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Proposed Rule2022-18249

Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention

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Published

August 31, 2022

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is proposing to amend its Risk Management Program (RMP) regulations as a result of Agency review. The proposed revisions include several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, increased public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. These proposed amendments seek to improve chemical process safety; assist in planning, preparedness, and responding to RMP-reportable accidents; and improve public awareness of chemical hazards at regulated sources.

Full Text

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[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Proposed Rules]
[Pages 53556-53616]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18249]

[[Page 53555]]

Vol. 87

Wednesday,

No. 168

August 31, 2022

Part II

Environmental Protection Agency

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40 CFR Part 68

Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act; Safer Communities by Chemical Accident
Prevention; Proposed Rule

Federal Register / Vol. 87, No. 168 / Wednesday, August 31, 2022 /
Proposed Rules

[[Page 53556]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OLEM-2022-0174; FRL-5766.6-01-OLEM]
RIN 2050-AH22

Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act; Safer Communities by Chemical
Accident Prevention

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend its Risk Management Program (RMP) regulations as a result of
Agency review. The proposed revisions include several changes and
amplifications to the accident prevention program requirements,
enhancements to the emergency preparedness requirements, increased
public availability of chemical hazard information, and several other
changes to certain regulatory definitions or points of clarification.
These proposed amendments seek to improve chemical process safety;
assist in planning, preparedness, and responding to RMP-reportable
accidents; and improve public awareness of chemical hazards at
regulated sources.

DATES: Comments must be received on or before October 31, 2022.
Public Hearings: EPA will hold virtual public hearings on September
26, 2022; September 27, 2022; and September 28, 2022, at <a href="https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident">https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident</a>. Please refer to the SUPPLEMENTARY
INFORMATION section of this preamble for additional information on the
public hearings.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2022-0174, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, EPA-HQ-OLEM-2022-0174 Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand delivery or courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except
Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and more
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this preamble. For
further information on EPA Docket Center services and the current
status, please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
The virtual hearings will be held at <a href="https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident">https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident</a>. The hearing on September 26, 2022, will convene at
9:00 a.m. (local time) and will conclude at 12:00 p.m. (local time).
The hearing on September 27, 2022, will convene at 1:00 p.m. (local
time) and will conclude at 4:00 p.m. (local time). The hearing on
September 28, 2022, will convene at 5:00 p.m. (local time) and will
conclude at 8:00 p.m. (local time). Refer to the SUPPLEMENTARY
INFORMATION section below for additional information.

FOR FURTHER INFORMATION CONTACT: Deanne Grant, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-1096; email: <a href="/cdn-cgi/l/email-protection#0b6c796a657f256f6e6a65656e4b6e7b6a256c647d">[email&#160;protected]</a> or Veronica Southerland, Office
of Emergency Management, Mail Code 5104A, Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number: 202-564-2333; email: <a href="/cdn-cgi/l/email-protection#ff8c908a8b979a8d939e919bd1899a8d9091969c9ebf9a8f9ed1989089">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. EPA uses multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:

List of Abbreviations and Acronyms

ACC American Chemistry Council
AN ammonium nitrate
ANPI Apache Nitrogen Products Inc.
ANSI American National Standards Institute
API American Petroleum Institute
AQMD Air Quality Management Districts
ASSP American Society of Safety Professionals
ASTM American Society for Testing and Materials
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act
CAAA Clean Air Act Amendments
CDC Centers for Disease Control and Prevention
CDR Chemical Data Reporting
CCPS Center for Chemical Process Safety
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CGA Compressed Gas Association
CSB Chemical Safety and Hazard Investigation Board
DHS Department of Homeland Security
DIR California Department of Industrial Relations
DOJ Department of Justice
DOT Department of Transportation
EHS Extremely Hazardous Substances
EJ Environmental Justice
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-To-Know Act
FEMA Federal Emergency Management Agency
FOIA Freedom of Information Act
FR Federal Register
FRS Facility Registry Service
GDC General Duty Clause
GMARD Guide for Making Acute Risk Decisions
HF hydrofluoric acid
HHC highly hazardous chemical
IEEE Institute of Electrical and Electronics Engineers
IIAR International Institute of Ammonia Refrigeration
IPAWS Integrated Public Alert & Warning System
ISD inherently safer design
IST inherently safer technology
LEPC local emergency planning committee
LPG liquefied petroleum gas
MACT Maximum Achievable Control Technology
NAICS North American Industry Classification System
NASTTPO National Association of SARA Title III Program Officials
NESHAP National Emission Standards for Hazardous Air Pollutants
NFPA National Fire Protection Association
NJAC New Jersey Administrative Code
NJDEP New Jersey Department of Environmental Protection
NREL National Renewable Energy Laboratory
NSPS New Source Performance Standards
NTTAA National Technology Transfer Advancement Act
OCA offsite consequences analysis
OSHA Occupational Safety and Health Administration
PHA process hazard analysis
PRA Paperwork Reduction Act
PSM process safety management
RAGAGEP recognized and generally accepted good engineering practices
RFA Regulatory Flexibility Act
RFI request for information
RIA Regulatory Impact Analysis
RMP Risk Management Program or risk management plan
SARA Superfund Amendments and Reauthorization Act
SCCAP Safer Communities by Chemical Accident Prevention

[[Page 53557]]

SDS Safety Data Sheet
SEMS Safety and Environmental Management Systems
SOCMA Society of Chemical Manufacturers and Affiliates
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TEPC Tribal emergency planning committee
TNT trinitrotoluene
TQ threshold quantity
UMRA Unfunded Mandates Reform Act

Organization of this document. The information in this preamble is
organized as follows:

I. Public Participation
A. Written Comments
B. Comment Headings
C. Participation in Virtual Public Hearings
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the costs and benefits of this action?
1. Summary of Estimated Costs
2. Baseline Damages
3. Summary of Estimated Benefits
III. Background
A. Overview of EPA's Risk Management Program
B. Events Leading to This Action
C. EPA's Authority To Revise the RMP Rule
IV. Proposed Action
A. Prevention Program
1. Hazard Evaluation Amplifications
a. Introduction
b. Natural Hazards
c. Power Loss
d. Stationary Source Siting
e. Hazard Evaluation Recommendation Information Availability
f. Summary of Proposed Regulatory Text
2. Prevention Program Provisions
a. Safer Technologies and Alternatives Analysis (STAA)
i. Background on IST/ISD
ii. Hydrogen Fluoride (HF)
iii. Recent Public Input on STAA
iv. Recent Public Input on HF
v. STAA Applicability
vi. Accident Frequency
vii. Accident Severity
viii. Discussion of Prior STAA Analysis
ix. STAA Technology Transfer
x. Alternative Options
xi. Proposed Revisions to Regulatory Text
xii. Process Hazard Analysis (40 CFR 68.67)
b. Root Cause Analysis
i. Root Cause Analysis Background
ii. Recent Public Comments on Root Cause Analysis
iii. Investigation Timeframe
iv. Proposed Revisions to Regulatory Text
v. ``Near Miss'' Definition
c. Third-Party Compliance Audits
i. Third-Party Compliance Audits in Previous RMP Rulemakings
ii. Recent Public Input on Third-Party Compliance Audits
iii. Proposed Third-Party Compliance Audit Requirements
d. Employee Participation
i. Introduction
ii. Recommendation Decisions
iii. Stop Work Authority
iv. Accident and Non-Compliance Reporting
B. Emergency Response
1. Review of Emergency Response Notification, Detection, and
Response
a. Concerns About Notification of Accidents
b. Release Detection
c. Emergency Response Guidance
2. Proposed Modifications and Amplifications of Emergency
Response Requirements
a. Proposed Regulations to Address Community Notification of RMP
Accidents
b. Community Emergency Response Plan Amplifications
3. Emergency Response Exercises
a. Proposed Amendments to the Emergency Response Requirements
b. Field Exercise Frequency
c. Exercise Evaluation Reports
C. Information Availability
1. Recent Public Input on Information Availability
2. Information Availability in the 2017 Amendments and the 2019
Reconsideration Rule
3. Proposed Regulatory Revisions
a. Request for Comment on Potential Non-Rule RMP Access Policy
Changes
b. Current Data Availability of Risk Management Plan Information
c. Other EPA Facility Hazardous Substance Registries
d. Balancing Security Risks and Community Right-to-Know
D. Other Areas of Technical Clarification
1. Process Safety Information
2. Program 2 and 3 Requirements for Compliance With RAGAGEP
3. Retention of Hot Work Permits
4. Storage Incident to Transportation
5. Retail Facility Exemption
6. RAGAGEP
E. Compliance Dates
V. Additional Considerations
VI. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income Populations

I. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2022-
0174, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section, above. Once
submitted, comments cannot be edited or removed from the docket. EPA
may publish any comment received to its public docket. Do not submit to
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you
consider to be confidential business information or other information
whose disclosure is restricted by statute. Multimedia submissions
(audio, video, etc.) must be accompanied by a written comment. The
written comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about confidential business information or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and its Federal partners so that it can respond
rapidly as conditions change regarding COVID-19.

B. Comment Headings

Commentors should review the discussions in the preamble and may
comment on any matter that is addressed by the proposed rule. For
comments submitted through postal mail or <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
EPA is requesting commenters to identify their comments on specific
issues by using the appropriate number and comment headings listed
below to make it simpler for the Agency to

[[Page 53558]]

process your comment. If your comment covers multiple issues, please
use all the heading numbers and names that relate to that comment. As
an example of this optional method, where one individual comment
relates to issue #1 and a second individual comment pertains to issues
#2 and #3, a set of comments would be submitted as follows:
1. Natural Hazards--EPA requests comment on the following (See
Section IV.A.1.b):
<bullet> The Agency's proposed approach.
<bullet> Whether EPA should develop additional guidance for
assessing natural hazards.
<bullet> Natural hazard resources such as databases, checklists, or
narrative discussions, as well as commenters' recommendations for
regional versus national, or sector-specific guidance.
<bullet> Whether to specify geographic areas most at risk from
climate or other natural events by adopting the list of areas exposed
to heightened risk of wildfire, flooding, storm surge, or coastal
flooding and if this approach would simplify implementation.
<bullet> If the Agency should require sources in areas exposed to
heightened risk of wildfire, flooding, storm surge, coastal flooding,
or earthquake, to conduct hazard evaluations associated with climate or
earthquake as a minimum, while also requiring all sources to consider
the potential for natural hazards unrelated to climate or earthquake in
their specific locations.
2. Power Loss--EPA requests comment on the following (See Section
IV.A.1.c):
<bullet> The Agency's proposed approach.
<bullet> The proposed provision to require air pollution control or
monitoring equipment associated with prevention and detection of
accidental releases from RMP-regulated processes to have standby or
backup power and any potential safety issues associated with it.
3. Stationary Source Siting--EPA requests comment on the following
(See Section IV.A.1.d):
<bullet> The Agency's proposed approach.
4. Hazard Evaluation Recommendation Information Availability--EPA
requests comment on the following (See Section IV.A.1.e):
<bullet> The Agency's proposed approach.
<bullet> Whether EPA should require declined hazard evaluation
recommendations to be included in narrative form, whether the Agency
should provide specific categories of recommendations for facilities to
choose from when reporting or allowing the owner or operator to post
this information online and provide a link to their information within
their RMP.
<bullet> Methods to provide justification for declining relevant
hazard evaluation recommendations, the proposed approach or alternative
categories.
5. Safer Technology and Alternatives Analysis (STAA)--EPA requests
comment on the following (See Section IV.A.2.a):
<bullet> The Agency's proposed approach.
<bullet> Industry understanding of the practicability assessment,
and how this might differ from the findings identified in the PHA.
<bullet> Additional benefits provided by the practicability
assessment.
<bullet> EPA's definition of the practicability assessment.
<bullet> How to determine if a facility is within a 1-mile radius
and if EPA should use locational data provided by facilities, or
develop a standard definition (e.g., 1 mile to the facility fenceline
or 1 mile to the regulated process location).
<bullet> Information that should be collected in a STAA
clearinghouse.
<bullet> The proposed STAA applicability criteria and alternatives.
<bullet> Whether EPA should reinstate the 2017 rule provisions
requiring STAA for all NAICS 324 and 325 processes.
<bullet> Whether the proposal to limit the STAA provisions to NAICS
324 and 325 regulated processes within 1 mile of another NAICS 324 and
325 regulated facility is appropriate or if another distance (e.g., 3
miles) would be appropriate, and the rationale for proposed distance
alternatives.
<bullet> Other industries for which STAA should be required and how
EPA might justify extending these provisions to other industries.
<bullet> What other information or consideration EPA can use to
assess probability of an accident in other industries without accident
history data as well as what specific chemicals or processes may merit
the most focus, and how EPA may require STAA requirements for
industries without a history of accidents.
<bullet> If the Agency should only require the STAA as part of the
PHA, without the additional practicability assessment.
<bullet> For any cited costs of implementing the STAA as part of
the PHA, documentation to support cost estimates.
<bullet> For any cited costs of implementing the practicability
assessment of the STAA provisions, documentation to support cost
estimates.
6. Root Cause Analysis--EPA requests comment on the following (See
Section IV.A.2.b):
<bullet> The Agency's proposed approach.
<bullet> A potential definition of ``near miss'' that would address
difficulties in identifying the variety of incidents that may occur at
RMP facilities that could be near misses that should be investigated.
<bullet> A universal ``near miss'' definition, as well as comments
on strengths and limitations of the definition provided by NJDEP and
how the definition may clarify requirements for incident
investigations.
7. Third Party Compliance Audits--EPA requests comment on the
following (See Section IV.A.2.c):
<bullet> The Agency's proposed approach.
<bullet> Proposed independence criteria modified from the 2017
rule.
<bullet> Whether the selected auditor should be mutually approved
by the owner or operator and employees and their representatives, and
if direct participation from employees and their representative should
be required when a third party conducts an audit.
<bullet> Whether EPA should require declined findings be included
in narrative form, or whether the Agency should provide specific
categories of findings for facilities to choose from when reporting.
8. Employee Participation--EPA requests comment on the following
(See Section IV.A.2.d):
<bullet> The Agency's proposed approach.
<bullet> Whether there should be a representative number or
percentage of employees and their representatives involved in these
recommendations decision teams as well as the development of other
process safety elements as outlined in 40 CFR 68.83(b).
<bullet> Relevant sources that have provided useful guidance in
making risk decisions.
<bullet> Whether owners and operators should distribute an annual
written or electronic notice to employees that employee participation
plans and other RMP information is readily accessible upon request and
provide training for those plans and how to access the information.
9. Proposed Modifications and Amplifications to Emergency Response
Requirements--EPA requests comment on the following (See Section
IV.B.2):
<bullet> The Agency's proposed approach.
<bullet> Additional information that is useful to share when
notifying the public of RMP-accidental releases.
<bullet> Impediments to accessing community emergency response
plans and potential solutions to having the plans more accessible
within the scope of the RMP rule.
10. Emergency Response Exercises--EPA requests comment on the
following (See Section IV.B.3):
<bullet> The Agency's proposed approach.

[[Page 53559]]

11. Information Availability--EPA requests comment on the following
(See Section IV.C.3):
<bullet> The Agency's proposed approach.
<bullet> If the 6-mile radius for requesting information is
appropriate. For alternative distances, information on the
justification for these alternative distances.
<bullet> Specific information on the increased likelihood of
security threats arising from dissemination of this information.
<bullet> Which data elements, or combinations of elements, may pose
a security risk if released to the public (provided in Section 10 of
the Technical Background Document).
<bullet> For each element or combination of elements identified as
a potential security risk: (1) Specific comments on why the element or
combination of elements presents a security risk and (2) documentation
or basis for these security claims, such as expert studies,
intelligence assessments, a prior incident, documented security threat,
or near miss incident.
12. Other Areas of Technical Clarification--EPA requests comment on
the following (See Section IV.D):
<bullet> The Agency's proposed approaches.
<bullet> For revisions to ``storage incident to transportation''
definition, the proposed 48-hour time frame, suggestions for other
appropriate time frames, and any safety concerns that may arise from
transportation containers being exempt from the RMP rule when
disconnected for less than 48 hours.
13. Regulatory Impact Analysis--EPA requests comment on the
following (See Section II.D):
<bullet> The assumptions and information used in the analysis,
including burden estimates and the likelihood of adopting safer
alternatives.
<bullet> The estimated costs of the proposed provisions and whether
these costs should accrue to this proposal.
<bullet> Cost data or studies related to the cost of practicability
studies for conversion of hydrofluoric acid alkylation units to safer
technologies.
<bullet> The estimated benefits of the proposed provisions.
14. Regulatory Flexibility Act Analysis
<bullet> The number of small entities potentially affected by the
proposed provisions of this rule.
<bullet> The estimated cost impacts on small entities by the
proposed provisions of this rule.
15. OTHER--Any comments not falling under one of the preceding
categories should be identified using `OTHER' as the comment header.

