (5) years after       (c) The operating procedures shall be
hazards analyses completed to comply         the completion of the initial process        reviewed as often as necessary to assure
with 29 CFR 1910.119(e) are acceptable       hazard analysis, the process hazard          that they reflect current operating
as initial process hazards analyses.         analysis shall be updated and                practice, including changes that result
These process hazard analyses shall be       revalidated by a team meeting the            from changes in process chemicals,
updated and revalidated, based on their      requirements in paragraph (d) of this        technology, and equipment, and
completion date.                             section, to assure that the process          changes to stationary sources. The
  (b) The owner or operator shall use                                                     owner or operator shall certify annually
                                             hazard analysis is consistent with the
one or more of the following                                                              that these operating procedures are
                                             current process. Updated and
methodologies that are appropriate to                                                     current and accurate.
                                             revalidated process hazard analyses
determine and evaluate the hazards of                                                        (d) The owner or operator shall
                                             completed to comply with 29 CFR
the process being analyzed.                                                               develop and implement safe work
  (1) What-If;                               1910.119(e) are acceptable to meet the
                                             requirements of this paragraph.              practices to provide for the control of
  (2) Checklist;                                                                          hazards during operations such as
  (3) What-If/Checklist;                       (g) The owner or operator shall retain
  (4) Hazard and Operability Study           process hazards analyses and updates or      lockout/tagout; confined space entry;
(HAZOP);                                     revalidations for each process covered       opening process equipment or piping;
  (5) Failure Mode and Effects Analysis      by this section, as well as the              and control over entrance into a
(FMEA);                                      documented resolution of                     stationary source by maintenance,
  (6) Fault Tree Analysis; or                recommendations described in                 contractor, laboratory, or other support
  (7) An appropriate equivalent              paragraph (e) of this section for the life   personnel. These safe work practices
methodology.                                 of the process.                              shall apply to employees and contractor
  (c) The process hazard analysis shall                                                   employees.
address:                                     § 68.69   Operating procedures.
  (1) The hazards of the process;              (a) The owner or operator shall            § 68.71   Training.
  (2) The identification of any previous     develop and implement written                  (a) Initial training. (1) Each employee
incident which had a likely potential for    operating procedures that provide clear      presently involved in operating a
catastrophic consequences.                   instructions for safely conducting           process, and each employee before
  (3) Engineering and administrative         activities involved in each covered          being involved in operating a newly
controls applicable to the hazards and       process consistent with the process          assigned process, shall be trained in an
their interrelationships such as             safety information and shall address at      overview of the process and in the
appropriate application of detection         least the following elements.                operating procedures as specified in
methodologies to provide early warning         (1) Steps for each operating phase:        § 68.69. The training shall include
of releases. (Acceptable detection             (i) Initial startup;                       emphasis on the specific safety and
methods might include process                  (ii) Normal operations;                    health hazards, emergency operations
monitoring and control instrumentation         (iii) Temporary operations;                including shutdown, and safe work
with alarms, and detection hardware            (iv) Emergency shutdown including          practices applicable to the employee’s
such as hydrocarbon sensors.);               the conditions under which emergency         job tasks.
31724         Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

   (2) In lieu of initial training for those      (4) The owner or operator shall             (e) If a change covered by this
employees already involved in                  document each inspection and test that       paragraph results in a change in the
operating a process on June 21, 1999 an        has been performed on process                operating procedures or practices
owner or operator may certify in writing       equipment. The documentation shall           required by § 68.69, such procedures or
that the employee has the required             identify the date of the inspection or       practices shall be updated accordingly.
knowledge, skills, and abilities to safely     test, the name of the person who
carry out the duties and responsibilities      performed the inspection or test, the        § 68.77   Pre-startup review.
as specified in the operating procedures.      serial number or other identifier of the       (a) The owner or operator shall
   (b) Refresher training. Refresher           equipment on which the inspection or         perform a pre-startup safety review for
training shall be provided at least every      test was performed, a description of the     new stationary sources and for modified
three years, and more often if necessary,      inspection or test performed, and the        stationary sources when the
to each employee involved in operating         results of the inspection or test.           modification is significant enough to
a process to assure that the employee             (e) Equipment deficiencies. The           require a change in the process safety
understands and adheres to the current         owner or operator shall correct              information.
operating procedures of the process. The       deficiencies in equipment that are             (b) The pre-startup safety review shall
owner or operator, in consultation with        outside acceptable limits (defined by the    confirm that prior to the introduction of
the employees involved in operating the        process safety information in § 68.65)       regulated substances to a process:
process, shall determine the appropriate       before further use or in a safe and timely     (1) Construction and equipment is in
frequency of refresher training.               manner when necessary means are              accordance with design specifications;
   (c) Training documentation. The             taken to assure safe operation.                (2) Safety, operating, maintenance,
owner or operator shall ascertain that            (f) Quality assurance. (1) In the         and emergency procedures are in place
each employee involved in operating a          construction of new plants and               and are adequate;
process has received and understood the        equipment, the owner or operator shall         (3) For new stationary sources, a
training required by this paragraph. The       assure that equipment as it is fabricated    process hazard analysis has been
owner or operator shall prepare a record       is suitable for the process application      performed and recommendations have
which contains the identity of the             for which they will be used.                 been resolved or implemented before
employee, the date of training, and the           (2) Appropriate checks and                startup; and modified stationary sources
means used to verify that the employee         inspections shall be performed to assure     meet the requirements contained in
understood the training.                       that equipment is installed properly and     management of change, § 68.75.
                                               consistent with design specifications          (4) Training of each employee
§ 68.73   Mechanical integrity.                and the manufacturer’s instructions.         involved in operating a process has been
   (a) Application. Paragraphs (b)                (3) The owner or operator shall assure    completed.
through (f) of this section apply to the       that maintenance materials, spare parts
following process equipment:                   and equipment are suitable for the           § 68.79   Compliance audits.
