Monday
March 13, 1995
Part ill
Environmental
Protection Agency
40 CFR Part 68
Accidental Release Prevention
Requirements: Risk Management
=f Programs Under Clean Air Act Section
~ 112(r)(7); Proposed Rule
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Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed RuJes
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPart68
[A-91-73; FRL-6168-2]
RIN 2050-AD26
Accidental Release Prevention
Requirements: Risk Management
Programs Under Clean Air Act Section
AGENCY: Environmental Protection
Agency.
ACTION: Supplemental notice of
proposed rulemaking.
SUMMARY: On October 20, 1993, EPA
proposed risk management program
regulations, mandated under the
accidental release provisions of the
Clean Air Act (CAA). The purpose of the
proposed rule is to reduce the number
and severity of chemical accidents.
Based on information presented during
public hearings and in comments on the
proposed rule, EPA is requesting
additional comment on the following
regulatory options and issues:
approaches for increasing compliance
flexibility and decreasing cost while
still ensuring preparedness by tiering
the regulatory requirements to take into
consideration differences between
various types, classes, and kinds of
sources, devices, and systems; the
hazard assessment approaches
(including worst-case scenarios);
accident information reporting; public
participation in risk management
program and plan oversight; inherently
safer approaches for sources' design and
operations; and the implementation of
CAA section 112(r) regulations,
including methods of integrating these
requirements into the title V permitting
requirements and the codification of
approved state section 112(r)
requirements.
DATES: Comments: Comments must be
submitted on or before May 12, 1995.
Hearings: The Agency will hold a
hearing on March 31 from 9 a.m. until
4p.m.
ADDRESSES: Comments: Written
comments may be mailed or submitted
to: U.S. Environmental Protection
Agency, Attn: Docket (A-91-73), Room
1500, 401 M Street, SW, Washington,
DC 20460. Comments must be submitted
in duplicate. Comments may also be
faxed to the docket at 202-260-4400, as
long as faxes are followed by hard
copies.
Hearings: The hearing will be held at
the EPA Auditorium, 401 M Street, SW,
Washington, DC. People who want to
testify at this hearing should call 703
934-3158 by March 27.
Docket: Supporting information used
in developing the accidental release
prevention regulations is contained in
Docket No. A-91-73. This docket is
available for public inspection'and
copying between 8:00 a.m. and 5:30
p.m., Monday through Friday (except
government holidays) at the address
listed above. A reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: Dr.
Lyse D. Helsing at (202) 260-6128,
Chemical Emergency Preparedness and
Prevention Office (5101), U.S.
Environmental Protection Agency, 401
M Street, SW, Washington, DC 20460, or
the Emergency Planning and
Community Right-to-Know Hotline at 1-
800-535-0202.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
A. Statutory Authority
B. Relationship of Section 112(r) to Other
Requirements of the Clean Air Act
C. Summary of the Proposed Risk
Management Program Rule
II. Discussion of Issues and Approaches
A. Approaches for Tiering the Regulatory
Requirements
B. Hazard Assessment
C. Accident Information Reporting
D. Public Participation
E. Inherently Safer Approaches
F. Implementation and Integration of
Section 112 (r) with State Programs
HI. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Enhancing the Intergovernmental
Partnership
D. Paperwork Reduction Act
I. Introduction and Background
A. Statutory Authority
This supplemental notice of proposed
rulemaking is being issued under
sections 112(r) and 301(a)(l) of the
Clean Air Act (CAA) as amended (42
U.S.C. 7412(r) and 7601(a)(l)).
B. Relationship of Section 112(r) to
Other Requirements of the Clean Air Act
The Clean Air Act Amendments of
1990 amend CAA section 112 and add
a new paragraph (r). The intent of CAA
section 112(r) is to prevent accidental
releases to the air and minimize the
consequences of releases by focusing
preventive measures on chemicals that
pose the greatest risk to the public and
the environment. For a summary of the
statutory requirements of section 112(r)
and related statutory provisions, see the
notice of proposed rulemaking (NPRM)
(58 FR 54190; October 20,1993).
Since the October 20,1993, notice,
the Environmental Protection Agency
(EPA) has taken various additional
regulatory actions relevant to the section
112(r) program. EPA promulgated the
List of Regulated Substances and
Thresholds for Accidental Release
Prevention on January 31,1994 (59 FR
4478). The list of regulated substances
and thresholds will determine which
sources must comply with the accident
prevention regulations.
CAA section 112(1) contains the
statutory authority for EPA to approve
and delegate specific Federal authorities
to states. EPA promulgated a rule under
section 112(1) on November 26,1993 (58
FR 62262) that addresses the approval of
both state programs for section 112 that
mirror the Federal requirements and
programs that differ from Federal
requirements. Approval of state rules
addressing section 112(r) requirements
is addressed in the section 112(1) rule.
Certain other regulatory actions that
predate the October 20,1993, NPRM are
relevant to today's supplemental notice.
Specifically, section 112(r) is addressed
in CAA title V, operating permits, and
the subsequent rulemaking in 40 CFR
part 70 (part 70) published on July 10,
1992 (57 FR 32250). Section 112(r)
listed substances are "regulated air
pollutants," and the accident prevention
regulations developed under section
112(r)(7) are "applicable requirements"
for the purposes of CAA title V and part
70.
C. Summary of the Proposed Risk
Management Program Rule
The proposed rule would require
sources to:
Register with EPA not later than
three years after publication of the final
rule;
Develop and implement a risk
management program that includes a
hazard assessment, prevention program,
and emergency response program, and
maintain on-site documentation of the
program's implementation. The hazard
assessment would include offsite
consequence analyses and a five-year
accident history;
Develop and submit to Federal,
state, and local authorities a risk
management plan (RMP) that
documents the risk management
program. This plan will be available to
the public; and
Update the risk management
program and plan as required by rule,
audit, or process or chemical changes at
the source.
The risk management program
addresses the general requirements of
CAA section 112(r)(7)(B) for regulations
to provide for accidental release
detection and prevention. The risk
management plan, referred to as the
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13527
RMP in this notice, addresses the
specific requirements of CAA section
112(r)(7)(B) for a plan that provides
governmental entities and the public
with information on the hazards found
at sources and the source's plans for
addressing the hazards. These hazards
would be identified and addressed
through implementation of the risk
management program elements.
Therefore, the RMP would summarize
the results of hazard assessments and
the implementation of the risk
management program requirements. The
proposed rule also contains a system to
audit the RMPs, including criteria for
selecting sources for audits.
II. Discussion of Issues and Approaches
During public hearings on the
proposed rule, in comments provided
on the proposed rule, and through
additional sources, EPA has learned that
six areas of the proposed rule need
clarification and further comment prior
to development of a final rule. In
addition to the regulatory provisions
and alternatives in the proposed rule,
EPA is requesting comment on
regulatory options under consideration
in the following areas: approaches for
tiering the regulatory requirements to
take into consideration differences
between various types, classes, and
kinds of sources, devices and systems;
the hazard assessment approaches
(including worst-case scenarios);
accident information reporting; public
participation in risk management
program and plan oversight; inherently
safer approaches for design and
operation; and the implementation of
section 112(r) regulations including
methods of integrating these
requirements into the title V permitting
requirements. All regulatory provisions
and alternatives under the proposed
rule remain as options for the final rule.
EPA will consider carefully comments
already submitted. Therefore,
commenters on this notice should not
duplicate comments already submitted,
but should focus on the issues in this
notice.
A. Approaches for Tiering the
Regulatory Requirements
Many commenters asked for a tiered
approach (i.e., applying different
requirements to different sources).
Commenters have presented several
reasons why a tiered approach is
needed:
Commenters stated that, if a source
cannot cause offsite impacts, the source
should not have to meet the
requirements of the rule.
Commenters stated that the rule
should be streamlined to ensure that the
requirements are appropriate for each
type of source covered and eliminate
duplicative coverage where possible.
Commenters argued that CAA section
112(r)(7)(B)(i) allows EPA to take into
account differences in size, operations,
processes, class and categories of
sources, and voluntary actions.
Commenters, particularly states,
were concerned about whether the final
rule can be implemented effectively.
Substantial requirements imposed on
lower risk sources may undermine the
program because implementing agencies
and the public will find it more difficult
to identify and focus on the most
serious risks. Resources spent on
unproductive regulatory requirements
better might be used to analyze and
develop new accident prevention
technologies.
Commenters have stated that, based
on their experience implementing
similar accident prevention rules in
New Jersey, California, and Delaware,
and implementing the OSHA PSM
standard, the rule would impose
substantially higher costs on affected
sources than EPA had originally
estimated. These commenters argued
that the costs of the rule should
reasonably be related to benefits
obtained. Commenters noted that EPA is
required under CAA section 112(r)(7)(C)
to consider the effects on small
businesses.
In light of data and information
supplied by commenters during the
initial comment period and developed
by EPA subsequent to publication of the
initial proposed rule, EPA believes that
it would be unreasonable to apply the
proposed rule prevention program to all
sources subject to part 68. EPA is
considering a tiered approach to achieve
the program objectives of ensuring that
the effort is appropriate to the potential
risk and recognizing the prevention
steps that sources are already required
to take under other regulatory programs.
EPA believes a tiered implementation
framework may be a reasonable way to
reduce the cost without sacrificing
accident prevention benefits.
EPA is proposing the use of three
tiers, representing increasing levels of
effort, in defining requirements for
sources. The tiers would apply to
different categories and classes of
sources based on their potential risk and
steps already being taken. In light of the
various comments summarized above,
EPA does not believe that the third tier,
which would be the proposed
prevention program and would entail
the greatest level of effort among the
alternatives discussed below should
apply to all sources. EPA solicits
comments on this position.
Under the Common Sense Initiative
(CSI), the Agency is working with a
broad cross section of stakeholders to
examine regulations affecting six
industry sectors. These sectors are
petroleum refining, metal finishing, iron
and steel, automobile manufacturing,
electronics and computers, and printing.
Under CSI, the Agency and stakeholders
together will be looking for approaches
that provide more environmental
protection at less cost for these industry
sectors. The tiering approaches
discussed in this notice incorporate
these CSI principles.
Discussion of Issues and Approaches
The CAA mandates that each source
with more than a threshold quantity of
a regulated substance develop and
implement a risk management plan that
includes an offsite consequence
analysis, a five-year accident history, a
prevention program, and an emergency
response program. Under its proposed
rule, EPA would require the submission
of an RMP that summarizes each of the
elements listed. The risk management
program specifies the activities required
for each of the broad elements. The
original proposal would require every
source affected by the rule to complete
all specified activities and submit an
RMP. EPA is proposing today to create
the following three tiers of risk
management programs:
Tier 1: A brief RMP would demonstrate
and certify that the source's worst-
case release would not reach any
public or environmental receptors of
concern.
Tier 2: A streamlined risk management
program would require sources to
conduct an offsite consequence
analysis, document a five-year
accident history, implement
prevention steps, have an emergency
response plan, and submit an RMP.
The rule would not require specific
steps to comply with the prevention
and emergency response programs.
Tier 3: The full risk management
' program and plan would be that
described in the proposed rule.
In addition to the approach in the
proposed rule, EPA has developed two
alternative approaches to assigning
sources to the tiers in a way that takes
into consideration risk as well as
differences between types, classes, and
kinds of sources:
Approach 1: Sources that could meet
the requirements of Tier 1 would
comply with Tier 1; manufacturers
with 100 or more full-time employees
(FTEs) producing pulp (SIC code
2611), chlor-alkalis (2812), industrial
inorganics, not elsewhere classified
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(nee) (2819), plastics and resins
(2821), industrial organics, nee (2869),
nitrogen fertilizers (2873), agricultural
chemicals, nee (2879), and petroleum
refineries (2911) would comply with
Tier 3 requirements; all other sources
would comply with Tier 2
requirements. In addition, eight years
after the effective date of the rule,
sources in SIC codes 2812, 2819,
2869, 2873, and 2911 with 20 to 99
FTEs would be required to meet Tier
3 requirements.
Approach 2: Sources that could meet
the requirements of Tier 1 would
comply with Tier 1; other sources
with fewer than 100 full-time
employees (FTEs) would comply with
Tier 2 requirements; all other sources
would comply with Tier 3
requirements.
Discussion of Tier Requirements
Tier 1 (No Impact Tier). A source in
Tier 1 would be a source that is subject
to part 68 because it has more than a
threshold quantity of a regulated
substance, but that does not pose a risk
to public or environmental receptors. A
source would be eligible for Tier 1 if the
owner or operator can demonstrate that,
in a worst-case release, there are no
public and environmental receptors of
concern within the impact distances
specified by rule. Sources would not be
eligible for Tier 1 if they have had a
significant accidental release (as defined
in the proposed rule) in the previous
five years. To ensure that emergency.
responders are aware of the hazards at
the sites, sources that exceed a
threshold only for flammable or
explosive regulated substances (i.e.,
they have no listed toxics above the
threshold quantity) would need to post
a sign at all normal access routes that
warns the public and emergency
responders about the hazard (fire or
explosion) and lists an emergency
contact telephone number. The owner
or operator of a source eligible for Tier
1 that handles a regulated toxic
substance would need to show that the
local emergency response plan prepared
under the Emergency Planning and
Community Right-to-Know Act of 1986
(EPCRA) section 303, 42 U.S.C. 11003,
specifically addresses their source. For
regulated substances that are not
extremely hazardous substances (EHSs)
under EPCRA, the owner or operator of
the source would need to certify that
source emergency response planning
and measures have been coordinated
with local first responders. EPA requests
comments on this approach. Sources
meeting these criteria would be required
to register, submit an RMP consisting of
the registration and standard one-
paragraph statement (see rule text), and
maintain records of compliance with
these requirements.
