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Rule2024-04458

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

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Published

March 11, 2024

Effective

May 10, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is amending its Risk Management Program (RMP) regulations as a result of Agency review. The revisions include several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, improvements to the public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. As major and other serious and concerning RMP accidents continue to occur, the record shows and EPA believes that this final rule will help further protect human health and the environment from chemical hazards through advancement of process safety based on lessons learned. These amendments seek to improve chemical process safety; assist in planning, preparedness, and response to Risk Management Program-reportable accidents; and improve public awareness of chemical hazards at regulated sources. While many of the provisions of this final rule reinforce each other, it is EPA's intent that each one is merited on its own, and thus severable.

Full Text

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[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Rules and Regulations]
[Pages 17622-17692]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-04458]

[[Page 17621]]

Vol. 89

Monday,

No. 48

March 11, 2024

Part III

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; Final Rule

Federal Register / Vol. 89 , No. 48 / Monday, March 11, 2024 / Rules
and Regulations

[[Page 17622]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OLEM-2022-0174; FRL-5766.6-02-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending its Risk
Management Program (RMP) regulations as a result of Agency review. The
revisions include several changes and amplifications to the accident
prevention program requirements, enhancements to the emergency
preparedness requirements, improvements to the public availability of
chemical hazard information, and several other changes to certain
regulatory definitions or points of clarification. As major and other
serious and concerning RMP accidents continue to occur, the record
shows and EPA believes that this final rule will help further protect
human health and the environment from chemical hazards through
advancement of process safety based on lessons learned. These
amendments seek to improve chemical process safety; assist in planning,
preparedness, and response to Risk Management Program-reportable
accidents; and improve public awareness of chemical hazards at
regulated sources. While many of the provisions of this final rule
reinforce each other, it is EPA's intent that each one is merited on
its own, and thus severable.

DATES: This final rule is effective on May 10, 2024.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2022-0174. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

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#89eefbe8e7fda7edece8e7e7ecc9ecf9e8a7eee6ff"><span class="__cf_email__" data-cfemail="8ee9fcefe0faa0eaebefe0e0ebceebfeefa0e9e1f8">[email&#160;protected]</span></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, EPA defines
the following terms and acronyms here:

List of Abbreviations and Acronyms

ANSI American National Standards Institute
API American Petroleum Institute
CAA Clean Air Act
CAAA Clean Air Act Amendments
CBI Confidential Business Information
CCPS Center for Chemical Process Safety
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CISA Cybersecurity & Infrastructure Security Agency
CSB Chemical Safety and Hazard Investigation Board
CSISSFRRA Chemical Safety Information, Site Security and Fuels
Regulatory Relief Act
CVI Chemical-terrorism Vulnerability Information
DHS Department of Homeland Security
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
FBI Federal Bureau of Investigation
FOIA Freedom of Information Act
FR Federal Register
GDC General Duty Clause
HF hydrofluoric acid
HHC highly hazardous chemical
ICR Information Collection Request
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
LOPA Layers of Protection Analysis
NAICS North American Industry Classification System
NASTTPO National Association of SARA Title III Program Officials
NECI National Enforcement and Compliance Initiative
NJDEP New Jersey Department of Environmental Protection
NRC National Response Center
NRI National Risk Index
NTTAA National Technology and Transfer Advancement Act
OCA offsite consequence analysis
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PES Philadelphia Energy Solutions
PHA process hazard analysis
PHMSA Pipeline and Hazardous Materials Safety Administration
PRA Paperwork Reduction Act
PSI process safety information
PSM process safety management
RAGAGEP recognized and generally accepted good engineering practices
RCA root cause analysis incident investigation
RFA Regulatory Flexibility Act
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
SDS Safety Data Sheet
SERC State Emergency Response Commission
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TMA trimethylamine
TQ threshold quantity
UMRA Unfunded Mandates Reform Act

The contents of this preamble are:

I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Costs and Benefits
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 incremental costs and benefits of this action?
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. Discussion of General Comments
A. General Comments
B. EPA Responses
V. Prevention Program Requirements
A. Hazard Evaluation Amplifications
B. Safer Technology and Alternatives Analysis (STAA)
C. Root Cause Analysis
D. Third-Party Compliance Audits
E. Employee Participation
VI. Emergency Response
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments
VII. Information Availability
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
VIII. Other Areas of Technical Clarification/Enforcement Issues
A. Summary of Proposed Rulemaking

[[Page 17623]]

B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
IX. Compliance Dates
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing 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
K. Congressional Review Act (CRA)

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this action is to make changes to the Risk
Management Program (RMP) rule in order to improve safety at facilities
that use and distribute hazardous chemicals. Because major and other
serious and concerning RMP accidents continue to occur, this final rule
aims to better identify and further regulate risky facilities to
prevent accidental releases before they can occur. As explained in
further detail in following sections of this preamble, EPA maintains
that by taking a rule-based, prevention-focused approach in this action
rather than the so-called ``compliance-driven,'' mostly post-incident,
approach in the 2019 reconsideration rule (84 FR 69834, December 19,
2019), this rule will further protect human health and the environment
from chemical hazards through process safety advancement without undue
burden.
EPA proposed changes to its RMP regulations (40 Code of Federal
Regulations (CFR) part 68) on August 31, 2022 (87 Federal Register (FR)
53556), after publishing a ``Notice of virtual public listening
sessions; request for public comment'' (86 FR 28828) that solicited
comments and information from the public regarding potential changes to
the RMP regulations. EPA also hosted a series of virtual public
hearings on September 26-28, 2022, to provide interested parties the
opportunity to present data, views, or arguments concerning the
proposed action.