   (1) Pressure vessels and storage tanks;     process application for which they will         (a) The owner or operator shall certify
   (2) Piping systems (including piping        be used.                                     that they have evaluated compliance
components such as valves);                                                                 with the provisions of this section at
   (3) Relief and vent systems and             § 68.75   Management of change.
                                                                                            least every three years to verify that the
devices;                                          (a) The owner or operator shall
   (4) Emergency shutdown systems;                                                          procedures and practices developed
                                               establish and implement written              under the standard are adequate and are
   (5) Controls (including monitoring          procedures to manage changes (except
devices and sensors, alarms, and                                                            being followed.
                                               for ‘‘replacements in kind’’) to process        (b) The compliance audit shall be
interlocks) and,                               chemicals, technology, equipment, and
   (6) Pumps.                                                                               conducted by at least one person
                                               procedures; and, changes to stationary       knowledgeable in the process.
   (b) Written procedures. The owner or        sources that affect a covered process.
operator shall establish and implement                                                         (c) A report of the findings of the
                                                  (b) The procedures shall assure that
written procedures to maintain the on-                                                      audit shall be developed.
                                               the following considerations are
going integrity of process equipment.                                                          (d) The owner or operator shall
                                               addressed prior to any change:
   (c) Training for process maintenance           (1) The technical basis for the           promptly determine and document an
activities. The owner or operator shall        proposed change;                             appropriate response to each of the
train each employee involved in                   (2) Impact of change on safety and        findings of the compliance audit, and
maintaining the on-going integrity of          health;                                      document that deficiencies have been
process equipment in an overview of               (3) Modifications to operating            corrected.
that process and its hazards and in the        procedures;                                     (e) The owner or operator shall retain
procedures applicable to the employee’s           (4) Necessary time period for the         the two (2) most recent compliance
job tasks to assure that the employee can      change; and,                                 audit reports.
perform the job tasks in a safe manner.           (5) Authorization requirements for the
   (d) Inspection and testing. (1)                                                          § 68.81   Incident investigation.
                                               proposed change.
Inspections and tests shall be performed          (c) Employees involved in operating a       (a) The owner or operator shall
on process equipment.                          process and maintenance and contract         investigate each incident which resulted
   (2) Inspection and testing procedures       employees whose job tasks will be            in, or could reasonably have resulted in
shall follow recognized and generally          affected by a change in the process shall    a catastrophic release of a regulated
accepted good engineering practices.           be informed of, and trained in, the          substance.
   (3) The frequency of inspections and        change prior to start-up of the process        (b) An incident investigation shall be
tests of process equipment shall be            or affected part of the process.             initiated as promptly as possible, but
consistent with applicable                        (d) If a change covered by this           not later than 48 hours following the
manufacturers’ recommendations and             paragraph results in a change in the         incident.
good engineering practices, and more           process safety information required by         (c) An incident investigation team
frequently if determined to be necessary       § 68.65 of this part, such information       shall be established and consist of at
by prior operating experience.                 shall be updated accordingly.                least one person knowledgeable in the
              Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                           31725

process involved, including a contract        or specialty work on or adjacent to a           11. Subpart E is added to read as
employee if the incident involved work        covered process. It does not apply to         follows:
of the contractor, and other persons          contractors providing incidental              Subpart E—Emergency Response
with appropriate knowledge and                services which do not influence process
experience to thoroughly investigate          safety, such as janitorial work, food and     68.90 Applicability.
and analyze the incident.                     drink services, laundry, delivery or          68.95 Emergency Response Program.
   (d) A report shall be prepared at the      other supply services.
conclusion of the investigation which            (b) Owner or operator responsibilities.    Subpart E—Emergency Response
includes at a minimum:                        (1) The owner or operator, when
   (1) Date of incident;                      selecting a contractor, shall obtain and      § 68.90   Applicability.
   (2) Date investigation began;              evaluate information regarding the              (a) Except as provided in paragraph
   (3) A description of the incident;         contract owner or operator’s safety           (b) of this section, the owner or operator
   (4) The factors that contributed to the    performance and programs.                     of a stationary source with Program 2
incident; and,                                   (2) The owner or operator shall inform     and Program 3 processes shall comply
   (5) Any recommendations resulting          contract owner or operator of the known       with the requirements of § 68.95.
from the investigation.                       potential fire, explosion, or toxic release     (b) The owner or operator of
   (e) The owner or operator shall            hazards related to the contractor’s work      stationary source whose employees will
establish a system to promptly address        and the process.                              not respond to accidental releases of
and resolve the incident report findings         (3) The owner or operator shall            regulated substances need not comply
and recommendations. Resolutions and          explain to the contract owner or              with § 68.95 of this part provided that
corrective actions shall be documented.       operator the applicable provisions of         they meet the following:
   (f) The report shall be reviewed with                                                      (1) For stationary sources with any
                                              subpart E of this part.
all affected personnel whose job tasks                                                      regulated toxic substance held in a
                                                 (4) The owner or operator shall            process above the threshold quantity,
are relevant to the incident findings         develop and implement safe work
including contract employees where                                                          the stationary source is included in the
                                              practices consistent with § 68.69(d), to      community emergency response plan
applicable.                                   control the entrance, presence, and exit
   (g) Incident investigation reports shall                                                 developed under 42 U.S.C. 11003;
                                              of the contract owner or operator and           (2) For stationary sources with only
be retained for five years.                   contract employees in covered process         regulated flammable substances held in
§ 68.83   Employee participation.             areas.                                        a process above the threshold quantity,
                                                 (5) The owner or operator shall            the owner or operator has coordinated
  (a) The owner or operator shall             periodically evaluate the performance of
develop a written plan of action                                                            response actions with the local fire
                                              the contract owner or operator in             department; and
regarding the implementation of the           fulfilling their obligations as specified
employee participation required by this                                                       (3) Appropriate mechanisms are in
                                              in paragraph (c) of this section.             place to notify emergency responders
                                                 (c) Contract owner or operator             when there is a need for a response.