The provisions described above
would satisfy each element of section
112(r)(7)(B)(ii) while recognizing that it
is reasonable for this class of sources to
be addressed in a simple manner. The
hazard assessment element of the
program would be satisfied by verifying
that there were no receptors within the
potential impact zone of the worst-case
accidental release and by the absence of
any significant accidental release within
the previous five years. In addition, EPA
proposes that, in lieu of obtaining a
professional survey, an owner or
operator could rely on visual
approximations of the distances
surrounding the source to public and
environmental receptors for comparison
to the distance generated by the worst-
case release. The prevention program
would not require additional prevention
activities because the characteristics of
the process are such that there are no
potential public or environmental
impacts. A standardized RMP ensures
that local emergency planners and the
state know that the source has been
assessed by the owner or operator.
EPA believes that Tier 1 will be most
suitable for operations that handle
flammable substances or explosive
substances in locations that are
relatively distant from the public. In
lieu of presenting a distance table for
explosives in this part, EPA would
allow a source to be eligible for Tier 1
if it maintained a distance to the public
and environmental receptors consistent
with 27 CFR part 55 or 30 CFR parts 56,
57, or 77. These regulations,
promulgated by the Bureau of Alcohol,
Tobacco and Firearms (BATF) and the
Mine Safety and Health Administration
(MSHA) incorporate the American Table
of Distances (ATD). The distances
identified in the ATD are more
conservative than the EPA listing
criteria and should, therefore, protect
the public and the environment from
the effects that caused EPA to list
explosives.
Based on the known properties of
flammable substances and explosives, it
is possible to use conservative
assumptions and calculate the
maximum distance at which an
overpressure or heat effect of concern
can be detected. Distances for potential
impacts of accidental releases for
flammable substances and processes
could be determined by consulting
distance tables or derived using the
following calculation method described
in Flammable Gases and Liquids and
Their Hazards:
D = Cx(nE)'/3,
where D is the distance in meters to a
1 psi overpressure; C is a constant for
damages associated with 1 psi
overpressures or 0.15, n is a yield factor
of the vapor cloud explosion derived
from the mechanical yield of the
combustion and is assumed to be 10
percent (or 0.1) and E is the energy
content of the explosive part of the
cloud in Joules. E can be calculated
from the mass of substance in kilograms
times the heat of combustion (he) in
Joules per kilogram as follows:
E = mass x he
Combining these two equations gives:
D = 0.15 x (0.1 x mass x hc)1/3
If distances to receptors are greater than
the distance given by the calculation
method, then a source could be eligible
for Tier 1.
EPA has received a study addressing
the potential consequences of accidental
releases from oil and gas exploration
and production (E&P) sources that may
provide a more suitable method for
calculating impact distances from these
sources than the general formula
presented above. The study, Hazard
Assessment of E&P Facilities Potentially
Subject to the EPA's Risk Management
Program Regulations, was submitted by
the American Petroleum Institute in
January 1995 and is available in the
docket (see ADDRESSES section of this
rule). Generally the study purports to
show that given the composition of
produced hydrocarbons at the source
and certain physical characteristics of
an E&P source, such as operating phase
and piping size, one may estimate the
potential impact distances for vapor
cloud explosions and radiant heat
effects of an accidental release. EPA is
announcing the availability of this study
and seeks comment on whether EPA
should allow E&P sources to use the
results of the study to determine worst-
case release impact distances.
For listed toxic substances, EPA is
proposing that sources use the lookup
tables discussed in Section B below.
Sources would use the lookup tables to
determine the impact distance for their
worst-case releases. If a source can
demonstrate that there are no public or
environmental receptors of concern
within the distance, the source would
be eligible for Tier 1.
EPA seeks comment on whether Tier
1 is appropriate for the sources
discussed above. In particular, EPA
seeks comment on whether Tier 1 is
appropriate for sources that have toxic
regulated substances present in more
than a threshold quantity. Should
sources be allowed to determine that
they have no offsite impacts for toxics
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13529
based on site-specific analyses rather
than the lookup tables? Is the criterion
of no significant accidental release in
the previous five years appropriate as a
condition for Tier 1 eligibility? Are
additional response preparedness
activities necessary beyond what has
been specified for sources in this tier?
Tier 2 (Streamlined Program). Sources
would be required to register with EPA,
conduct a hazard assessment, develop a
five-year accident history, prevention
program, and emergency response
program, and submit an RMP
summarizing these elements.
The rule would not specify the
prevention program in detail, but a
source's program would have to cover
the statutory elements of training,
maintenance, safety precaution, and
monitoring. The prevention program
section of the RMP would describe the
steps the source takes to train
employees and maintain the facility, the
safety precautions used, and
monitoring. Sources may be able to meet
these requirements through compliance
with other, already existing Federal
regulations. For example, almost all
sources are subject to OSBLA regulations.
The Hazard Communication Standard
(29 CFR 1910.1200) requires training on
hazards and preventive actions. OSHA
has numerous rules related to safety
precautions. Certain industries (e.g.,
handlers of anhydrous ammonia and
LPG) have specific OSHA standards.
Propane handlers are also generally
subject to state and local laws based on
NFPA-58, a storage and handling
standard for propane. Sources could cite
compliance with these standards as part
of their description of their prevention
steps. Sources that are in compliance
with the OSHA process safety
management (PSM) standard or with
chemical and refinery industry
standards would be able to cite
compliance with these because they
parallel EPA's proposed prevention
program.
One mandated prevention element
not usually addressed in regulations,
except OSHA PSM, is maintenance.
Sources would be required to describe
how they maintain a safe facility; EPA
would not, however, specify
maintenance steps. EPA emphasizes
that, under CAA section 112(r)(l), all
sources already are required to identify
their hazards and design and maintain
a safe facility and would continue to be
subject to this general duty under
today's proposed rule.
The response program would
document procedures for informing the
public and local entities about
accidental releases, procedures to be
used on site to respond to an accidental
release, and a description of employee
training measures regarding emergency
situations. EPA requests comment on
whether Tier 2 sources should be
required to exercise the emergency
response program under proposed
§ 68.45 or whether a streamlined
response program would be sufficient.
EPA notes that, for both Tier 2 and Tier
3 (described below), compliance with
other Federal contingency and
emergency response planning
requirements (e.g., RCRA, OPA-90)
would be considered adequate to meet
the emergency response requirements of
the rule. EPA asks for comment on what
other Federal emergency response
measures would satisfy the
requirements of section
112(r)(7)(B)(ii)(III). In particular, does
HAZWOPER (29 CFR 1910.120) fulfill
the requirement for "a response program
providing for specific actions * * * so
as to protect human health and the
environment"? If a source is specifically
addressed in an emergency plan under
EPCRA section 303, should that satisfy
the response program element of the
CAA? Should EPA require that the LEPC
meet the membership, planning process,
and public availability requirements of
EPCRA sections 301, 303 and 324 for a
source to rely on an EPCRA local
emergency plan?
The streamlined approaches under
Tier 2 fulfill the statutory provisions of
section 112(r)(7)(B)(ii), while exercising
the discretion granted under section
112(r)(7)(B)(i) to recognize ongoing
prevention activities at classes of
sources. Requirements for hazard
assessments and response programs for
sources would be similar to those in the
original proposal as modified by other
portions of today's notice. The five-year
accident history would be based on the
proposed rule. The prevention program
would place less burden on sources that
are subject to other governmental or
industrial programs or that seem to
present a lesser risk of a significant
accidental release than other sources,
based on public data and inferences
drawn from such data. The RMP will
fulfill the right-to-know aspects of
section 112(r) by requiring a source to
summarize data about its hazard
assessment, prevention, and response
program activities and make this
information available to the public. EPA
seeks comments on the proposed Tier 2
requirements. Specifically, EPA seeks
comment on whether additional,
specific prevention activities should be
required to address safety precautions,
maintenance, monitoring, and training
(e.g., any particular requirements of the
proposed rule targeted at these
activities) and on whether there are
additional governmental regulations and
industry or third-party standards which
fulfill the mandate of a prevention
program under section 112(r).
Tier 3Full Rule. Tier 3 sources
would be required to comply with the
detailed prevention program of the rule,
as finalized. The RMP would address
hazard assessment, the prevention
program, and the emergency response
program. EPA intends that the final
prevention program will be the OSHA
PSM standard plus the requirement for
a management system.
Discussion of Assignment to Tiers
Sources would be eligible for Tier 1
based on a demonstration and
certification of no impact on public or
environmental receptors. All other
sources would be allocated to either
Tier 2 or Tier 3. Tier 2 is a default tier
for those sources not specifically .
assigned to Tier 3.
EPA's preferred approach would
assign sources in specific four-digit SIC
codes to Tier 3. To identify such SIC
codes, EPA analyzed its ARIP database
for the period from 1987 through 1993.
EPA believes that SIC codes in which
more than 10 sources with 100 or more
full-time employees reported regulated
substance releases (not limited to
accidental releases under part 68) and
more than 20 percent of such sources
had releases that had impacts onsite or
offsite would be candidate SIC codes for
Tier 3 during the initial implementation
of part 68, EPA also considered the
quantities released and the number of
sources in the SIC code;as reported in
Census data. EPA used .some judgment
when looking at SIC codes in Census
data because the Census reports only the
one SIC code per source that represents
the greatest financial activity even when
many SIC codes apply* Thus, the Census
may be likely to understate the total
number of sources in a 4-digit SIC code,
especially in the chemical industry,
because sources in cfertain industries
typically involve many different
operations. EPA believes that chemical
releases that are not accidental releases
and releases in which workers were
injured should be included in an
analysis of accidental releases for the
purposes of section 112(r) because all
such releases may indicate a failure of
company safety practices. EPA requests
comments on this conclusion and data
indicating that this assumption is valid
(or not) for the groups discussed below.
Based on the analysis described
above, EPA identified eight four-digit
SIC codes that have a release history
that supports requiring sources in such
codes to implement a Tier 3 program.
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These SIC codes are: 2611 (pulp mills),
2812 (chlor-alkali), 2819 (industrial
inorganics nee), 2821 (plastics and
resins), 2869 (industrial organics nee),
2873 (nitrogen fertilizer), 2879
(agricultural chemicals nee), and 2911
(refineries). In all of these industries, the
number of facilities reporting releases
was more than 20 percent of the number
in each SIC code using Census data.
Four industrial categories that EPA
does not believe would be appropriate
under the accident history criteria for
Tier 3 are 2865 (cyclic crudes), 3312
(steel mills), 2816 (industrial inorganic
pigments), and 4911 (electric utilities).
Less than 20 percent of the releases
reported from cyclic crude sources and
steel mills had impacts. In the cyclic
crude industrial category, while 16
sources reported releases
(approximately 25 percent of the SIC
code), only three sources had releases
with impacts. The largest release at 11
of the cyclic crude sources exceeded
1,000 pounds, and three of these sources
had largest releases exceeding 10,000
pounds. Given the size of releases from
cyclic crude sources, EPA requests
comments on whether they should be
required to meet Tier 3 requirements. In
the steel mill sector, while 18 sources
reported releases (approximately 14
percent of the industry), only 3 had
impacts. However, six of these sources
reported releases exceeding 10,000
pounds. The industrial inorganic
pigment industry was just below the
candidate SIC code criteria for facilities
reporting releases and percentage of
impact releases. While nearly half the
industry reported releases, only two
facilities had releases that were more
than 1000 pounds, and none had
releases that exceeded 10,000 pounds.
Although there were a high number of
releases reported by electric utilities,
only about 2 percent of the industry
accounted for the reported releases.
EPA would initially limit Tier 3 to
sources in the eight categories with 100
or more full-time employees because
these sources have the most significant
accident histories. However, certain
smaller sources also have accident
histories that would support eventual
Tier 3 treatment. EPA conducted an
analysis of sources with 20-99 full-time
employees and identified five categories
that, based on accident history, would
become Tier 3 sources 8 years after
promulgation: 2812, 2819, 2869, 2873,
and 2911. The flammable substance
accident history for refineries with 20-
99 full-time employees supports
eventually requiring these sources to
comply with Tier 3. The four other
industries all had a significant
percentage of impact releases relative to
the number of facilities reporting toxic
releases. Three groups (industrial
inorganics, industrial organics, and
nitrogen fertilizer) had more than ten
facilities reporting toxic releases, while
two groups (chlor-alkali and nitrogen
fertilizer) had more than 30 percent of
the SIC code reporting releases. EPA
may review this determination based on
data gathered during the eight-year
period. The full program would be
phased in to allow these sources to
benefit from the expertise gained by
governmental agencies and larger
industry during initial implementation
of the full program; the phase in would
also ease the cost burden on these
smaller companies by giving them more
time to implement the program. EPA
would calculate full-time employees
based on the definition in 40 CFR 372.3.
Full-time employees would include
contractors on site.
EPA also requests comment on a
second approach to tiering. EPA would
include in Tier 3 all sources with more
than 100 FTEs. Larger sources not
eligible for Tier 1 would be subject to
Tier 3 because of the size of their
operations and the likelihood that they
have larger quantities of regulated
substances on site, as well as because of
their technical capabilities to undertake
the program relative to most small
manufacturers and non-manufacturers.
EPA does not favor this approach,
however, because many of these large
sources do not have a significant record
of accidental releases.