C. Participation in Virtual Public Hearings

Please note that because of current CDC recommendations, as well as
State and local orders for social distancing to limit the spread of
COVID-19, EPA cannot hold in-person public meetings at this time.
EPA will begin pre-registering speakers for the hearing upon
publication of this preamble in the Federal Register (FR). To register
to speak at the virtual hearings, please see the online registration
form available at <a href="https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident">https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident</a> or
contact Deanne Grant at 202-564-1096 or <a href="/cdn-cgi/l/email-protection#543326353a207a3031353a3a31143124357a333b22">[email&#160;protected]</a> to
register to speak at the virtual hearings. The last day to pre-register
to speak at the hearings will be September 22, 2022, EPA will post a
general agenda for the hearings that will list pre-registered speakers
in approximate order at <a href="https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident">https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident</a>.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearings; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 3 minutes to provide oral testimony. EPA
encourages commenters to provide EPA with a copy of their oral
testimony electronically (via email) by emailing it to Deanne Grant at
<a href="/cdn-cgi/l/email-protection#0c6b7e6d62782268696d6262694c697c6d226b637a">[email&#160;protected]</a>. EPA also recommends submitting the text of your
oral comments as written comments to the rulemaking docket.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearings.
Please note that any updates made to any aspect of the hearings are
posted online at <a href="https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident">https://www.epa.gov/rmp/forms/virtual-public-hearings-risk-management-program-safer-communities-chemical-accident</a>. While EPA
expects the hearings to go forward as set forth above, please monitor
the Agency's website or contact Deanne Grant, 202-564-1096,
<a href="/cdn-cgi/l/email-protection#660114070812480203070808032603160748010910">[email&#160;protected]</a>, to determine if there are any updates. EPA does
not intend to publish a document in the Federal Register announcing
updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearings with Deanne Grant and describe your needs by September 19,
2022. EPA may not be able to arrange accommodations without advanced
notice.

II. General Information

A. Does this action apply to me?

This rule applies to those facilities (referred to as ``stationary
sources'' under the Clean Air Act, or CAA) that are subject to the
chemical accident prevention requirements at 40 CFR part 68. This
includes stationary sources holding more than a threshold quantity (TQ)
of a regulated substance in a process. Nothing in this rule would
impact the scope and applicability of the General Duty Clause in CAA
112(r)(1), 42 U.S.C. 7412(r)(1). See 40 CFR 68.1. Table 1 provides
industrial sectors and the associated North American Industry
Classification System (NAICS) codes for entities potentially affected
by this action. The Agency's goal is to provide a guide on entities
that might be affected by this action. However, this action may affect
other entities not listed in this table. If you have questions about
the applicability of this action to a particular entity, consult the
person(s) listed in the FOR FURTHER INFORMATION CONTACT section of this
preamble.

Table 1--Entities Potentially Affected by the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Number of
Sector NAICS codes facilities Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental 92, 2213 (government-owned)......... 1,449 Use chlorine and
quality programs (i.e., other chemicals for
governments, government-owned water treatment.
water).
Agricultural chemical distributors/ 11, 424 (except 4246, 4247)......... 3,315 Store ammonia for
wholesalers. sale; some in NAICS
111 and 115 use
ammonia as a
refrigerant.
Chemical manufacturing............. 325................................. 1,502 Manufacture, process,
store.

[[Page 53560]]

Chemical wholesalers............... 4246................................ 317 Store for sale.
Food and beverage manufacturing.... 311, 312............................ 1,571 Use (mostly ammonia)
as a refrigerant.
Oil and gas extraction............. 211................................. 719 Intermediate
processing (mostly
regulated flammable
substances and
flammable mixtures).
Other.............................. 21 (except 211), 23, 44, 45, 48, 246 Use chemicals for
491, 54, 55, 56, 61, 62, 71, 72, wastewater
81, 99. treatment,
refrigeration, store
chemicals for sale.
Other manufacturing................ 313, 314, 315, 326, 327, 33......... 375 Use various chemicals
in manufacturing
process, waste
treatment.
Other wholesale.................... 421, 422, 423....................... 39 Use (mostly ammonia)
as a refrigerant.
Paper manufacturing................ 321, 322............................ 55 Use various chemicals
in pulp and paper
manufacturing.
Petroleum and coal products 324................................. 156 Manufacture, process,
manufacturing. store (mostly
regulated flammable
substances and
flammable mixtures).
Petroleum wholesalers.............. 4247................................ 367 Store for sale
(mostly regulated
flammable substances
and flammable
mixtures).
Utilities/water/wastewater......... 221 (non-government-owned water).... 519 Use chlorine (mostly
for water treatment)
and other chemicals.
Warehousing and storage............ 493................................. 1,110 Use (mostly ammonia)
as a refrigerant.
----------------
Total.......................... .................................... 11,740 .....................
----------------------------------------------------------------------------------------------------------------

B. What action is the Agency taking?

The purpose of this action is to propose changes to the RMP rule in
order to improve safety at facilities that use and distribute hazardous
chemicals. The RMP regulations have been effective in preventing and
mitigating chemical accidents in the United States. However, EPA
believes that revisions could further protect human health and the
environment from chemical hazards through advancement of process safety
based on lessons learned. These proposed revisions are a result of
review of the existing RMP regulations and information gathered from
the 2021 virtual public listening sessions (hereinafter referred to as
the ``2021 listening sessions'').\1\
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\1\ Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act, Section 112(r)(7); Rule
Retrospection Under Executive Order 13990; Virtual Public Listening
Sessions; Request for Public Comment; EPA-HQ-OLEM-2021-0312-0001.
---------------------------------------------------------------------------

C. What is the Agency's authority for taking this action?

The statutory authority for this action is provided by section
112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each modification of
the RMP rule that EPA proposes in this document is based on EPA's
rulemaking authority under CAA section 112(r)(7) (42 U.S.C.
7412(r)(7)). When promulgating rules under CAA section 112(r)(7)(A) and
(B), EPA must follow the procedures for rulemaking set out in CAA
section 307(d) (see CAA sections 112(r)(7)(E) and 307(d)(1)(C)). Among
other things, CAA section 307(d) sets out requirements for the content
of proposed and final rules, the docket for each rulemaking,
opportunities for oral testimony on proposed rulemakings, the length of
time for comments, and judicial review.

D. What are the costs and benefits of this action?

1. Summary of Estimated Costs
Approximately 11,740 facilities have filed current risk management
plans with EPA and are potentially affected by the proposed rule. Table
1 presents the number of facilities according to the latest RMP
reporting as of December 31, 2020, by industrial sector and chemical
use. These facilities range from petroleum refineries and large
chemical manufacturers to water and wastewater treatment systems;
chemical and petroleum wholesalers and terminals; food manufacturers,
packing plants, and other cold storage facilities with ammonia
refrigeration systems; agricultural chemical distributors; midstream
gas plants; and a limited number of other sources, including Federal
installations, that use RMP-regulated substances. Among the stationary
sources potentially affected, the Agency has determined that 2,911 are
regulated private sector small entities and 630 are small government
entities.
Table 2 presents a summary of the annualized costs estimated in the
regulatory impact analysis (RIA).\2\ In total, EPA estimates annualized
costs of $75.8 million at a 3% discount rate and $76.7 million at a 7%
discount rate.
---------------------------------------------------------------------------

\2\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Proposed Rule (April 19, 2022).

Table 2--Summary of Estimated Annualized Costs Over a 10-Year Period
[Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
Total Total
Cost elements Total discounted discounted Annualized Annualized
undiscounted (3%) (7%) (3%) (7%)
----------------------------------------------------------------------------------------------------------------
Third-party Audits.............. $102.7 $87.6 $72.1 $10.3 $10.3
Root Cause Analysis............. 7.3 6.2 5.1 0.7 0.7
Safer Technology and 518.2 442.0 364.0 51.8 51.8
Alternatives Analysis..........
Backup Power for Perimeter 0.4 0.4 0.4 ** 0.0 ** 0.0
Monitors.......................
Employee Participation Plan..... 8.6 7.3 6.0 0.9 0.9

[[Page 53561]]

Community Notification System... 38.0 32.4 26.7 3.8 3.8
Information Availability........ 30.3 25.8 21.3 3.0 3.0
Rule Familiarization............ 46.5 45.2 43.5 5.3 6.2
-------------------------------------------------------------------------------
Total Cost *................ 751.8 646.8 538.8 75.8 76.7
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Totals are zero due to rounding, Unrounded totals are $44,600 at 3% and $52,200 at 7% discount rates.

The largest annualized cost of the proposed rule is the safer
technologies and alternatives analysis (STAA) provision ($51.8 million
at both 3% and 7% discount rates), followed by third-party audits
($10.3 million at both 3% and 7% discount rates), rule familiarization
($5.3 million at a 3% discount rate and $6.2 million at a 7% discount
rate), and information availability ($3.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including employee participation ($0.9 million at both 3%
and 7% discount rates), root cause analysis ($0.7 million at both 3%
and 7% discount rates), and emergency backup power for perimeter
monitors (less than $0.1 million at both 3% and 7% discount rates).
The Agency has determined that among the 2,911 potentially
regulated private sector small entities so impacted, 2,822, or 96.9
percent, may experience an impact of less than one percent with an
average small entity cost of $10,618; and 84, or 2.9 percent, may
experience an impact of between one and three percent of revenues with
an average small cost entity of $108,921. Among the 630 small
government entities potentially affected, 488, or 77 percent would
incur costs of less than $1,000; 109, or 17 percent costs ranging from
$1,000 to $2,000; 18, or 3 percent costs ranging from $2,000 to $3,000;
and only one would incur costs greater than $10,000, and EPA estimated
that for the rule to have a larger than one percent impact on this
entity, it would need to have revenue of less than $103 per resident.
For detailed costs by provision and NAICS code see Chapter 8 of the
RIA.
EPA seeks further information on the estimated costs of these
provisions and whether these costs should accrue to this proposal. EPA
particularly requests cost data or studies related to the cost of
practicability studies for conversion of hydrofluoric acid alkylation
units to safer technologies. For more information see Chapter 4 of the
RIA.
2. Baseline Damages
Accidents and chemical releases from RMP facilities occur every
year. They cause fires and explosions, damage to property, acute and
chronic exposures of workers and nearby residents to hazardous
materials and result in serious injuries and fatalities. EPA is able to
present data on the total damages that currently occur at RMP
facilities each year. EPA presents the data based on a 5-year baseline
period, summarizes RMP accident impacts and, when possible, monetizes
them. EPA expects that some portion of future damages would be
prevented through implementation of a final rule. Table 3 presents a
summary of the quantified damages identified in the analysis.

Table 3--Summary of Quantified Damages
[Millions, 2020 dollars]
----------------------------------------------------------------------------------------------------------------
Average/
Unit value 5-year total Average/ year accident
----------------------------------------------------------------------------------------------------------------
On site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... $9.3 $111.6 $22.32 $0.23
Injuries........................................ 0.05 27.50 5.50 0.06
Property Damage................................. .............. 2,031 406.20 4.16
---------------------------------------------------------------
Onsite Total................................ .............. 2,170.10 434.02 4.45
----------------------------------------------------------------------------------------------------------------
Off site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... 9.30 0.00 0.00 0.00
Hospitalizations................................ 0.045 1.40 0.28 0.003
Medical Treatment............................... 0.001 0.13 0.03 0.0003
Evacuations *................................... 0.00 14.16 2.83 0.029
Sheltering in Place *........................... 0.00 9.39 1.88 0.019
Property Damage................................. .............. 191.53 38.31 0.39
---------------------------------------------------------------
Offsite Total............................... .............. 216.61 43.32 0.44
---------------------------------------------------------------
Total................................... .............. 2,386.71 477.34 4.89
----------------------------------------------------------------------------------------------------------------
* The unit value for evacuations and for sheltering in place are less than $300 so when expressed in rounded
millions the value represented in the table is zero.

[[Page 53562]]

In total, EPA estimated monetized damages from RMP facility
accidents of $477.3 million per year. These damages are divided into
onsite and offsite categories where possible. EPA estimated total,
average annual onsite damages from chemical releases at RMP facilities
of $434.0 million. The largest monetized category was property damage,
valued at $406.2 million. The next largest impacts were onsite
fatalities ($22.3 million) and injuries ($5.5 million).
EPA estimated total, average annual offsite damages of $43.3
million. Property damage again was the highest value category,
estimated at approximately $38.3 million. In decreasing order, the next
largest average annual offsite impact was from evacuations ($2.8
million), then sheltering in place ($1.9 million), hospitalizations
($0.3 million), and medical treatment ($0.03 million).
3. Summary of Benefits
EPA anticipates that promulgation and implementation of this
proposed rule would result in a reduced frequency and magnitude of
damages from releases, including damages that are quantified in Table 3
such as fatalities, injuries, property damage, hospitalizations,
medical treatment, sheltering-in-place and so on. EPA also expects that
the proposed rule provisions would reduce baseline damages that are not
quantified in Table 3 such as lost productivity, responder costs,
property value reductions, damages from catastrophes, and so on.
Although EPA was unable to quantify the reductions in damages that may
occur as a result of the proposed rule provisions, EPA expects that a
portion of future damages would be prevented by the proposed rule.
Table 4 summarizes four broad social benefit categories related to
accident prevention and mitigation, including prevention of RMP
accidents, mitigation of RMP accidents, prevention and mitigation of
non-RMP accidents at RMP facilities, and prevention of major
catastrophes. The table explains each and identifies ten associated
specific benefit categories, ranging from avoided fatalities to avoided
emergency response costs.

Table 4--Summary of Social Benefits of Proposed Rule Provisions
------------------------------------------------------------------------
Specific benefit
Broad benefit category Explanation categories
------------------------------------------------------------------------
Accident Prevention............. Prevention of <bullet> Reduced
future RMP Fatalities.
facility
accidents.
<bullet> Reduced
Injuries.
<bullet> Reduced
Property Damage.
Accident Mitigation............. Mitigation of <bullet> Fewer
future RMP People Sheltered-
facility in-Place.
accidents.
<bullet> Fewer
Evacuations.
<bullet> Avoided
Lost
Productivity.
Non-RMP Accident Prevention and Prevention and <bullet> Avoided
Mitigation. mitigation of Emergency
future non-RMP Response Costs.
accidents at RMP
facilities.
<bullet> Avoided
Transaction
Costs.
Avoided Catastrophes............ Prevention of rare <bullet> Avoided
but extremely Property Value
high consequence Impacts.*
events.
<bullet> Avoided
Environmental
Impacts.
Information Availability........ Provision of <bullet> Improved
information to Efficiency of
the public and Property Markets.
emergency
responders.
<bullet> Improved
Resource
Allocation.
------------------------------------------------------------------------
* These impacts partially overlap with several other categories.

EPA seeks further information on the estimated benefits of these
provisions. For more information see Chapter 6 of the RIA.

III. Background

A. Overview of EPA's Risk Management Program

EPA originally issued the RMP regulation in two stages. The Agency
published the list of regulated substances and TQs in 1994: ``List of
Regulated Substances and Thresholds for Accidental Release Prevention;
Requirements for Petitions Under Section 112(r) of the Clean Air Act as
Amended'' (59 FR 4478, January 31, 1994), hereinafter referred to as
the ``list rule.'' \3\ The Agency published the RMP final regulation,
containing risk management requirements for covered sources, in 1996:
``Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7)'' (61 FR 31668, June 20, 1996),
hereinafter referred to as the ``1996 RMP rule.'' 4 5
Subsequent modifications to the list rule and the 1996 RMP rule were
made as discussed in the 2017 amendments rule published in 2017
(``Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act''; 82 FR 4594, January 13, 2017, at 4600,
hereinafter referred to as the ``2017 amendments rule''). Prior to
development of EPA's 1996 RMP rule, the Occupational Safety and Health
Administration (OSHA) published its Process Safety Management (PSM)
standard in 1992 (57 FR 6356, February 24, 1992), as required by
section 304 of the 1990 Clean Air Act Amendments (CAAA), using its
authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29
Code of Federal Regulations (CFR) 1910.119. Both the OSHA PSM standard
and EPA's RMP rule aim to prevent or minimize the consequences of
accidental chemical releases through implementation of management
program elements that integrate technologies, procedures, and
management practices. In addition to requiring implementation of
management program elements, the RMP rule requires any covered source
to submit (to EPA) a document summarizing the source's risk management
program--called a risk management plan (or RMP).
---------------------------------------------------------------------------

\3\ Documents and information related to development of the list
rule can be found in the EPA docket for the rulemaking, docket
number A-91-74.
\4\ Documents and information related to development of the 1996
RMP rule can be found in EPA docket number A-91-73.
\5\ 40 CFR part 68 applies to owners and operators of stationary
sources that have more than a TQ of a regulated substance within a
process. The regulations do not apply to chemical hazards other than
listed substances held above a TQ within a regulated process.
---------------------------------------------------------------------------

EPA's risk management program requirements include conducting a
worst-case scenario analysis and a review of accident history,
coordinating emergency response procedures with local response
organizations, conducting a hazard assessment,

[[Page 53563]]

documenting a management system, implementing a prevention program and
an emergency response program, and submitting a risk management plan
that addresses all aspects of the risk management program for all
covered processes and chemicals. A process at a source is covered under
one of three different prevention programs (Program 1, Program 2, or
Program 3) based directly or indirectly on the threat posed to the
community and the environment. Program 1 has minimal requirements and
is for processes that have not had an accidental release with offsite
consequences in the last 5 years before submission of the source's risk
management plan, and that have no public receptors within the worst-
case release scenario vulnerable zone for the process. Program 3
applies to processes not eligible for Program 1, has the most
requirements, and applies to processes covered by the OSHA PSM standard
or classified in specified industrial sectors. Program 2 has fewer
requirements than Program 3 and applies to any process not covered
under Programs 1 or 3. Programs 2 and 3 both require a hazard
assessment, a prevention program, and an emergency response program,
although Program 2 requirements are less extensive and more
streamlined. For example, the Program 2 prevention program was intended
to cover in many cases simpler processes at smaller businesses and does
not require the following process safety elements: management of
change, pre-startup review, contractors, employee participation, and
hot work permits. The Program 3 prevention program is fundamentally
identical to the OSHA PSM standard and designed to cover those
processes in the chemical industry.