B. Summary of the Major Provisions of the Regulatory Action

This action amends EPA's RMP regulations at 40 CFR part 68. These
regulations apply to stationary sources (also referred to as
``facilities'') that hold specific ``regulated substances'' in excess
of threshold quantities. These facilities are required to assess their
potential release impacts, undertake steps to prevent releases, plan
for emergency response to releases, and summarize this information in a
risk management plan (RMP) submitted to EPA. The release prevention
steps vary depending on the type of process, but progressively gain
granularity and rigor over three program levels (i.e., Program 1,
Program 2, and Program 3).
The major provisions of this rule include several changes to the
accident prevention program requirements, as well as enhancements to
the emergency response requirements, and improvements to the public
availability of chemical hazard information. Each of these provisions
is introduced in the following paragraphs of this section and described
in greater detail in sections V through VIII of this preamble.
Additionally, certain revised provisions apply to a subset of the
processes based on program levels described in 40 CFR part 68 (or in
one case, to a subset of processes within a program level). A full
description of these program levels is provided in section III.A. of
this preamble. Additional provisions are targeted at subgroups of
processes that pose an elevated likelihood of impacting nearby
communities. Factors elevating the likelihood of impacting nearby
communities include source-specific accident history, industry accident
history, and co-location with multiple facilities. Furthermore, some
sectors are targeted for additional provisions due to recent accidents
and widely known safer alternative technologies.

C. Costs and Benefits

Approximately 11,740 facilities have filed current RMPs with EPA
and are potentially affected by the rule. These facilities include
petroleum refineries and large chemical manufacturers; 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.
In total, EPA estimates annualized final rule costs of $256.9
million at a 3% discount rate and $296.9 million at a 7% discount rate
over a 10-year period. The largest annualized cost of the final rule is
the Safer Technologies and Alternatives Analysis (STAA) implementation
cost ($168.7 million at a 3% discount rate and $204.9 million at a 7%
discount rate), followed by the practicability study ($27.0 million at
a 3% discount rate and $28.6 million at a 7% discount rate), the STAA
initial evaluation ($18.5 million at a 3% discount rate and $19.7
million at a 7% discount rate), information availability ($12.8 million
at both 3% and 7% discount rates), employee participation plans ($11.5
million at both 3% and 7% discount rates), third-party audits ($7.5
million at both 3% and 7% discount rates), rule familiarization ($5.8
million at a 3% discount rate and $6.8 million at a 7% discount rate),
and community notification systems ($4.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including root cause analysis ($0.7 million at both 3% and
7% discount rates), emergency backup power for perimeter monitors ($0.3
million at both 3% and 7% discount rates), and RMP justifications for
natural hazards, facility siting, recognized and generally accepted
good engineering practices (RAGAGEP), and no backup power, each have
annualized costs below $0.1 million (at both 3% and 7% discount rates).
The Agency has determined that among the 2,636 potentially
regulated private sector small entities impacted, 2,393, or 90.8
percent, may experience a cost of revenue impact of less than one
percent, with an average small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of between 1 and 3 percent of
revenues with an average small entity cost of $629,271; and 75, or 2.8
percent, may experience an impact of greater than 3 percent with an
average small entity cost of $1,083,823. The industry sectors of Farm
Supplies Merchant Wholesalers and Farm Product Warehousing and Storage
had the most entities potentially affected, with 146 and 96 entities,
respectively. Within the Farm Supplies Merchant Wholesalers sector, the
Agency determined that only 8 of the 146 small entities (6 percent of
small entities) will experience impacts of between 1 and 3 percent of
revenues and only 2 small entities (1 percent of small entities) will

[[Page 17624]]