EPA requests comment on the two
alternatives or on other criteria for
placing sources in tiers under the risk
management program. EPA may adopt,
in whole or in part, any or all of the
approaches to eligibility for Tier 2 in the
final rule. The first approach focuses on
industry segments that have a history of
releases from a number of sources. This
approach would remove from Tier 3
individual sources that may have had a
history of accidents, but are part of
sectors that have not had numerous
accidents. It would also remove from
Tier 3 entire sectors based on an
accident history, which in the future
may change. Should a change occur,
EPA would revise the rule to include
these sectors in Tier 3. Should such
sources and segments be exempt from
adopting process safety management
principles until problems in the
industry become pervasive? In addition
to placing sources in Tier 3 based on
industry segment, should a source be
placed in Tier 3 if it has had one or
more significant accidental releases in a
five-year period? Conversely, should a
source in an industry segment in Tier 3
be allowed to move to Tier 2 if it has
not had a significant accidental release
in the past five years? The Agency
requests comment on the oversight and
compliance burdens that would be
placed on implementing agencies and
sources by a site-specific tiering
approach. Should proximity to
significant numbers of people (either
residential population, workers, or other
people) be used (alone, or in
conjunction with other criteria
discussed above) to qualify a source for
potential Tier 3 treatment? Should EPA
structure the audit provisions of
proposed § 68.60 to allow for
implementing agencies to require Tier 2
sources to undertake more specific
prevention activities if an audit
uncovers inadequate risk management
programs? Are there additional
industries (two-digit or four-digit SIC
codes) that should not be eligible for
Tier 2 under either approach? Under
approach 2, are there sources with more
than 100 FTEs that should be eligible for
Tier 2 because of industry-specific
standards or the simplicity and nature
of their processes? EPA believes the
preferred approach is the most
appropriate level for national
implementation. EPA notes that state
implementing agencies have the
authority under the CAA to impose
more stringent requirements.
Qualified Third Party. EPA is seeking
comments on whether provisions
should be made to employ a "qualified
third party," under implementing
agency oversight, to assist certain
regulated sources in achieving and
maintaining compliance with the RMP
rule. In raising this issue, EPA is
cognizant of the recent National
Performance Review recommendations
to OSHA on the use of third parties, and
growing reliance on "qualified third
parties" to facilitate compliance with
other regulations, to audit the
performance of regulated third parties,
and verify compliance status on a
periodic basis. Such arrangements,
thereby, assist both the regulated
community and the regulating agencies
in ensuring compliance with
regulations. EPA requests comments
whether to use qualified third parties for
this program as well as specific
suggestions on how appropriately to
include qualified third parties in the
present rulemaking.
One way to incorporate "qualified
third party" review into the RMP tiering
framework might be to assign certain
sources that participate in the Voluntary
Protection Program (VPP) to Tier 2. The
VPP is a voluntary program sponsored
by OSHA and industry that recognizes
strong safety practices, including
process safety management. Within
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13531
VPP, a "Star" rating indicates the
highest level of worker safety practices
in all aspects measured by the program,
while a "Merit" rating indicates sound
practices with specific qualifications.
One commenter suggested that EPA
should integrate Star and Merit status
into the risk management program. It is
not clear whether Star and Merit ratings
are relevant to protecting the public and
the environment from accidental
releases because the VPP only directly
measures worker safety impacts. EPA
invites comment on whether a source
that obtains Star rating or a Merit rating
without qualifications related to process
safety management should be eligible
for Tier 2 even when it is part of an
industry sector that otherwise is subject
to Tier 3. Should implementing agencies
and the public rely on Star or Merit
status as a good indicator that the source
poses a lesser risk of a significant
accidental release than other sources in
the same industry sector?
Comments on other types of
"qualified third party" options to
facilitate responsible self-enforcement of
the RMP rule will also be useful,
particularly as they relate to subsectors
of regulated sources which have
demonstrated the capacity for
establishing and enforcing voluntary
safety procedures, or to subsectors in
which the regulated sources or their
associations have indicated an interest
in developing such capacity* Comments
from state and local officials, emergency
responders, and the public regarding the
use of third party arrangements are
sought.
B. Hazard Assessment
EPA received substantial comments
on hazard assessment topics during the
four public hearings, the comment
period, and a one-day forum on worst-
case scenarios. Commenters made the
following main points:
Commenters questioned the
intended use of the worst case, arguing
that EPA failed to provide a clear
description of its purpose.
Commenters questioned whether
EPA would require sources to conduct
separate analyses for each hazard for
substances that are both flammable and
toxic. Commenters suggested that the
number of assessments could be limited
by analyzing only the substance that has
the potential for the most serious offsite
impacts.
Commenters stated that, although
the proposed definition of worst case as
instantaneous loss of the total contents
of a process may be possible for sources
that have simple systems, instantaneous
loss of the total process contents is not
technically feasible for complex systems
and, therefore, would provide no useful
information to the public or the source.
Commenters stated that failure to
account for at least well-designed
passive mitigation systems reduces the
incentive for installation of such
systems.
Commenters argued that EPA
should specify in the final rule certain
methodological assumptions that
sources would use to analyze release
scenarios.
Several commenters argued that the
worst-case meteorological conditions
defined in the proposed rule (F stability
and 1.5 meters/second wind speed)
were too conservative.
Commenters expressed concern that
the results of the offsite consequence
analyses would be difficult to compare
between sources without specification
of the assumptions.
Commenters asked for clarification
of what EPA expects sources to do to
define offsite populations and
environmental impacts.
Clarification of the Purpose of Worst-
Case Analyses. Sources and the public
need to assess and understand the
extent of the impact associated with an
uncontrolled major accident. EPA does
not intend that worst-case analyses
should be used as the sole or primary
basis for emergency planning or
accident prevention actions. The results
of the worst-case analyses, in
combination with other more likely
release scenario assessments, as
contained in the RMP, should be used
to build a dialogue and a working
partnership between the source and the
public, response agencies, workers, and
various levels of government for
chemical accident prevention, response,
and preparedness.
Worst-Case Release Definition
EPA is considering alternatives to the
definition of worst-case release in
proposed § 68.3. EPA is proposing to
redefine a worst-case release as the
release of the largest quantity of a
regulated substance resulting from a
vessel or process piping failure. The
worst-case analysis would involve a 10-
minute release under worst-case
meteorological conditions (F stability
and 1.5 meters per second wind speed)
and would consider passive mitigation
measures.
The 10-minute release time is used in
the Technical Guidance for Hazards
Analysis. EPA believes that this release
duration is reasonable and accounts for
comments arguing that an
"instantaneous" release is not realistic.
As described in the Technical Guidance,
a 10-minute release is intended to
represent modeling of a continuous
release rather than a "puff release.
Therefore, for modeling purposes, the
release rate (per minute) to the air for
gases would be the quantity released
divided by 10. Liquids would be
assumed to form a pool in 10 minutes,
with the release rate to the air
determined by volatilization rate. This
approach to liquid releases differs from
that of the Technical Guidance, which
specifies an instantaneous release.
Alternatively, the Technical Guidance
could be used, but no time frame would
be specified; the liquid quantity would
be assumed to form a pool for
calculation of the volatilization rate.
EPA requests comments on the
appropriate release duration and
justification for its basis.
EPA is considering the revision of
proposed § 68.15(c) to incorporate the
effects of passive mitigation systems,
but not active mitigation systems, into
the worst-case release scenario, if such
systems are capable of withstanding
destructive events (e.g., fires,
explosions, floods, hurricanes, and
earthquakes). Passive systems would
include dikes, catch basins, and drains
for liquids, and enclosures for both
liquids and gases. EPA requests
comment on its definition of "passive
mitigation system" and requests
examples of other such devices.
Scenarios involving passive mitigation
systems that have connections to the
environment (such as a rainwater drain
valve) would have to assume failure of
that connection. The threat of natural
disasters would be specific to certain
geographic regions, and sources could
certify that their passive mitigation
meets or exceeds local natural disaster
design standards as capable of
withstanding destructive natural events.
Underground storage tanks might also
be considered, a passive mitigation
system for liquids to the degree that
overlying soils would reduce the
volatilization rate to the air in the event
of a worst-case accidental release.
However, overlying soil is not likely to
contain high pressure gas releases. EPA
requests comment on this issue.
Incorporation of passive mitigation
measures into the worst-case release
analysis could be left to implementing
agency discretion. Such discretion
would result in an increased
administrative burden on that agency
and cross-jurisdictional differences in
the methodology used for worst-case
analyses. EPA is considering allowing
the incorporation of active mitigation
measures in the hazard assessments for
more likely accidental release scenarios.
EPA seeks comment on several
possible ways to define the relevant
quantity of regulated substance in a
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vessel or process piping for a worst-case
release scenario. One alternative would
be to define the quantity as the
maximum possible vessel inventory,
without regard for operational practices
and administrative controls. This
quantity would represent a physical
maximum, but would exaggerate the
potential worst case for sources that
never operate at the physical maximum
inventory of the vessel. The process
piping failure scenario would assume
that the inventory contained in vessels
or other process equipment on either
side of the piping failure location would
be released through the pipe break at
full pipe flow.
A second, preferred alternative would
be to require that the determination of
the worst-case release scenario be based
on the maximum possible vessel
inventory unless there are internal
administrative controls (written
procedural restrictions) that restrict
inventories to less than the maximum.
The operational limit would be
described in the worst-case release
analysis in the RMP. Exceedance of any
administrative control on vessel
inventory would be a violation of
§ 68.15 (failure to perform a worst-case
analysis) unless the administrative
control was revised and the worst-case
analysis updated to reflect any changes
in the analysis. An exceedance would
also result in a violation of § 68.50
unless the RMP was updated within the
timeframes set out in that section.
Acknowledgement of such
administrative controls would reflect
the efforts of sources that have
intentionally reduced inventories of
regulated substances for process safety
reasons. EPA seeks comment on
whether administrative controls are
sufficiently reliable or whether a
mechanical control should be required
in addition to the administrative
control.
A third alternative for defining the
relevant quantity would be to base the
quantity on historic or projected
maximum operating inventories without
regard for administrative controls. The
maximum operating inventory would be
specified in the RMP. Exceedance of the
maximum operating inventory also
would be a violation of §§ 68.15 and
68.50 as described above. EPA does not
favor this third alternative because it
does not believe that historic or
projected operating practices represent
the maximum possible amount of a
chemical that could be stored in a vessel
unless there is a specific management
operational restriction at the source.
EPA is also considering providing the
implementing agency with the
discretion to determine the appropriate
quantity for the worst-case release
scenario on a site-specific or industry-
specific basis. Implementing agency
discretion would result in an increased
administrative burden on the
implementing agency and cross-
jurisdictional differences in the
methodology used for the worst case
analyses. EPA also requests comment on
whether the scenario should consider
the additional amount of substance that
could potentially drain or flow from
process equipment interconnected with
the failed vessel or pipeline.
Applicability of the Hazard Assessment
Requirements
A number of commenters stated that
multiple analyses of similar substances
would not improve the information
provided to the public. EPA is
proposing the following requirements
for substances and processes affected by
the rule:
A single worst-case release scenario
would be analyzed for all flammables on
site; only one flammable substance
would be analyzed for other more likely
scenarios as well;
A single worst-case release scenario
would be analyzed for all explosives on
site; only one explosive substance
would be analyzed for other more likely
scenarios as well; and
A single worst-case release scenario
would be analyzed for all toxic
substances at the source; other more
likely release scenarios would be
analyzed for each toxic substance
covered by the rule.
The appropriate hazard category would
be the hazard for which the regulated
substance was listed. This proposal
would reduce to a maximum of three
the number of worst-case analyses
required of each source in the RMP.
Additional screening analyses to
determine the appropriate worst-case
scenario may be necessary, but only one
worst-case release scenario would be
reported for each hazard category.
Sources would, within the constraints of
the worst-case release definition,
describe the greatest offsite impacts
presented by potential catastrophic
accidents involving regulated toxic,
flammable, and explosive substances.
The potential worst-case impacts of
substances and processes not described
in the RMP would be less than those
described. As an alternative, EPA could
require analysis of only one worst-case
scenario by each stationary source. This
approach would require the analysis of
the one scenario that presents the worst
offsite consequences. A significant
drawback to a one-scenario analysis is
that the different types of worst-case
hazards (for toxics, flammables and
explosives) would not all be described.
EPA would require more likely
release scenarios per hazard category for
flammables and explosives, but per
substance for listed toxics. Toxic
substances each have different exposure
concentrations of concern, but
flammables and explosives can be
treated uniformly within hazard
categories. EPA seeks comment on
whether a single toxic substance could
be considered representative of all toxic
substances at a source or in a process.
Hazard Assessment Methodology and
Calculations
EPA intends to develop "lookup"
tables for all listed substances to assist
sources in determining the impact
distances for their release scenarios. The
tables will specify potential impact
distances for releases of substances
under conditions that are relevant to
dispersion. Sources will only have to
define their release scenarios and
develop the information, such as release
rate, needed to use the tables. The tables
will provide impact distances that
sources can then map. For explosives,
the American Table of Distances will
serve as the lookup table. For toxics and
flammables, the lookup tables will be
developed and made available for
public review and comment prior to the
publication of the final rule. The tables,
and accompanying guidance, will
represent a revision of the Technical
Guidance for Hazards Analysis. The
tables will provide distances under
varying conditions, including worst-
case. In developing the tables, EPA will
select one level of concern value for
each toxic substance. EPA seeks further
comment on whether it should use a
single endpoint to the extent possible to
develop the tables (e.g., the 1/10IDLH
unless one does not exist for a
substance), or a hierarchy of endpoints
(e.g., ERPG3; if one does not exist, then
the 1/10 IDLH; and finally toxicity data
if no other value is available). For
flammables, should EPA use
overpressure or both overpressure and
radiant heat effects as endpoints? EPA
requests comment on the lookup table
approach. The tables and the
methodology used to develop them will
be made available for public review and
comment.
The purpose of providing lookup
tables is three-fold. First, if each source
conducts its own dispersion modeling,
the results will be extremely difficult to
compare among sources; different
models and different assumptions can
produce widely varying results. Second,
because of the differences in models and
the impact of changing assumptions
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13533
(e.g., a different wind speed), the results
of dispersion modeling are best used to
provide a general idea of impact; models
do not have a level of predictive
accuracy that can reliably differentiate
between, for example, a release with a
four-mile zone and one with a five-mile
zone. Third, dispersion modeling is
expensive, especially for sources that
are outside of the chemical industry.
Given that the results of sophisticated
modeling may not be more accurate
than results derived from simple tables,
EPA decided that a simpler approach
that would provide comparable data
among sources was preferable. Sources
that wish to conduct more sophisticated
modeling may, but would not be
required to do so, under the rule. For
sources that want to do modeling, a
number of models available in the
public domain exist; EPA has published
guidance on the use of these models. An
alternative approach would be to limit
use of the lookup tables to Tier 2
sources and require Tier 3 sources to
conduct air dispersion modeling. EPA
requests comments on this alternative.