B. Events Leading to This Action

On January 13, 2017, EPA published amendments to the RMP rule (82
FR 4594). The 2017 amendments rule was prompted by E.O. 13650,
``Improving Chemical Facility Safety and Security,'' \6\ which directed
EPA (and several other Federal agencies) to, among other things,
modernize policies, regulations, and standards to enhance safety and
security in chemical facilities. The 2017 amendments rule contained
various new provisions applicable to RMP-regulated facilities
addressing prevention program elements (safer technology and
alternatives analysis (``STAA''); incident investigation root cause
analysis; and third-party compliance audits), emergency response
coordination with local responders (including emergency response
exercises), and availability of information to the public. EPA received
three petitions for reconsideration of the 2017 amendments rule under
CAA section 307(d)(7)(B).\7\ In December 2019, EPA finalized revisions
to the RMP regulations to reconsider the rule changes made in January
2017 (``Accidental Release Prevention Requirements: Risk Management
Programs Under the Clean Air Act,'' 84 FR 69834, December 19, 2019,
hereinafter referred to as the ``2019 reconsideration rule''). The 2019
reconsideration rule rescinded certain information disclosure
provisions of the 2017 amendments rule, removed most new accident
prevention requirements added by the 2017 rule, and modified some other
provisions of the 2017 amendments rule. The rule changes made by the
2019 reconsideration rule reflect the current RMP regulations to date.
There are petitions for judicial review of both the 2017 amendments and
the 2019 reconsideration rules. The 2019 reconsideration rule
challenges are being held in abeyance until October 3, 2022, by which
time the parties must submit motions to govern. The case against the
2017 amendments rule is in abeyance pending resolution of the 2019
reconsideration rule case.
---------------------------------------------------------------------------

\6\ Available at <a href="https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security">https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security</a>.
\7\ Available at <a href="https://www.epa.gov/petitions/petitions-office-land-and-emergency-management">https://www.epa.gov/petitions/petitions-office-land-and-emergency-management</a>.
---------------------------------------------------------------------------

On January 20, 2021, President Biden issued E.O. 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis.'' \8\ E.O. 13990 directed Federal agencies
to review existing regulations and take action to address priorities
established by the current Administration, which include bolstering
resilience to the impacts of climate change and prioritizing
environmental justice (EJ). As a result, EPA was tasked to review the
current RMP regulations.
---------------------------------------------------------------------------

\8\ Available at <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/</a>.
---------------------------------------------------------------------------

While the Agency reviewed the RMP rule under E.O. 13990, the E.O.
did not specifically direct EPA to publish a solicitation for comment
or information from the public. Nevertheless, EPA held virtual public
listening sessions on June 16 and July 8, 2021, and had an open docket
for public comment (86 FR 28828; May 28, 2021). In the request for
public comment, the Agency asked for information on the adequacy of
revisions to the RMP regulations completed since 2017, incorporating
consideration of climate change risks and impacts into the regulations
and expanding the application of EJ. EPA received a total of 27,828
public comments in response to the request for comments. This includes
27,720 received at <a href="http://regulations.gov">regulations.gov</a>,\9\ 35 provided during the listening
session on June 16, 2021,\10\ and 73 provided during the listening
session on July 8, 2021.\11\ Most of the comments received in the
docket were copies of form letters related to four different form
letter campaigns. The remaining comments included 302 submissions
containing unique content. Of the 302 unique submissions, a total of
163 were deemed to be substantive (i.e., the commenters presented both
a position and a reasoned argument in support of the position).
Information collected through these comments has informed the review.
---------------------------------------------------------------------------

\9\ EPA-HQ-OLEM-2021-0312.
\10\ EPA-HQ-OLEM-2021-0312-0011.
\11\ EPA-HQ-OLEM-2021-0312-0020.
---------------------------------------------------------------------------

EPA seeks comment on the proposed amendments. Any suggestions for
alternative options should include an appropriate rationale and
supporting data for the Agency to be able to consider it for a final
action. To the extent submitted comments will repeat or rely on
material submitted in the docket used for the 2017 amendments rule or
the 2019 reconsideration rule, include the relevant material in the
submitted comment with a specific reference to the portion of the
material cited as support.

C. EPA's Authority To Revise the RMP Rule

Congress granted EPA authority to establish accident prevention
rules under two provisions in CAA section 112(r)(7). Under CAA section
112(r)(7)(A), EPA may set rules addressing the prevention, detection,
and correction of accidental releases of substances listed by EPA by
rule (``regulated substances'' listed in the Tables 1 through 4 to 40
CFR 68.130). Such rules may include requirements related to monitoring,
data collection, training, design, equipment, work practice, and
operations. In promulgating its regulations, EPA may draw distinctions
between types, classes, and kinds of facilities by taking into
consideration various factors including size and location. This section
also indicates that EPA has discretion regarding the date rules will
take effect. Regulations become effective ``as determined by the
Administrator,

[[Page 53564]]

assuring compliance as expeditiously as practicable.''
Under CAA section 112(r)(7)(B), Congress directed EPA to develop
``reasonable regulations and appropriate guidance'' that provide for
the prevention and detection of accidental releases and the response to
such releases ``to the greatest extent practicable.'' Congress required
an initial rulemaking under this subparagraph by November 15, 1993.
Section 112(r)(7)(B) sets out a series of mandatory subjects to
address, interagency consultation requirements, and discretionary
provisions that allowed EPA to tailor requirements to make them
reasonable and practicable. The regulations needed to address
``storage, as well as operations'' and emergency response after
accidental releases, and EPA was to use the expertise of the
Secretaries of Labor and Transportation in promulgating the
regulations. This provision gave EPA the discretion to recognize
differences in factors such as ``size, operations, processes, class,
and categories of sources'' and the voluntary actions taken by owners
and operators of regulated sources to prevent and respond to accidental
releases (CAA section 112(r)(7)(B)(i)). At a minimum, the regulations
had to require any stationary source with more than a threshold
quantity of regulated substances to prepare and implement a risk
management plan (RMP). Such an RMP needed to provide for compliance
with rule requirements under CAA section 112(r) and include a hazard
assessment with release scenarios, an accident history, a release
prevention program, and a response program (CAA section
112(r)(7)(B)(ii)). Plans were to be registered with EPA and submitted
to various planning entities (CAA section 112(r)(7)(B)(iii)). These
initial rules had to apply to sources 3 years after promulgation or 3
years after a substance was first listed for regulation under CAA
section 112(r) (CAA section 112(r)(7)(B)(i)). EPA fulfilled its initial
obligations under section 112(r)(7)(B) with the 1996 RMP rule, but the
agency views section 112(r)(7)(B) to give EPA continuing authority to
improve the RMP regulations to achieve the statutory directives.
In addition to the direction to use the expertise of the
Secretaries of Labor and Transportation in CAA section 112(r)(7)(B),
the statute more broadly requires EPA to consult with these secretaries
when carrying out the authority of CAA section 112(r)(7) and to
``coordinate any requirements under [CAA section 112(r)(7)] with any
requirements established for comparable purposes by'' OSHA (CAA section
112(r)(7)(D)). This consultation and coordination language derives from
and expands upon provisions on hazard assessments in the bill that
passed in the Senate as its version of what eventually became the 1990
CAAA, section 129(e)(4) of S.1630. The Senate committee report on this
language notes that the purpose of the coordination requirement is to
ensure that ``requirements imposed by both agencies to accomplish the
same purpose are not unduly burdensome or duplicative.'' \12\ The
mandate for coordination in the area of safer chemical processes was
incorporated into CAA section 112(r)(7)(D). In the same legislation,
Congress directed OSHA to promulgate a process safety standard that
became the PSM standard (see CAAA of 1990 section 304).
---------------------------------------------------------------------------

\12\ Committee on Environment and Public Works, Clean Air Act
Amendments of 1989: Report of the Committee on Environment and
Public Works, U.S. Senate, Together with Additional and Minority
Views, to Accompany S.1630 (December 20, 1989), <a href="https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-0645">https://www.regulations.gov/document/EPA-HQ-OEM-2015-0725-0645</a>. EPA-HQ-OEM-
2015-0725-0645.
---------------------------------------------------------------------------

EPA used its authority under CAA section 112(r)(7) to issue the
1996 RMP rule (61 FR 31668; June 20, 1996), the 2017 amendments rule
(82 FR 4594; January 13, 2017), and the 2019 reconsideration rule (84
FR 69834; December 19, 2019). The Agency is also implementing this
authority in this proposed rulemaking. These proposed amendments
address three requirements of the Risk Management Program: accident
prevention program requirements, emergency preparedness requirements,
and information availability requirements. The prevention program
provisions in this rule address the prevention and detection of
accidental releases and include the following topics: stationary source
siting, safer technologies and alternatives analysis (STAA), root cause
analysis incident investigation, third-party compliance auditing, and
employee participation. The emergency response provisions in this rule
modify existing provisions that provide for owner or operator responses
to accidental releases. The information availability provisions
discussed in this document generally assist in the development of
emergency response procedures and measures to protect human health and
the environment after an accidental release (CAA section
112(r)(7)(B)(i)).\13\ When determining which amendments would result in
the prevention and detection of accidental releases of regulated
substances to the greatest extent practicable, EPA took into
consideration multiple factors including--but not limited to--the size
of the facility, the quantity of the substances handled, and the
location of the facility in relation to other RMP facilities in
accordance with both CAA sections 112(r)(7)(A) and (B)(i). The rule
distinguishes among classes and categories of sources by industry and
process type, as well as likelihood of an accidental release that may
impact a community. This rulemaking action therefore proposes
substantive amendments to 40 CFR part 68 and is authorized by CAA
section 112(r)(7)(A) and (B), as explained herein.
---------------------------------------------------------------------------

\13\ Incident investigation, compliance auditing, and STAA are
also authorized as release prevention requirements pertaining to
stationary source design, equipment, work practice, recordkeeping,
and reporting. Information disclosure is also authorized as
reporting (CAA section 112(r)(7)(A)).
---------------------------------------------------------------------------

In considering whether it is legally permissible for EPA to modify
provisions of the RMP rule while continuing to meet its obligations
under CAA section 112(r), the Agency notes that it has made
discretionary amendments to the 1996 RMP rule several times without
dispute over its authority to issue discretionary amendments. (See 64
FR 964, January 6, 1999; 64 FR 28696, May 26, 1999; 69 FR 18819, April
9, 2004.) According to the decision in Air Alliance Houston v. EPA, 906
F.3d 1049 (D.C. Cir. 2018), ``EPA retains the authority under Section
7412(r)(7) [CAA section 112(r)(7)] to substantively amend the
programmatic requirements of the [2017 RMP amendments] . . . subject to
arbitrary and capricious review'' (906 F.3d at 1066). Therefore, EPA is
authorized to modify the provisions of the current RMP regulations if
it finds that it is reasonable to do so.\14\
---------------------------------------------------------------------------

\14\ See Motor Vehicle Manufacturers. Association of the United
States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29
(1983). In addressing the standard of review to reconsider a
regulation, the Supreme Court stated that the rescission or
modification of safety standards ``is subject to the same test'' as
the ``agency's action in promulgating such standards [and] may be
set aside if found to be `arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law' '' (463 U.S. at
41, quoting 5 U.S.C. 706). The same standard that applies to the
promulgation of a rule applies to the modification or rescission of
that rule.
---------------------------------------------------------------------------

The Supreme Court has also recognized that agencies have broad
discretion to reconsider a regulation at any time so long as the
changes in policy are ``permissible under the statute, . . . there are
good reasons for [them], and that the agency believes [them] to be
better'' than prior policies. (See Federal Communications Commission v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); emphasis

[[Page 53565]]

in quote original).\15\ As explained in detail above, the policy
changes proposed in this action are permissible under the statute.
Additionally, there are good reasons for the policies adopted in this
rule. Accidental releases remain a significant concern to communities
and cost society more than $477 million yearly.\16\ The risk of being
impacted by an accidental release is even more apparent in communities
where multiple RMP facilities are in close proximity to residential
areas. Lowering the probability and magnitude of accidents by putting
more of a focus on prevention reduces the risks posed by these RMP
facilities, which is one of the objectives of the present RMP proposed
amendments.
---------------------------------------------------------------------------

\15\ The full quote from Fox states: ``But [the Agency] need not
demonstrate to a court's satisfaction that the reasons for the new
policy are better than the reasons for the old one; it suffices that
the new policy is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be better, which
the conscious change of course adequately indicates'' (Federal
Communications Commission v. Fox Television Stations, Inc., 556 U.S.
at 515; emphasis original).
\16\ A full description of costs and benefits for this proposed
rule can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Proposed Rule (April
19, 2022). This document is available in the docket for this
rulemaking (EPA-HQ-OLEM-2022-0174).
---------------------------------------------------------------------------

In the 2019 reconsideration rule, the Agency justified rescinding
the prevention program provisions of the 2017 amendments rule, STAA,
incident investigation, root cause analysis, and third party compliance
audits based on two main rationales: (1) That a case-by-case
compliance-driven approach to oversight focusing on problematic sources
(generally, sources that have had releases) could obtain many of the
accident-reduction benefits of a rule without broadly burdening sources
that were less likely to have a release under regulatory mandates, and
(2) that the Agency was being consistent with the OSHA PSM prevention
provisions. The Agency discusses each rationale in turn below.
The conclusion in the 2019 reconsideration rule that a case-by-
case, compliance-driven approach relying on traditional tools such as
compliance outreach and administrative and judicial enforcement could
provide many of the same benefits as a rule without imposing broad
burdens rested upon an observation that accidents are declining and
concentrated among few sources, allowing for concentrated compliance
oversight. See 84 FR 69843-44 (Dec. 19, 2019). While focusing on
accident and impact rates, the rate analysis did not account for the
likelihood that low-probability, high consequence events could impact
trends. Thus, in the 2019 reconsideration rule, EPA acknowledged the
decline in yearly total count of accidents and accident rates. For the
2017 amendments rule and 2019 reconsideration rule, EPA analyzed
accidents for the periods 2004 to 2013, and 2014 to 2016,
respectively.\17\ Using a yearly average for the 2017 amendments rule
(2004-2013) and the 2019 reconsideration rule (2014-2016), in 2019 EPA
found declining yearly averages for every metric of onsite and offsite
damage.\18\ As part of this proposed rule, EPA analyzed accidents from
2016 to 2020.\19\ The impacts of high consequence RMP-reportable
accident events between 2017 and 2020 demonstrate the impact of low-
probability, high consequence events on annual averages. For example,
using the same methods used in the 2019 rule, current data show the
average annual rate of those seeking medical treatment increased by
230% (10 per year in the 2019 reconsideration rule and 33 per year for
this proposed rule); evacuations increased by 75% (1,868 per year
versus 3,268 per year) and accidents resulting in sheltering in place
increased by 18% (12,534 per year versus 14,845 per year). The more
current data since the 2019 analyses shows that reliance on a declining
trend in accidents and impacts to conduct selective, often post-
incident oversight may prove insufficiently effective over time and
make it difficult to stay ahead of reversals in trends.
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\17\ Exhibit 6-2, Page 77, EPA-HQ-OEM-2015-0725-2089.
\18\ The exception being a higher annual average offsite
property damage for the period of 2014-2016 as compared to 2004-
2013.
\19\ In the RIA for this proposed rule, EPA includes 2016 again
to account for accidents not reported prior to the 2019
reconsideration rule analysis.
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Recent accidents also highlight EPA's improper reliance on only
annual count of total accidents to address the low-probability, high-
consequence nature of accidental releases. For example, while the
annual count of accidents decreased overall between 2016 and 2020, in
2019, the TPC Group explosion and fire in Port Neches, Texas, reported
the largest number of persons ever evacuated (n=50,000) as a result of
an RMP-reportable incident, as well as $153 million in offsite property
damage. Large events are rare, but to the extent that CAA 112(r) was
intended as a prevention program for large catastrophic releases,
selective oversight through a ``compliance-driven'' approach that
relies heavily on determining if the facility was compliant with
accident prevention regulations after an accident occurred would not
meet the goal of preventing the initial accident. The RMP rule must be
broader based, and rule-driven in order to have stationary sources
handling dangerous chemicals work to prevent potentially catastrophic
incidents.
Additionally, the 2019 reconsideration rule failed to acknowledge
that mostly relying on relief like post-accident settlement,
particularly at those industries that already have a history of
frequent accidents, entails significant transaction costs, delays, and
uncertainty of obtaining necessary prevention improvements. While such
delays and transaction costs are inherent in compliance oversight and
the enforcement process, the failure of the 2019 reconsideration rule
to address this important limitation on the feasibility and utility of
a ``compliance-driven'' approach is a flaw in the determination made in
2019 that such an approach is a reasonable substitute for a rule-driven
approach to prevention. While enforcement of the RMP regulation has and
will continue to occur, EPA expects under a rule-drive approach most
facilities will proactively make the necessary prevention improvements
to be in compliance with the rule to avoid enforcement. The 2019
reconsideration rule does not acknowledge that settlements often
involve compromises, and that, in the course of settlement, EPA cannot
always obtain all appropriate relief. The history of one of EPA's
largest enforcement actions under the RMP rule involving Chevron's
operations illustrates many of these points. EPA's enforcement
engagement with Chevron began shortly after a fire at the Richmond, CA,
refinery in August 2012. Subsequent accidents at Chevron refineries in
El Segundo, CA, and Pascagoula, MS, led EPA to investigate all five
Chevron refineries in the United States, including refineries in Salt
Lake City, UT and Kapolei, HI (no longer owned by Chevron). EPA
concluded a final civil judicial settlement with Chevron in October
2018, more than 6 years after the investigation began.\20\
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\20\ U.S. Environmental Protection Agency, Chevron Settlement
Information Sheet, <a href="https://www.epa.gov/enforcement/chevron-settlement-information-sheet">https://www.epa.gov/enforcement/chevron-settlement-information-sheet</a>.
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Moreover, as discussed in more detail below, even when individual
facilities have not yet experienced an accident, certain classes of
facilities are more likely to have accidents near communities.
Communities surrounding these classes of facilities would benefit from
rule-based prevention prior to