experience impacts of more than 3 percent of revenue. Within the Farm
Product Warehousing and Storage sector, the Agency determined that only
5 of the 96 small entities (5 percent of small entities) will
experience impacts of between 1 and 3 percent of revenues and no small
entities will experience impacts of more than 3 percent of revenue.
Among the 630 small government entities potentially affected, the
minimum cost any entity will incur is $2,000; 365, or 58 percent, would
incur costs ranging from $2,000 to $3,000; 248, or 39 percent, will
incur costs ranging from $3,000 to $10,000; and 17, or 3 percent, will
incur costs greater than $10,000. EPA estimated that for the rule to
have a larger than 1 percent impact on the government entity with the
largest cost impact, the entity would need to have revenue of less than
$120 per resident. For the rule to have a larger than 1 percent impact
on the smallest government entity identified in the data, the entity
would need to have revenue of less than $650 per resident. Details of
these analyses are presented in Chapter 8 of the RIA, which is
available in the docket.
Major and other serious and concerning RMP accidents have continued
to occur. EPA anticipates that promulgation and implementation of this
final rule will reduce the risk of such accidents and the severity of
the impacts when they occur. RMP accident data show past accidents have
generated highly variable impacts, so the impacts of future accidents
are difficult to predict. Nevertheless, it is clear from RMP accident
data \1\ and other relevant data from RMP regulated industry
sectors,\2\ that chemical accidents can impose substantial costs on
firms, employees, emergency responders, the community, and the broader
economy.
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\1\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\2\ Marsh JLT Specialty, ``100 Largest Losses in the Hydrocarbon
Industry,'' 27th Edition, March 2022. Accessed from <a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property damage
losses in the hydrocarbon industry from 1974 to 2021 in current and
2021 dollars and in a few cases, business loss costs.
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Specifically, the EPA expects the final rule provisions to result
in a reduced frequency and magnitude of damages from releases,
including damages that are quantified for the baseline period such as
fatalities, injuries, property damage, hospitalizations, medical
treatment, sheltering in place, and evacuations. EPA also expects the
final rule provisions to reduce baseline damages that are not
quantified. These damages include potential health risks from toxic
chemical exposure, lost productivity at affected facilities, emergency
response costs, transaction costs from potential subsequent legal
battles, property value losses in nearby neighborhoods, environmental
damage and costs of evacuation and sheltering-in-place events, and
others. They have not been quantified because there is either limited
or no information in the RMP data that could allow for precise
quantification. However, in some cases, these damages could be even
more detrimental to the facility and community than those damages that
can be quantified. For example, regarding lost productivity, costs are
highly variable based on the type of release, the extent of the damage,
the location of the facility, and product being produced. Yet, Marsh
Specialty, a risk management and energy consultancy, has collected data
on 10,000 accidents in the petrochemical sector over 40 years and
published 27 editions of its ``100 Largest Losses'' reports.\3\ Their
data suggest that lost productivity is typically two or three times the
cost of property damage.\4\ Another example of unquantified impacts can
be examined with property value impacts. A recent hedonic property
value analysis has examined the impact of RMP facility accidents on
residential property values (Guignet et al. 2023a, b).\5\ The analysis
found that accidents with only onsite impacts reduced nearby property
values between zero and two percent. However, accidents with impacts
that occurred offsite, including fatalities, hospitalizations, people
in need of medical treatment, evacuations, sheltering in place events,
and/or property and environmental damage, reduced home values by two to
three percent. The lower values persisted for about 10 to 12 years on
average. The paper estimates an average loss of $5,350 per home in
2021-year values. Aggregating across the communities near the 661
facilities that experienced an offsite impact accident in their data,
they calculate a total $39.5 billion loss. These studies strongly
suggest that preventing or mitigating an accident at a chemical
facility may prevent or mitigate lost productivity at RMP facilities
and property value losses in nearby neighborhoods.
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\3\ Marsh JLT Specialty, ``100 Largest Losses in the Hydrocarbon
Industry,'' 27th Edition, March 2022. Accessed from <a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property damage
losses in the hydrocarbon industry from 1974 to 2021 in current and
2021 dollars and in a few cases, business loss costs.
\4\ Marsh JLT Specialty, ``100 Largest Losses 1974-2015: Large
property damage losses in the hydrocarbon industry,'' 24th Edition,
March 2016. Accessed from <a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides
estimates of large property damage losses in the hydrocarbon
industry and in a few cases, business loss costs.
\5\ Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and
James Belke. 2023a. The External Costs of Industrial Chemical
Accidents: A Nationwide Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
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Further, in enacting section 112(r), Congress was focused on
catastrophic accidents such as the 1984 Union Carbide industrial
disaster in Bhopal, India,\6\ which are extremely rare, but very high
consequence events. While large chemical facility accidents that have
occurred in the U.S. and Europe have not approached this level of
damage, it is possible that could happen. For example, one of the most
consequential chemical accidents in the U.S.\7\ was the 1989 explosion
at the Phillips facility in Pasadena, TX, that killed 23 workers ($239
million in 2022 dollars), injured at least 150 more ($7.5 million), and
caused $1.8 billion in property damage.\8\
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\6\ 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.; Lees,
Frank P. Loss Prevention in the Process Industries, Volume 3, 2nd
ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann, 1996).
\7\ As compared to consequences resulting from RMP accidents
2004-2020 listed in Appendix A of the 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).
\8\ EPA estimated the values of injuries and deaths that
occurred in Pasadena using the same values applied to injuries and
deaths at RMP facility-reported accidents. See Exhibit 3-15 in the
accompanying RIA for specific values and section 3.2.5.1
``Fatalities and Injuries'' in the RIA for detailed explanations of
how those values were estimated. The $1.8 billion in property damage
was estimated by Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th ed., March 2022. <a href="https://www.marsh.com/us/industries/energy-and-power/insights/100-largest-losses/100-largest-losses-report-download.html">https://www.marsh.com/us/industries/energy-and-power/insights/100-largest-losses/100-largest-losses-report-download.html</a>.
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The five-year baseline period accident costs included in EPA's
analysis is $540 million per year. This cost was estimated using
impacts from accidents during 2016 through 2020 (the last year with
complete data) reported to the RMP plan reporting database by facility
owners and operators. EPA used this dataset due to a lack of
alternative data describing accident impacts more comprehensively. This
estimate does not include a major catastrophe on the scale of Union
Carbide-Bhopal, or even Phillips-Pasadena. If the final rule provisions
were to prevent or substantially mitigate even one accident of this
magnitude, the benefits generated, quantified and unquantified, will be
dramatic. Further, some

[[Page 17625]]

accidents that occurred at RMP facilities during the five-year period
were not reported to EPA because the facility either closed after the
accident, decommissioned the process, or removed the regulated
substance from the process involved in the accident before it was
required to submit a report to the RMP Database.\9\ Additionally, the
many baseline accident impacts that are not reflected in the $540
million baseline accident cost estimate because EPA was unable to
monetize them,\10\ yet are expected to be avoided as a benefit of the
final provisions, include responder costs, transaction costs, property
value reductions, unmonetized costs of evacuations and sheltering-in-
place, the costs of potential health effects from exposure to toxic
chemicals, and productivity losses, among others. The $540 million
estimate also does not reflect the full set of baseline inefficiencies
that may be mitigated due to the improved information offered by
several of the final provisions such as the community notification
requirements and the back-up power for monitors. As the range of
monetized accident impacts suggests (from $100 to $700 million for 2016
to 2020 \11\), the variation in monetized damages is substantial.
Preventing a single high-cost accident annually would offset annual
rule costs.
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\9\ For example, the Philadelphia Energy Solutions Refining and
Marketing LLC facility in Philadelphia, PA, had a fire and
explosions in the PES Girard Point refinery HF alkylation unit on
June 21, 2019, which resulted in the release of HF. This facility
deregistered the affected process before the deadline for their
subsequent RMP report. For a description of damages from this
accident see section 3.2.1 of the RIA and the CSB Report, Fire and
Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric
Acid Alkylation Unit, Factual Update, October 16, 2019, <a href="https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf">https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf</a>.
\10\ For descriptions on why EPA was unable to monetize each of
these impacts, see Regulatory Impact Analysis: Safer Communities by
Chemical Accident Prevention: Final Rule. This document is available
in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). Chapter
6, Section 6.2.
\11\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
---------------------------------------------------------------------------

When considering this final rule's likely benefits of avoiding some
portion of the monetized accident impacts, as well as the additional
nonmonetized benefits, EPA believes the costs of the rule are
reasonable in comparison to its expected benefits. When assessing the
reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. The Agency's judgment as to what regulations are ``reasonable''
is informed by both quantifiable and unquantifiable burdens and
benefits as discussed more fully in section III.C of this preamble.