Offsite Consequence Analysis
EPA agrees with commenters that
further direction is necessary with
respect to assessments of potentially
affected populations and the
environment. Section 68.15(e)(3) of the
proposed rule requires an analysis of
populations within distances of
potential exposure. The preamble to the
proposed rule specified that sensitive
populations potentially affected by a
release should be identified. Although
much of this information is readily
available, identification of some
sensitive populations, such as day care
centers and nursing homes, could
require considerable effort, especially
where the vulnerable zone crosses
several jurisdictions. In addition,
sources in the same area would be
required to duplicate each other's
efforts.
To limit the effort required to define
offsite populations, EPA is proposing
that offsite populations be defined using
available Census data. Information on
the number of children and people over
65 may be considered a proxy for
sensitive populations. With the
assistance of the Bureau of the Census
and NOAA, EPA is developing a
geographic information system,
LandView, that will facilitate analysis of
resident populations. In addition, EPA
may require sources to identify public
arenas or institutions that are
potentially affected. These arenas or
institutions would be limited to those
identified on available street maps or
Census TIGER files.
EPA has proposed that sources
analyze both potential human health
impacts and environmental impacts in
hazard assessments and consider such
impacts in designing prevention and
response programs. "The environment"
is specifically mentioned twice in
section 112(r)(7)(B) as a receptor to be
protected by emergency response
measures. First, section 112(r)(7)(B)(i)
states that regulations under
subparagraph B "shall include
procedures and measures for emergency
response after an accidental release of a
regulated substance in order to protect
human health and the environment."
Second, under the response program
provisions of the risk management plan,
the plan must address "specific actions
to be taken in response to an accidental
release of a regulated substance so as to
protect human health and the
environment." Also, a third reference to
"the environment" is ambiguous and
may refer not only to response
measures, but also to other aspects of
risk management plans (CAA
The structure of the CAA's accidental
release provisions integrates the
assessment of potential hazards and the
prevention of accidents with response
planning to prevent potentially
hazardous conditions from resulting in
accidents and ensure that the response
measures are adequate in the event of an
accidental release. EPA supports this
integrated approach to planning with
respect to accidents. EPA believes it is
reasonable for sources to address not
only human health impacts, but also
environmental impacts in the hazard
assessment. In light of the mandatory
CAA language requiring that the
environment be addressed as a receptor
for purposes of emergency response,
EPA invites comments on this approach.
EPA recognizes that one of the
concerns of commenters about
addressing the environment in a hazard
assessment was that the proposed rule
discussion of environmental impacts
was not specific enough. Consequently,
EPA would revise § 68.15(e)(4) of the
proposed rule to require identification
of sensitive environments (rather than
analysis of potential environmental
damage) within the radius determined
by the worst-case and more likely
accidental release scenario analyses. In
addition, EPA would revise
§ 68.15(h)(3)(v) to require sources to list
the sensitive environments within the
accidental release scenario radii in the
RMP. To identify receptors, the source
could call the appropriate state or
Federal agencies to determine if any
sensitive environments were within the
impact distances.
EPA requests comments on the use of
all or part of Appendix I of the NOAA
Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and
Sensitive Environments (59 FR14714,
March 29,1994) for determination of
sensitive environments. Appendix I lists
the following sensitive environments
and identifies responsible Federal
agencies: wetlands (as defined in 40
CFR part 230.3); critical habitat for
designated or proposed endangered/
threatened species; habitat used by
designated or proposed endangered/
threatened species or marine mammals;
national marine sanctuaries; national
parks; Federal wilderness areas;
national estuary program areas; near
coastal waters program areas; clean
lakes program critical areas; national
monuments; national recreational areas;
national preserves; national wildlife
refuges; coastal barrier resource system;
national river reach designated as
recreational; Federal or state designated
wild and scenic rivers; national
conservation areas; hatcheries;
waterfowl management areas; cultural
resources; areas of critical
environmental concern; and the
national forest system. Accidental
releases of volatile substances may not
represent a major threat to certain of the
sensitive environments listed above. For
example, wetlands, national marine
sanctuaries, national monuments,
national estuary program areas, near
coastal waters program areas, and clean
lakes program critical areas may not be
threatened by accidental releases to the
air. They could, however, be threatened
by volatile liquid releases. In addition,
deposition of listed substances from
accidental releases of toxics to the air
could also represent a threat to these
sensitive environments. EPA requests
comment on whether these, and other,
specific sensitive environments should
be removed from consideration for
identification of sensitive environments.
C. Accident Information Reporting
The proposed rule addresses
emergency notification (§68.45(b)) and
self-investigation of accidental releases
(§ 68.40). However, other than the five-
year accident history in the RMP and
emergency reporting under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) and EPCRA, sources are
not required to report any accident data
or results of accident investigations.
Certain accidental release information
that otherwise is not available could be
useful to states and EPA to learn which
types of sources are having problems,
understand more about accident causes,
track trends in chemical accidents and
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prevention activities, monitor the
progress of the risk management
program, focus future prevention
activities, and avoid overregulation of
industry sectors or substances.
EPA is evaluating how such
accidental release information needs
might be met so as to impose a minimal
burden on sources and avoid
redundancy. One approach would be to
require submission of information on
any accidental release of a regulated
substance if the release results in death,
injury, evacuation, property damage, or
offsite environmental impacts. If the
source experiencing such an accident is
subject to the OSHA PSM requirements
or Tier 3 requirements described above,
then the owner or operator could submit
to EPA and the state a copy of the
accident investigation report generated
under 29 CFR 1910.119(m)(4) or 40 CFR
68.40. For sources not subject to these
requirements, or alternatively all
sources, owners or operators could
submit an accidental release
information survey form to collect a
brief, but accurate description of the
event and its consequences, the
substance and amount released, root
causes, initiating events and
contributing factors causing the release,
and changes or potential changes at the
source to prevent a recurrence. EPA
requests specific information on the
types of questions that should be
included. EPA also seeks comments on
which accidents should be reported
(e.g., should any investigated deviation
be reported?), reporting triggers (e.g.,
threshold quantities or reportable
quantities released), whether reporting
formats can be used to streamline or
eliminate duplicative reporting, and if
the submission of these data raises
liability concerns.
Another approach EPA is considering
would be to have EPA request
information developed under existing
regulations, such as OSHA PSM
accident investigation requirements or
EPCRA section 304 follow-up notices.
Under this approach, sources would not
need to develop any new information
for EPA, but could provide EPA with
documents prepared under other
regulations. EPA could supplement
such information as necessary by
undertaking surveys to acquire specific
data on accidents based on these
existing documents. EPA requests
comment on this approach. Specifically,
EPA seeks information on what the
appropriate mechanism for obtaining
data on accidents would be.
The approach outlined above would
not affect a source's current obligations
to report releases of certain regulated
substances under CERCLA section 103
or EPCRA section 304. For purposes of
CERCLA section 101(10)(H), part 68 is
not a control regulation, and the RMP is
not a permit allowing the accidental
release of any specific quantity of a
regulated substance.
D. Public Participation
A number of commenters have asked
that EPA require sources to involve the
public in development and review of
the risk management program. Several
commenters have identified key points
at which public involvement is
appropriate, including at the outset of
the planning process, upon completion
of the process hazard analysis (PHA),
prior to submittal of the RMP, prior to
RMP revisions, after an accident, after
an accident investigation, and during
response drills involving action outside
the plant.
EPA believes that the public is a key
stakeholder in preventing chemical
accidents and that sources have the
responsibility to make the public aware
of the hazards associated with potential
accidental releases. EPA is committed to
encouraging public involvement. EPA's
favored approach would encourage
sources to use existing groups, primarily
the local emergency planning
committees (LEPCs), as a conduit for
communications between the source
and the public. Many sources covered
under part 68 are already obligated to
participate on, and perform emergency
preparedness and planning activities
with their LEPCs under EPCRA. In areas
where there is no functioning LEPC or
its equivalent, sources, local first
responders, citizens, and others need to
develop and support the LEPC or its
equivalent. EPA expects sources to work
with the LEPC during the development
of the RMP as well as after its
submission. Similarly, EPA expects the
public to contact the LEPC for
information from the source whenever it
has questions or concerns. EPA notes
that the RMP is not a one-time
document; the RMP reflects the risk
management program at the source and
will change as activities at the source
change. Sources, therefore, should be
involved in a continuing dialogue with
the LEPC about the prevention and
emergency response programs as they
evolve to address changes at the source.
EPA prefers this approach because, just
as one size of risk management program
is not appropriate for all sources, a rigid
set of public participation requirements
would not be reasonable for all sources.
A second approach would require a
source to take steps to involve the
public in discussions concerning the
content of its RMP and describe those
steps in the RMP. EPA would not
specify the steps, but would provide
guidance on ways a demonstration
could be made. The source could
describe its community outreach efforts
during the planning process in on-site
records that would be available to the
public or could summarize these
activities in the RMP. Similarly, a
source could maintain a record on site
of community outreach actions taken
after submittal of the RMP. EPA would
provide guidance on ways such'a
demonstration could be made. For
example, sources could choose to notify
the public through a general circulation
newspaper that the RMP was available
and make copies available; the source
could publish the RMP in a newspaper
or on electronic bulletin boards; or the
source could hold a public meeting on
the RMP or use local TV public service
channels to target a local audience or to
broadcast logistics for upcoming
meetings. EPA requests comment on
whether public participation activities
should be limited to Tier 3 sources.
Another suggested approach for public
participation was to allow the public, by
petition, to trigger audits of completed
RMPs by the implementing agency. EPA
does not favor this approach because it
could generate an excessive burden for
implementing agencies.
E. Inherently Safer Approaches
The manufacture, processing, and use
of chemicals is inherently risky. EPA
believes that fulfillment of the risk
management program requirements
entails ongoing attention to hazard
identification, hazard analysis, risk
management (assessment, reduction and
control, or elimination), and public
outreach. This process should lead to
continuous improvement and the
evolution of safer sources through a
wide range of actions involving
reduction of the inherent risk and
control or mitigation of the hazards.
During the proposed rule hearings,
several presenters argued that, like
pollution prevention, accident
prevention could be more successful if
the program were to focus on the
elimination of hazards to make
processes inherently safer rather than on
an attempt to control or mitigate
existing hazards. It was suggested that
sources be required to examine different
approaches or technologies through a
process of technology options analysis
(TOA), or a "state-of-the-art" search and
analysis of safety alternatives as
required by New Jersey in its Toxic
Catastrophe Prevention Act regulations,
to find, and adopt, inherently safer
chemical pathways and processing
techniques. In addition to TOA and
state-of-the-art searches, the Center for
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Chemical Process Safety has published
a guideline containing a checklist for
evaluating the inherent safety of
processes (Guidelines for Engineering
Design for Process Safety, CCPS, 1993).
Commenters suggested that EPA
formalize the search for alternative
technologies hy making TOA or similar
reviews a required part of PHAs and by
requiring sources to document and
share the results in the RMP.
Such costly analyses are probably best
conducted during the design of new
processes, when, according to industry
commenters, they often are already part
of the design process to identify cost-
effective approaches to improving
safety. In addition, if alternative
technologies are discovered, whether for
new or existing processes, further
analysis is necessary to determine
whether risks are inadvertently being
transferred by the new technology from
one location to another. Adoption of
new technologies without such analyses
may inadvertently impose greater
individual or societal risk. EPA
recognizes, however, that there are
many opportunities to make processes
inherently safer without large-scale
adoption of new technologies. These
opportunities may become apparent
through the PHA. Some sources have
already performed such analyses and
have successfully taken action to make
their processes inherently safer.
Consequently, EPA does not favor
inclusion of a specific requirement in
the initial program for an analysis of the
inherent safety of processes or for
adoption of new technologies. EPA,
however, strongly encourages industry
to consider implementing inherently
safer approaches when appropriate and
include a discussion of any such studies
and actions it takes in RMP updates.
EPA is considering further study of this
issue with all stakeholders and requests
comment on this issue.
F. Implementation and Integration of
Section 112(r) With State Programs
Section 112(r) places responsibility on
sources to prevent accidents and share
information about their accident
prevention efforts. However, EPA
believes, and Congress intended, that
successful chemical emergency
prevention, preparedness, and response
efforts require active state and local
involvement. The legislative history and
CAA section 112 (r) requirements
support and build on the existing state
and local infrastructure by requiring
that RMPs be submitted to states and
local planning entities. [See, e.g., S. Rep.
No. 228,101st Congress, 1st session, at
193 and 225.] EPA encourages and
supports any state or local efforts to
develop comprehensive plans for
coordination and integration of section
112(r) with state and local programs
mandated under the CAA, EPCRA, and
other environmental statutes and
planning and safety programs under
OSHA and other agencies.
The ways in which state and local
organizations are, or could become,
involved in the implementation and
integration of section 112(r) are
described in more detail below. About
15 percent of the sources subject to the
section 112(r) requirements will already
have or will need to get operating
permits from state air permitting
authorities under part 70 by the time the
RMPs are due. In the final part 68 rule,
EPA intends to clarify the
responsibilities of sources subject to
part 70 permitting requirements and
section 112(r), the air permitting
authority with respect to section 112(r),
and state or local agencies who elect to
implement section 112(r) for all other
sources. EPA worked closely with and
directly involved several state and local
air program officials and state
emergency response and prevention
representatives in the development of
the preamble and regulatory language to
prepare approaches detailed in the
following sections. These approaches
best reflect the concerns of the states
about air permit program
implementation and the needs for
comprehensive participation in
chemical accident prevention,
preparedness, and response at the state
and local level.