  (b) The owner or operator shall
                                              responsibilities. (1) The contract owner
consult with employees and their                                                            § 68.95   Emergency response program.
                                              or operator shall assure that each
representatives on the conduct and                                                             (a) The owner or operator shall
                                              contract employee is trained in the work
development of process hazards                                                              develop and implement an emergency
                                              practices necessary to safely perform
analyses and on the development of the                                                      response program for the purpose of
                                              his/her job.
other elements of process safety                                                            protecting public health and the
                                                 (2) The contract owner or operator
management in this rule.                                                                    environment. Such program shall
                                              shall assure that each contract employee
  (c) The owner or operator shall                                                           include the following elements:
                                              is instructed in the known potential fire,
provide to employees and their                                                                 (1) An emergency response plan,
                                              explosion, or toxic release hazards
representatives access to process hazard                                                    which shall be maintained at the
                                              related to his/her job and the process,
analyses and to all other information                                                       stationary source and contain at least
                                              and the applicable provisions of the
required to be developed under this                                                         the following elements:
                                              emergency action plan.
rule.                                                                                          (i) Procedures for informing the
                                                 (3) The contract owner or operator
                                              shall document that each contract             public and local emergency response
§ 68.85   Hot work permit.
                                                                                            agencies about accidental releases;
  (a) The owner or operator shall issue       employee has received and understood
                                                                                               (ii) Documentation of proper first-aid
a hot work permit for hot work                the training required by this section.
                                                                                            and emergency medical treatment
operations conducted on or near a             The contract owner or operator shall          necessary to treat accidental human
covered process.                              prepare a record which contains the           exposures; and
  (b) The permit shall document that          identity of the contract employee, the           (iii) Procedures and measures for
the fire prevention and protection            date of training, and the means used to       emergency response after an accidental
requirements in 29 CFR 1910.252(a)            verify that the employee understood the       release of a regulated substance;
have been implemented prior to                training.                                        (2) Procedures for the use of
beginning the hot work operations; it            (4) The contract owner or operator         emergency response equipment and for
shall indicate the date(s) authorized for     shall assure that each contract employee      its inspection, testing, and maintenance;
hot work; and identify the object on          follows the safety rules of the stationary       (3) Training for all employees in
which hot work is to be performed. The        source including the safe work practices      relevant procedures; and
permit shall be kept on file until            required by § 68.69(d).                          (4) Procedures to review and update,
completion of the hot work operations.           (5) The contract owner or operator         as appropriate, the emergency response
                                              shall advise the owner or operator of         plan to reflect changes at the stationary
§ 68.87   Contractors.                        any unique hazards presented by the           source and ensure that employees are
  (a) Application. This section applies       contract owner or operator’s work, or of      informed of changes.
to contractors performing maintenance         any hazards found by the contract                (b) A written plan that complies with
or repair, turnaround, major renovation,      owner or operator’s work.                     other Federal contingency plan
31726         Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

regulations or is consistent with the        annex to the RMP for review by Federal        (12) Whether the stationary source has
approach in the National Response            and state representatives who have          a CAA Title V operating permit; and
Team’s Integrated Contingency Plan           received the appropriate security             (13) The date of the last safety
Guidance (‘‘One Plan’’) and that, among      clearances.                                 inspection of the stationary source by a
other matters, includes the elements                                                     Federal, state, or local government
provided in paragraph (a) of this            § 68.155   Executive summary.               agency and the identity of the
section, shall satisfy the requirements of     The owner or operator shall provide       inspecting entity.
this section if the owner or operator also   in the RMP an executive summary that
                                             includes a brief description of the         § 68.165   Offsite consequence analysis.
complies with paragraph (c) of this
section.                                     following elements:                            (a) The owner or operator shall submit
  (c) The emergency response plan              (a) The accidental release prevention     in the RMP information:
developed under paragraph (a)(1) of this     and emergency response policies at the         (1) One worst-case release scenario for
section shall be coordinated with the        stationary source;                          each Program 1 process; and
community emergency response plan              (b) The stationary source and                (2) For Program 2 and 3 processes,
developed under 42 U.S.C. 11003. Upon        regulated substances handled;               one worst-case release scenario to
                                               (c) The worst-case release scenario(s)    represent all regulated toxic substances
request of the local emergency planning
                                             and the alternative release scenario(s),    held above the threshold quantity and
committee or emergency response
                                             including administrative controls and       one worst-case release scenario to
officials, the owner or operator shall
                                             mitigation measures to limit the            represent all regulated flammable
promptly provide to the local
                                             distances for each reported scenario;       substances held above the threshold
emergency response officials                   (d) The general accidental release
information necessary for developing                                                     quantity. If additional worst-case
                                             prevention program and chemical-            scenarios for toxics or flammables are
and implementing the community               specific prevention steps;
emergency response plan.                                                                 required by § 68.25(a)(2)(iii), the owner
                                               (e) The five-year accident history;       or operator shall submit the same
  12. Subpart G is added to read as            (f) The emergency response program;
follows:                                                                                 information on the additional
                                                                                         scenario(s). The owner or operator of
Subpart G—Risk Management Plan                 (g) Planned changes to improve safety.