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 (42 U.S.C. 7412(r))) 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 impacts the scope and applicability of the General Duty Clause
(GDC) in CAA section 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 Final Rule
----------------------------------------------------------------------------------------------------------------
Number of
Sector NAICS codes facilities Chemical uses
----------------------------------------------------------------------------------------------------------------
Administration of environmental 92, 2213 (government-owned).......... 1,449 Use chlorine and other
quality programs (i.e., chemicals for water
governments, government-owned 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.
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, 491, 246 Use chemicals for
54, 55, 56, 61, 62, 71, 72, 81, 99. wastewater 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.
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Total........................... ..................................... 11,740 ......................
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[[Page 17626]]

B. What action is the Agency taking?

EPA is amending its RMP regulations as a result of Agency review.
The revisions include several changes and amplifications to the
accident prevention program requirements, enhancements to the emergency
preparedness requirements, improvements to the public availability of
chemical hazard information, and several other changes to certain
regulatory definitions or points of clarification. Because major and
other serious and concerning RMP accidents continue to occur, EPA
believes that this final rule will help further protect human health
and the environment from chemical hazards through advancement of
process safety based on lessons learned. These amendments seek to
improve chemical process safety; assist in planning, preparedness, and
response to RMP-reportable accidents; and improve public awareness of
chemical hazards at regulated sources.

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 finalizes 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 incremental costs and benefits of this action?

1. Summary of Estimated Costs
Table 2 presents a summary of the annualized final rule costs
estimated in the Regulatory Impact Analysis (RIA).\12\ In total, EPA
estimates annualized costs of $256.9 million at a 3% discount rate and
$296.9 million at a 7% discount rate.
---------------------------------------------------------------------------

\12\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).

Table 2--Summary of Estimated Annualized Costs [Millions, 2022 Dollars] Over a 10-Year Period
----------------------------------------------------------------------------------------------------------------
Total Total
Cost elements Total discounted discounted Annualized Annualized
undiscounted (3%) (7%) (3%) (7%)
----------------------------------------------------------------------------------------------------------------
Third-party Audits.............. $75.2 $64.2 $52.8 $7.5 $7.5
Root Cause Analysis............. 7.3 6.2 5.1 0.7 0.7
Safer Technology and
Alternatives Analysis (STAA):
Initial Evaluation.......... 176.4 158.2 138.3 18.5 19.7
Practicability Study........ 256.9 230.2 201.0 27.0 28.6
Implementation.............. 1,700.4 1,438.9 1,172.6 168.7 204.9
Backup Power for Perimeter 3.3 2.8 2.3 0.3 0.3
Monitors.......................
Employee Participation Plan..... 114.7 97.9 80.6 11.5 11.5
RMP Justifications:
No Backup Power............. .2 0.1 0.1 ** 0.0 ** 0.0
Natural Hazards............. .4 0.4 0.3 ** 0.0 ** 0.0
Facility Siting............. .4 0.4 0.3 ** 0.0 ** 0.0
RAGAGEP..................... .3 0.2 0.2 ** 0.0 ** 0.0
Community Notification System... 39.7 33.9 27.9 4.0 4.0
Information Availability........ 127.6 108.8 89.6 12.8 12.8
Rule Familiarization............ 50.9 49.5 47.6 5.8 6.8
-------------------------------------------------------------------------------
Total Cost *................ 2,554.0 2,191.7 1,818.9 256.9 296.9
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Costs are zero due to rounding, Unrounded costs are $42,307 for Natural Hazards and Facility Siting, $27,582
for RAGAGEP, and $15,798 for No Backup Power.

The largest annualized cost of the final rule is the STAA
implementation cost ($168.7 million at a 3% discount rate and $204.9
million at a 7% discount rate), followed by practicability study ($27.0
million at a 3% discount rate and $28.6 million at a 7% discount rate),
STAA initial evaluation ($18.5 million at a 3% discount rate and $19.7
million at a 7% discount rate), information availability ($12.8 million
at both 3% and 7% discount rates), employee participation plans ($11.5
million at both 3% and 7% discount rates), third-party audits ($7.5
million at both 3% and 7% discount rates), rule familiarization ($5.8
million at a 3% discount rate and $6.8 million at a 7% discount rate),
and community notification systems ($4.0 million at both 3% and 7%
discount rates). The remaining provisions impose annualized costs under
$1 million, including root cause analysis ($0.7 million at both 3% and
7% discount rates), emergency backup power for perimeter monitors ($0.3
million at both 3% and 7% discount rates), and RMP justifications for
natural hazards, facility siting, RAGAGEP, and no backup power, that
each have annualized costs below $0.1 million (at both 3% and 7%
discount rates).
The Agency has determined that among the 2,636 potentially
regulated private sector small entities impacted by this rule, 2,393,
or 90.8 percent, may experience an impact of less than 1 percent of
revenue with an average small entity cost of $72,525; 167, or 6.3
percent, may experience an impact of between 1 and 3 percent of
revenues with an average small entity cost of $629,271; and 75, or 2.8
percent, may experience an impact of greater than 3 percent with an
average small entity cost of $1,083,823. Among the 630 small government
entities potentially affected, none would incur costs of less than
$2,000; 365, or 58 percent, would incur costs ranging from $2,000 to
$3,000; 248, or 39 percent, would incur costs ranging from $3,000 to
$10,000; and 17, or 3 percent, would incur costs greater

[[Page 17627]]

than $10,000. EPA estimated that for the rule to have a larger than 1
percent impact on the government entity with the largest cost impact,
it would need to have revenue of less than $120 per resident. For the
rule to have a larger than 1 percent impact on the smallest government
entity identified in the data, it would need to have revenue of less
than $650 per resident.\13\
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\13\ The Regulatory Flexibility Act defines small governments as
governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000. Most governmental RMP facilities are water and wastewater
treatment systems and listed a city or county as the owner entity.
---------------------------------------------------------------------------