[[Page 53566]]

incidents, rather than the case-by-case oversight approach of the 2019
reconsideration rule.
Regarding alignment with OSHA PSM prevention provisions, the 2019
reconsideration rule indicated that the 2017 amendments rule only
represented a departure from PSM requirements. The 2019 reconsideration
rule acknowledged there were no legal requirements to defer to OSHA in
rulemaking, or for EPA and OSHA to proceed on identical timelines in
making changes to the RMP rule and PSM standard, and that some
divergence between the RMP rule and PSM standard may at times be
necessary given the agencies' separate missions. See 83 FR 24863-64.
While EPA, in the 2019 reconsideration rule, decided to take a
traditional approach of maintaining consistency with OSHA PSM because
benefits were recognized at that time, EPA now believes the benefits of
a rule-based prevention for certain high-risk classes of facilities
could help prevent high consequence accidents that affect communities,
such as the TPC Group explosion. Furthermore, the statute's consult-
and-coordinate requirements are to ensure the agencies are working
together to ensure rules are compatible and not conflicting. The
proposed prevention program provisions presented today are compatible
and do not conflict with the prevention provisions of OSHA PSM, as
detailed further in the discussions of each provision.
In contrast to the 2019 approach, the approach taken in this
proposal for the prevention program provision, STAA, incident
investigation root cause analysis, and third-party compliance audits,
refines the focused regulatory approach found in the 2017 amendments
rule, and proposes provisions modified from those in the 2017
amendments rule, to better identify risky facilities to prevent
accidental releases before they can occur. As explained in further
detail in following sections of this preamble, EPA therefore maintains
that by taking a rule-based, prevention-focused approach in this action
rather than the 2019 reconsideration rule's compliance-driven, mostly
post-incident, approach, the proposed rule revisions could further
protect human health and the environment from chemical hazards through
PSM advancement without undue burden. Similarly, other proposed
modifications to approaches adopted in 2019 to information disclosure
and emergency response will also better balance security concerns with
improved community awareness and lead to better community preparedness
for accidents.\21\ To the extent that both approaches are reasonable,
the approach of this proposed rule would be more protective, and thus
provide for release prevention, detection, and response ``to the
greatest extent practicable'' among the reasonable approaches.
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\21\ The term ``information disclosure'' refers to specific
provisions adopted in 2017 that the 2019 reconsideration rule
rescinded. EPA uses the term ``information availability'' in the
current rulemaking to mean the broader set of measures the Agency is
adopting today.
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IV. Proposed Action

The RMP rule has been effective in preventing and mitigating
chemical accidents in the United States and protecting human health and
the environment from chemical hazards, but major accidents continue to
occur. More importantly, even though there has been a long-term trend
of reducing accidents and the gravity of accidents, this trend can be
improved to further protect human health and the environment.
Below EPA presents several proposed amendments for consideration
and public comment. Many of these amendments would better focus new
prevention program elements on particular classes of facilities than
the 2017 amendments rule, and promote more information availability,
employee participation and emergency response measures than the 2019
reconsideration rule. As a result of the changes in this proposal, the
Agency, as described in further detail below, considered the
possibility of potential reliance interests associated with portions of
the 2019 reconsideration rule. The Agency views these proposed measures
and other aspects of this proposed rule as integrated and reinforcing.
As discussed below, some of the proposed rule changes focus enhanced
prevention measures like STAA and third-party auditing on individual
sources and classes of sources with a history of accidental releases.
Were the proposed rule adopted, EPA believes that many if not most
sources are likely to respond to this approach of triggering
requirements based on accident history by undertaking enhanced
prevention measures to comply with the rule and avoid accidents.
However, some sources may try to evade these enhanced accident
prevention requirements by avoiding reporting incidents that trigger
additional requirements. The employee participation, public information
availability, and emergency response measures would make it more
difficult to evade the accident history-triggered requirements by
leveraging workers and the public in facility oversight. Thus, in
addition to the merits of each proposed provisions as considered in
isolation, the proposed rule changes can be seen as complementary to
each other. Adopting these provisions together will help ensure owners
and operators have these complementing measures in place to prevent or
minimize accidental release of their regulated substances to protect
human health and the environment. Nevertheless, while many of the
provisions reinforce each other, EPA also views each one as merited on
its own if it ultimately adopted, and thus severable should there be
judicial review.

A. Prevention Program

1. Hazard Evaluation Amplifications
a. Introduction
A hazard evaluation is defined as the identification of individual
hazards of a system, determination of the mechanisms by which they
could give rise to undesired events, and evaluation of the consequences
of these events on health (including public health), environment, and
property. These evaluations often use qualitative techniques to
pinpoint weaknesses in the design and operation of facilities that
could lead to incidents.\22\ Current requirements exist within the RMP
rule to conduct these evaluations. RMP hazard evaluation regulations
require, among other things, owners or operators with Program 2
processes to conduct hazard reviews under 40 CFR 68.50(a) that
identify: (1) The hazards associated with the process and regulated
substances; (2) opportunities for equipment malfunctions or human
errors that could cause an accidental release; (3) the safeguards used
or needed to control the hazards or prevent equipment malfunction or
human error; and (4) any steps used or needed to detect or monitor
releases. Owners or operators with Program 3 processes are required to
conduct process hazard analyses (PHAs) under 40 CFR 68.67(c) that
address: (1) The hazards of the process; (2) the identification of any
previous incident which had a likely potential for catastrophic
consequences; (3) engineering and administrative controls applicable to
the hazards and their interrelationships, such as appropriate
application of detection methodologies to provide early warning of
releases (acceptable detection methods might include process monitoring
and control instrumentation

[[Page 53567]]

with alarms, and detection hardware such as hydrocarbon sensors); (4)
consequences of failure of engineering and administrative controls; (5)
stationary source siting; (6) human factors; and (7) a qualitative
evaluation of a range of the possible safety and health effects of
failure of controls. The hazard evaluation requirements are key to
understanding how to operate safely and prevent accidents and the
release of hazardous substances.
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\22\ Center for Chemical Process Safety (CCPS), ``CCPS Process
Safety Glossary,'' accessed January 28, 2022, <a href="https://www.aiche.org/ccps/resources/glossary?title=hazard+evaluation#views-exposed-form-glossary-page">https://www.aiche.org/ccps/resources/glossary?title=hazard+evaluation#views-exposed-form-glossary-page</a>.
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In developing the initial 1996 RMP rule, the Agency recognized that
many workplace hazards also threaten public receptors and that most
accident prevention steps taken to protect workers also protect the
public and the environment. Consequently, EPA adopted and built on much
of the existing accident prevention language from OSHA's PSM standard,
including the process hazard analysis (PHA) language from 29 CFR
1910.119(e). EPA's understanding of the PHA was based on OSHA's: \23\ a
PHA analyzes potential causes and consequences of fires, explosions,
releases of toxic or flammable chemicals, and major spills of hazardous
chemicals. The PHA focuses on equipment, instrumentation, utilities,
human actions (routine and nonroutine), and external factors that might
impact the process. These considerations assist in determining the
hazards and potential failure points or failure modes in a process.
OSHA pointed to detailed industry guidance that serves as the basis for
understanding what hazards are widely recognized as threats to safe
chemical process operations. For example, the American Institute of
Chemical Engineers' Center for Chemical Process Safety (CCPS) developed
the publication ``Guidelines for Hazard Evaluation Procedures,'' \24\
which EPA and OSHA agree generally addresses the most common categories
of hazards relevant to facilities that handle hazardous chemicals.
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\23\ See 58 FR 54190, October 20, 1993, p. 54204.
\24\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd
Edition (New York: American Institute of Chemical Engineers, 2008).
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While EPA and OSHA have not explicitly added language in their
regulations on certain hazard evaluation elements that were assumed
implicit and recognized as hazards among industry, EPA seeks to
emphasize that some hazards should be explicitly addressed by
facilities to further protect human health and the environment. EPA is
not proposing additional regulatory requirements from what already
exists in the RMP regulations, rather EPA is proposing adding
regulatory text to emphasize that natural hazards and loss of power are
among the hazards that must be addressed in hazard reviews and PHAs.
EPA is also proposing to emphasize that facility siting should be
addressed in hazard reviews, and to explicitly define the facility
siting requirement for Program 2 and Program 3 hazard evaluations. EPA
seeks to better reflect its longstanding regulatory requirement rather
than impose additional regulatory requirements (and potential
additional costs) that diverge from the OSHA PSM regulatory
requirements. EPA has coordinated with OSHA throughout the development
of this proposed rule to ensure the intent of adding specificity to
these hazard evaluation requirements is consistent with the intent and
meaning of the OSHA PSM standard to avoid inconsistencies between the
two regulatory programs.
b. Natural Hazards
Natural hazards (e.g., extreme temperatures, high winds, floods,
earthquakes, wildfires) are hazards for chemical facilities because
they have the potential to initiate accidents and challenge hazardous
chemical process equipment and operations. If not properly managed,
these hazards can trigger chemical accidents that threaten human health
and the environment. EPA believes many facilities with RMP processes
are generally managing natural hazards well; however, some RMP
accidents are still being reported as linked to natural hazards.
Climate change increases the threat of extreme weather as a natural
hazard. Therefore, EPA is proposing to emphasize that natural hazards
should explicitly be included in the hazards evaluated in hazard
reviews and PHAs for Program 2 and Program 3 RMP-regulated processes.
EPA believes making more explicit this already-existing accident
prevention program requirement \25\ will ensure the threats of natural
hazards are properly evaluated and managed to prevent or mitigate
releases of RMP-regulated substances at covered facilities.
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\25\ Existing requirements of the hazards to be evaluated in
hazard evaluations are found at 40 CFR 68.50(a) for Program 2
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
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CCPS' ``Guidelines for Hazard Evaluation Procedures'' \26\ includes
external events as a hazard evaluation category that should be
addressed. It defines these as events external to the system/plant
caused by: (1) A natural hazard (e.g., earthquake, flood, tornado,
extreme temperature, lightning) or (2) a human induced event (aircraft
crash, missile, nearby industrial activity, fire, sabotage, etc.). At
the time of initial RMP rule development, EPA had not explicitly added
language about considering external events to the rule. However, EPA
did acknowledge that sources must consider the hazards created by
external events. In the 1996 RMP final rule Response to Comments,\27\
EPA indicated the following: ``As part of a properly conducted PHA,
sources would normally consider whether a process is vulnerable to
damage caused by external events, such as earthquakes, floods, high
winds, and evaluate the potential consequences if such events damaged
the integrity of the process.'' To further express this expectation,
EPA's RMP guidance states: ``Natural Events and Other Outside
Influences: Whichever [hazard review/process hazard analysis] approach
you use, you should consider reasonably anticipated external events as
well as internal failures. If you are in an area subject to
earthquakes, hurricanes, or floods, you should examine whether your
process would survive these natural events without releasing the
substance. In your hazard review, you should consider the potential
impacts of lightning strikes and power failures.'' \28\ In comments
submitted during the 2021 listening sessions,\29\ some industry trade
associations stated that the current provisions of the RMP rule are
sufficient to protect against climate-related impacts.\30\
Specifically, one industry trade association remarked that ``under
requirements in the current program, the impact of severe weather
events such as storms and flooding on operations and consequently the
risk they pose for an accidental release, must already be considered
and addressed in the plans submitted to EPA.'' \31\
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\26\ CCPS, CCPS Guidelines for Hazard Evaluation Procedures, 3rd
Edition (New York: American Institute of Chemical Engineers, 2008).
\27\ A-91-73-IX-C-1-Volume-1[H], pp. 9-23.
\28\ EPA, General Guidance on Risk Management Programs for
Chemical Distributors, Ch. 6: Prevention Programs (2004), pp. 6-10
to 6-11, <a href="https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf">https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf</a>.
\29\ EPA-HQ-OLEM-2021-0312.
\30\ EPA-HQ-OLEM-2021-0312-0005; 0045.
\31\ EPA-HQ-OLEM-2021-0312-0005.
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Despite this general knowledge that natural hazards are process
hazards that should be evaluated and addressed during hazard reviews
and PHAs, EPA's recent review of the RMP National Database indicates
that when reporting accidents, some RMP facilities report ``natural''
and ``unusual weather conditions'' as the respective initiating event
or as a contributing factor to their

[[Page 53568]]

accidents.\32\ According to the Agency's data from 2004-2020,
facilities reported 38 RMP-reportable accidents as having a natural
cause as the initiating event of their accident and another 46 RMP-
reportable accidents as having unusual weather conditions as a
contributing factor of their accident.\33\
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\32\ These fields are options when reporting accidents on RMP
reports. Description of these options: EPA, Risk Management Plan:
RMP*eSubmit User's Manual (2019), pp. 76-77. <a href="https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf">https://www.epa.gov/sites/default/files/2019-03/documents/rmpesubmit_user_guide_-_march_2019_final_0.pdf</a>.
\33\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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In addition to these natural hazard-linked accidents, RMP data
indicate that the locations of many RMP facilities leave them exposed
to natural hazards. In a review of the National Oceanic and Atmospheric
Administration's Storm Events Database from the last two decades, EPA
generally found that extreme weather events are common in counties with
RMP facilities. For example, during 2000-2020, over 90 percent of
counties with RMP facilities experienced flooding, 1 in 4 counties with
RMP facilities suffered damage from hurricanes, and counties with RMP
facilities have on average experienced 30 floods (over one per year)
and 40 extreme winter weather events (approximately two per year), such
as blizzards. Some counties with RMP facilities also experience extreme
weather events much more often than average. For instance, many regions
in Florida, Louisiana, and South Carolina were impacted by more than 30
hurricanes over the prior 20 years. Similarly, regions of northern
California and Oregon suffered from over 500 days of wildfires during
the same period.\34\
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\34\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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With new studies showing that the threat of natural hazards is
increasing, actions to ensure natural hazards are evaluated and
properly managed are critical. A recent report by the Center for
Progressive Reform, Earthjustice, and the Union of Concerned
Scientists--entitled ``Preventing `Double Disasters'' \35\--indicates
that one-third of RMP facilities are at risk of climate-related events,
such as wildfire, flooding, hurricane storm surge, and/or coastal
flooding. This finding is nearly identical to the estimate of the
Government Accountability Office in its recent report, ``Chemical
Accident Prevention: EPA Should Ensure Regulated Facilities Consider
Risks from Climate Change.'' \36\ The 2018 National Climate Assessment
\37\ and several publications from the Intergovernmental Panel on
Climate Change, which are authoritative sources for the impacts of
climate change on the severity and frequency of weather events, found
that there is a scientific consensus that the future holds increased
risks of more severe and frequent extreme weather events, including
tropical cyclones, coastal flooding, wildfire, tornados, severe
thunderstorms, and extreme precipitation. EPA must consider the
increased risk to RMP facilities.
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\35\ David Flores, et al., Preventing ``Double Disasters''
(2021), <a href="https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf">https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf</a>.
\36\ U.S. Government Accountability Office, Chemical Accident
Prevention: EPA Should Ensure Regulated Facilities Consider Risks
from Climate Change (2022), <a href="https://www.gao.gov/assets/gao-22-104494.pdf">https://www.gao.gov/assets/gao-22-104494.pdf</a>.
\37\ U.S. Global Change Research Program, Fourth National
Climate Assessment (2018), <a href="https://nca2018.globalchange.gov/">https://nca2018.globalchange.gov/</a>.
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The Chemical Safety and Hazard Investigation Board (CSB) and many
public listening session commenters identified the August 2017 Arkema
Inc. chemical plant fire in Crosby, Texas, as a significant accident
caused by natural hazards.\38\ \39\ \40\ Flooding from Hurricane Harvey
disabled the refrigeration system at the Arkema plant, which allowed
the temperature of organic peroxides to increase and spontaneously
combust. Twenty-one people sought medical attention from reported
exposures to the fumes. More than 200 residents living near the
facility were evacuated and could not return home for a week. While
this part of the Arkema facility was not an RMP-regulated process, the
increased occurrence of extreme-weather-caused events like this
highlight the importance of ensuring proper evaluation of natural
hazards on process operations.
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\38\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May
24, 2018, <a href="https://www.csb.gov/arkema-inc-chemical-plant-fire-/">https://www.csb.gov/arkema-inc-chemical-plant-fire-/</a>.
\39\ Center for Progressive Reform, Preventing Double Disasters
(2021), <a href="https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0312-0035">https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0312-0035</a>. EPA-HQ-OLEM-2021-0312-0035-10.
\40\ EPA-HQ-OLEM-2021-0312-0004; 0080, 0081.
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As a result of the Arkema incident, CSB developed a safety alert
that includes guidance for chemical plants during extreme weather
events.\41\ In the final report on the Arkema incident,\42\ CSB
recommended CCPS develop broad and comprehensive guidance to help
companies assess their U.S. facility risk from potential extreme
weather events. As a result, CCPS produced the monograph, ``Assessment
of and Planning for Natural Hazards.'' \43\ In addition to outlining
the importance of rising threats, it outlines resources that many of
its member companies--many of which have RMP-regulated processes--have
successfully used to identify natural hazards, gather data and identify
equipment to be addressed in natural hazard assessments, and evaluate
and meet design criteria of equipment according to recognized and
generally accepted good engineering practices (RAGAGEP).
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\41\ CSB, 2020 Hurricane Season: Guidance for Chemical Plants
during Extreme Weather Events (n.d.), <a href="https://www.csb.gov/assets/1/6/extreme_weather_-_final_w_links.pdf">https://www.csb.gov/assets/1/6/extreme_weather_-_final_w_links.pdf</a>.
\42\ CSB, ``Arkema Inc. Chemical Plant Fire,'' last modified May
24, 2018, <a href="https://www.csb.gov/arkema-inc-chemical-plant-fire-/">https://www.csb.gov/arkema-inc-chemical-plant-fire-/</a>.
\43\ CCPS, CCPS Monograph: Assessment of and Planning For
Natural Hazards (American Institute of Chemical Engineers, 2019),
<a href="https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html">https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html</a>.
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With climate change-related natural hazards as a global concern,
other countries are also expanding efforts to address natural hazards
at chemical facilities. For example, the Organisation for Economic Co-
operation and Development Programme on Chemical Accidents started work
on natural hazards triggering technological accidents (``NaTech'') risk
management in 2008 in partnership with the European Commission Joint
Research Center, the United Nations Environment Programme, and the
United Nations Economic Commission for Europe. The project aimed to
investigate NaTech prevention, preparedness, and response to chemical
accidents; exchange experience across countries; and provide guidance
on NaTech risk management. Studies, databases, and information continue
to be collected and published to help countries manage this increasing
threat.\44\
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\44\ Organisation for Economic Co-operation and Development,
``Risks from Natural Hazards at Hazardous Installations (Natech),''
accessed January 28, 2022, <a href="https://www.oecd.org/chemicalsafety/chemical-accidents/risks-from-natural-hazards-at-hazardous-installations.htm">https://www.oecd.org/chemicalsafety/chemical-accidents/risks-from-natural-hazards-at-hazardous-installations.htm</a>.
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While well-prepared hazard evaluations under the RMP rule already
address NaTech, EPA is proposing to emphasize that natural hazards,
including those associated with climate change, be explicitly addressed
in RMP Program 2 hazard reviews and Program 3 PHAs. EPA is proposing to
make language changes that include requiring hazard evaluations under
40 CFR 68.50(a)(5) and 68.67(c)(8) to address external events such as
natural hazards, including those caused by climate change or other
triggering events that could lead to an accidental release.
EPA is also proposing to define natural hazards in a way that is
similar