Applicable Requirements and
Permitting Authority Responsibilities
for Section 112(r)
Under CAA section 504(a) and EPA's
implementing regulations (§ 70.6(a)(l)),
part 70 permits must contain conditions
sufficient to assure compliance with all
CAA applicable requirements. Part 70
defines "applicable requirement" to
include any standard or requirement of
section 112, and includes any
requirement concerning accident
prevention under section 112(r)(7).
In the preamble to part 70 (57 FR
32275, July 21, 1992), EPA stated its
belief that section 112(r) was not
intended to be implemented or enforced
primarily through part 70 permits. EPA
cited the provisions of section
112(r)(7)(F), which provides that,
notwithstanding title V, no source must
obtain a permit solely because it is
subject to the requirements of section
112(r). The part 70 preamble stated that
it was sufficient for a part 70 source
subject to 112(r) to "indicate in its
permit [application] that it has complied
with any requirement to register an
RMP, or alternatively to indicate in its
compliance plan and schedule of
compliance its intent to comply with
such requirement." Thus the preamble
set forth the view that all that was
required of a part 70 source with respect
to 112(r) was a statement in its permit
application that it has registered the
RMP or has submitted a schedule to do
so. By stating explicitly that section
112(r) requirements were not to be
implemented or enforced primarily
through the permit, the preamble
defined a narrow role for the permit:
one of ensuring submittal of the RMP,
but not ensuring the quality of the RMP
or the implementation or enforcement of
section 112(r) regulations in any
particular way. The preamble also did
not say what conditions must be in the
permit to assure compliance with
applicable 112(r) requirements (even
though the preamble went on to provide
that the RMP itself need not be included
in a title V permit). Finally, the
preamble was silent on the issue of
responsibilities the permitting authority
might have in assisting the
implementing agency in assuring
compliance with section 112(r)
requirements.
This view was necessarily
preliminary, since it was developed
before any part 68 rulemaking that
could clarify how the permit must
assure compliance with "applicable
requirements" relative to section 112(r).
The part 70 preamble does not preclude
part 68 rulemaking from clarifying and
even expanding the responsibilities of
permitting authorities (e.g., a
completeness review of the RMP) with
respect to implementation of section
112(r) requirements through part 70
permits.
Today's proposal would go beyond
the part 70 preamble, principally by
setting forth the part 70 measures
necessary to "assure compliance with"
applicable section 112(r) requirements.
In addition, today's proposal would
establish limits on the responsibilities of
the air permitting authority for assuring
compliance with section 112(r) within
the part 70 program as opposed to the
greater responsibilities envisioned for
an implementing agency.
"Applicable Requirements" for Part 70
Sources
One principal objective of the
regulations proposed today is to clarify
the minimum content of part 70 permits
with respect to section 112(r)
"applicable requirements." EPA also
intends to revise the definition in part
70 of "applicable requirement" relative
to section 112(r). This definition will
include the requirements of part 68,
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when promulgated, to which part 70
sources are subject. EPA expects to
define this term to mean §§ 68.10 to
68.58 or specific provisions within
those sections. The part 70 rulemaking
would be done as part of the phase II
rulemaking addressing remaining issues
raised by the part 70 litigants. This
rulemaking is expected to be proposed
this fall and finalized in early 1996.
EPA does not believe that each permit
must restate every requirement in
section 112(r) or part 68 as a permit
condition to comply with the part 70
applicable requirement definition. The
permit could instead meet this
requirement by containing a set of
standard conditions that require
compliance by the source with
applicable section 112(r) requirements.
These permit conditions are proposed
in § 68.58 and would require that each
permit contain, at a minimum,
conditions that require source action
consistent with the -following:
(1) Registration with the implementing
agency (EPA or the appropriate state
or local agencies) and submittal of an
RMP, or a revised plan, to the part 70
permitting authority or other state or
local agency designated by the state
for this purpose, by the deadline
under this part and certification upon
submission that the plan is complete
and accurate;
(2) Submittal of any additional
information required for
completeness;
(3) Annual certification of
implementation of the risk
management program as described by
the RMP; and
(4) If the permit is issued prior to the
RMP submittal date, a compliance
schedule for submittal of the RMP.
In addition, the RMP would be a
reporting and recordkeeping
requirement under part 70. There is no
requirement to include the RMP in the
permit.
EPA proposes that a "complete" RMP
would be one certified by the. source to
contain all necessary elements in
sufficient detail to meet part 68. The
necessary elements of an RMP are
contained in proposed § 68.50, and new
§§ 68.13 and 68.14. As general criteria
for completeness, an RMP would need
to address all aspects of the three main
elements of the risk management
program, i.e., hazard assessment,
prevention program, and emergency
response program. EPA intends to issue
guidance to assist sources and
permitting authorities in determining
completeness of RMPs, including a
checklist addressing the required
elements of an RMP.
The completeness review of the RMP
would be independent of the
completeness determination for the
permit application. While the RMP may
be submitted with the permit
application, in most situations the RMP
will be submitted separately on its own
deadline, since almost all permit
applications will have been submitted
well in advance of the RMP deadline.
Accordingly, if another state or local
agency has received 112(1) delegation as
the implementing agency for section
112(r), EPA presumes that agency,
under a cooperative agreement with the
permitting authority, could determine
completeness of the RMP. In this
situation, the state should establish
appropriate procedures to ensure review
of the plan for completeness. For
example, the agreement could specify
that the permit authority would not be
obligated to review the RMP for
completeness and could write the
permit to require submittal of the RMP
only to the state or local implementing
agency, rather than to the permitting
authority. Or, the state might decide that
the permitting authority should retain
the responsibility to review the RMP for
completeness, even if another state or
local agency has been designated as the
implementing agency. EPA requests
comment on this approach and whether
a designated agency should also include
EPA, provided that EPA and the
permitting agency agree that EPA
should take on the completeness review
responsibility as the implementing
agency.
The proposed permit conditions
should ensure a complete RMP
submittal, because failure to comply
with these conditions would be
enforceable as a permit violation. Other
permit conditions would call for the
source to submit a compliance schedule
if it has not yet completed its RMP, to
provide any information requested to
determine the RMP's completeness, and
to revise, update, and resubmit existing
RMPs according to part 68 criteria. For
example, when a source covered by
section 112(r) and part 70 revises its
process to add or eliminate a regulated
substance, the source would need to
prepare a revised RMP according to
§ 68.50(h) and submit it to the air
permitting agency within 6 months.
Failure to do so would potentially be a
violation of both parts 68 and 70.
Further, the permit would require a
certification of the source's
implementation of its risk management
program, as described by the RMP. With
the possible exception of the
compliance schedule, EPA believes
these permit conditions will be standard
terms applicable to all part 70 sources
subject to 112(r). EPA believes these
standard terms would live on in the
permit after submittal of the RMP, and
there would be no reason to change
them after an RMP is submitted or
revised.
EPA is not proposing any specific
requirements for part 70 permit
applications beyond those already
required in § 70.5, particularly the
requirements that sources must cite and
describe all applicable requirements,
certify compliance with those
requirements, or submit compliance
schedules as necessary. Sources that
submit applications after promulgation
of part 68 would cite and describe part
68 as the applicable requirement, certify
compliance (or that the source will
comply in the future), and submit a
compliance schedule for meeting
section 112(r) deadlines. Sources that
handle greater than threshold quantities
of section 112(r) regulated substances
should be able to identify themselves as
potentially subject to section 112(r) in
their initial part 70 applications. EPA is
not requiring that the RMP be submitted
with the permit application. Given the
expected promulgation date of part 68
and the three-year compliance date for
submittal of the RMP, EPA expects
submittal of permit applications and
issuance of most permits will occur long
before the submittal deadline for RMPs
(with the possible exception of part 70
programs with source-category limited
interim approvals where it could take
five years from interim approval to issue
all permits).
EPA also believes it is not necessary
to require submittal of the RMP as a
permit revision at the submittal
deadline for the RMP. EPA is concerned
that permitting authorities may be
required by state law or regulation to
process the application and to
incorporate RMP information in the
permit if the RMP were included as part
of the formal permit application. This
result obviously would not be desired.
The purpose of reviewing the RMP for
completeness is to obtain a complete
RMP, not to initiate any form of permit
action. EPA seeks comment, however,
on whether it should require the RMP
as part of the permit application, or as
an addendum to the application or to
allow the permitting authority the
option to ask for the RMP in either form
for permit applications after the date
plans must be submitted.
Role of Part 70 Permitting Authority
Under today's proposal the part 70
permitting authority or the designated
agency (for completeness review) would
be responsible for:
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13537
(1) Verifying that an RMP was submitted
when required and that it is complete,
i.e., it contains the elements required
under §§ 68.50, 68.13, or 68.14;
(2) Verifying that the source has
submitted an annual certification that
it is properly implementing a risk
management program as required by
part 68 and as described by the RMP;
(3) Taking enforcement action
(including penalties) for failure to
submit a complete RMP revised plan,
or the annual certification; and
(4) Incorporating and enforcing permit
conditions specifying a compliance
schedule for submittal of a complete
RMP.
These four tasks are the extent of the
responsibilities of the permitting
authority, unless it is granted delegation
under section 112(1) as the
implementing agency. Tasks (1) and (2)
could be transferred to another state or
local agency designated by the state
under a cooperative agreement.
The first task of the permitting
authority or designated agency would be
to determine if the RMP is complete.
The permit would require the source to
submit the RMP by the part 68 deadline;
part 68 would require the source to
certify as to the RMP's completeness. If
the RMP or any revisions were
determined to be incomplete, the
permitting authority or designated
agency would notify the source that the
submittal was incomplete, state the
deficiencies, and give the source a
deadline to submit the requested
information and/or revise the RMP. EPA
requests comment on the definition of a
complete RMP.
The obligation to submit an RMP to
the permitting authority or designated
agency is a reporting requirement of a
permit, but the contents of the RMP are
not permit terms or conditions. Under
today's rule, the completeness
determination required under proposed
§ 68.58(b)(l) is independent of the
completeness determination required by
CAA section 502(b)(6). It is not
necessary for the permitting authority to
provide public notice of completeness
findings. The permitting authority may,
however, wish to document and provide
the public with a notice of completeness
findings using electronic bulletin boards
or other mechanisms. EPA seeks
comments on this approach. EPA also
seeks comment on whether it should
establish deadlines for the
determination of completeness by the
permitting authority. EPA could select
the 60-day deadline used for part 70
application completeness; however,
EPA is aware that some states may find
this deadline too short if a high number
of part 70 sources are subject to 112(r).
EPA solicits comments on other
possible deadlines: six months, one
year, or by permit renewal.
The permitting authority or
designated agency must be able to
determine if a source is subject to the
requirement to submit an RMP. EPA
believes that this capability is already
required under part 70 since, under that
regulation, a permitting authority must
be able to ask for any specific
information that may be necessary to
implement and enforce other applicable
requirements or to determine the
applicability of such requirements
[§ 70.5(c)(5)]. Thus, if a source fails to
mention whether it is subject to 112(r)
in its permit application, the permitting
authority must have the authority to ask
for information on the application to
determine section 112(r) applicability.
This information must be included in
permit applications due before the
promulgation of part 68, since the
permitting authority or designated
agency must determine which permits
will require reopening after part 68 is
promulgated if standard permit
conditions reflecting part 68 are not
added. EPA believes this approach is
sufficient and is prepared to rely on the
resourcefulness of permitting authorities
in identifying sources subject to 112(r),
but solicits comment on whether EPA
should make more specific demands of
permitting authorities in determining
applicability with respect to section
112(r) requirements.
The implementing agency will have
the authority under § 68.60 to require
revisions to the RMP. Permitting
authorities may find, as a result of the
completeness review or during regular
part 70 inspections, that revisions are
necessary. The permitting authority
should share this information with the
implementing agency for appropriate
action. The implementing agency
should also share findings from RMP
reviews and source audits with the
permitting authority. EPA requests
comment on whether the permitting
authority should be able to require
sources to make revisions to an RMP
whenever the permitting authority
determines revisions are necessary.
In light of the possibility that at least
some permitting authorities may need to
expand their capabilities to meet these
new responsibilities, states should
reexamine several aspects of their
current part 70 program. First, states
should assess whether they have
adequate legal authority to review RMPs
for completeness, or to require their
submission if not part of a permit
application. Second, states should
determine if they have adequate
statutory and regulatory authority to
determine whether a source is subject to
part 68. This authority may be vested in
an emergency response agency. Third,
many permitting authorities may face
resource or budget constraints if
additional workload were taken on to
implement section 112(r) requirements.
This might require an adjustment in fee
schedules, because there is no reason to
assume a decrease in other workload
costs. States may wish to consider
raising title V fees for all sources, raising
permit fees only for sources subject to
both parts 70 and 68, or imposing a fee
on all sources subject to part 68 to
provide resources for state and local
program implementation. Permitting
authorities may be limited on the
amount of fees collectable for permit
activities. EPA requests comment on
alternative funding mechanisms or the
resource reductions in other programs
that may be necessary to complete the
responsibilities described in this notice.
Fourth, some permitting agencies may
need to obtain technical training in the
implementation of section 112(r)
requirements. EPA intends to provide
training and technical assistance to
implementing agencies and permitting
authorities.
Given these expectations, EPA is
prepared to presume that approved part
70 permit programs are adequate to
carry out the additional section 112(r)
requirements proposed today, unless the
Agency receives specific information to
the contrary. EPA also assumes that if
modifications to state part 70 permit
programs are necessary, they can be
made with minimal burden.
Finally, under the CAA provisions,
permitting authority liability would
generally be determined by state law.
Congress's intent in enacting section
112(r) was not to expand liability for
any government entity. Liability
associated with implementation of
section 112(r) is addressed below.