                                                                                         Program 2 and 3 processes shall also
Sec.                                         § 68.160   Registration.                    submit information on one alternative
68.150 Submission.                                                                       release scenario for each regulated toxic
68.155 Executive summary.
                                                (a) The owner or operator shall
                                             complete a single registration form and     substance held above the threshold
68.160 Registration.
68.165 Offsite consequence analysis.         include it in the RMP. The form shall       quantity and one alternative release
68.168 Five-year accident history.           cover all regulated substances handled      scenario to represent all regulated
68.170 Prevention program/Program 2.         in covered processes.                       flammable substances held above the
68.175 Prevention program/Program 3.            (b) The registration shall include the   threshold quantity.
68.180 Emergency response program.           following data:                                (b) The owner or operator shall
68.185 Certification.                           (1) Stationary source name, street,      submit the following data:
68.190 Updates.                              city, county, state, zip code, latitude,       (1) Chemical name;
                                             and longitude;                                 (2) Physical state (toxics only);
Subpart G—Risk Management Plan                  (2) The stationary source Dun and           (3) Basis of results (give model name
§ 68.150   Submission.                       Bradstreet number;                          if used);
                                                (3) Name and Dun and Bradstreet             (4) Scenario (explosion, fire, toxic gas
   (a) The owner or operator shall submit
                                             number of the corporate parent              release, or liquid spill and
a single RMP that includes the
                                             company;                                    vaporization);
information required by §§ 68.155               (4) The name, telephone number, and         (5) Quantity released in pounds;
through 68.185 for all covered               mailing address of the owner or                (6) Release rate;
processes. The RMP shall be submitted        operator;                                      (7) Release duration;
in a method and format to a central             (5) The name and title of the person        (8) Wind speed and atmospheric
point as specified by EPA prior to June      or position with overall responsibility     stability class (toxics only);
21, 1999.                                    for RMP elements and implementation;           (9) Topography (toxics only);
   (b) The owner or operator shall              (6) The name, title, telephone number,      (10) Distance to endpoint;
submit the first RMP no later than the       and 24-hour telephone number of the            (11) Public and environmental
latest of the following dates:               emergency contact;                          receptors within the distance;
   (1) June 21, 1999;                           (7) For each covered process, the           (12) Passive mitigation considered;
   (2) Three years after the date on         name and CAS number of each                 and
which a regulated substance is first         regulated substance held above the             (13) Active mitigation considered
listed under § 68.130; or                    threshold quantity in the process, the      (alternative releases only);
   (3) The date on which a regulated         maximum quantity of each regulated
substance is first present above a           substance or mixture in the process (in     § 68.168   Five-year accident history.
threshold quantity in a process.             pounds) to two significant digits, the        The owner or operator shall submit in
   (c) Subsequent submissions of RMPs        SIC code, and the Program level of the      the RMP the information provided in
shall be in accordance with § 68.190.        process;                                    § 68.42(b) on each accident covered by
   (d) Notwithstanding the provisions of        (8) The stationary source EPA            § 68.42(a).
§§ 68.155 to 68.190, the RMP shall           identifier;
exclude classified information. Subject         (9) The number of full-time              § 68.170   Prevention program/Program 2.
to appropriate procedures to protect         employees at the stationary source;           (a) For each Program 2 process, the
such information from public                    (10) Whether the stationary source is    owner or operator shall provide in the
disclosure, classified data or               subject to 29 CFR 1910.119;                 RMP the information indicated in
information excluded from the RMP               (11) Whether the stationary source is    paragraphs (b) through (k) of this
may be made available in a classified        subject to 40 CFR part 355;                 section. If the same information applies
            Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                          31727

to more than one covered process, the          (d) The date on which the safety           (4) Does the plan include information
owner or operator may provide the           information was last reviewed or            on emergency health care?
information only once, but shall            revised.                                      (5) The date of the most recent review
indicate to which processes the                (e) The date of completion of the most   or update of the emergency response
information applies.                        recent PHA or update and the technique      plan;
   (b) The SIC code for the process.        used.                                         (6) The date of the most recent
   (c) The name(s) of the chemical(s)          (1) The expected date of completion      emergency response training for
covered.                                    of any changes resulting from the PHA;      employees.
   (d) The date of the most recent review      (2) Major hazards identified;              (b) The owner or operator shall
or revision of the safety information and      (3) Process controls in use;             provide the name and telephone
a list of Federal or state regulations or      (4) Mitigation systems in use;           number of the local agency with which
                                               (5) Monitoring and detection systems     the plan is coordinated.
industry-specific design codes and
                                            in use; and                                   (c) The owner or operator shall list
standards used to demonstrate                  (6) Changes since the last PHA.
compliance with the safety information                                                  other Federal or state emergency plan
                                               (f) The date of the most recent review   requirements to which the stationary
requirement.                                or revision of operating procedures.
   (e) The date of completion of the most                                               source is subject.
                                               (g) The date of the most recent review
recent hazard review or update.             or revision of training programs;           § 68.185   Certification.
   (1) The expected date of completion         (1) The type of training provided—
of any changes resulting from the hazard                                                  (a) For Program 1 processes, the
                                            classroom, classroom plus on the job, on    owner or operator shall submit in the
review;                                     the job; and                                RMP the certification statement
   (2) Major hazards identified;               (2) The type of competency testing       provided in § 68.12(b)(4).
   (3) Process controls in use;             used.                                         (b) For all other covered processes,
   (4) Mitigation systems in use;              (h) The date of the most recent review
                                                                                        the owner or operator shall submit in
   (5) Monitoring and detection systems     or revision of maintenance procedures
                                                                                        the RMP a single certification that, to
in use; and                                 and the date of the most recent
                                                                                        the best of the signer’s knowledge,
   (6) Changes since the last hazard        equipment inspection or test and the
                                                                                        information, and belief formed after
review.                                     equipment inspected or tested.
                                                                                        reasonable inquiry, the information
   (f) The date of the most recent review      (i) The date of the most recent change
                                                                                        submitted is true, accurate, and
or revision of operating procedures.        that triggered management of change
   (g) The date of the most recent review   procedures and the date of the most
or revision of training programs;           recent review or revision of                § 68.190   Updates.