[[Page 53569]]

to the description used by CCPS. Under the proposed rule, natural
hazards would be defined as naturally occurring events with the
potential for negative impacts, including meteorological hazards due to
weather and climactic cycles, as well as geological hazards. EPA seeks
comment on this approach.
EPA continues to expect facilities to utilize all available
resources to properly evaluate what natural hazards could potentially
trigger accidental releases from their regulated processes. EPA
understands that natural hazards and process operations vary throughout
the United States. However, because the RMP rule is performance-based,
EPA believes that all regulated RMP facilities can be successful in
addressing natural hazards within their risk management programs.
Because natural hazards continue to be a factor in RMP accidents and
present a growing threat to process safety at RMP facilities, a
requirement to evaluate and control natural hazards should be
explicitly stated in the RMP regulation. While EPA will continue to
rely on available industry guidance to evaluate compliance with this
provision, the Agency requests public comment on whether EPA should
develop additional guidance (beyond the Agency's existing RMP general
guidance for risk management programs) \45\ to help regulated
facilities comply with this provision. EPA is particularly interested
in comments related to suggested information resources such as
databases, checklists, or narrative discussions, as well as commenters'
recommendations for regional versus national, or sector-specific
guidance.
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\45\ EPA, ``Guidance for Facilities on Risk Management Programs
(RMP),'' last modified December 20, 2021, <a href="https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general">https://www.epa.gov/rmp/guidance-facilities-risk-management-programs-rmp#general</a>.
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As an alternative to the preferred approach, EPA seeks comment on
whether to specify areas most at risk from climate or other natural
events by adopting the list of areas exposed to heightened risk of
wildfire, flooding, storm surge, or coastal flooding identified in,
``Preventing Double Disasters,'' discussed above. EPA could also add
areas prone to earthquake to this list of areas, which presents a
significant risk of NaTech that is unrelated to climate. Would this
more definite, but limited, approach be easier to implement for
stationary sources? Would this be simpler for public oversight by
providing a specific reference such that all parties would know whether
there is a heightened risk for a potential climate or earthquake impact
at a facility? Should the Agency require sources in these areas to
conduct hazard evaluations associated with climate or earthquakes as a
minimum, while also requiring that all sources consider the potential
for natural hazards unrelated to climate or earthquakes in their
specific locations?
c. Power Loss
Whether caused by a natural hazard or some other event, power loss
at hazardous chemical facilities can lead to a variety of negative
impacts. Pumps and compressors may stop running, stirrers may quit
mixing, lights may go out, and instruments and controls may
malfunction. These equipment outages can lead to tank overflows,
runaway chemical reactions, temperature or pressure excursions, or
other process upsets which could lead to a spill, explosion, or fire.
Even if there is no immediate release, thermal shock or other factors
could result in a delayed effect that compromises the mechanical
integrity of equipment during subsequent operations. When power is
restored even after a brief interruption, some equipment may
automatically restart before process operations are ready, while other
equipment may need to be reset and manually restarted. When a facility
relies on electrical power for any aspect of its process operations, it
is imperative to anticipate how power loss affects the safeguards that
prevent releases of hazardous chemicals.
Power loss has resulted in serious accidents at RMP-regulated
facilities. The aforementioned 2017 Arkema incident highlighted the
hazard of power loss on process safety; other previous incidents have
also highlighted this hazard and offered lessons on potential
safeguards that could be applied to prevent accidental chemical
releases. The accidents described below--all associated with power
failure--are examples of these situations and their potential severity.
They also highlight the in-depth evaluation needed to prevent loss of
power from resulting in an accidental release.
On May 1, 2001, at General Chemical Corp., in Richmond, California,
a truck struck a utility pole, causing a power interruption and total
plant shutdown. Shortly after, sulfur dioxide and sulfur trioxide began
to escape from a boiler exit flue. When power was restored a short time
later, a steam turbine that was required to keep the boiler exit flue
under negative pressure could not be immediately restarted. While the
turbine could not be restarted, residents near the plant were
instructed to remain indoors. Somewhere between 50 to 100 individuals
sought medical attention following the release. Troubleshooting
revealed that an automatically controlled governor valve had
malfunctioned.\46\
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\46\ EPA, Chemical Accidents from Electric Power Outages (Office
of Solid Waste and Emergency Response, 2001), <a href="https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf">https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf</a>.
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On August 23, 2010, at the Millard Refrigerated Services in
Theodore, Alabama, hydraulic shock caused a roof-mounted suction pipe
to catastrophically fail, leading to the release of more than 32,000
pounds of anhydrous ammonia. The hydraulic shock occurred during the
restart of the plant's ammonia refrigeration system following a 7-hour
power outage. Downwind of the ammonia release were crew members on the
ships docked at Millard and over 800 contractors working outdoors at a
clean-up site for the Deepwater Horizon oil spill. Nine ship crew
members and 143 of the offsite contractors downwind reported exposure.
Of the victims, 32 required hospitalization and four were placed in
intensive care.\47\
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\47\ CSB, ``Millard Refrigerated Services Ammonia Release,''
last modified January 15, 2015, <a href="https://www.csb.gov/millard-refrigerated-services-ammonia-release/">https://www.csb.gov/millard-refrigerated-services-ammonia-release/</a>.
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National Response Center data also include information on 3,077
reported accidents from 2004-2020 that were associated with power
loss.\48\ While most of these incidents did not involve RMP chemicals,
processes, or accidental releases as defined in CAA 112(r)(2), these
events demonstrate a connection between the loss of power, loss of
containment, and release into the environment.
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\48\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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The European Union published a 2021 bulletin that presents lessons
learned from incidents worldwide involving power supply failures. The
findings point to the importance of understanding the scenarios
triggered by a primary failure in external power supply systems, power
loss attributed to failures of onsite electrical equipment or
electrical components, and even failures of redundant power supplies.
In addition to providing statistics on the effects of power outages at
chemical facilities, data provided by the European Union indicate that
power failures at hazardous sites have resulted in 21 fatalities and
over 9,500 injuries worldwide since 1981, as well as significant
property damage and production loss from resulting fires and
explosions. The most catastrophic event in the study occurred in Sakai
(Osaka),

[[Page 53570]]

Japan, in 1982. It killed six people, injured 9,080 others (of which
8,876 were offsite), and destroyed 1,788 buildings.\49\
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\49\ Chemical Accident Prevention & Preparedness (European
Commission, 2021), <a href="https://minerva.jrc.ec.europa.eu/en/shorturl/minerva/mahb_bulletin_15_on_power_failuresfinalpubsypdf">https://minerva.jrc.ec.europa.eu/en/shorturl/minerva/mahb_bulletin_15_on_power_failuresfinalpubsypdf</a>.
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EPA has long recognized that loss of power can threaten hazardous
chemical processes and cause accidental releases if not properly
managed. While EPA did not specifically require power loss to be
evaluated for Program 2 and Program 3 hazard reviews and PHAs, EPA and
OSHA guidance has referred to it. In addition to acknowledging power
failure in the Agency's ``General Guidance on Risk Management Programs
for Chemical Distributors,'' \50\ in 2001 EPA issued the safety alert,
``Chemical Accidents from Electric Power Outages.'' \51\ These
guidelines warned RMP facilities that power outages and restarts could
potentially trigger serious chemical accidents. The alert outlined some
of the accidents previously discussed and warned that process
operations must be evaluated for the consequences of power outages to
ensure that the process remains safe. It also indicates that if there
is critical equipment that needs to operate to ensure the safety of the
process or work area, facilities should install backup power supplies
and services.
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\50\ EPA, General Guidance on Risk Management Programs for
Chemical Distributors, Ch. 6: Prevention Programs (2012), pp. 6-10
to 6-11, <a href="https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf">https://www.epa.gov/sites/default/files/2013-11/documents/chap-06-final.pdf</a>.
\51\ EPA, Chemical Accidents from Electric Power Outages (Office
of Solid Waste and Emergency Response, 2001), <a href="https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf">https://www.epa.gov/sites/default/files/2013-11/documents/power.pdf</a>.
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In 2008, OSHA published an interpretation letter \52\ that
addressed the concern about utility systems and their evaluation within
the scope of PSM. OSHA indicated that the proper, safe functioning of
all aspects of a process, whether they contain a highly hazardous
chemical \53\ or not, are important for the prevention and mitigation
of catastrophic releases of highly hazardous chemicals. OSHA's position
is that any engineering control (including utility systems) which does
not contain a highly hazardous chemical (HHC) but can affect or cause a
release of an HHC or interfere in the mitigation of the consequences of
a release must be, at a minimum, evaluated, designed, installed,
operated (with appropriate training and procedures), changed, and
inspected/tested/maintained per OSHA PSM requirements. OSHA provided
the example of an employer that identifies, through its PHA, that safe
operation of its covered process relies on the electrical utility
system. In response, the employer could determine that an
uninterruptible power supply would be an appropriate safeguard against
the loss of electrical utility to the process equipment.
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\52\ OSHA, ``Standard Interpretation 1910.119,'' accessed
January 28, 2022, <a href="https://www.osha.gov/laws-regs/standardinterpretations/2008-01-31">https://www.osha.gov/laws-regs/standardinterpretations/2008-01-31</a>.
\53\ Term similar to ``RMP-regulated substance.''
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EPA believes making more explicit this already-existing accident
prevention program requirement, to evaluate hazards of the process \54\
will ensure the threats of power loss are properly evaluated and
managed to prevent or mitigate releases of RMP-regulated substances at
covered facilities. EPA believes many facilities with RMP processes are
managing the hazard of power loss. However, some recent RMP accidents
are linked to power loss. EPA's review of RMP accident history data
from 2004-2020 shows that at least 20 accident history reports have
specifically indicated that power failure was a contributing factor to
an accident. However, only 63 percent (310) and 44 percent (1,971) of
facilities with Program 2 and Program 3 processes, respectively, have
implemented backup power at their facilities, despite identifying that
the loss of cooling, heating, electricity, and instrument air is a
major potential hazard to their process operations.\55\ \56\
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\54\ Existing requirements of the hazards to be evaluated in
hazard evaluations are found at 40 CFR 68.50(a) for Program 2
processes and at 40 CFR 68.67(a)-(c) for Program 3 processes.
\55\ EPA recognizes that not all RMP-regulated processes will
need emergency backup power (for example, certain RMP-regulated
storage processes).
\56\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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The frequency and severity of extreme weather events may exacerbate
power failure events if the impacts of potential power failures are not
identified, and control strategies are not implemented. Climate change
poses long-term challenges because it affects the frequency, intensity,
and duration of weather events that represent the largest source of
disruptions to the U.S. electricity grid. New studies have shown that
the threat of power loss is increasing for utility customers. The
Department of Energy reported that an increase in extreme weather
events has led to an increase in power outages in recent years.
Specifically, the Department of Energy's U.S. Energy Information
Agency's data showed that electric power for U.S. customers was
interrupted for an average of 7.8 hours (470 minutes) in 2017, nearly
double the average total duration of interruptions experienced in 2016.
Data indicate that more major weather events, such as hurricanes and
winter storms, occurred in 2017 than in previous years, and the total
duration of power interruptions caused by major events was longer.\57\
\58\ Recent major power outages also provide examples of this threat.
In February 2021 in Texas, Winter Storm Uri left 4.5 million customers
without power, some for several days.\59\ In January 2022, one of the
five worst winter storms in Virginia's history resulted in
approximately 400,000 Dominion Energy customers experiencing a power
outage when heavy snow and high winds impacted utility services.\60\
Events like these also have the potential to impact hazardous chemical
process operations.
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\57\ U.S. Energy Information Administration, ``Today in
Energy,'' last modified November 30, 2018, <a href="https://www.eia.gov/todayinenergy/detail.php?id=37652#">https://www.eia.gov/todayinenergy/detail.php?id=37652#</a>.
\58\ Department of Energy, ``Electric Disturbance Events (OE-
417) Annual Summaries,'' accessed January 28, 2022, <a href="https://www.oe.netl.doe.gov/OE417_annual_summary.aspx">https://www.oe.netl.doe.gov/OE417_annual_summary.aspx</a>.
\59\ Chris Stipes, ``New Report Details Impact of Winter Storm
Uri on Texans,'' University of Houston, last modified March 29,
2021, <a href="https://uh.edu/news-events/stories/2021/march-2021/03292021-hobby-winter-storm.php">https://uh.edu/news-events/stories/2021/march-2021/03292021-hobby-winter-storm.php</a>.
\60\ Dominion Energy, ``Dominion Energy Making Significant
Progress Restoring Power, Preparing for Second Winter Storm,'' last
modified January 5, 2022, <a href="https://news.dominionenergy.com/2022-01-05-Dominion-Energy-Making-Significant-Progress-Restoring-Power,-Preparing-for-Second-Winter-Storm">https://news.dominionenergy.com/2022-01-05-Dominion-Energy-Making-Significant-Progress-Restoring-Power,-Preparing-for-Second-Winter-Storm</a>.
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Therefore, EPA is proposing to further emphasize loss of power in
the hazards evaluated in hazard reviews and PHAs for Program 2 and
Program 3 RMP-regulated processes. EPA believes further emphasis on
these accident prevention program provisions will ensure that the risk
of power failure is properly evaluated and managed to prevent or
mitigate releases of RMP-regulated substances at covered facilities.
EPA is proposing to include emphasizing that hazard evaluations under
40 CFR 68.50(a)(3) and 68.67(c)(3) address standby or emergency power
systems.
EPA expects facilities to continue to use available resources to
properly evaluate whether power loss is a hazard to their process and,
if so, implement appropriate controls to prevent or reduce that hazard.
In addition to the hazard evaluation guidance offered by CCPS and other
industry-specific resources, below are resources that broadly discuss
options for evaluation of power loss and standby power:
<bullet> National Fire Protection Association (NFPA) 70: National
Electrical Code.\61\
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\61\ NFPA, NFPA 70, National Electric Code (2020), <a href="https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=70">https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=70</a>.