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 serious injuries and fatalities. EPA is able to present
data on the total damages that currently occur at RMP facilities each
year. In this final rule, EPA presents the data based on a 5-year
baseline period (2016-2020), summarizes RMP accident impacts and, when
possible, monetizes them. Due to a lack of alternative data describing
RMP accident impacts more comprehensively, EPA chose this five-year
dataset to reflect the most recent trends regarding RMP accidents.\14\
It is important to note, however, that many accident costs are not
required to be reported under the RMP accident reporting provisions (40
CFR 68.42(b)) and thus are not reflected in the data. These include
responder costs, transaction costs, property value reductions,
unmonetized costs of evacuations and sheltering-in-place, the costs of
potential health effects, and productivity losses, among others.\15\ In
addition, some accidents that occurred at RMP facilities during the
five-year period were not reported to EPA because the facility either
closed after the accident, decommissioned the process, or removed the
regulated substance from the process involved in the accident before it
was required to submit a report to the RMP Database. For example, the
Philadelphia Energy Solutions (PES) Refining and Marketing LLC facility
in Philadelphia, PA, had a fire and explosions in the PES Girard Point
refinery hydrofluoric acid (HF) alkylation unit on June 21, 2019, which
resulted in the release of HF.\16\ This facility deregistered the
affected process before the deadline for their subsequent RMP report.
Due to the omission of such accidents and the omission of the cost
categories listed in the beginning of this paragraph, the monetized
costs of RMP accidents to society underestimate the number and
magnitude of RMP chemical accidents. Nonetheless, EPA expects that some
portion of future damages will be prevented through implementation of
the final rule. Table 3 presents a summary of the quantified damages
identified in the analysis.
---------------------------------------------------------------------------

\14\ EPA used the August 1, 2021, version of the RMP database to
complete its analysis because under 40 CFR 68.195(a), facilities are
required to report RMP accidents and specific associated information
within six months to the RMP database. Therefore, the RMP database
as of August 1, 2021, is expected to include RMP accidents and their
specific associated information as of December 31, 2020. However,
because accident data are reported to the RMP database by facility
owners and operators, EPA acknowledges the likelihood of late-
reported accidents affecting these last few years of data because
some facilities may have not reported their RMP accidents as they
are required to do. See sections 3.2 and 3.3 of the RIA for more on
this and other limitations on the number and costs of baseline
accidents.
\15\ Further discussed in detail in Chapter 6 of the RIA.
\16\ For a description of damages from this case see section
3.2.1 of the RIA and the CSB Report, Fire and Explosions at
Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation
Unit, Factual Update, October 16, 2019, <a href="https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf">https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf</a>.

Table 3--Summary of Quantified Damages
[Millions, 2022 dollars]
----------------------------------------------------------------------------------------------------------------
Average/
Unit value 5-Year total Average/ year accident
----------------------------------------------------------------------------------------------------------------
On site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... $10.4 $187.9 $37.57 $0.38
Injuries........................................ 0.05 28.75 5.75 0.06
Property Damage................................. .............. 2,273 454.58 4.66
---------------------------------------------------------------
Onsite Total................................ .............. 2,489.49 497.90 5.10
----------------------------------------------------------------------------------------------------------------
Off site
----------------------------------------------------------------------------------------------------------------
Fatalities...................................... 10.4 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 18.99 3.80 0.039
Sheltering in Place *........................... 0.00 12.58 2.52 0.026
Property Damage................................. .............. 178.55 35.71 0.37
---------------------------------------------------------------
Offsite Total............................... .............. 211.66 42.33 0.43
---------------------------------------------------------------
Total................................... .............. 2,701.14 540.23 5.54
----------------------------------------------------------------------------------------------------------------
* The unit value is $293 for evacuations and $147 for sheltering in place, so when expressed in rounded millions
the value represented in the table is zero.

In total, EPA estimated monetized damages from RMP facility
accidents of $540.23 million per year, which are divided into onsite
and offsite categories where possible. EPA estimated total, average
annual onsite damages from chemical releases at RMP facilities of
$497.90 million. The largest monetized category was onsite property
damage, valued at $454.58 million. The next largest impacts were onsite
fatalities ($37.57 million) and injuries ($5.75 million).
EPA estimated total, average annual offsite damages of $42.33
million. Property damage again was the highest value category,
estimated at

[[Page 17628]]

approximately $35.71 million. In decreasing order, the next largest
average annual offsite impact was from evacuations ($3.80 million),
then sheltering in place ($2.52 million), hospitalizations ($0.28
million), and medical treatment ($0.03 million).
Regarding small entities, there were 86 accidents at facilities
owned by small entities in the 2016-2020 period, or about 18 percent of
all accidents.\17\ These accidents cost $141.14 million in total over
the 5-years, with an average cost of $28.23 million per year, and
average per accident cost of $0.29 million. These accidents costs
represent about 5% of the costs of all accidents.
---------------------------------------------------------------------------

\17\ There are accidents at 97 facilities that were not matched
in the small entity analysis, so it is not possible to determine if
they are owned by small or large entities with the data EPA has.
---------------------------------------------------------------------------

EPA also evaluated the range of significant baseline damages in
Table 3 that could not be quantified. These damages include major
catastrophic releases, potential health risks from toxic chemical
exposure, lost productivity at affected facilities, emergency response
costs, transaction costs from potential subsequent legal battles,
property value losses in nearby neighborhoods, environmental damage,
unquantified costs of evacuation and sheltering-in-place events, and
others. They have not been quantified because there is either limited
or no information in the RMP data. However, in some cases, these
damages could be even more detrimental to the facility and community
than those damages that can be quantified. For example, regarding lost
productivity, costs are highly variable based on the type of release,
the extent of the damage, the location of the facility, and product
being produced. Yet, Marsh Specialty, a risk management and energy
consultancy, has collected data on 10,000 accidents in the
petrochemical sector over 40 years and published 27 editions of its
``100 Largest Losses'' reports.\18\ The data suggest that lost
productivity may range from zero to four to five is typically two to
three times the cost of property damage.\19\ Another example of
unquantified impacts can be examined with property value impacts. A
recent hedonic property value analysis has examined the impact of RMP
facility accidents on residential property values (Guignet et al.
2023a, b).\20\ The analysis found that accidents with only onsite
impacts reduced nearby property values between zero and two percent.
However, accidents with impacts that occurred offsite, including
fatalities, hospitalizations, people in need of medical treatment,
evacuations, sheltering in place events, and/or property and
environmental damage, reduced home values by two to three percent. The
lower values persisted for about 10 to 12 years on average. The paper
estimates an average loss of $5,350 per home in 2021-year values.
Aggregating across the communities near the 661 facilities that
experienced an offsite impact accident in their data, they calculate a
total $39.5 billion loss.
---------------------------------------------------------------------------