   (1) The type of training provided—       management of change procedures.               (a) The owner or operator shall review
classroom, classroom plus on the job, on       (j) The date of the most recent pre-     and update the RMP as specified in
the job; and                                startup review.                             paragraph (b) of this section and submit
   (2) The type of competency testing          (k) The date of the most recent          it in a method and format to a central
used.                                       compliance audit and the expected date      point specified by EPA prior to June 21,
   (h) The date of the most recent review   of completion of any changes resulting      1999.
or revision of maintenance procedures       from the compliance audit;                     (b) The owner or operator of a
and the date of the most recent                (l) The date of the most recent
                                                                                        stationary source shall revise and
equipment inspection or test and the        incident investigation and the expected
                                                                                        update the RMP submitted under
equipment inspected or tested.              date of completion of any changes
                                                                                        § 68.150 as follows:
   (i) The date of the most recent          resulting from the investigation;
                                                                                           (1) Within five years of its initial
                                               (m) The date of the most recent
compliance audit and the expected date                                                  submission or most recent update
                                            review or revision of employee
of completion of any changes resulting                                                  required by paragraphs (b)(2) through
                                            participation plans;
from the compliance audit.                     (n) The date of the most recent review   (b)(7) of this section, whichever is later.
   (j) The date of the most recent          or revision of hot work permit                 (2) No later than three years after a
incident investigation and the expected     procedures;                                 newly regulated substance is first listed
date of completion of any changes              (o) The date of the most recent review   by EPA;
resulting from the investigation.           or revision of contractor safety               (3) No later than the date on which a
   (k) The date of the most recent change   procedures; and                             new regulated substance is first present
that triggered a review or revision of         (p) The date of the most recent          in an already covered process above a
safety information, the hazard review,      evaluation of contractor safety             threshold quantity;
operating or maintenance procedures, or     performance.                                   (4) No later than the date on which a
training.                                                                               regulated substance is first present
                                            § 68.180   Emergency response program.      above a threshold quantity in a new
§ 68.175 Prevention program/Program 3.                                                  process;
                                              (a) The owner or operator shall
  (a) For each Program 3 process, the       provide in the RMP the following               (5) Within six months of a change that
owner or operator shall provide the         information:                                requires a revised PHA or hazard
information indicated in paragraphs (b)       (1) Do you have a written emergency       review;
through (p) of this section. If the same    response plan?                                 (6) Within six months of a change that
information applies to more than one          (2) Does the plan include specific        requires a revised offsite consequence
covered process, the owner or operator      actions to be taken in response to an       analysis as provided in § 68.36; and
may provide the information only once,      accidental releases of a regulated             (7) Within six months of a change that
but shall indicate to which processes       substance?                                  alters the Program level that applied to
the information applies.                      (3) Does the plan include procedures      any covered process.
  (b) The SIC code for the process.         for informing the public and local             (c) If a stationary source is no longer
  (c) The name(s) of the substance(s)       agencies responsible for responding to      subject to this part, the owner or
covered.                                    accidental releases?                        operator shall submit a revised
31728         Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

registration to EPA within six months         permitting authority shall initiate             (6) The hazards identified in the RMP;
indicating that the stationary source is      permit revision or reopening according       and
no longer covered.                            to the procedures of 40 CFR 70.7 or 71.7        (7) A plan providing for neutral,
  13. Subpart H is added to read as           to incorporate the terms and conditions      random oversight.
follows:                                      consistent with paragraph (a) of this           (c) Exemption from audits. A
                                              section.                                     stationary source with a Star or Merit
Subpart H—Other Requirements
                                                (d) The state may delegate the             ranking under OSHA’s voluntary
Sec.                                                                                       protection program shall be exempt
                                              authority to implement and enforce the
§ 68.200 Recordkeeping.                                                                    from audits under paragraph (b)(2) and
§ 68.210 Availability of information to the   requirements of paragraph (e) of this
                                              section to a state or local agency or        (b)(7) of this section.
                                              agencies other than the air permitting          (d) The implementing agency shall
68.215 Permit content and air permitting
     authority or designated agency           authority. An up-to-date copy of any         have access to the stationary source,
     requirements.                            delegation instrument shall be               supporting documentation, and any area
68.220 Audits.                                maintained by the air permitting             where an accidental release could occur.
                                              authority. The state may enter a written        (e) Based on the audit, the
Subpart H—Other Requirements                  agreement with the Administrator under       implementing agency may issue the
                                              which EPA will implement and enforce         owner or operator of a stationary source
§ 68.200   Recordkeeping.                                                                  a written preliminary determination of
  The owner or operator shall maintain        the requirements of paragraph (e) of this
                                              section.                                     necessary revisions to the stationary
records supporting the implementation                                                      source’s RMP to ensure that the RMP
                                                (e) The air permitting authority or the
of this part for five years unless                                                         meets the criteria of subpart G of this
                                              agency designated by delegation or
otherwise provided in Subpart D of this                                                    part. The preliminary determination
                                              agreement under paragraph (d) of this
part.                                                                                      shall include an explanation for the
                                              section shall, at a minimum:
                                                (1) Verify that the source owner or        basis for the revisions, reflecting
§ 68.210 Availability of information to the
public.                                       operator has registered and submitted        industry standards and guidelines (such
                                              an RMP or a revised plan when required       as AIChE/CCPS guidelines and ASME
  (a) The RMP required under subpart
                                              by this part;                                and API standards) to the extent that
G of this part shall be available to the
                                                (2) Verify that the source owner or        such standards and guidelines are
public under 42 U.S.C. 7414(c).
  (b) The disclosure of classified            operator has submitted a source              applicable, and shall include a timetable
information by the Department of              certification or in its absence has          for their implementation.