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[[Page 53571]]

<bullet> NFPA 110: Standard for Emergency and Standby Power
Systems.\62\
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\62\ NFPA, NFPA 110, Standard for Emergency and Standby Power
Systems (2022), <a href="https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=110">https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=110</a>.
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<bullet> NFPA 1600: Standard on Continuity, Emergency, and Crisis
Management.\63\
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\63\ NFPA, NFPA 1600, Standard on Continuity, Emergency, and
Crisis Management (2019), <a href="https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600">https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=1600</a>.
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<bullet> 3005.4-2020: Institute of Electrical and Electronics
Engineers (IEEE) Recommended Practice for Improving the Reliability of
Emergency and Stand By Power Systems.\64\
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\64\ IEEE, IEEE Recommended Practice for Improving the
Reliability of Emergency and Stand By Power Systems (2020), <a href="https://standards.ieee.org/ieee/3005.4/6218/">https://standards.ieee.org/ieee/3005.4/6218/</a>.
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<bullet> 3006.7-2013: IEEE Recommended Practice for Determining the
Reliability of 7x24 Continuous Power Systems in Industrial and
Commercial Facilities.\65\
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\65\ IEEE, IEEE Recommended Practice for Determining the
Reliability of 7x24 Continuous Power Systems in Industrial and
Commercial Facilities (2013), <a href="https://ieeexplore.ieee.org/document/6493367">https://ieeexplore.ieee.org/document/6493367</a>.
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<bullet> National Renewable Energy Laboratory (NREL), ``Backup
power cost of ownership analysis and incumbent technology,'' NREL,
NREL/TP-5400-60732, Golden, CO (2014).\66\
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\66\ Kurtz, J., et al., Backup Power Cost of Ownership Analysis
and Incumbent Technology Comparison (2014), <a href="https://www.nrel.gov/docs/fy14osti/60732.pdf">https://www.nrel.gov/docs/fy14osti/60732.pdf</a>.
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<bullet> NREL, ``A comparison of fuel choice for backup
generators,'' NREL, NREL/TP-6A50-72509, Golden, CO (2019).\67\
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\67\ Ericson, S., and Olis, D., A Comparison of Fuel Choice for
Backup Generators (2019), <a href="https://www.nrel.gov/docs/fy19osti/72509.pdf">https://www.nrel.gov/docs/fy19osti/72509.pdf</a>.
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The Agency is concerned that the threat of extreme weather events
has and will be used by some owners or operators to justify disabling
equipment designed to monitor and detect chemical releases of RMP-
regulated substances at their facility. EPA is concerned that air
monitoring and control equipment is often removed from service before
natural disasters to potentially prevent damage to equipment or,
conceivably in some cases, evade monitoring requirements and therefore
may not become operational again until much later, after the event or
threat has passed. To prevent accidents, RMP owners or operators are
required to develop a program that includes monitoring for accidental
releases. EPA does not believe natural disasters should be treated as
an exception to this requirement. A large-scale natural disaster may
threaten multiple RMP facilities in a community simultaneously, leaving
communities to endure the direct effects of a natural disaster without
receiving warning of associated chemical releases. EPA wants to ensure
RMP-regulated substances at covered processes are continually being
monitored so that potential exposure to chemical substances can be
measured during and following a natural disaster. Some industry
standards already require continuous monitoring of process chemicals.
For example, the International Institute of Ammonia Refrigeration's
(IIAR's) ``Minimum Safety Requirements for Existing Closed Circuit
Ammonia Refrigeration Systems'' requires facilities with ammonia
refrigeration systems to provide a means for monitoring the
concentration of an ammonia release in the event of a power
failure.\68\ While EPA is not requiring implementation of standby or
emergency power for the entirety of an RMP process, EPA is proposing to
require air pollution control or monitoring equipment associated with
prevention and detection of accidental releases from RMP-regulated
processes to have standby or backup power to ensure compliance with the
intent of the rule. EPA seeks comment and data on this proposed
provision, particularly on any potential safety issues associated with
it.
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\68\ IIAR, IIAR-9-2020 Minimum Safety Requirements for Existing
Closed Circuit Ammonia Refrigeration Systems 7.4.7.2.
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d. Stationary Source Siting
The location of stationary sources, and the location and
configuration of regulated processes and equipment within a source, can
significantly affect the severity of an accidental release. The
location of the stationary source in relation to public and
environmental receptors may exacerbate the impacts of an accidental
release, such as blast overpressures or concentrations of toxic gases,
or conversely, it may allow such effects to dissipate prior to reaching
receptors. Siting of processes and equipment within a stationary source
can impact the surrounding community not only through the proximity of
the accidental release to offsite receptors adjacent to the facility
boundary (e.g., people, infrastructure, environmental resources), but
also through increasing the likelihood of a secondary ``knock-on''
release by compromising nearby processes. EPA is proposing to emphasize
the requirement to consider stationary source siting in regulatory text
to make sure that the intent of the requirement is properly
incorporated in siting hazard evaluations.
The lack of sufficient distance between the source boundary and
neighboring residential areas was a significant factor in the severity
of several chemical accidents in the United States and internationally.
The following are examples which illustrate the potential of such
effects:
<bullet> 1984, Bhopal, India: Union Carbide release of
approximately 40 tons of methyl isocyanate into the air killed over
3,700 people. Most of the deaths and injuries occurred in a residential
area near the plant.\69\
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\69\ Lees, Frank P. Loss Prevention in the Process Industries,
Volume 3, 2nd ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann,
1996).
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<bullet> 1984, Juan Ixhuatepec, Mexico: Pemex liquefied petroleum
gas (LPG) tank farm LPG pipeline rupture resulted in a large ground
fire that spread to nearby LPG storage vessels, initiating a series of
massive explosions. The cascading explosions and fires ultimately
destroyed the entire facility and many nearby residences, resulting in
over 500 fatalities and thousands of severe injuries.\70\
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\70\ Lees, Frank P. Loss Prevention in the Process Industries,
Volume 3, 2nd ed. Appendix 4, Mexico City (Oxford: Butterworth-
Heinemann, 1996).
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<bullet> 1994, Port Neal, Iowa, United States: Terra Industries
explosion involving ammonium nitrate (AN) killed four workers and
damaged onsite ammonia tanks, creating an ammonia cloud that resulted
in the evacuation of 2,500 people in nearby neighborhoods.\71\
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\71\ EPA. Chemical Accident Investigation Report: Terra
Industries, Inc., Nitrogen Fertilizer Facility (2014), <a href="https://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf">https://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf</a>.
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<bullet> 2009, Belvidere, Illinois, United States: NDK Crystal
facility catastrophic rupture of a pressure vessel resulted in one
public fatality and one public injury. A building fragment propelled by
the force of the blast traveled nearly 650 feet and killed a member of
the public at a highway rest stop parking lot. An 8,600-pound vessel
fragment traveled 435 feet and impacted a neighboring business,
injuring one offsite worker and causing significant property
damage.\72\
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\72\ CSB, ``NDK Crystal Inc. Explosion with Offsite Fatality,''
last modified November 14, 2013, <a href="https://www.csb.gov/ndk-crystal-inc-explosion-with-offsite-fatality-/">https://www.csb.gov/ndk-crystal-inc-explosion-with-offsite-fatality-/</a>.
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<bullet> 2013, West, Texas, United States: West Fertilizer Company
explosion involving AN damaged an apartment complex and a nursing home
located approximately 450 feet and 600 feet, respectively, from the
source of the explosion, resulting in 3 public fatalities

[[Page 53572]]

(out of a total of 15 people killed in the explosion). The explosion
also caused over 260 injuries, as well as damage to over 350 homes and
3 schools located near the plant.\73\
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\73\ CSB, ``West Fertilizer Explosion and Fire,'' last modified
January 28, 2016, <a href="https://www.csb.gov/west-fertilizer-explosion-and-fire-/">https://www.csb.gov/west-fertilizer-explosion-and-fire-/</a>.
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<bullet> 2018, Superior, Wisconsin, United States: Superior
Refining Company, LLC, explosion and subsequent fire in the refinery's
fluid catalytic cracking unit resulted in 36 people (workers and
community members) seeking medical attention. In addition, a portion of
Superior, Wisconsin, had to be evacuated.\74\
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\74\ CSB, ``Husky Energy Refinery Explosion and Fire,'' accessed
January 28, 2022, <a href="https://www.csb.gov/husky-energy-refinery-explosion-and-fire/">https://www.csb.gov/husky-energy-refinery-explosion-and-fire/</a>.
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<bullet> 2020, Visakhapatnam, Andhra Pradesh, India: LG Polymers
styrene release incident produced a toxic cloud that caused at least 11
fatalities and hundreds of injuries in the nearby community.\75\
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\75\ Doyle, Amanda, ``Hundreds Hospitalized After Styrene Gas
Leak in India,'' The Chemical Engineer, last modified May 7, 2020,
<a href="https://www.thechemicalengineer.com/news/hundreds-hospitalised-after-styrene-gas-leak-in-india">https://www.thechemicalengineer.com/news/hundreds-hospitalised-after-styrene-gas-leak-in-india</a>.
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This list of accidents provides examples of the numerous accidents
with offsite consequences resulting from the close proximity of
industrial facilities to public receptors, demonstrating that selection
of locations of processes and process equipment within a stationary
source can impact the surrounding community. Communities are affected
not only by the proximity of accidental releases to offsite receptors
(e.g., people, infrastructure, environmental resources) near the
facility boundary, but also by the increased likelihood of subsequent
releases from other nearby processes compromised by the initial
release. As accidents continue to happen, EPA is proposing to emphasize
the intent of the required siting evaluation to ensure protection of
human health and the environment.
The OSHA PSM standard and RMP rule both require that facility
siting be addressed as one element of a PHA (29 CFR 1910.119(e)(3)(v),
and 40 CFR 68.67(c)(5)). In response to comments on the proposed PSM
rule, OSHA indicated that facility siting should always be considered
during PHAs and therefore decided to emphasize this element by
specifically listing siting evaluation in regulatory text.\76\ With the
adoption of PHA regulatory text, EPA also recognized the offsite
benefits of siting evaluations. EPA's approach to the siting
requirement is consistent with its general approach to PSM in the 1996
RMP rule: sound, comprehensive PSM systems can protect workers, the
public, and the environment.\77\ The Agency chose to include additional
guidance in a frequently asked questions section of its website to not
only indicate the Agency's expectations, but also to provide guidance
on the RMP rule's coverage of facility siting evaluation to include
consideration of offsite receptors. The guidance states: ``The
requirement to consider stationary source siting during the process
hazard analysis means that you should consider the location of the
covered vessels and evaluate whether their location creates risks for
offsite public or environmental receptors, as well as onsite receptors.
This analysis should consider the proximity of the vessels that could
lead to a release of a regulated substance. The proximity of the
vessels to onsite equipment or activities nearby will have been
considered for OSHA; the proximity of the vessels in relation to
offsite receptors will be considered if not already considered for
OSHA. The analysis may be done qualitatively. The analysis addresses
whether the location of the vessels creates risks that could be reduced
by changing the location or taking other actions, such as installing
mitigation systems.'' \78\
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\76\ OSHA, Final Rule on Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part
1910 (1992), <a href="https://www.osha.gov/laws-regs/federalregister/1992-02-24">https://www.osha.gov/laws-regs/federalregister/1992-02-24</a>.
\77\ 61 FR 31687; June 20, 1996.
\78\ EPA, ``Is EPA's PHA Stationary Source Siting Requirement
Analogous to OSHA's PSM?'' accessed January 31, 2022, <a href="https://www.epa.gov/rmp/epas-pha-stationary-source-siting-requirement-analogous-oshas-psm">https://www.epa.gov/rmp/epas-pha-stationary-source-siting-requirement-analogous-oshas-psm</a>.
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As with other aspects of the RMP rule, EPA expects regulated
facilities to rely on industry guidance to help adequately address
stationary source siting in PHAs. The following examples of relevant
industry guidance on siting considerations are available to facility
owners and operators:
<bullet> American Petroleum Institute (API) Recommended Practice
752, Management of Hazards Associated with Location of Process Plant
Buildings.\79\
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\79\ API, Recommended Practice 752, Management of Hazards
Associated with Location of Process Plant Buildings, 3rd Edition
(December 2020), <a href="https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-752">https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-752</a>.
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<bullet> API Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings.\80\
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\80\ API, Recommended Practice 753, Management of Hazards
Associated with Location of Process Plant Portable Buildings, 1st
Edition (June 2007), <a href="https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-753">https://www.api.org/oil-and-natural-gas/health-and-safety/refinery-and-plant-safety/process-safety/process-safety-standards/rp-753</a>.
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<bullet> CCPS Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases.\81\
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\81\ CCPS, Guidelines for Evaluating Process Plant Buildings for
External Explosions, Fires, and Toxic Releases, 2nd Edition (2012),
<a href="https://www.aiche.org/resources/publications/books/guidelines-evaluating-process-plant-buildings-external-explosions-fires-and-toxic-releases-2nd">https://www.aiche.org/resources/publications/books/guidelines-evaluating-process-plant-buildings-external-explosions-fires-and-toxic-releases-2nd</a>.
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<bullet> CCPS Guidelines for Siting and Layout of Facilities.\82\
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\82\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), <a href="https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition">https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition</a>.
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<bullet> NFPA Separation Distances in NFPA Codes and Standards.\83\
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\83\ Argo, Ted, and Evan Sandstrom, Separation Distances in NFPA
Codes and Standards (The Fire Protection Research Foundation, 2014),
<a href="https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Hazardous-materials/RFSeparationDistancesNFPACodesAndStandards.ashx">https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Hazardous-materials/RFSeparationDistancesNFPACodesAndStandards.ashx</a>.
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The CCPS ``Guidelines for Siting and Layout of Facilities''
addresses external factors influencing site selection, as well as
factors internal to the source that could influence site layout and
equipment spacing. The most recent edition of this CCPS publication was
updated to address many developments in the last decade that have
improved how companies survey and select new sites, evaluate
acquisitions, and expand their existing facilities.\84\ The title was
also updated to emphasize not only siting of buildings and unit
operations within a facility, but also siting of facilities within a
community. The guidance addresses identifying the process hazards and
risks, selecting a facility location, selecting process unit layout
within a facility, selecting equipment within a process unit, and
managing changes.
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\84\ CCPS, Guidelines for Siting and Layout of Facilities, 2nd
Edition (Hoboken, NJ: Wiley, 2018), <a href="https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition">https://www.aiche.org/ccps/resources/publications/books/guidelines-siting-and-layout-facilities-2nd-edition</a>.).
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As an industry-specific example for siting, the Compressed Gas
Association's (CGA's) ``G-2.1--Requirements for the Storage and
Handling of Anhydrous Ammonia,'' \85\ among other things, requires
facilities with anhydrous ammonia systems to apply specific location
requirements for processes, such as tank loading and unloading
operations, and equipment, such as ammonia storage containers, piping,
and nurse wagons. It also includes specific minimum separation
distances from storage containers to railroad mainlines, highways,
lines of

[[Page 53573]]

adjoining properties, and places of public assembly and residential and
institutional occupancy. Asmark Institute,\86\ a well-known
agricultural industry organization, developed an RMP Program 2 Hazard
Review checklist as a resource for its industry to apply CGA G-2.1 and
other applicable industry standards.\87\
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\85\ ANSI/CGA, Requirements for the Storage and Handling of
Anhydrous Ammonia (an American National Standard) (2014), <a href="https://webstore.ansi.org/standards/cga/ansicga2014">https://webstore.ansi.org/standards/cga/ansicga2014</a>.
\86\ Asmark Institute, <a href="https://www.asmark.org/">https://www.asmark.org/</a>.
\87\ Asmark Institute, MyRMP Hazard Review Worksheet for Program
2 Facilities with Anhydrous Ammonia (2015), <a href="https://www.asmark.org/myRMP/Forms/P2AnhydrousWorksheet.pdf">https://www.asmark.org/myRMP/Forms/P2AnhydrousWorksheet.pdf</a>.
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Despite enforcement and the consequences of catastrophic accidents,
issues of siting continue to threaten process safety. For example, in
2018, EPA took an enforcement action against an agricultural anhydrous
ammonia sales operation in Missouri that failed to identify the hazards
associated with the proximity of the facility to a home and a nearby
firehouse.\88\ In 2021, EPA took an enforcement action against a
chemical manufacturing facility in Maine that did not address the
facility's proximity to a nearby bay; lack of proximity to external
trained emergency responders; and process layout--specifically, the
proximity of shutdown valves to operations.\89\
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\88\ Available at https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/
Filings/E54E9167BD7A4EF6852582C0001BCFD5/$File/CAA-07-2018-
0214%20United%20Cooperatives%20CAFO.pdf.
\89\ Available at https://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/
Filings/D26E190D9B6DA9E18525875F006CA916/$File/CAA-01-2021-
0070%20CAF)%20ViewPDF%20(8).pdf.
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EPA reviewed data from OSHA PSM PHA enforcement actions. In 2018,
16 cases were filed where facility siting was cited as a serious
violation \90\ that could cause an accident or illness that would most
likely result in death or serious physical harm.\91\ One of those cases
was also reported as an RMP accident that occurred on September 1,
2016, at the Brookshire Grocery Company's distribution center in Tyler,
Texas. A failure in the piping on the roof of the cold storage building
caused an ammonia leak. The leak caused 16 injuries and resulted in the
evacuation of the building, the closure of a nearby intersection, and
the need for nearby residents to shelter in place.\92\ Given the
potential risk demonstrated by recurring accidents, EPA seeks to ensure
that emphasis is placed on the importance of all aspects of a proper
facility siting evaluation.
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\90\ Identified as a ``serious'' violation under OSHA in: OSHA,
``Federal Employer Rights and Responsibilities Following an OSHA
Inspection-1996,'' accessed January 31, 2022, https://www.osha.gov/
publications/
fedrites#:~:text=SERIOUS%3A%20A%20serious%20violation%20exists,have%2
0known%20of%20the%20violation.
\91\ U.S. Department of Labor, ``Data Catalog; OSHA Enforcement
Data; osha_violation'' accessed March 17, 2022, <a href="https://enforcedata.dol.gov/views/data_summary.php">https://enforcedata.dol.gov/views/data_summary.php</a>.
\92\ Louanna Campbell, ``Tyler Fire Marshal's Office Releases
Cause of Ammonia Leak at Brookshire's Warehouse,'' last modified
September 5, 2017, <a href="https://tylerpaper.com/news/local/tyler-fire-marshals-office-releases-cause-of-ammonia-leak-at-brookshires-warehouse/article_3a7581b2-63b9-57b9-96c2-0b163f546668.html">https://tylerpaper.com/news/local/tyler-fire-marshals-office-releases-cause-of-ammonia-leak-at-brookshires-warehouse/article_3a7581b2-63b9-57b9-96c2-0b163f546668.html</a>.
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In a 2014 RMP request for information (RFI),\93\ EPA requested
comments on whether to consider stationary source location requirements
for future rulemaking. EPA specifically asked whether it should amend
the RMP rule to include more specific siting requirements as part of
the PHA. Though EPA received comments on the issue, EPA chose not to
move forward with additional action on siting in the amendment's final
rule but indicated that the Agency would consider comments for a future
rulemaking.
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\93\ EPA, Accidental Release Prevention Requirements: Risk
Management Programs Under the Clean Air Act, Section 112(r)(7),
Proposed rule, 79 FR 44603 (July 13, 2014), pp. 44603-44633, <a href="https://www.federalregister.gov/documents/2014/07/31/2014-18037/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-section">https://www.federalregister.gov/documents/2014/07/31/2014-18037/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-section</a>.
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In response to the RFI, commenters opposed adding additional
provisions to address stationary source siting, citing as rationale
that:
<bullet> Existing facilities have limited flexibility to alter
locations onsite.\94\
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\94\ EPA-HQ-OEM-2014-0328-0121; 0543, 0548, 0605, 0616, 0624.
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<bullet> Specifying or requiring buffer or setback zones is a
complicated issue and must be looked at differently for new and
existing facilities.\95\
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\95\ EPA-HQ-OEM-2014-0328-0543; 0546, 0584, 0616, 0632.
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<bullet> EPA would be intruding on local zoning codes when
establishing siting criteria.\96\
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\96\ EPA-HQ-OEM-2014-0328-0543; 0584, 0614, 0616, 0624, 0626,
0646, 0667.
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<bullet> Existing industry guidance is sufficient.\97\
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\97\ EPA-HQ-OEM-2014-0328-0121; 0543, 0546, 0605, 0620, 0624,
0640, 0665.
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<bullet> Requiring additional siting requirements for both new and
existing facilities could result in significant cost to the regulated
entity.\98\
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\98\ EPA-HQ-OEM-2014-0328-0624; 0626.
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One opposing commenter specifically indicated that, to date, EPA
has allowed for siting considerations to be included under performance-
based elements of the RMP program. The commenter stated that any
modification of the existing requirements would be inconsistent with a
risk-based management system approach.\99\ Another commenter, although
generally in opposition to new siting requirements, stated that for
existing facilities, the owner/operator should demonstrate that other
technologies, such as early detection, early communication, prevention
measures, and mitigation measures, are applied to manage risk within
acceptable levels. This commenter also stated that in some cases, it
may be necessary to make process changes, and in unique cases where the
risk cannot be abated, owners/operators should consider relocation of
part or all facility operations.\100\
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\99\ EPA-HQ-OEM-2014-0328-0691.
\100\ EPA-HQ-OEM-2014-0328-0543.
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There were also commenters who argued stationary source siting
should be expanded in the RMP rule. For example, one commenter stated
the PHA must address issues of co-location both in terms of adjacent
facilities and in terms of vulnerable populations and infrastructure.
This commenter stated that at a minimum, facilities must address
hazards to and from adjacent facilities--including impacts that a
release from their facility would have on other facilities and the
impact that a release from other facilities would have on their
facility--and further expansion should address buffer zones for nearby
residents, hospitals, and infrastructure. The commenter argued that new
facilities or expansion of facilities must consider the cumulative
impacts from adjacent facilities and look at the threat that a release
from the new facility or expansion would pose to other facilities,
infrastructure, populations, and environmental resources.\101\
Additionally, CSB encouraged EPA to incorporate more explicit
requirements for identifying, evaluating, and addressing facility
siting during a PHA to assess both offsite consequences and onsite
receptors within that stationary source that may be impacted by
chemical fire, explosion, or release.\102\
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\101\ EPA-HQ-OEM-2014-0328-0637.
\102\ EPA-HQ-OEM-2014-0328-0689.
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EPA believes that many matters outlined in comments about the
current stationary source siting provision, while not explicitly
addressed within the current regulatory text, are implicit and
mandatory. Therefore, at this time, EPA is only choosing to make more
explicit what is required to be addressed in a stationary source siting
evaluation. Rather than propose additional requirements, EPA is
expounding on the current regulatory text to ensure that siting
evaluations properly account for hazards resulting from the location of
processes, equipment, building, and proximate facilities, and their
effects on the surrounding community. In addition