\18\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
<a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
\19\ Marsh JLT Specialty, ``100 Largest Losses 1974-2015: Large
property damage losses in the hydrocarbon industry,'' 24th Edition,
March 2016. Accessed from <a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides
estimates of large property damage losses in the hydrocarbon
industry and in a few cases, business loss costs.
\20\ Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and
James Belke. 2023a. The External Costs of Industrial Chemical
Accidents: A Nationwide Property Value Study. Journal of Housing
Economics. 62 (2023) 101954.
---------------------------------------------------------------------------

Further, the five-year baseline period included in this analysis
($540 million per year) does not include a major catastrophe. In
enacting section 112(r), Congress was focused on catastrophic accidents
such as Union Carbide-Bhopal, which are extremely rare, but very high
consequence events. The large chemical facility accidents that have
occurred in the U.S. and Europe have not approached this level of
damage, although it is possible that could happen. As mentioned
previously, one of the most consequential accidents in the U.S.,\21\
the explosion at the Phillips facility in Pasadena, TX, in 1989, killed
23 workers ($239 million in 2022 dollars), injured at least 150 more
($7.5 million), and caused $1.8 billion in property damage. These
baseline damages are discussed in greater detail in Chapter 6 of the
RIA.
---------------------------------------------------------------------------

\21\ As compared to consequences resulting from RMP accidents
2004-2020 listed in Appendix A of the 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).
---------------------------------------------------------------------------

3. Summary of Estimated Benefits
RMP accident data show past accidents have generated highly
variable impacts, so the impacts of future accidents are difficult to
predict. Nevertheless, it is clear from RMP accident data \22\ and
other relevant data from RMP regulated industry sectors,\23\ that
chemical accidents can impose substantial costs on firms, employees,
emergency responders, the community, and the broader economy.
Notwithstanding EPA's current rules, RMP accidents have continued to
occur. EPA anticipates that promulgation and implementation of this
final rule will improve the health and safety protection provided by
the RMP rule and 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
final rule provisions will reduce baseline damages that are not
quantified in Table 3 such as lost productivity, responder costs,
property value reductions, damages from catastrophes, transaction
costs, environmental impacts, and so on. Although EPA was unable to
quantify the reductions in damages that may occur as a result of the
final rule provisions, EPA expects that a portion of future damages
will be prevented by the final rule.\24\ Table 4 summarizes five 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 thirteen associated specific benefit categories,
ranging from avoided fatalities to avoided emergency response costs.
---------------------------------------------------------------------------

\22\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\23\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
<a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
\24\ For the discussion of how final rule provisions are
intended to lower the likelihood of future accidents of the same or
similar type, see section 6.1.1 of the RIA.

[[Page 17629]]

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

For details on how quantified benefits were estimated or discussion
on unquantified benefits, including the difficulty in their
quantification see Chapter 6 of the RIA.
When considering this final rule's likely benefits of this of
avoiding some portion of the monetized accident impacts, as well as the
additional nonmonetized benefits, EPA believes the costs of the rule
are reasonable in comparison to its expected benefits. When assessing
the reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. The Agency's judgment as to what regulations are ``reasonable''
is informed by both quantifiable and unquantifiable burdens and
benefits.

III. Background

A. Overview of EPA's Risk Management Program

EPA originally issued the RMP regulations in two stages. First, 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.'' \25\ The Agency then published the
RMP regulations, 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.'' <SUP>26 27</SUP> Subsequent modifications to the list rule and
the 1996 RMP rule were made as discussed in the 2017 amendments rule
(``Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act''; 82 FR 4594 at 4600, January 13, 2017,
hereinafter referred to as the ``2017 amendments rule''). 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).
---------------------------------------------------------------------------

\25\ 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.
\26\ Documents and information related to development of the
1996 RMP rule can be found in EPA docket number A-91-73.
\27\ The regulation at 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.
---------------------------------------------------------------------------

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 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.
EPA's RMP 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, 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 RMP 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 similar to the
OSHA PSM standard and designed to cover those processes in the

[[Page 17630]]

chemical industry. EPA notes that nothing in this final rule changes
the applicability determinations or designations of whether a process
at a stationary source is covered under one of the three different
prevention programs.

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,'' \28\ 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 (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).\29\ 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
amendments 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 March 1, 2024, 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.
---------------------------------------------------------------------------

\28\ <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>.
\29\ <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 ClimateCrisis.'' \30\ E.O. 13990 directed Federal agencies
to review existing regulations and take action to address priorities
established by the Biden Administration, which include bolstering
resilience to the impacts of climate change and prioritizing EJ. As a
result, EPA was tasked to review the current RMP regulations.
---------------------------------------------------------------------------

\30\ <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 included
27,720 received at <a href="http://regulations.gov">regulations.gov</a>,\31\ 35 provided during the
listening session on June 16, 2021,\32\ and 73 provided during the
listening session on July 8, 2021.\33\ 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 informed the proposal.
---------------------------------------------------------------------------

\31\ EPA-HQ-OLEM-2021-0312.
\32\ EPA-HQ-OLEM-2021-0312-0011.
\33\ EPA-HQ-OLEM-2021-0312-0020.
---------------------------------------------------------------------------

EPA published the ``RMP Safer Communities by Chemical Accident
Prevention,'' (SCCAP) proposed rulemaking on August 31, 2022 (87 FR
53556), hereinafter referred to as the ``2022 SCCAP proposed rule.''
The 2022 SCCAP proposed rule included several changes and
amplifications to the accident prevention program requirements,
enhancements to the emergency preparedness requirements, improvements
to the public availability of chemical hazard information, and several
other changes to certain regulatory definitions or points of
clarification. EPA hosted virtual public hearings on September 26, 27,
and 28, 2022 to provide interested parties the opportunity to present
data, views or arguments concerning the proposed action.
EPA received a total of 494 discrete public comments deemed as
substantive (i.e., the commenters presented both a position and a
reasoned argument in support of the position) on the proposed
rulemaking. Of the 494 comments, 370 were written submitted comments
and 124 were from members of the public that provided verbal comments
at the public hearings on September 26, 27, and 28, 2022. Of the 370,
142 were from 101 unique organizations, 6 were the result of various
mass mail campaigns and contained numerous copies of letters or
petition signatures (approximately 57,505 letters and signatures were
contained in these several comments), and 31 were from individual
citizens. Discussion of public comments can be found in topics included
in this final rule and in the Response to Comments document,\34\
available in the docket for this rulemaking.
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\34\ 2023. EPA Response to Comments on the 2022 SCCAP Proposed
Rule (August 31, 2022; 87 FR 53556). This document is available in
the docket for this rulemaking.
---------------------------------------------------------------------------