                                              submitted a compliance schedule                 (f) Written response to a preliminary
Defense or other Federal agencies or
                                              consistent with paragraph (a)(2) of this     determination.
contractors of such agencies shall be                                                         (1) The owner or operator shall
controlled by applicable laws,                section;
                                                (3) For some or all of the sources         respond in writing to a preliminary
regulations, or executive orders                                                           determination made in accordance with
concerning the release of classified          subject to this section, use one or more
                                              mechanisms such as, but not limited to,      paragraph (e) of this section. The
information.                                                                               response shall state the owner or
                                              a completeness check, source audits,
§ 68.215 Permit content and air permitting    record reviews, or facility inspections to   operator will implement the revisions
authority or designated agency                ensure that permitted sources are in         contained in the preliminary
requirements.                                 compliance with the requirements of          determination in accordance with the
  (a) These requirements apply to any         this part; and                               timetable included in the preliminary
stationary source subject to this part 68       (4) Initiate enforcement action based      determination or shall state that the
and parts 70 or 71 of this Chapter. The       on paragraphs (e)(1) and (e)(2) of this      owner or operator rejects the revisions
40 CFR part 70 or part 71 permit for the      section as appropriate.                      in whole or in part. For each rejected
stationary source shall contain:                                                           revision, the owner or operator shall
  (1) A statement listing this part as an     § 68.220   Audits.                           explain the basis for rejecting such
applicable requirement;                         (a) In addition to inspections for the     revision. Such explanation may include
  (2) Conditions that require the source      purpose of regulatory development and        substitute revisions.
owner or operator to submit:                  enforcement of the Act, the                     (2) The written response under
  (i) A compliance schedule for meeting       implementing agency shall periodically       paragraph (f)(1) of this section shall be
the requirements of this part by the date     audit RMPs submitted under subpart G         received by the implementing agency
provided in § 68.10(a) or;                    of this part to review the adequacy of       within 90 days of the issue of the
  (ii) As part of the compliance              such RMPs and require revisions of           preliminary determination or a shorter
certification submitted under 40 CFR          RMPs when necessary to ensure                period of time as the implementing
70.6(c)(5), a certification statement that    compliance with subpart G of this part.      agency specifies in the preliminary
the source is in compliance with all            (b) The implementing agency shall          determination as necessary to protect
requirements of this part, including the      select stationary sources for audits         public health and the environment.
registration and submission of the RMP.       based on any of the following criteria:      Prior to the written response being due
  (b) The owner or operator shall               (1) Accident history of the stationary     and upon written request from the
submit any additional relevant                source;                                      owner or operator, the implementing
information requested by the air                (2) Accident history of other              agency may provide in writing
permitting authority or designated            stationary sources in the same industry;     additional time for the response to be
agency.                                         (3) Quantity of regulated substances       received.
  (c) For 40 CFR part 70 or part 71           present at the stationary source;               (g) After providing the owner or
permits issued prior to the deadline for        (4) Location of the stationary source      operator an opportunity to respond
registering and submitting the RMP and        and its proximity to the public and          under paragraph (f) of this section, the
which do not contain permit conditions        environmental receptors;                     implementing agency may issue the
described in paragraph (a) of this              (5) The presence of specific regulated     owner or operator a written final
section, the owner or operator or air         substances;                                  determination of necessary revisions to
                   Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations                                                                                                31729

the stationary source’s RMP. The final                               include an explanation of the basis for                                        (i) The public shall have access to the
determination may adopt or modify the                                finding such substitute revision                                             preliminary determinations, responses,
revisions contained in the preliminary                               unreasonable.                                                                and final determinations under this
determination under paragraph (e) of                                    (h) Thirty days after completion of the                                   section in a manner consistent with
this section or may adopt or modify the                              actions detailed in the implementation                                       § 68.210.
substitute revisions provided in the                                 schedule set in the final determination
                                                                                                                                                    (j) Nothing in this section shall
response under paragraph (f) of this                                 under paragraph (g) of this section, the
                                                                                                                                                  preclude, limit, or interfere in any way
section. A final determination that                                  owner or operator shall be in violation
adopts a revision rejected by the owner                              of subpart G of this part and this section                                   with the authority of EPA or the state to
or operator shall include an explanation                             unless the owner or operator revises the                                     exercise its enforcement, investigatory,
of the basis for the revision. A final                               RMP prepared under subpart G of this                                         and information gathering authorities
determination that fails to adopt a                                  part as required by the final                                                concerning this part under the Act.