Incorporation of Part 68 Requirements
Into Part 70 Permits
According to the CAA, once part 68
requirements are promulgated, existing
sources have three years to comply with
these requirements. New sources
constructed after promulgation of part
68 must comply by three years after
promulgation except that sources
constructed later than 3 years after
promulgation must comply upon
startup. However, until the risk
management program rule is
promulgated, the only applicable
requirement for sources is the List of
Regulated Substances and their
Thresholds rule under section 112(r)(3)
(5). Thus, EPA expects that when a
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13538 Federal Register / Vol. 60. No. 48 / Monday, March 13, 1995 / Proposed Rules
source submits a part 70 application
before part 68 is final, it would identify
to the permitting authority those
activities at the source that are subject
to the part 68 requirements according to
the list rule criteria, but state that the
risk management program requirements
are not yet applicable to it. This
identification is consistent with the
requirement in § 70.5(c)(5) for the
permit application to include specific
information necessary to determine
whether the source is subject to
applicable requirements.
Permits issued before promulgation of
part 68 will presumptively need to be
reopened at the time of promulgation of
part 68 and revised within 18 months to
include the part 68 permit requirements.
Alternatively, the permitting authority
could place the standard part 68 permit
conditions in a permit issued before
promulgation of part 68 and make the
conditions effective upon promulgation
of part 68. Unlike most MACT
standards, EPA believes the part 68
permit requirements will be essentially
standard conditions with little source-
to-source variation. Consequently,
incorporating part 68 requirements
(unless they were included during
initial permit issuance) should require
only the part 70 administrative
amendment process. As proposed in the
part 70 revisions for MACT standards,
the permitting authority or designated
agency should provide to the public a
list of sources whose permits are
proposed to be reopened. Public
comment on the list of sources could
help the permitting authority identify
other sources subject to section 112(r).
Reopened and reissued permits would
include all permit requirements of
§ 68.58, including a compliance
schedule for submittal of the RMP
according to part 68 deadlines. After
part 68 is promulgated, part 70 permits
and applications will be required to
contain compliance schedules which, in
part, require the submittal of a complete
RMP.
Solicitation of Comment on Alternatives
Although no specific alternatives are
proposed, EPA seeks comment on two
other approaches for the definition of
applicable requirements, permitting
authority responsibilities, and permit
content with respect to section 112(r).
EPA will consider various alternatives
offered by commenters between these
two approaches as alternatives to the
approach described above.
The first option places no additional
responsibilities on the permitting
authority beyond those set forth in
EPA's guidance contained in an April
13,1993, policy memorandum from
John Seitz, Director of the Office of Air
Quality Planning and Standards
(OAQPS), to EPA Regional Air Division
Directors (available in the docket). In
that memorandum, EPA required part
70 permitting authorities to obtain legal
authority sufficient to: (1) Determine
whether a source is obligated to register
and submit an RMP; (2) secure
verification from part 70 sources that
any required submittal was prepared
and submitted; (3) obtain annual
certifications from sources that the plan
is being implemented; and (4) include
as a permit condition a compliance
schedule for submitting a plan if the
source fails to submit the plan when
originally due. Unlike today's proposal,
this option does not require the
permitting authority to determine
completeness of the plan. It does not
make specific requirements with respect
to the content of part 70 permits. This
option would not rely significantly on
part 68 to expand or clarify the April 13
guidance.
An advantage of this approach is that
it imposes no additional expectation on
part 70 agencies or sources subject to
both part 68 and part 70 beyond the
April 13, 1993, policy memorandum.
Therefore, permitting authorities would
not be expected to reassess current legal
authority, resources or fee structure for
adequacy in implementing section
However, the April 13 policy
guidance was prepared before the risk
management program rule was proposed
and before public comments were
received indicating that the relationship
between part 70 and part 68 was not
clear. Further, the April 13 criteria do
not account for implementation of the
risk management program by the source
(as opposed to implementation of the
plan) and there is no review of the RMP
by the permitting authority to ensure
that the plan contains the elements
required by part 68. Consequently, in a
June 24, 1994, memorandum (available
in the docket) from John Seitz and Jim
Makris, Director of the Chemical
Emergency Preparedness and
Prevention Office (CEPPO), to EPA
Regional Division Directors, EPA
indicated that the "approval criteria in
the April 13 memorandum * * * may
not be sufficient to ensure compliance
with all 'applicable requirements'
established in the risk management
program rule." By not requiring a
review of the RMP for completeness or
setting forth standard permit conditions
that would assure compliance with part
68, the permitting authority's role in
implementing section 112(r) relies
mainly on the certification of submittal
of the RMP by the source. Air permitting
authorities would be unable to assure
compliance with the requirements of
part 68 as required unless another state
or Federal implementing agency agrees
to become the designated agency for that
state and is willing to certify for the air
permitting authority that the RMP is
complete. Such a program may fall short
of minimal title V statutory
requirements of assuring compliance
with all applicable requirements. The
Agency requests comment on whether
the permitting agency may be able to
satisfy title V by certification by the
implementing agency.
A second approach at the opposite
end of the spectrum would require
permits to address all the hazard
assessment, prevention program, and
emergency response program activities
under part 68, in addition to the
registration, RMP submission, program
implementation and plan revision
requirements. Each requirement in part
68 would be specified as a permit
condition. For example, the permit
would include a requirement for pre-
startup safety reviews of all process
changes or that accidental release
mitigation equipment at the source (e.g.,
spray curtains) be tested monthly. Upon
part 68 promulgation, all existing
permits at part 70 sources would need
to be reopened to add permit conditions
relative to section 112(r). The permitting
authority would need to examine
carefully each RMP and risk
management program at each permitted
source to make sure it is complete and
to craft the permit conditions specific to
each source and then issue a new
permit. Permitting authorities would be
expected to perform periodic
inspections of each permitted source to
verify whether the risk management
program was being implemented as
described by the RMP, to examine
program implementation to verify
compliance with permit conditions, and
to determine whether the RMP needed
to be revised as a result of permit
conditions or changes at the source.
This approach would be consistent
with approaches for implementation of
emission standards or other air toxics
provisions under titles III and V of the
Clean Air Act because it would
consolidate the essential elements of the
source's compliance requirements in the
permit and would ensure the full
involvement of the permitting authority
in chemical accident prevention. It also
would provide significant enforcement
leverage through the permit and through
inspections to ensure compliance with
the source's risk management program
and with the part 68 requirements.
This approach still does not call for
the permitting authority to perform
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13539
audits or to examine the quality of the
RMP or program, which EPA believes is
the responsibility of the implementing
agency. It does, however, impose
considerable resource and expertise
burden on the permitting authority. EPA
does not believe it is appropriate to
include risk management program
elements as permit conditions since
these elements will be highly source-
specific and subject to change as the
source develops and implements its
program. The permit would need to be
changed every time the program or plan
changed. This approach appears to go
well beyond the need for part 70
permits to assure compliance with
applicable section 112(r) requirements
and duplicates other local, state, and
Federal efforts.
There may be alternatives to the two
extremes described in this section and
to the proposed approach. EPA requests
comment on other alternatives. EPA also
requests that if other approaches are
offered, commenters address the
advantages and disadvantages of the
approach with respect to the parts 68
and 70 programs and to the overall
chemical emergency prevention,
preparedness, and response effort.
Implementation of Section 112(r) for All
Sources
Congress intended a Federal-state
partnership in implementing all of
section 112, including section 112(r).
The implementation envisioned by
Congress for accident prevention
focuses on coordination and sharing of
accident prevention information among
various state and local agencies within
the same state. Implementation of
section 112(r) means that the
implementing agency takes
responsibility for the compliance and
enforcement of section 112(r)
requirements. Further, section
112(r)(7)(BXiii) indicates that EPA shall
establish, by rule, an auditing system to
review regularly and, if necessary,
require revision in RMPs. Although
permitting authorities are responsible
for assuring part 70 source compliance
with part 68 requirements, EPA believes
that the implementing agency should
take responsibility for RMP reviews and
audits. Consequently, EPA believes the
implementing agency must: (1) Receive
part 68 registrations; (2) inspect sources
for compliance, regulatory development,
and enforcement; (3) receive, review,
and periodically audit RMPs according
to § 68.60; and (4) require revision of
plans when necessary to ensure
compliance with the requirements of
part 68.
In the proposed rule, "implementing
agency" was not defined. EPA is
proposing to define implementing
agency as the state or local agency that
obtains delegation for an accidental
release prevention program under
subpart B of part 63 under section
112(1). The implementing agency could,
but is not required to be the state or
local air permitting authority. EPA
encourages the permitting authority to
assess its capabilities with respect to
carrying out the duties of the
implementing agency and, if
appropriate, seek delegation for part 70
sources. If a state or local agency does
not take delegation, EPA would assume
the responsibility for implementation of
section 112(r).
EPA is also proposing that
implementing agencies develop their
own scheme to prioritize RMP reviews,
audits, and source inspections using
criteria as proposed in § 68.60. EPA
would not specify the number of
inspections, reviews, or audits to be
completed. Alternatively, EPA could
require that an implementing agency
review all RMPs within five years of
submission, or that no less than all Tier
3 submissions be reviewed and audited
within five years of submission, or that
a certain percentage (for example, 1.5
percent of all plans or only those in
certain tiers), be reviewed and audited
within five years of submission. In
addition, while paper reviews of the
RMPs are important, it is critical that
implementing agencies perform audits
at facilities to examine and compare
actual prevention practices at the source
with information contained in the RMP.
EPA recognizes that this effort can
consume considerable resources and
require particular expertise for
implementing agencies. EPA plans to
issue guidance for implementing
agencies on review and audit criteria
and to develop training for inspections,
reviews, and audits, hi addition, EPA
would propose that implementing
agencies make use of safety audits
performed by sources, as required by
OSHA PSM (29 CFR part 1910.119(o))
and proposed § 68.38, as part of this
inspection process. The implementing
agency can use this information not
only to determine whether the source is
making progress toward accident
prevention, but also to offer assistance
to sources. EPA requests comment on
whether a minimum number of reviews
and audits should be established and, if
so, the minimum number, Tier and the
basis for the minimum number and Tier,
and the tools and training that should be
developed to assist implementing
agencies with audits at sources.
State and local involvement in the
implementation of the section 112(r)
requirements for all sources is critical to
the success of the accident prevention
program. In addition, air pollution
control, worker safety, pollution
prevention, and public safety goals can
be achieved most effectively only
through the direct involvement of state
and local officials. EPA expects that
SERCs, LEPCs, and other state and local
emergency preparedness and response
organizations will make full use of the
chemical emergency prevention,
preparedness, and response information
in the RMP, regardless of which agency
is implementing the section 112(r)
requirements.
A streamlined and cohesive section
112(r) program will be best achieved if
a state or local agency takes delegation
to be the implementing agency for all
section 112(r) sources. The use of tiered
approaches to implement the 112(r)
program would assist states by enabling
them to focus their greatest accident
prevention efforts on those sources that
pose the greatest potential risk to the
community. These approaches attempt
to minimize the additional effort needed
by states to cover all section 112(r)
sources. Table 1 below shows the kinds
of effort and expertise necessary for
review and audit of RMPs. If a state or
local organization has the resources and
expertise and is willing to become an
implementing agency for part 70
sources, EPA encourages it to consider
becoming an implementing agency for
all 112(r) sources, since the organization
would have had the experience of
dealing with the most complex RMPs,
reviews, and audits of part 70 sources.
EPA believes that divided
implementation of 112(r) for part 70
sources and non-part 70 sources,
between EPA and state and local
agencies, could cause considerable
confusion for the regulated community
and lead to ineffective and
uncoordinated chemical accident
prevention. Implementation for all
sources by one state organization could
serve to bring the state and local
coordination needed to achieve broad
environmental, worker, and public
safety goals.
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TABLE 1 .COSTS TO IMPLEMENTING AGENCY
Risk management program
and plan activity
Program management
Auditor training
Technical help for sources
Workshops/training
RMP filing
Initial review of plan
Totals
National annualized implementation costs ($mm)
Until 1999
Approach 1
1.3
0.3
0.5
0.4
2.6
Proposed rule
1.3
0.3
0.5
0.4
2.6
1999 to 2004
Approach 1
1.8
0.3
0.15
0.06
0.5
0.6
3.5
Proposed rule
1.8
0.3
0.15
0.06
1.1
1.9
5.4
Yearly after 2004
Approach 1
1.8
0.08
0.05
0.5
0.5
2.6
Proposed rule
1.8
0.08
0.05
1
1.6
4.2
[Note that the columns do not add to the total because EPA-only activities including registration and regional oversight are not included in the
table. All costs are annualized and discounted at a 4 percent rate. Approach 1 refers to the Tiering section. It assumes accident history is used
to segregate sources into tiers. The initial review and audits of Tier 2 sources should take 1 hour and 2 hours, respectively and that all Tier 2
manufacturers would be audited every 10 years. Non-manufacturers would be audited every 10 or 20 years. These figures are likely to be upper-
bound estimates; actual costs will vary based on the degree of selective program oversight necessary and cost savings as experience is gained.]
State or local organizations that want
to become an implementing agency for
section 112(r) can seek delegation under
section 112(1). Section 112(1) contains
the processes for (1) formally
transferring implementation and
enforcement responsibility from EPA to
a state or local agency; (2) transferring
responsibility for ensuring source
compliance with section 112
requirements to an agency other than
the permitting authority; and (3)
allowing states to implement and
enforce their own toxics requirements in
lieu of Federally promulgated section
112 requirements. EPA's implementing
regulations for section 112(1) outline
several mechanisms for approval of state
and local air toxics programs and for
delegation of federal authorities to state
or local agencies (58 FR 62262;
November 26,1993). Permitting
authorities with approved part 70
programs are well equipped to seek
delegation as the implementing agency
for part 70 sources, since the state's
permit program contains adequate
authorities, adequate resources for
implementation, and an expeditious
compliance schedule as required under
section 112(1)(5).
Each state has the flexibility to place
the program in an appropriate agency,
including with the air permitting agency
if it so desires. A state may want to
consolidate both its occupational safety
and process safety management
programs in its worker safety agency.