[[Page 53574]]

to providing some detail on what is intended by the Program 3
regulatory text on stationary source siting, EPA is also proposing to
revise language to Program 2 hazard evaluations to ensure that all RMP
facilities with the potential to cause offsite consequences to public
receptors account for these hazards. Therefore, EPA is proposing to
amend regulatory text for Program 2 and Program 3 under 40 CFR
68.50(a)(6) and 68.67(c)(5), respectively, to define stationary source
siting evaluation as inclusive of the placement of processes,
equipment, buildings, and hazards posed by proximate facilities, and
accidental release consequences posed by proximity to the public and
public receptors. The proposed amendments would make more explicit the
requirement that hazard evaluations for processes under both Program 2
(hazard review) and Program 3 (PHA) need to address the matters in the
siting evaluation.
Because there is a breadth of guidance on siting, EPA believes
there is adequate information available for facilities to comply with
the proposed text. EPA expects facilities to continue to use available
resources, including those previously mentioned, and any additional
industry-specific guidance to properly evaluate siting hazards.
e. Hazard Evaluation Recommendation Information Availability
Ensuring that communities, local planners, local first responders,
and the public have appropriate chemical facility hazard-related
information is critical to the health and safety of responders and the
local community. In this action, EPA is proposing ways to enhance
information sharing and collaboration between chemical facility owners/
operators, Tribal and local emergency planning committees (TEPCs/
LEPCs), first responders, and the public in a manner that EPA believes
balances security and proprietary considerations. In addition to the
information accessibility provisions in section IV.C of this preamble,
EPA is also proposing that recommendations resulting from hazard
evaluations discussed in this section be included in a facility's risk
management plan submitted under 40 CFR part 68, subpart G.
Specifically, facilities would be required to implement recommendations
or list in their risk management plans the recommendations from their
natural hazard, loss of power, and siting evaluations that were not
adopted and the justification for those decisions. EPA believes this
will enable the public to ensure facilities have conducted appropriate
evaluations to address potential hazards that can affect communities
near the fenceline of facilities. In response to comments in the RFI on
increased public disclosure of information, one commenter stated that
it is important to help the public understand how the facilities
address the hazard present in their community and keep the risk at or
below the ``acceptable level.'' EPA believes that when local citizens
have adequate information and knowledge about facility hazards,
facility owners and operators may be motivated to further improve their
safety in response to community pressure and oversight.\103\
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\103\ EPA-HQ-OEM-2014-0328-0543-27.
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EPA is proposing to require facilities to list in section 7
(Program 3) and section 8 (Program 2) of their risk management plans,
for each process, recommendations resulting from hazard evaluations of
natural hazards, loss of power, and facility siting that the owner/
operator chooses to decline. EPA realizes that the number of hazard
evaluation recommendations may vary widely, depending on the complexity
of the process or facility. Therefore, EPA seeks comments on the format
of listing the recommendations, whether EPA should require
recommendations to be included in narrative form, or whether the Agency
should provide specific categories of recommendations for facilities to
choose from when reporting. Another option would be to allow the owner
or operator to post this information online and provide a link to the
information within their risk management plan.
Regarding the requirement to provide justification for not
implementing recommendations, EPA is proposing to allow facilities to
choose from pre-selected categories. Under OSHA guidance, an employer
may decline to adopt a PHA recommendation if, based upon adequate
evidence, the employer can document that one or more of the following
conditions is true:\104\
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\104\ OSHA, Process Safety Management of Highly Hazardous
Chemicals--Compliance Guidelines and Enforcement Procedures, 29 CFR
1910.119 (September 13, 1994), <a href="https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf">https://www.osha.gov/sites/default/files/enforcement/directives/CPL02-02-045_CH-1_20150901.pdf</a>.
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<bullet> The analysis upon which the recommendation is based
contains material factual errors.
<bullet> The recommendation is not necessary to protect the health
and safety of the employer's own employees, or the employees of
contractors.
<bullet> An alternative measure would provide a sufficient level of
protection.
<bullet> The recommendation is infeasible.
EPA is proposing to adopt these same categories in the risk
management plan as justification for declined recommendations, with a
modification to account for public receptors (i.e., the recommendation
is not necessary to protect public receptors). EPA seeks public comment
on this approach and on alternative categories or methods to provide
justification for declining relevant recommendations. EPA wants to
ensure a balanced approach to providing beneficial data to the public
as well as a straightforward method of reporting for facility owners/
operators.
Proposed revisions to regulatory text include, requiring risk
management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8), reporting
declined natural hazard, power loss, and siting hazard evaluation
recommendations and their associated justifications in the risk
management plan submitted to EPA.
f. Summary of Proposed Regulatory Text
EPA is proposing to emphasize that Program 2 hazard reviews and
Program 3 PHAs identify and address natural hazards, loss of power, and
facility siting (as described in this document) in order to effectively
prevent or minimize accidental releases of regulated substances to
protect human health and the environment. EPA is also proposing to
require the owner or operator to report any recommendations arising
from these evaluations that are declined, along with the owner or
operator's justification for declining them, within the risk management
plan submitted to EPA. A summary of the proposed regulatory text
changes are described below:
<bullet> Hazard evaluations under 40 CFR 68.50(a)(5) and
68.67(c)(8) to explicitly address external events such as natural
hazards, including those caused by climate change or other triggering
events that could lead to an accidental release.
<bullet> Hazard evaluations under 40 CFR 68.50(a)(3) and
68.67(c)(3) to explicitly address standby or emergency power systems.
<bullet> Hazard evaluations under 40 CFR 68.50(a)(6) and
68.67(c)(5) to explicitly define stationary source siting as inclusive
of the placement of processes, equipment, buildings within the
facility, and hazards posed by proximate facilities, and accidental
release consequences posed by proximity to the public and public
receptors.
<bullet> Risk management plans under 40 CFR 68.170(e)(7) and
68.175(e)(8) to include declined natural hazard, power loss, and siting
hazard evaluation recommendations and their associated justifications.

[[Page 53575]]

EPA realizes, and commenters have indicated in the past,\105\ that
only a small number of facilities are responsible for a significant
percentage of RMP accidents. EPA expects the proposed language will
ensure that those owner/operators who are not properly evaluating these
hazards will be explicitly required to do so, which will better ensure
owner/operators do their due diligence in preventing or minimizing
accidental releases of regulated substances to protect human health and
the environment. EPA seeks comment on the proposed language or
alternative language that will not unnecessarily expand the scope of
hazard evaluations.
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\105\ EPA-HQ-OEM-2015-0725-1628.
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2. Prevention Program Provisions
The following section describes proposed modifications to the
prevention program provisions of the RMP rule. Several of these changes
address issues that have been the subject of both the 2017 amendments
rule and the 2019 reconsideration rule, including safer technologies
and alternatives analysis, root cause analysis incident investigations,
and third-party audits. As detailed below, the Agency's preferred
options for these topics adjust the scope of the provisions adopted and
rescinded by the prior rulemakings. EPA also proposes new requirements
for improved employee participation in prevention programs. The options
proposed below should enhance community safety, especially in
communities facing elevated probability of accidents, without unduly
burdening overly broad classes of stationary sources.
a. Safer Technologies and Alternatives Analysis (STAA)
EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some
Program 3 regulated processes to consider and document the feasibility
of applying safer technologies and alternatives as part of their PHA.
This requirement applies to petroleum and coal products manufacturing
processes (classified in NAICS code 324) and chemical manufacturing
processes (NAICS code 325) that are located within 1 mile of another
RMP-regulated facility with these same processes (classified in NAICS
324 and 325). EPA is also proposing that all facilities with petroleum
and coal products processes (in NAICS 324) using hydrofluoric acid (HF)
in an alkylation unit (approximately 45 facilities) consider safer
alternatives to HF alkylation, regardless of proximity to another NAICS
324- or 325-regulated facility.
Current PHA requirements (40 CFR 68.67) under the RMP rule include
some aspects of the hierarchy of controls analysis.\106\ As discussed
in the proposed regulation that became the 2017 amendments rule,
Program 3 processes are required to address process hazards using
engineering and administrative controls since 1996. However, as EPA
pointed out, there is no explicit requirement for owners and operators
to address inherent safety--the first tier of the hierarchy of
controls. EPA is proposing to expand upon these requirements by
requiring the owners or operators to consider safer technology and
alternative risk management measures that could eliminate or reduce
risk from process hazards. In addition to engineering and
administrative controls, owners and operators of facilities with
Program 3 processes covered under this provision would have to consider
the application of the following safer technology measures, in the
following order: inherently safer technology (IST) or inherently safer
design (ISD), passive safeguards, active safeguards, and procedural
safeguards.
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\106\ Safety experts have developed a way to group types of
controls in an order or ``hierarchy of controls'' that prefers those
that are least likely to fail. As discussed in more detail in in
section IV.A.2.a.i, below, controls that eliminate the hazard are
preferred over those that do not require power or activation, which
are preferred over those that do require power or activation, which
are preferred over those that depend simply on rules of operation.
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In this proposed regulation, EPA is not requiring facilities to
implement identified inherent safety measures; rather, EPA is requiring
owners and operators to include an evaluation, including the results of
the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e),
and, to document the feasibility of inherent safety measures based on
more than cost alone. Submission of STAA analysis summaries to EPA is
discussed in further detail under ``STAA technology transfer.''
Finally, EPA is proposing that a facility's STAA team include, and
document the inclusion of, one member who works in the process and has
expertise in the process being evaluated. EPA is also proposing to
include a more comprehensive practicability assessment, in addition to
the STAA evaluation requirements as part of the PHA. As part of this
analysis, owners and operators would be required to identify, evaluate,
and document the practicability of implementing inherent safety
measures, including documenting the practicability of publicly
available safer alternatives.
i. Background on IST/ISD
EPA discussed safer technology and alternatives at length in its
proposed RMP rule amendments published in 2016. ``Accidental Release
Prevention Requirements: Risk Management Programs Under the Clean Air
Act'' (81 FR 13638, March 14, 2016). ``Safer technology and
alternatives'' refers to risk reduction or risk management strategies
developed through analysis using a hierarchy of process risk management
strategies (or hierarchy of controls). In this context, the hierarchy
of controls consists of controls that are inherent, passive, active,
and procedural. STAA involves considering IST or ISD, which refer to
strategies that permanently reduce or eliminate hazards associated with
the materials and operations of a process. As discussed in EPA/OSHA's
2015 chemical safety fact sheet,\107\ the four major inherently safer
strategies are: (1) substitution: replacing hazardous materials with
less hazardous substances; (2) minimization: using smaller quantities
of hazardous substances; (3) moderation: creating less hazardous
conditions or using less hazardous forms or facility designs to
minimize the impact of potential releases of hazardous materials or
energy; and (4) simplification: designing facilities to eliminate
unnecessary complexity and make operating errors less likely. Inclusion
of IST/ISD in the RMP regulations is consistent with several CSB
investigations that demonstrated that incidents could have been
prevented or consequences mitigated by using IST/
ISD.108 109 110 111
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\107\ EPA and OSHA, Chemical Safety Alert: Safer Technology and
Alternatives (June 2015), <a href="https://www.epa.gov/sites/default/files/2015-06/documents/alert_safer_tech_alts.pdf">https://www.epa.gov/sites/default/files/2015-06/documents/alert_safer_tech_alts.pdf</a>.
\108\ CSB, ``Chevron Refinery Fire,'' last modified January 28,
2015, <a href="https://www.csb.gov/chevron-refinery-fire/">https://www.csb.gov/chevron-refinery-fire/</a>.
\109\ CSB, ``Tesoro Refinery Fatal Explosion and Fire,'' last
modified May 1, 2014, <a href="https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/">https://www.csb.gov/tesoro-refinery-fatal-explosion-and-fire/</a>.
\110\ CSB, ``Kleen Energy Natural Gas Explosion,'' last modified
June 28, 2010, <a href="https://www.csb.gov/kleen-energy-natural-gas-explosion/">https://www.csb.gov/kleen-energy-natural-gas-explosion/</a>.
\111\ CSB, ``Bayer CropScience Pesticide Waste Tank Explosion,''
last modified January 1, 2011, <a href="https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/">https://www.csb.gov/bayer-cropscience-pesticide-waste-tank-explosion/</a>.
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In the supplemental proposed RMP rule for the initial requirements
under CAA 112(r)(7), EPA solicited comments on requiring IST.
``Accidental Release Prevention Requirements: Risk Management Programs
Under Clean Air Act Section 112(r)(7)'' (60 FR 13526, March 13, 1995)
(1995 supplemental proposal). Prior to the 2017 final RMP amendments,
however, EPA had never