substitute revision provided under                                   determination, and submits the revised                                         14. Part 68 Appendix A is added to
paragraph (f) of this section shall                                  RMP as required under § 68.150.                                              read as follows:

                                                      APPENDIX A TO PART 68—TABLE OF TOXIC ENDPOINTS
                                                                                [As defined in § 68.22 of this part]

             CAS No.                                                                                      Chemical name                                                                               endpoint

107–02–8 .............................    Acrolein [2-Propenal] ...........................................................................................................................             0.0011
107–13–1 .............................    Acrylonitrile [2-Propenenitrile] .............................................................................................................                0.076
814–68–6 .............................    Acrylyl chloride [2-Propenoyl chloride] ................................................................................................                      0.00090
107–18–6 .............................    Allyl alcohol [2-Propen-1-ol] ................................................................................................................                0.036
107–11–9 .............................    Allylamine [2-Propen-1-amine] ............................................................................................................                    0.0032
7664–41–7 ...........................     Ammonia (anhydrous) .........................................................................................................................                 0.14
7664–41–7 ...........................     Ammonia (conc 20% or greater) .........................................................................................................                       0.14
7784–34–1 ...........................     Arsenous trichloride .............................................................................................................................            0.010
7784–42–1 ...........................     Arsine ..................................................................................................................................................     0.0019
10294–34–5 .........................      Boron trichloride [Borane, trichloro-] ...................................................................................................                    0.010
7637–07–2 ...........................     Boron trifluoride [Borane, trifluoro-] .....................................................................................................                  0.028
353–42–4 .............................    Boron trifluoride compound with methyl ether (1:1) [Boron, trifluoro[oxybis[methane]]-, T-4 .............                                                     0.023
7726–95–6 ...........................     Bromine ...............................................................................................................................................       0.0065
75–15–0 ...............................   Carbon disulfide ..................................................................................................................................           0.16
7782–50–5 ...........................     Chlorine ...............................................................................................................................................      0.0087
10049–04–4 .........................      Chlorine dioxide [Chlorine oxide (ClO2)] ............................................................................................                         0.0028
67–66–3 ...............................   Chloroform [Methane, trichloro-] .........................................................................................................                    0.49
542–88–1 .............................    Chloromethyl ether [Methane, oxybis[chloro-] ....................................................................................                             0.00025
107–30–2 .............................    Chloromethyl methyl ether [Methane, chloromethoxy-] ......................................................................                                    0.0018
4170–30–3 ...........................     Crotonaldehyde [2-Butenal] .................................................................................................................                  0.029
123–73–9 .............................    Crotonaldehyde, (E)-, [2-Butenal, (E)-] ...............................................................................................                       0.029
506–77–4 .............................    Cyanogen chloride ..............................................................................................................................              0.030
108–91–8 .............................    Cyclohexylamine [Cyclohexanamine] ..................................................................................................                          0.16
19287–45–7 .........................      Diborane ..............................................................................................................................................       0.0011
75–78–5 ...............................   Dimethyldichlorosilane [Silane, dichlorodimethyl-] ..............................................................................                             0.026
57–14–7 ...............................   1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-] ..............................................................................                               0.012
106–89–8 .............................    Epichlorohydrin [Oxirane, (chloromethyl)-] ..........................................................................................                         0.076
107–15–3 .............................    Ethylenediamine [1,2-Ethanediamine] .................................................................................................                         0.49
151–56–4 .............................    Ethyleneimine [Aziridine] .....................................................................................................................               0.018
75–21–8 ...............................   Ethylene oxide [Oxirane] .....................................................................................................................                0.090
7782–41–4 ...........................     Fluorine ................................................................................................................................................     0.0039
50–00–0 ...............................   Formaldehyde (solution) ......................................................................................................................                0.012
110–00–9 .............................    Furan ...................................................................................................................................................     0.0012
302–01–2 .............................    Hydrazine ............................................................................................................................................        0.011
7647–01–0 ...........................     Hydrochloric acid (conc 30% or greater) ............................................................................................                          0.030
74–90–8 ...............................   Hydrocyanic acid .................................................................................................................................            0.011
7647–01–0 ...........................     Hydrogen chloride (anhydrous) [Hydrochloric acid] ............................................................................                                0.030
7664–39–3 ...........................     Hydrogen fluoride/Hydrofluoric acid (conc 50% or greater) [Hydrofluoric acid] .................................                                               0.016
7783–07–5 ...........................     Hydrogen selenide ..............................................................................................................................              0.00066
7783–06–4 ...........................     Hydrogen sulfide .................................................................................................................................            0.042
13463–40–6 .........................      Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB–5–11)-] ..............................................................                                     0.00044
78–82–0 ...............................   Isobutyronitrile [Propanenitrile, 2-methyl-] ...........................................................................................                      0.14
108–23–6 .............................    Isopropyl chloroformate [Carbonochloride acid, 1-methylethyl ester] .................................................                                         0.10
126–98–7 .............................    Methacrylonitrile [2-Propenenitrile, 2-methyl-] .....................................................................................                         0.0027
74–87–3 ...............................   Methyl chloride [Methane, chloro-] ......................................................................................................                     0.82
79–22–1 ...............................   Methyl chloroformate [Carbonochloridic acid, methylester] ................................................................                                    0.0019
60–34–4 ...............................   Methyl hydrazine [Hydrazine, methyl-] ................................................................................................                        0.0094
624–83–9 .............................    Methyl isocyanate [Methane, isocyanato-] ..........................................................................................                           0.0012
74–93–1 ...............................   Methyl mercaptan [Methanethiol] ........................................................................................................                      0.049
556–64–9 .............................    Methyl thiocyanate [Thiocyanic acid, methyl ester] ............................................................................                               0.085
75–79–6 ...............................   Methyltrichlorosilane [Silane, trichloromethyl-] ....................................................................................                         0.018
13463–39–3 .........................      Nickel carbonyl ....................................................................................................................................          0.00067
7697–37–2 ...........................     Nitric acid (conc 80% or greater) ........................................................................................................                    0.026
31730              Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

                                          APPENDIX A TO PART 68—TABLE OF TOXIC ENDPOINTS—Continued
                                                                               [As defined in § 68.22 of this part]