The notice of proposed rulemaking (NPRM) discussed how the various
proposed provisions amendments to the RMP rule were not only
integrated, reinforcing, and complementary but also how each was
merited on its own and severable. 87 FR 53566 (August 31, 2022). For
example, EPA noted that new substantive prevention requirements like
STAA and third-party audits triggered by NAICS, location, and accident
history were reinforced by provisions like local information access and
enhanced employee participation. Nevertheless, in the body of the
preamble for the 2022 SCCAP proposed rule, the Agency explained how
each of these provisions would help prevent accidents and improve
release mitigation and emergency response on its own merits.

C. EPA's Authority To Revise the RMP Rule

The statutory authority for this action is provided by CAA section
112(r) (42 U.S.C. 7412(r)). Each of the portions of the RMP regulations
we are amending in this action are based on EPA's rulemaking authority
under 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 (``regulated

[[Page 17631]]

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. A more detailed discussion of the
underlying statutory authority for the current RMP regulations appears
in the initial 1993 action that proposed the RMP regulations (58 FR
54190-3, October 20, 1993).
Under CAA 112(r)(7)(B)(i), Congress authorized 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 paragraph 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 prevention program provisions discussed
in this action (hazard evaluations of natural hazards, power loss and
stationary source siting, safer technologies and alternatives analysis,
root cause analysis incident investigation, third party compliance
auditing, and employee participation) derive from EPA's authority to
promulgate reasonable regulations for the ``prevention and detection of
accidental releases'' (CAA section 112(r)(7)(B)(i)). Similarly, the
emergency coordination and exercises provisions in this rule derive
from EPA's authority to promulgate reasonable regulations to address
``response to such [accidental] releases by the owners or operators of
the source of such releases'' Id. Section 112(r)(7)(B)(i) calls for
EPA's regulations to recognize differences in ``size, operations,
processes, class and categories of sources.'' For that reason, this
action maintains distinctions in prevention program levels and in
response actions authorized by this provision. Finally, the information
availability provisions discussed in this action generally assist in
the development of ``procedures and measures for emergency response
after an accidental release of a regulated substance in order to
protect human health and the environment.'' Id. These information
availability provisions include requirements to disclose information to
the public within a 6-mile radius of sources, and are designed to
ensure that emergency plans for impacts on the community are based on
more relevant and accurate information than would otherwise be
available and ensures that the public can become an informed
participant in such emergency planning. Also, as noted in the 2022
SCCAP proposed rule, requiring that information be made available to
the public strengthens the prevention program by leveraging public
oversight of facilities--especially prevention provisions that are
triggered by source-specific accident history (87 FR 53566, August 31,
2022).
This rulemaking action finalizes substantive amendments to 40 CFR
part 68 and is authorized by CAA sections 112(r)(7)(A) and (B), as
explained in more detail in the proposed action (87 FR 53563-6), and as
explained herein. In considering whether it is legally permissible for
EPA to modify provisions of the RMP regulations 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 640, 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.\35\
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\35\ 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.
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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 in
quote original.\36\) As explained in detail above and throughout this
notice, the policy changes finalized in this action are permissible
under the statute.
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\36\ 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).
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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 $540 million yearly.\37\ EPA
monetized both onsite and offsite damages from RMP facility accidents
from 2016-2020,\38\ when possible, to determine this amount. It is
important to note, however, that many accident costs are not required
to be reported under the RMP accident reporting provisions (40 CFR
68.42(b)) and thus are not reflected in the data. These include
responder costs, transaction costs, property value reductions,
unmonetized costs of evacuations and sheltering-in-place, the costs of
potential health risks from exposure to toxic chemicals, and
productivity losses, among others.\39\ As mentioned previously, some
accidents that occurred at RMP facilities during the five-year period
were not reported to EPA because the facility either closed after the
accident, decommissioned the process, or removed the regulated
substance from the process involved in the accident before it was
required to submit a report to the RMP Database. For example, the
Philadelphia Energy

[[Page 17632]]