Some states may wish to have an agency
that is currently a member of the SERC,
but not the air permitting authority,
serve as the implementing agency,
provided it can meet the approval
criteria of section 112(1) and coordinate
its activities with other affected state/
local programs. In states where the
SERC itself is a state agency, the state
may want the SERC to be the
implementing agency. EPA is requesting
that states that provide comments on
this notice indicate if they plan to
implement the program, and if so,
whether an agency that currently is a
member of the SERC, or if the SERC
itself will take responsibility.
EPA recognizes that states have
concerns about resources, availability of
expertise, and possible liability
associated with accidental release
prevention. EPA plans to develop
guidance and training and provide
assistance to states to help build
expertise and to illustrate how effective
programs can be developed and
implemented. EPA seeks input on the
types of training and technical
assistance states and local agencies will
need to promote efficient and effective
implementation of section 112 (r)
regulations for all sources. The model
RMPs being developed for specific
industry sectors and technical guidance
to help sources comply with the
accidental release prevention
requirements also are designed to
minimize the burden on state and local
programs. EPA seeks input on the types
of guidance in support of program
implementation that would be most
useful to states.
EPA agrees that Congress did not
provide funding for implementation of
non-part 70 sources. EPA is exploring
the possible expansion of CAA section
105 grants to fund state programs that
will cover non-part 70 112(r) sources.
State and local organizations may also
wish to consider opportunities for
collecting fees specifically for section
112(r) activities, similar to fee-based
systems used for funding EPCRA
activities. Some states have established
"polluter-pays" type fee systems that
are based on multiples of the threshold
quantity of extremely hazardous
substances or section 112(r)(3) regulated
substances handled at the source.
Sources could be required to submit a
fee to the implementing agency with
their registration or with their RMP.
EPA seeks comment on these
approaches, particularly with respect to
the experience of states that have tried
or are developing user fee systems.
Finally, states have raised concerns
about possible liability associated with
the section 112(r) program. Section
112(r), unlike other CAA requirements
that deal primarily with chronic
hazards, involves acute hazards with the
potential for catastrophic accidents
resulting hi immediate deaths and
injuries. Generally, the liability of state
and local entities for their actions in
handling section 112(r) information
would be controlled by state law
concerning governmental immunity. As
the CAA and the legislative history of
section 112(r) make clear, Congress did
not intend to create new liability for
governmental entities when it enacted
the accident prevention provisions.
Specific language in section 112(r)(l)
was included to provide liability
protection to governments and to avoid
arguments from industry that the filing
of plans with emergency planners
somehow immunized a company from
liability. Section 112(r)(l) states that,
"Nothing in [section 112(r)] shall be
interpreted, construed, implied, or
applied to create any liability or basis
for compensation for bodily injury or
any other injury or property damages to
any person which may result from
accidental release of such substances."
The Environment and Public Works
Committee inserted the above-quoted
provision into the Senate's version of
the CAA Amendments explicitly
because of EPA's concern that the
general duty clause and other portions
of the accident prevention provisions
would create some governmental
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13541
liability in the event of an accidental
release. (S. Rep. No. 228, 101st Cong.,
1st sess., at 210 (1989).) EPA expressed
concern that liability in the event of an
accident would shift to the government
if a source identified a potential event
in a hazard assessment, and the Agency
failed to require the source to remove or
reduce the hazard. (Id.) Another fear
was that an owner or operator would
argue that the Agency's failure to
require a hazard to be addressed would
be a defense for a source in a liability
suit for injuries or damages caused to a
third party. (Id.) To prevent either
result, the Environment and Public
Works Committee included in the
precursor of section 112(r)(l) virtually
identical language to that quoted above.
State and local agencies are
encouraged to work with their attorneys
general to determine the extent of their
sovereign immunity under state law.
Under common law or statute, nearly all
states have retained some immunity
from tort suit. One common law theory
of sovereign immunity that may apply
in several states would be the immunity
that extends to purely governmental
activities, as distinguished from
proprietary activities. Emergency
prevention and response activities
would be examples of traditional
governmental activities under this
theory. Another immunity theory that
may apply provides immunity for
discretionary activities (activities that
involve judgment). Other states may
have enacted specific legislation that
prevents governments from being sued
for activities connected to emergency
response. If a state, in the judgment of
its attorney general, lacks sufficient
sovereign immunity to ensure state and
local agencies will not be subject to
liability for bodily injury or property
damage in the event of an accidental
release, then EPA encourages the state
to enact legislation specifically
providing immunity for state and local
agencies carrying out functions under
section 112(r). Of course, even with
sovereign immunity from tort suits,
EPA, states, and local entities may
remain subject to FOIA suits, penalties
for violation of trade secret protections
under section 114(c), or mandatory duty
suits (such as EPA's failure to
promulgate regulations or act on listing
petitions) that may allow for attorney's
fees.
m. Required Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR
51735; October 4,1993), EPA must
determine whether the regulatory action
is "significant," and therefore subject to
OMB review and the requirements of
the Executive Order. The Order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or tribal government or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities; or the principles
set forth in the Executive Order.
Under the terms of the Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action."
EPA prepared a draft regulatory
impact analysis for the proposed list
rule and an addendum to the analysis
for the proposed risk management
program rule. EPA has prepared a
revised economic impact analysis (EIA)
for the risk management program rule to
reflect the final list rule, the impacts of
the options being considered in this
notice, and comments on the draft
regulatory impact analysis. The revised
EIA is available in the docket.
In developing its supplemental notice,
EPA considered creating three tiers for
risk management program requirements
described above. EPA analyzed the three
options for assigning sources to the
tiers, approaches 1 and 2 described in
Section IIA above and the application of
the proposed rule to all sources as
approach 3. Total annual costs and
benefits for each approach are presented
in Table 2. This table does not include
projected costs or benefits associated
with three issues upon which EPA is
taking comment in this notice: public
participation, accident reporting, and
inherently safer approaches because
EPA's preferred approaches on these
issues would impose no additional
requirements on sources.
TABLE 2.TOTAL ANNUALIZED COSTS AND BENEFITS
Approach
1
2
3
Number of sources
49,200 (Tier 1)
72,1 00 (Tier 2).
1,300 (Tier 3).
49 200 (Tier 1 )
57,1 00 (Tier 2).
16,300 (Tier 3).
122.600 (Tier 3)
Annual cost of program
$104 million
$339 million
$696 million
Annual benefits of programs
$121.5 million.
$175 million
$299 million
Based on the final list and thresholds,
EPA estimates that approximately
122,600 sources would be affected by
the proposed rule. The primary cost for
Tier 2 was assumed to be the RMP. Tier
3 costs are strongly influenced by the
tiering assumptions and by whether
sources are expected to be covered by
the OSHA PSM standard. The analysis
assumed that a source in compliance
with the OSHA PSM standard for a
process would incur no additional costs
to comply with many elements of EPA's
prevention program. In addition, for
some prevention program elements (e.g.,
training), some sources were assumed to
be in compliance because of current
activities; the only additional cost for
these sources was documentation for the
element. Large chemical companies and
all refineries were assumed to be
complying with industry standards that
are the equivalent of the prevention
program. These sources were assumed
to bear no additional costs for some
elements of the prevention program (for
processes not covered by OSHA).
Because EPA will require sources to
submit, in the RMP, information on
their hazards and steps being taken to
reduce risks, EPA expects that sources
and processes currently implementing
PSM under OSHA or industry standards
will take additional steps to ensure that
their PSM programs are effective.
Specifically, the EIA assumed that
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Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules
sources covered by other programs
would provide more program oversight,
would conduct more training and
refresher training, and carry out more
maintenance activities; sources were '
also assumed to implement more capital
improvements. EPA notes that because
of a lack of data, the EIA made a number
of assumptions on which the cost
estimates are based. For example, the
analysis assumed the number of listed
toxic substances at large chemical
companies ranged from 4 to 12; the
analysis also assumed that the number
of covered processes was equal to the
number of substances. EPA seeks
comments and any data commenters
may be able to provide on whether these
assumptions are reasonable.
The draft RIA prepared for the
proposed list rule based its benefits
calculations on the assumption that
manufacturers and certain other sources
would have two significant releases per
year. Many commenters stated that this
assumption was not justified, based on
existing accident data. Consequently,
the benefits analysis has been revised to
reflect actual accident data and is based
on EPA databases, other accident
databases, and searches of newspaper
reports. Based on these data, the
annualized cost of all U.S. accidents
involving listed toxic substances was
estimated at $245 million; the
annualized cost of all accidents
involving listed flammables was
estimated at $767 million. The costs of
accidents includes deaths, injuries,
evacuations, property damage, lost
business, environmental damage, and
litigation.
Benefits attributable to the risk
management program rule are affected
by two factors: The extent to which
other, similar rules'already provide the
benefit and the expected effectiveness of
these rules when fully implemented.
Most of the processes covered by EPA's
rule are also covered by the OSHA PSM
rule. When OSHA adopted the PSM
standard, it estimated, based on
anecdotal evidence, that by 1997 the
standard would prevent 80 percent of
the accidents at OSHA-covered sources.
EPA believes that the risk management
program rule will increase compliance
with the OSHA standard and cause
many OSHA- and EPA-affected sources
to achieve a higher level of safety
because of the public availability of the
RMP and the reviews and audits that
will be conducted by implementing
agencies. The RMP submission will
provide implementing agency officials
with a better basis for identifying and
targeting problem sources; EPA expects
that the RMP information will also
benefit state and Federal OSHA
inspectors.
Based on an industry study, the
analysis estimated that the effectiveness
of the EPA standard in accident
reduction would be 50 percent.
Accident reduction from the EPA
standard applies to processes not
covered by the OSHA standard and to
the 20 percent of accidents not
prevented by the OSHA standard. EPA
estimates that the annual, quantifiable
benefits of the rule will range from
$121.5 million to $299 million,
depending on the approach.
The quantifiable benefits are probably
understated. Although the EIA assigns a
value to the likelihood of a Bhopal-scale
accident occurring in the U.S. in any
single year, the analysis did not attempt
to assign values to other catastrophic
accidents that have occurred elsewhere
in the world, but have not as yet
occurred in the U.S. For example, the
1984 explosion at a LPG gas terminal in
Mexico City killed more than 400
people offsite; an explosion in
Flixborough, England, damaged more
than 1,000 buildings offsite. Similar
sources exist in the U.S. and have the
potential to have catastrophic accidents
with offsite impacts. Because of the
difficulty of assigning probabilities and
values to such incidents, the EIA does
not include them among the
quantifiable benefits, but these sources
are covered by the proposed rule, and
compliance with the rule will reduce
the likelihood of such catastrophic
accidents.
Other, intangible benefits are also
attributable to the rule. For example, the
definition of offsite populations, using
Census data, will assist both sources
and the public to identify areas where
environmental justice concerns need to
be addressed. The process hazard
analysis is likely to identify areas where
pollution prevention steps can be
implemented, which may produce cost
savings and reduce potential health
effects offsite.
Most importantly, the information
available in the RMP will have an
intrinsic value to the public. EPA has
not attempted to measure the value of
this information, but experience with
EPCRA Toxic Release Inventory (TRI)
data indicates that such information
creates many benefits. The simple
requirement to make information public
under TRI has stimulated industry to
take steps to reduce emissions to avoid
public concern and assure the local
community that the source is a good
neighbor. The public benefits from the
reduced risk; the source benefits from
better relations with the community.
The latter can have direct, economic
benefits to the source. Industry
commenters on the rule noted that when
the public distrusts a source, the public
has resisted permit changes or zoning
variances that the source needs to
improve operations. Better information
and the public-industry dialogue that
follows can make it easier for sources to
gain public support for needed changes.
Government agencies and public
interest groups can target their efforts at
those sources that pose the greatest
potential risk, rather than assuming that
all sources pose a high level of risk or
misdirecting their efforts toward sources
that have effective safety programs.
B. Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act of 1980, Federal agencies
must evaluate the effects of the rude on
small entities and examine alternatives
that may reduce the effects. EPA has
prepared an analysis of the effects on
small entities, available as Chapter 8 of
the EIA. EPA believes that the rule as
proposed in 1993 would create a severe,
adverse effect on small manufacturers.
For the smallest chemical
manufacturers, the initial costs of the
initial proposed rule could equal their
annual net income; for chemical
companies with 20 to 99 employees, the
initial cost of the proposed rule would
approach their annual net incomes. The
initial proposed rule imposes lower
costs on non-manufacturers and,
therefore, is less likely to create an
adverse impact on them. The tiering
approach considered in this notice
would reduce the impact on small
businesses significantly. Under the
tiering approach, the impact on small
business would be small. The tiering
approach would also substantially
reduce the impact on small
communities.
C. Enhancing the Intergovernmental
Partnership
The Clean Air Act requires EPA to
develop chemical accident prevention
regulations under section 112(r)(7) that
include release prevention and response
provisions, including RMPs. As
discussed above, Congress intended the
states to play a key role in implementing
the rule. Both state and local agencies
are mandated to receive the RMPs. This
interrelationship of Federal, state, and
local agencies is a continuation of the
philosophy developed under EPCRA,
where each level of government is seen
as a stakeholder with important roles to
play. To consult in a regular and
meaningful way with state, local, and
tribal officials in the development of the
risk management program rule, EPA has
met with state and local officials. Before
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Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13543
the proposed rule was drafted, EPA
conducted focus groups with state and
local officials in three states that had
risk management program laws. EPA
invited these states and several others to
attend a two-day seminar to elicit
further information. EPA has held
meetings with states several times
during the rule-making process, working
through its Regions and through
associations of state officials likely to be
involved in implementing the rule. In
addition, a large number of state and
local agencies attended the four public
hearings and submitted comments on
the proposed rule. During the
development of the implementation and
integration provisions (§ 68.58), EPA
consulted with state and local air and
emergency planning agencies. EPA will
seek further input from states during
development of the final rule.
D, Paperwork Reduction Act
The information collection
requirements in this notice have been
submitted for approval to the Office of
Management and Budget (OMB) under
the Papenvork Reduction Act, 44 U.S.C.