             CAS No.                                                                                     Chemical name                                                                               endpoint

10102–43–9 .........................      Nitric oxide [Nitrogen oxide (NO)] .......................................................................................................                   0.031
8014–95–7 ...........................     Oleum (Fuming Sulfuric acid) [Sulfuric acid, mixture with sulfur trioxide] ..........................................                                        0.010
79–21–0 ...............................   Peracetic acid [Ethaneperoxoic acid] ..................................................................................................                      0.0045
594–42–3 .............................    Perchloromethylmercaptan [Methanesulfenyl chloride, trichloro-] ......................................................                                       0.0076
75–44–5 ...............................   Phosgene [Carbonic dichloride] ..........................................................................................................                    0.00081
7803–51–2 ...........................     Phosphine ............................................................................................................................................       0.0035
10025–87–3 .........................      Phosphorus oxychloride [Phosphoryl chloride] ...................................................................................                             0.0030
7719–12–2 ...........................     Phosphorus trichloride [Phosphorous trichloride] ...............................................................................                             0.028
110–89–4 .............................    Piperidine .............................................................................................................................................     0.022
107–12–0 .............................    Propionitrile [Propanenitrile] ................................................................................................................              0.0037
109–61–5 .............................    Propyl chloroformate [Carbonochloridic acid, propylester] .................................................................                                  0.010
75–55–8 ...............................   Propyleneimine [Aziridine, 2-methyl-] ..................................................................................................                     0.12
75–56–9 ...............................   Propylene oxide [Oxirane, methyl-] .....................................................................................................                     0.59
7446–09–5 ...........................     Sulfur dioxide (anhydrous) ..................................................................................................................                0.0078
7783–60–0 ...........................     Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)-] ................................................................................                        0.0092
7446–11–9 ...........................     Sulfur trioxide ......................................................................................................................................       0.010
75–74–1 ...............................   Tetramethyllead [Plumbane, tetramethyl-] ..........................................................................................                          0.0040
509–14–8 .............................    Tetranitromethane [Methane, tetranitro-] ............................................................................................                        0.0040
7750–45–0 ...........................     Titanium tetrachloride [Titanium chloride (TiCl4) (T-4)-] .....................................................................                              0.020
584–84–9 .............................    Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato-1-methyl-] ......................................................                                        0.0070
91–08–7 ...............................   Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato-2-methyl-] ......................................................                                        0.0070
26471–62–5 .........................      Toluene diisocyanate (unspecified isomer) [Benzene, 1,3-diisocyanatomethyl-] ...............................                                                 0.0070
75–77–4 ...............................   Trimethylchlorosilane [Silane, chlorotrimethyl-] ...................................................................................                         0.050
108–05–4 .............................    Vinyl acetate monomer [Acetic acid ethenyl ester] .............................................................................                              0.26

[FR Doc. 96–14597 Filed 6–19–96; 8:45 am]                            stay, under which owners and operators                                       that document (‘‘List Rule
BILLING CODE 6560–50–M                                               of processes and sources that EPA has                                        Amendments’’) would, if promulgated,
                                                                     proposed not be subject to part 68                                           delete explosives from the list of
                                                                     would not become subject to part 68                                          regulated substances, modify threshold
40 CFR Part 68                                                       until EPA has determined whether to                                          provisions to exclude flammable
[FRL–5516–6]                                                         proceed with the List Rule                                                   substances in gasoline and in naturally
                                                                     Amendments. The effect of today’s                                            occurring hydrocarbon mixtures prior to
List of Regulated Substances and                                     action will be to give owners and                                            entry into a processing unit or plant,
Thresholds for Accidental Release                                    operators of sources affected by the                                         modify the threshold provisions for
Prevention; Final Rule—Stay of                                       proposed List Rule Amendments the                                            other flammable mixtures, and clarify
Effectiveness                                                        same amount of time to achieve                                               the definition of stationary source with
                                                                     compliance with the requirements of                                          respect to transportation, storage
AGENCY:  Environmental Protection                                    part 68 as owners and operators of other                                     incident to transportation, and naturally
Agency (EPA).                                                        sources in the event that EPA does not                                       occurring hydrocarbon reservoirs.
ACTION: Final rule.                                                  proceed with the List Rule Amendments
                                                                                                                                                     On the same date, EPA proposed to
                                                                     as proposed.
SUMMARY: On April 15, 1996, the                                                                                                                   stay provisions of part 68 that were
                                                                     EFFECTIVE DATE: June 20, 1996.                                               affected by the proposed List Rule
Environmental Protection Agency (EPA)
proposed several modifications to                                    FOR FURTHER INFORMATION CONTACT:                                             Amendments until such time as EPA
provisions of the rule listing regulated                             Vanessa Rodriguez, Chemical Engineer,                                        takes final action on the proposed List
substances and establishing threshold                                Chemical Emergency Preparedness and                                          Rule Amendments. 61 FR 16606. EPA
quantities under section 112(r) of the                               Prevention Office, Environmental                                             proposed a stay of 18 months because it
Clean Air Act as amended (List Rule                                  Protection Agency (5101), 401 M St.                                          believed such a period would be
Amendments). The proposed List Rule                                  SW., Washington, DC 20460, (202) 260–                                        sufficient to take final action on the List
Amendments, if promulgated in a final                                7913.                                                                        Rule Amendments and believed that
rule, would clarify or establish that part                           SUPPLEMENTARY INFORMATION:                                                   owners and operators affected by the
68 does not apply to several types of                                                                                                             List Rule Amendments should have the
processes and sources. In addition, EPA                              I. Background and Discussion                                                 same certainty about whether they are
proposed, pursuant to Clean Air Act                                     On April 15, 1996, EPA proposed                                           subject to part 68 as owners and
section 301(a)(1), 42 U.S.C. 7601(a)(1),                             amendments to regulations in 40 CFR                                          operators of other sources have when
to stay the effectiveness of provisions                              part 68 that, inter alia, list regulated                                     they begin their regulatory compliance
that would be affected by the proposed                               substances and establish threshold                                           planning. In general, owners and
List Rule Amendments, for so long as                                 quantities for the accident prevention                                       operators of sources subject to the ‘‘Risk
necessary to take final action on the                                provisions under Clean Air Act section                                       Management Program’’ final rule
proposed List Rule Amendments. EPA                                   112(r). 61 FR 16598. Readers should                                          promulgated elsewhere in today’s
received no adverse public comment on                                refer to that document for a complete                                        Federal Register, have three years from
the short-term stay. Today EPA is                                    discussion of the background of the rule                                     today to achieve compliance with part
amending part 68 to promulgate the                                   affected. The amendments proposed in                                         68.

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