[[Page 53576]]

required RMP facilities to conduct an STAA or implement identified IST/
ISD. The 2017 amendments rule added a requirement to the PHA for
regulated sources in specified industrial sectors to identify and
address hazards at least every 5 years. Specifically, owners or
operators of facilities with Program 3 regulated processes in NAICS
codes 322 (paper manufacturing), 324 (petroleum and coal products
manufacturing), and 325 (chemical manufacturing) were required to
conduct an STAA as part of their PHA and evaluate and document the
practicability of any IST identified. The provision was intended to
reduce the risk of serious accidental releases by requiring facilities
in these sectors to conduct a careful examination of potentially safer
technology and designs that they could implement in lieu of, or in
addition to, their current technologies. EPA adopted STAA based on
recommendations from CSB and other engineering experts, as well as
lessons learned from case studies and investigations of accidents. EPA
identified the sectors covered by this requirement by using sector-wide
accident rates. EPA believes that some of the practicability of
implementation will be identified in the course of the PHA and that for
many processes, owner/operators will already know if implementing a
particular technology is practicable. EPA solicits comments on the
industry understanding of the practicability assessment, and how this
might differ from the findings identified in the PHA, as well as the
additional benefit of such a provision.
In the 2019 rule completing the process of reconsidering the 2017
rule, EPA removed the new regulatory STAA requirement on all facilities
in NAICS 322, 324, and 325 that are in the RMP program. ``Accidental
Release Prevention Requirements: Risk Management Programs Under the
CAA'' (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA
analyzed accident history data in the RMP database, both nationally and
in States and localities with programs that contained some or all the
elements of the prevention program provisions. EPA discusses accident
trends overall in Section III.C of this preamble. The analysis
suggested that accident rates in jurisdictions that adopted STAA-like
programs were not lower than national accident rates. Based on this
assessment, EPA stated that STAA regulations would likely not be
effective at reducing accidents if applied on a national scale,
relative to the pre-2017 program. Instead, EPA decided to take a
source-specific, compliance-driven approach, using oversight and
enforcement tools to identify sources that would appear to benefit from
STAA and to then seek STAA adoption at such sources.
ii. Hydrogen Fluoride
Hydrogen fluoride (HF) is an extremely toxic chemical that is
lethal at 30 ppm. It is covered by RMP when more than 1,000 pounds are
used in a process. HF is an extremely toxic chemical used for
alkylation at 27 percent of facilities in NAICS 324 (45 of 163). HF has
been the subject of recent catastrophic near-miss investigations by
CSB. One of these investigations involved an explosion at the Husky
Refinery in Superior, Wisconsin, wherein debris impacted processes at a
further distance from the explosion than the refinery's HF storage
tank.\112\ CSB also investigated a near-miss in Torrance, California,
wherein the explosion of ExxonMobil's electrostatic precipitator
resulted in debris landing near the refinery's modified HF tanks.\113\
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\112\ CSB, ``Husky Energy Refinery Explosion and Fire,''
accessed February 10, 2022, <a href="https://www.csb.gov/husky-energy-refinery-explosion-and-fire/">https://www.csb.gov/husky-energy-refinery-explosion-and-fire/</a>.
\113\ CSB, ``ExxonMobil Refinery Explosion,'' last updated May
3, 2017, <a href="https://www.csb.gov/exxonmobil-refinery-explosion-/">https://www.csb.gov/exxonmobil-refinery-explosion-/</a>.
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There are recognized potentially safer alternatives available for
HF alkylation that have been successfully implemented by refineries,
such as sulfuric acid alkylation, ionic liquid alkylation, or solid
acid catalyst alkylation.114 115 EPA contends that the
practicability of these potentially safer alternatives is situation-
specific and that owners and operators are usually in the best position
to make these determinations. Phasing out HF or switching to an
inherently safer alternative may require construction of a new
alkylation unit. Depending on the production levels of the refinery,
implementation of alternatives to HF alkylation could cost between $35
million and $900 million (see RIA, Appendix A).
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\114\ Chevron, ``Chevron and Honeywell Announce Start-up of
World's First Commercial ISOALKYTM Ionic Liquids
Alkylation Unit,'' last modified April 13, 2021, <a href="https://www.chevron.com/stories/chevron-and-honeywell-announce-start-up-of-isoalky-ionic-liquids-alkylation-unit">https://www.chevron.com/stories/chevron-and-honeywell-announce-start-up-of-isoalky-ionic-liquids-alkylation-unit</a>.
\115\ United Steelworkers, A Risk Too Great: Hydrofluoric Acid
in U.S. Refineries (April 2013), <a href="https://www.usw.org/workplaces/oil/oil-reports/A-Risk-Too-Great.pdf">https://www.usw.org/workplaces/oil/oil-reports/A-Risk-Too-Great.pdf</a>.
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iii. Recent Public Input on STAA
During EPA's 2021 listening sessions, approximately 245 commenters
provided feedback on STAA. Many commenters, including individual
commenters, professional associations, advocacy groups, labor
organizations, an association of government agencies, and a Federal
agency, supported EPA restoring the 2017 amendments rule requirement
for facilities to assess safer technologies and substitute safer
alternatives in their processes where feasible.\116\ A group of retired
Federal agency officials said that facilities should share this
analysis with communities and emergency responders, and EPA should
establish a ``publicly accessible clearinghouse of safer
alternatives.'' \117\ Individual commenters stated that STAAs should
include an assessment of environmental justice, including the burden on
surrounding communities,\118\ while another commenter stressed that
STAAs would be very beneficial for communities with environmental
justice concerns.\119\ An environmental advocacy group suggested that
RMP facilities should be required to develop and submit a hazard
reduction plan made by facility experts and workers that would start at
the top of the hierarchy of controls and include considerations of an
EPA-generated list of inherently safer chemicals.\120\
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\116\ EPA-HQ-OLEM-2021-0312-0028; 0035, 0039, 0044, 0051, 0057,
0058, 0081, 0095, 0387, 0388.
\117\ EPA-HQ-OLEM-2021-0312-0004.
\118\ EPA-HQ-OLEM-2021-0312-0013; 0380.
\119\ EPA-HQ-OLEM-2021-0312-0028.
\120\ EPA-HQ-OLEM-2021-0312-0149.
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Another advocacy group stated that it is interested in having
facilities incorporate solutions data into STAAs and--along with a
State regulatory agency, labor organizations, advocacy groups, and an
individual commenter--supported requiring STAAs from every RMP facility
in sectors such as water treatment, not just in oil manufacturing,
chemical manufacturing, and paper manufacturing.\121\ A State
regulatory agency mentioned that many safer technology alternative
opportunities exist in other sectors and expressed that there should
not be any limit on how many NAICS sectors are included.\122\
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\121\ EPA-HQ-OLEM-2021-0312-0014; 0039, 0057, 0152.
\122\ EPA-HQ-OLEM-2021-0312-0039.
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An advocacy group suggested that EPA implement an even more robust
alternatives analysis and implementation process than that of the STAA
proposed during the 2017 amendments rule. The commenter said that,
rather than basing the universe of facilities subject to the STAA
requirement on the results of data analysis performed in 2017, EPA
should require this type of assessment at all facilities. The commenter
proposed that,

[[Page 53577]]

should EPA determine that ``tiered protection should be implemented,''
it should require IST assessment and implementation at facilities in
sectors with known hazard elimination or reduction methods, in areas
with climate risks and other natural hazard risks, in communities with
more than one RMP facility, and at facilities that are using or storing
the highest quantity and toxicity of regulated chemicals and are most
accident-prone.\123\
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\123\ EPA-HQ-OLEM-2021-0312-0170.
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A few industry trade associations stated that STAAs and IST
evaluations would not generate tangible safety outcomes beyond the
current PHA requirements.\124\ One of the industry trade associations
also discussed EPA's decision to limit the number of facilities covered
by STAA provisions in the 2017 amendments rule, which the commenter
described as lacking evidentiary support.\125\ An industry trade
association that strongly opposed the STAA provision in the 2017
amendments rule supported its removal in the 2019 reconsideration rule,
stating that such a STAA requirement would not improve the
effectiveness of the rule in relation to protecting communities with
environmental justice concerns; instead, it would divert
resources.\126\ An industry trade association stated that some
industries already adopt inherently safer processes and technologies
without direction from EPA.\127\
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\124\ EPA-HQ-OLEM-2021-0312-0037; 0053, 0071.
\125\ EPA-HQ-OLEM-2021-0312-0071.
\126\ EPA-HQ-OLEM-2021-0312-0077.
\127\ EPA-HQ-OLEM-2021-0312-0077.
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iv. Recent Public Input on HF
During EPA's 2021 listening sessions, many commenters, including
individual commenters and advocacy groups, discussed the dangers of HF
and modified HF and argued that facilities should be required to
transition to safer alternatives.\128\ An individual commenter said
that HF is often located in facilities in communities with
environmental justice concerns that are already exposed to many other
hazards. A State elected official said that EPA should require
refineries to evaluate the replacement of these chemicals and report
their findings to EPA within a year.\129\ A form letter campaign
recommended an amendment to 40 CFR 68.169 which, if implemented, would
convert all HF refineries to safer alternatives within 4 years.\130\ A
few individual commenters and an advocacy group expressed general
support for this amendment.\131\ Another individual commenter in
support of this amendment stated that over 40 refineries containing
large quantities of HF endanger 19 million people, including children,
young adults, unhoused people, and more.\132\
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\128\ EPA-HQ-OLEM-2021-0312-0013; 0035, 0043, 0054, 0036, 0319,
0146, 0067, 0068, 0096.
\129\ EPA-HQ-OLEM-2021-0312-0043.
\130\ EPA-HQ-OLEM-2021-0312-0067.
\131\ EPA-HQ-OLEM-2021-0312-0354; 0379, 0382, 0384.
\132\ EPA-HQ-OLEM-2021-0312-0380.
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v. STAA Applicability
EPA is proposing to limit the applicability of the STAA provisions
to sources in the petroleum and coal products manufacturing (NAICS 324)
and chemical manufacturing (NAICS 325) sectors, located within 1 mile
of another RMP-regulated 324 or 325 facility. EPA is also proposing
that all facilities in NAICS 324 using HF in an alkylation unit
(approximately 45 facilities) conduct an STAA for the use of safer
alternatives compared to HF alkylation. EPA believes that while most
sectors regulated under 40 CFR part 68 could identify safer technology
and alternatives, sources involved in complex manufacturing operations
have the greatest range of opportunities to identify and implement
safer technologies and alternatives, particularly related to inherent
safety. These sources generally produce, transform, and consume large
quantities of regulated substances under sometimes extreme process
conditions and using a wide range of complex technologies.
Multiple factors led EPA to propose focusing the STAA requirement
on densely co-located petroleum refining and chemical manufacturing
facilities (i.e., facilities with processes in NAICS codes 324 and 325
that are within 1 mile of another facility in those NAICS codes). The
distance of 1 mile represents the median distance of facilities with
324 and 325 NAICS processes that have had accidents in the period from
2016 to 2020 to the nearest facility with a process in these NAICS in
324 or 325. Facilities in these NAICS codes experience more frequent
accidental releases (see IV.A.2.vi, below). In the period from 2016 to
2020, communities near densely co-located facilities in these NAICS
codes have experienced more frequent accidents than communities near
other facilities in these NAICS codes and have had more offsite impacts
from releases than other communities have experienced (see IV.A.2.vii,
below). Additionally, 80% of 324 and 325 facilities located within 1
mile of another 324/325 facility have toxic worst case release scenario
distance to endpoints reaching or exceeding 1 mile. The proximity of
densely co-located refining and chemical manufacturing facilities
creates a greater risk of an accident at one facility impacting safety
at the nearby facility, thereby increasing the potential for a release
at the second facility (a ``knock-on'' release). Communities in areas
with such densely co-located petroleum refining and chemical
manufacturing facilities face overlapping vulnerability zones and a
heightened risk of being impacted by an accidental release relative to
other communities. The heightened risk of community impacts presented
by densely co-located refineries and chemical manufacturers make it
reasonable for EPA to propose the 1 mile criterion for additional
prevention measures such as STAA. The 1 mile criterion also serves to
limit the burden on portions of both the petroleum refining and
chemical manufacturing industries relative to the 2017 amendments rule
while promoting accident prevention to a greater extent than the
approach taken in the 2019 reconsideration rule (see IV.A.2.viii,
below).
EPA is proposing that all HF alkylation processes at petroleum
refineries (NAICS 324) conduct a STAA review primarily due the recent
incidents discussed above where HF was nearly released when there were
explosions, fires, and other releases that could have triggered
releases of HF. The recent incident involving Philadelphia Energy
Solutions,\133\ where some of the HF stored apparently was released in
a fire but a worse release was prevented by trained staff activating
release mitigation systems close to the time the event started, raises
the question of whether a more inherently safe process could have
completely avoided a potential catastrophe, or whether reliance on
operational procedures and trained staff is adequate. As mentioned
above, there are recognized potentially safer alternatives available
for HF alkylation that have been successfully implemented by
refineries, such as sulfuric acid alkylation, ionic liquid alkylation,
or solid acid catalyst alkylation. While EPA is not proposing that all
existing refinery processes undergo STAA review, the process of HF
alkylation, with several known alternatives and with recent incident

[[Page 53578]]

history, EPA believes may merit a rule-based prevention approach rather
than selective oversight.
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\133\ CSB, ``Philadelphia Energy Solutions (PES) Refinery Fire
and Explosions,'' last modified October 16, 2019, <a href="https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/">https://www.csb.gov/philadelphia-energy-solutions-pes-refinery-fire-and-explosions-/</a>.
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vi. Accident Frequency
EPA notes that RMP facilities in the two selected sectors have been
responsible for a relatively large number of accidents, deaths,
injuries, and property damage.\134\ Although the per-facility accident
rate between 2016 and 2020 for all regulated facilities was 3 percent
(n = 382 facilities reporting at least one accident out of 12,855
unique facilities reporting between 2016 and 2020), the sector accident
rates (number of unique facilities with accidents per sector divided by
the number of unique facilities in each sector) for petroleum and coal
manufacturing were seven times higher (23 percent, n = 41 out of 177)
and two times higher for chemical manufacturing (6 percent, n = 96 out
of 1631). Moreover, of the 70 facilities experiencing two or more
incidents between 2016 and 2020, 43 (60 percent) of these facilities
were NAICS 324 and 325. Implementation of safer technology and
alternatives by these facilities in the chemical manufacturing and
petroleum refining sectors may prevent serious accidental releases in
the future.
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\134\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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vii. Accident Severity
EPA is proposing to apply STAA requirements to processes at
facilities in NAICS 324 and 325 located within 1 mile of another NAICS
324 or 325 facility, as the increased accident frequency found in these
industries is exacerbated when examining those facilities in more
facility-dense areas (here defined as facilities within 1 mile of
another facility).
Based on accidents occurring between 2016 and 2020, communities
located near facilities in NAICS 324/325 that are located within 1 mile
of another 324/325 facility are 1.5 times more likely to have been
exposed to accidents at these facilities as compared to communities
near facilities in NAICS 324/325 that are not located within 1 mile of
another 324/325 facility. This increased accident frequency in
facility-dense areas has resulted in considerably larger offsite
impacts, including over 47,000 people sheltering in place, 56,800
people evacuating, and over 153 million dollars in offsite property
damage.\135\
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\135\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
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Using RMP data from 2016 to 2020, EPA estimates the proposed
approach impacts approximately 563 unique, active facilities. EPA is
making available in the Technical Background Document, a list of
sources it believes would be required to conduct STAA based on the
location information currently provided in facility risk management
plans. In estimating these facilities, EPA used the latitude and
longitude reported to EPA by facilities, which can vary in the
measurement of facility location. For example, facilities can report
location based on the regulated process, facility fenceline or facility
centroid. EPA is proposing to define facility location based on
distance to the facility fenceline but seeks comment on other
definitions of facility proximity.
Although accident rates for the paper manufacturing sector (NAICS
322, 17 percent, 20 accidents at 11 out of 65 facilities between 2016
and 2020) were similar to NAICS 324, EPA has not proposed STAA
requirements at facilities in NAICS 322 due to the low actual number of
incidents and comparatively fewer accident consequences. While 30
workers were injured (non-fatally) as a result of these accidents, the
accidents resulted in no other reported offsite consequences (i.e.,
sheltering in place, evacuation, or offsite property damage).\136\
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\136\ Technical Background Document for Notice of Proposed
Rulemaking: Risk Management Programs Under the Clean Air Act,
Section 112(r)(7); Safer Communities by Chemical Accident Prevention
(April 19, 2022).
---------------------------------------------------------------------------

viii. Discussion of Prior STAA Analysis
In its 2019 decision to rescind STAA requirements, EPA relied on
data analysis of RMP accidents from States with STAA- and IST-like
regulations, primarily New Jersey's Toxic Catastrophe Prevention Act
(TCPA) regulation and the Massachusetts Toxic Use Reduction Act. Using
the accident data EPA provided in the rulemaking docket, EPA compared
accident data for New Jersey and Massachusetts RMP facilities from 2008
through 2016 to the same measures for the national set of RMP
facilities.\137\ EPA interpreted the results as showing that New Jersey
and Massachusetts RMP facilities reported more RMP-reportable accidents
than RMP facilities nationally over the same period. Although the rate
of RMP facility accidents in New Jersey and Massachusetts have
declined, EPA found that this decline is less than the decline in
accidents for RMP facilities nationally over the same period. New
Jersey and Massachusetts exhibited a 1.7 percent and 3.5 percent annual
decline in accident frequency, respectively, whereas nationally, RMP
facilities experienced a 4.1 percent decline in accident frequency over
the same period. The normalized accident rate in New Jersey and
Massachusetts declined by approximately 2 percent and 3 percent per
year, respectively, whereas the normalized accident rate at RMP
facilities nationwide declined by 3.3 percent per year. Regarding
accident severity, EPA examined the impacts of RMP-reportable accidents
in New Jersey over the same period and could discern no declining trend
in accident severity in New Jersey. Based on this data analysis, EPA
concluded the New Jersey and Massachusetts programs had not resulted in
a reduction in either accident frequency or severity at RMP-regulated
facilities subject to the provision, and therefore the costs were
disproportionate to the benefits.
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\137\ EPA-HQ-OEM-2015-0725-2063.
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Comments provided by the New Jersey Department of Environmental
Protection (NJDEP) point out information that questions the validity of
these assumptions.\138\ First, EPA based its decision to rescind STAA
requirements for NAICS codes 324 and 325 on accident information for
all regulated NAICS codes, thereby applying assumptions based on
analysis of all accidents, rather than analysis of NAICS 324 and 325
specifically, to the subset of facilities it intended to regulate.
Second, NJDEP points out that IST is only one measure to prevent
accidental releases; therefore, the absence of a decrease in accidents
should not be solely attributed to ineffectiveness of IST. NJDEP also
points out that facilities with better accident investigation
requirements and release reporting systems may be reporting more
accidents than those without additional reporting programs. EPA
believes these arguments apply to the 2019 Massachusetts analysis as
well. EPA now acknowledges that applying a rate developed through
analysis of all regulated facilities cannot be applied to the specific
sectors that were selected for regulation (NAICS codes 324 and 325) as
a conclusion based on comparing New Jersey's overall accident rate to
the national overall accident rate is inconclusive about sectors that
would have been subject to the RMP STAA requirement.
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\138\ EPA-HQ-OLEM-2021-0312-0039.
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Additionally, EPA realizes it may have been important to consider
that its conclusions were derived from analysis of a small number of
accidents from a small sample size with a high degree

[…truncated; see source link]

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