3501 et sec. An Information Collection
Request document has been prepared by
EPA (EPA No. 1656.02) and a copy may
be obtained from Sandy Farmer,
Information Policy Branch; EPA, 401M
Street, SW (Mail Code 2136),
Washington, DC 20460 or by calling
(202) 260-2740.
This collection of information has an
estimated reporting burden averaging 3
to 4 hours per response for Tier 1,16 to
30 hours per response for Tier 2, and for
Tier 3 10 to 88 hours per response for
non-chemical manufacturers and 392 to
3720 hours per response for chemical
manufacturers. There is no annual
recordkeeping burden for Tiers 1 and 2;
in Tier 3 there is an estimated annual
recordkeeping burden per respondent
averaging 11 hours (for the non-
chemical industry) to 1000 hours (for
the chemical industry). These estimates
include time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch; EPA,
401M Street, SW (Mail Code 2136),
Washington, DC 20460; and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA." The
final Rule will respond to any OMB or
public comments on the information
collection requirements contained in
this proposal.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals,
Hazardous substances,
Intergovernmental relations.
Dated: February 28,1995.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, the proposal published on
October 20,1993 (58 FR 54190) is
amended as set forth below.
PART 68[AMENDED]
1. The authority citation for part 68
continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601.
2. Section 68.3 as proposed is now
amended by revising the introductory
text, adding five definitions and revising
one proposed definition "Worst case
release" to read as follows:
§68.3 Definitions.
As used in this part, all terms not
defined shall have the meaning given to
them by the Clean Air Act (42 U.S.C.
7401 et seq.). For purposes of § 68.58 of
this part, terms such as "permitting
authority," "applicable requirement"
and "source" have the same meaning
given to them in part 70 of this chapter
unless otherwise defined in this section.
* * * * *
Covered process means a process that
has a regulated substance present in
more than a threshold quantity as
determined under § 68.115.
*****
Designated agency means the state or
local agency designated by the air
permitting authority as the agency
responsible for the review of an RMP for
completeness.
Full-time employee means 2,000
hours per year of full-time equivalent
employment. A source would calculate
the number of full-time employees by
totaling the hours worked during the
calendar year by all employees,
including contract employees, and
dividing that total by 2,000 hours.
Implementing agency means the state
or local agency that obtains delegation
for an accidental release prevention
program under section 112(1) of CAA
which is subpart E of part 63. The
implementing agency may, but is not
required to be, the state or local air
permitting agency. If a state or local
agency does not take delegation, EPA
will be the implementing agency for that
state.
Mitigation means activities,
technologies or equipment that are
designed to capture or control
substances after they are released to the
environment or upon loss of
containment. Passive mitigation means
equipment, devices or technologies that
function without human, mechanical or
other energy input.
*****
Worst case release means the release
of the largest quantity of a regulated
substance resulting from a vessel or
process line failure.
3. Section 68.10 as proposed is
revised to read as follows:
§68.10 Applicability.
(a) Tier 1. The owner or operator of a
stationary source with a covered process
that meets the eligibility criteria of
§ 68.13 shall comply with §§ 68.12
68.13 no later than [three years from the
date of final rule publication].
Alternative 1 for paragraphs (b), (c)
and (d):
(b) Tier 2. Except as provided in
paragraphs (a), (c), and (d) of this
section, the owner or operator of a
stationary source with a covered process
shall comply with §§ 68.12 and 68.14 no
later than [three years after the date of
final rule publication].
(c) Tier 3. Except as provided in
paragraph (a) of this section, the owner
or operator of a stationary source with
100 or more full-time employees shall
comply with §§ 68.12 and 68.15 through
68.55 no later than [three years from the
date of final rule publication] for any
covered process in Standard Industrial
Classification Code 2611, 2812, 2819,
2821, 2869, 2873, 2879, or 2911. For all
other covered processes at the stationary
source, the owner or operator shall
comply with §§ 68.12 and 68.14.
(d) Deferred Tier 3. Except as
provided in paragraph (a) of this
section, the owner or operator of a
stationary source that has 20 or more
full-time employees and a covered
process in Standard Industrial
Classification Code 2812, 2819, 2869,
2873, or 2911 shall:
(1) Comply with §§ 68.12 and 68.14
no later than [three years from the date
of final rule publication]; and
(2) Comply with §§ 68.12 and 68.15
through 68.55 no later than [eight years
from the date of final rule publication].
Alternative 2 for paragraphs (b) and (c):
(b) Tier 2. Except as provided in
paragraphs (a) and (c) of this section, the
owner or operator of a stationary source
with a covered process shall comply
with §§ 68.12 and 68.14 no later than
[three years after the date of final rule
publication].
(c) Tier 3. Except as provided in
paragraph (a) of this section, the owner
or operator of a stationary source with
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Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules
a covered process shall comply with
§§ 68.12 and 68.15 through 68.55 no
later than [three years from the date of
final rule publication] if the stationary
source has 100 or more full-time
employees.
4. Section 68.13 is proposed to be
added to subpart B to read as follows:
§68.13 No impact sources (Tier 1).
(a) Sources that exceed a threshold
quantity only for flammable or explosive
regulated substances.
(1) Eligibility. The owner or operator
of a stationary source that is subject to
this part and that does not exceed the
threshold quantity for a toxic substance
shall comply with paragraph (a)(2) of
this section if the source has not had
significant accidental release for 5 years
and:
(i) For a source that exceeds the
threshold for an explosive regulated
substance, the source is subject to 27
CFR part 55 or 30 CFR parts 56, 57, or
77 and the distance from the process to
a public or environmental impact is no
closer than the distance to inhabited
buildings provided in the American
Table of Distances (27 CFR 55.218) for
the quantity of explosives in the
process; or
(ii) For a source that exceeds the
threshold for a flammable regulated
substance, the distance from the point of
release under the worst case release
scenario to a public or environmental
impact is greater than the distance as
calculated using the following formula
for the maximum quantity present in the
process:
Distance (meters) = 0.15 x (0.1 x mass
xhc)"3
where mass is the quantity of flammable
substance in kilograms, and he is the
heat of combustion in Joules per
kilogram.
(2) Program and plan requirements, (i)
The owner or operator shall place a sign
at all normal access routes that warns
the public and emergency responders
concerning the hazard presented by the
regulated substance at the site and
provides an emergency contact
telephone number. Such sign shall be in
English and any other language
commonly spoken as a primary
language in the area.
(ii) The owner or operator shall
submit the following as a risk
management plan to the implementing
agency, the State Emergency Response
Commission (if the implementing
agency is not a member of such
Commission), the Local Emergency
Planning Committee with jurisdiction
for the area where the source is located:
(A) A copy of the registration required
by § 68.12 (this copy may be before the
certification required by § 68.12(b)(6));
(B) The following statement:
Based on the criteria in 40 CFR 68.13(a)(l),
the worst case accidental release for the
source described on the attached form
(registration) presents no potential for public
or environmental impact given the nature of
the process and the chemicals stored at the
source. For the past 5 years, this source has
not had a significant accidental release, as
defined in 40 CFR 68.3. No additional
measures are necessary to prevent public and
environmental impacts from accidental
releases. In the event of a fire or a release of
the regulated substance indicated on the
registration, entry within [distance for given
quantity of regulated substance under
American Table of Distances or paragraph
(a)(l)(ii) of this section] of the source may
pose a danger to public emergency
responders. Therefore, public emergency
responders should not enter this area except
as arranged with the contact person indicated
on the registration. The undersigned certifies
that, to the best of my knowledge,
information, and belief formed after
reasonable inquiry, the information
submitted is true, accurate, and complete.
[Signature],
(iii) The owner or operator shall
maintain for five years documentation
of the determination of eligibility under
paragraph (a)(l) of this section and a
copy of the risk management plan under
paragraph (a)(2)(ii) of this section.
(b) Sources that exceed a threshold
quantity for toxic regulated substances.
(1) Eligibility. The owner or operator
of a stationary source that exceeds the
threshold quantity for a toxic substance
shall comply with paragraph (b)(2) of
this section if:
(i) The stationary source has not had
a significant accidental release in the
last five years,
(ii) The stationary source can
demonstrate the lookup table distance
for a worst-case release is less than the
distance to a public or environmental
receptor; and
(iii) The emergency response plan
under 42 U.S.C. 11003 addresses
appropriate response to an accidental
release at the source.
(2) Plan and program requirements, (i)
The owner or operator of a stationary
source that meets the eligibility criteria
of paragraph (b)(l) of this section shall
submit the following as a risk
management plan to the implementing
agency, the State Emergency Response
Commission (if the implementing
agency is not a member of such
Commission), and the Local Emergency
Planning Committee with jurisdiction
for the area where the source is located:
(A) A copy of the registration required
by § 68.12 (this copy may be before the
certification required by § 68.12(b)(6));
(B) The following statement:
Based on the criteria in 40 CFR 68.13(b)(l),
the worst case accidental release for the
source described on the attached form .
(registration) presents no potential for public
or environmental impact within
kilometers of the source given the nature of
the process and the chemicals stored at the
source. For the past 5 years, this source has
not had a significant accidental release, as
defined in 40 CFR 68.3. No additional
measures are necessary to prevent public and
environmental impacts from accidental
releases. In the event of an accidental release
of the regulated substance indicated on the
registration, emergency response should be
conducted according to the emergency
response plan under 42 U.S.C. 11003, which
is available at [location]. Therefore, public
emergency responders should not enter this
area except as provided under that plan. The
undersigned certifies that, to the best of my
knowledge, information, and belief formed
after reasonable inquiry, the information
submitted is true, accurate, and complete.
[Signature].
and
(ii) The owner or operator shall
maintain for five years documentation
of the determination of eligibility under
paragraph (b)(l) of this section and a
copy of the risk management plan under
paragraph (b)(2)(i) of this section.
5. Section 68.14 is proposed to be
added to subpart B to read as follows:
§ 68.14 Streamlined risk management
program (Tier 2).
(a) The owner or operator of a
stationary source eligible for this part
shall comply with § 68.15.
(b) The owner or operator of a
stationary source shall establish a
prevention program which includes
safety precautions and maintenance,
monitoring and employee training
measures to be used at the source to
prevent accidental releases. The
prevention program shall identify other
federal accident prevention
requirements to which the source is
subject, including national voluntary
standards and measures required by 42
U.S.C. 7412(r)(l).
(c) The owner or operator of a
stationary source shall prepare an
emergency response program which
documents specific actions to be taken
in an emergency response to an
accidental release, including:
(1) Procedures for informing the public
and local entities about accidental
releases;
(2) Procedures to be used on site to
respond to an accidental release;
and
(3) A description of the employee
training measures used to educate
employees regarding emergency
situations.
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(d) The owner or operator of a
stationary source shall submit a risk
management plan summarizing
paragraphs (a) through (c) of this section
to the implementing agency, the State
Emergency Response Commission (if the
implementing agency is not a member of
such Commission), and the Local
Emergency Planning Committee with
jurisdiction for the area where the
source is located. The owner or operator
shall retain a copy of the risk
management plan for 5 years.
6. Section 68.58 is proposed to be
added to subpart B to read as follows:
§68.58 Permit content and air permitting
authority requirements.
(a) The requirements in this section
apply to sources subject to both part 68
and part 70 of this Chapter. Each part 70
permit shall contain conditions
requiring the following provisions, for
any activity and/or emission unit
subject to this part:
(1) By the deadlines set out in this
part, the source shall register and
submit an RMP or revised plan and
shall certify upon submission that such
plan is accurate and complete.
Submission of the plan by deadlines
required under this part shall satisfy the
reporting requirements of 40 CFR
(2) The source shall submit any
additional information requested by the
permitting authority or other designated
state or local agency necessary to
determine completeness of the RMP.
(3) The source shall annually certify
compliance with, and implementation
of, risk management program
requirements described in this part and
as described by the submitted RMP or
revised plan.
(4) For part 70 permits that are issued
prior to the deadline required for
registering and submitting the RMP and
do not contain permit conditions
meeting the provisions of paragraphs (a)
(1) through (3) of this section, the source
no later than [3 years from the effective
date of the final rule] shall submit an
application for a permit revision
consistent with § 70.7 of this chapter to
establish conditions consistent with
these required in paragraphs (a)(l)
through (3) of this section.
(5) For part 70 permits issued on or
after the deadline required for
registering and submitting the RMP, the
source shall register and submit any
plan required by this part no later than
[3 years from the effective date of the
final rule].
(6) For new emissions units or
activities at previously permitted part
70 sources which become subject to this
part after [the effective date of the final
rule], the source shall submit an
application for permit revision
consistent with the provisions of § 70.7
of this chapter upon startup of such
units and/or activities or no later than
[3 years from the effective date of the
final rule], whichever is later.
(7) If a previously permitted part 70
source has not submitted an RMP as
required, then the source shall provide:
(i) A compliance plan, including a
compliance schedule for the submittal
of the required plan; and
(ii) An application for a permit
revision to establish permit conditions
meeting paragraphs (a) (1) through (7) of
this section unless such conditions are
already contained within the part 70
permit.
(b) The permitting authority must, at
a minimum, perform the following tasks
to meet § 70.4(b)(3)(i) of this chapter
with respect to part 70 sources subject
to section 112(r) of CAA and this part.
(1) Verify that an RMP or a revised
plan is submitted when required by this
part, and that it is complete, i.e., it
contains the elements required under
§§68.50, 68.13, or 68.14;
(2) Verify that the source has
submitted an annual certification that it
is properly implementing a risk
management program as required by
this part and as described by the
applicable RMP;
(3) Take enforcement action
(including penalties) on sources that fail
to submit a complete plan or a revised
plan, an annual certification, or
accidental release report as required by
this part;
(4) Incorporate and enforce permit
conditions that specify a compliance
schedule for submittal of a complete
RMP, for permits issued prior to
reporting deadlines of this part or if a
part 70 source subject to this part fails
to submit a complete plan as required.
[FR Doc. 95-5656 Filed 3-10-95; 8:45 am]
BILLING CODE 6560-50-P
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