Solutions Refining and Marketing LLC facility in Philadelphia, PA, had
a fire and explosions in the PES Girard Point refinery HF alkylation
unit on June 21, 2019, which resulted in the release of HF.\40\ This
facility deregistered the affected process before the deadline for
their subsequent RMP report. Due to the omission of such accidents and
the omission of the cost categories listed in the beginning of this
paragraph, the monetized costs of RMP accidents to society
underestimate the number and magnitude of RMP chemical accidents.
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\37\ A full description of costs and benefits for this final
rule can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Final Rule. This
document is available in the docket for this rulemaking (EPA-HQ-
OLEM-2022-0174).
\38\ Due to a lack of alternative data describing RMP accident
impacts more comprehensively, EPA chose this five-year dataset to
reflect the most recent trends regarding RMP accidents. EPA used the
August 1, 2021, version of the RMP database to complete its analysis
because under 40 CFR 68.195(a), facilities are required to report
RMP accidents and specific associated information within six months
to the RMP database. Therefore, the RMP database as of August 1,
2021, is expected to include RMP accidents and their specific
associated information as of December 31, 2020. However, because
accident data are reported to the RMP database by facility owners
and operators, EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data because some
facilities may have not reported their RMP accidents as they are
required to do. See sections 3.2 and 3.3 of the RIA for more on this
and other limitations on the number and costs of baseline accidents.
\39\ Further discussed in detail in Chapter 6 of the RIA.
\40\ For a description of damages from this case see section
3.2.1 of the RIA and the CSB Report, Fire and Explosions at
Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation
Unit, Factual Update, October 16, 2019, <a href="https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf">https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf</a>.
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EPA estimated total average annual onsite damages of $497.9
million. The largest monetized, average annual, onsite damage category
was property damage, which resulted in average annual damage of
approximately $454.58 million. The next largest impact was onsite
fatalities ($37.57 million) and injuries ($5.75 million). EPA estimated
total average annual offsite damages of $42.33 million. The largest
monetized, average annual, offsite damage category was property damage,
which resulted in average annual damage of approximately $35.71
million. The next largest impact was from evacuations ($3.80 million),
sheltering in place ($2.52 million), hospitalizations ($0.28 million),
and medical treatment ($0.03 million).
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.\41\ The 2022 SCCAP proposed rule not
only discussed data demonstrating this elevated risk, but also noted
that a higher frequency of accidental releases in such communities is
consistent with the common-sense notion that, while accidental releases
are low-probability, high consequence events, the more facilities near
a community, the higher the likelihood that the community will be faced
with such an event, or multiple events (all other factors being equal).
Lowering the probability and magnitude of accidents by putting more of
a focus on prevention reduces the risks posed by these RMP
facilities,\42\ which is one of the objectives of the present RMP
amendments.
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\41\ 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).
\42\ EPA notes that the two industrial sectors that are the
focus of more requirements under the SCCAP rule, petroleum
refineries (NAICS 324) and chemical manufacturers (NAICS 325) have
been responsible for 42% of the accidental releases in the RMP
database over the years 2016-2020. Approximately 83% of the costs of
RMP accidental releases during 2016-2020 are attributed to these
sectors. More details on the number and costs of baseline RMP
accidents can be found in the Regulatory Impact Analysis: Safer
Communities by Chemical Accident Prevention: Final Rule. This
document is available in the docket for this rulemaking (EPA-HQ-
OLEM-2022-0174).
---------------------------------------------------------------------------

EPA received various comments indicating that EPA has appropriate
authority to revise RMP regulations. For the reasons stated directly
above and throughout the proposal where we outline EPA's statutory
authority under CAA section 112(r)(7), EPA agrees with these comments.
Conversely, EPA also received comments that EPA is exceeding its
statutory authority because it does not have jurisdiction over worker
safety issues. EPA disagrees that it has exceeded its statutory
authority in this way in this rulemaking. EPA acknowledges that both
EPA and OSHA have separate mandates under the Occupational Safety and
Health Act (29 U.S.C. 651), the CAA, and the requirements enacted in
the CAAA. In the 1990s, both Agencies fulfilled their mandatory duties
to promulgate and issue the rules required by CAA sections 112(r)(3)-
(5) and 112(r)(7)(B), as well as section 304 of the CAAA. The focus of
OSHA's regulations in the PSM standard is on workplace safety, while
EPA's focus in the RMP regulations has been primarily on minimizing the
public impacts of accidental releases through prevention and response.
This rule maintains EPA's focus on minimizing the public impacts of
accidental releases even as it also reduces impacts on facilities and
workers. As explained throughout the proposal and in this final action,
the OSHA PSM standard and EPA RMP regulations are closely aligned in
content, policy interpretations, and enforcement. This is not
surprising, as accident prevention steps that make a process safe for
workers often will be similar, or the same as, steps that would prevent
deleterious impacts on the public. Congress recognized this
relationship by requiring EPA to coordinate its requirements with those
of OSHA in developing accident prevention regulations and requiring
OSHA to coordinate with EPA when developing its PSM standard (see CAA
section 112(r)(7)(D) and CAAA section 304(a)). Therefore, since the
inception of these regulations, EPA and OSHA have coordinated closely
on their implementation in order to minimize regulatory burden and
avoid conflicting requirements for regulated facilities. This
coordination has continued throughout the development of this rule and
is explained further in the relevant sections below.
A couple of commenters called on EPA to exercise its ``full
statutory authority'' to issue measures that prevent disasters `` `to
the greatest extent practicable.' ''EPA disagrees with these comments.
As mentioned above, while EPA is authorized to promulgate regulations
that provide for the prevention and detection of accidental releases to
the greatest extent practicable, so too must these regulations be
reasonable. The relevant statutory phrase describing EPA's authority to
regulate under CAA section 112(r)(7)(B)(i), authorizes ``reasonable
regulations . . . to provide, to the greatest extent practicable,'' for
the prevention and detection of and response to accidental releases of
substances listed in 40 CFR 68.130. EPA interprets the term
``practicable'' in this context to include concepts such as cost-
effectiveness of the regulatory and implementation approach, as well as
the availability of relevant technical expertise and resources to the
implementing and enforcement agencies and the owners and operators who
must comply with the rule. Further, an interpretation of the statute
that does not give meaning to the qualifier ``reasonable'' to the
authority to regulate ``to the greatest extent practicable,'' as the
commenters suggest, would be inconsistent with the structure of the
statute. The terms ``reasonable'' and ``practicable'' operate both as
authorization for EPA's regulations and as limitations on the scope of
EPA's authority under CAA section 112(r)(7)(B)(i), while the phrase
``greatest extent practicable'' directs EPA to select the regulatory
option that ``provide[s] the greatest level of practicable protection''
from ``among those regulatory options that are reasonable.'' 84 FR
69849 (Dec. 19, 2019); see also 87 FR 53566 (Aug. 31, 2022). To the
extent both the 2019 compliance-driven and the 2022 rule-based,
prevention-focused approaches are reasonable, the approach of this
final rule would be more protective and therefore be `` `to the
greatest extent practicable' among the reasonable approaches.''
As recognized by the Supreme Court in Michigan v. EPA, 135 S. Ct.
2699, 2707 (2015), ``reasonable regulation'' generally involves some
sort of examination of the benefits and the burdens of a rule.
Nevertheless, the Court in Michigan v. EPA did not mandate a strict
analysis of quantified

[[Page 17633]]

cost and benefits and limit the Agency to adopting only those measures
that have quantified costs exceeding benefits. In assessing the types
of benefits EPA should consider in a rulemaking under CAA 112(r)(7),
EPA recognizes that a major purpose of the accidental release
provisions of the CAA is to help mitigate and prevent large scale
catastrophic incidents that are rare and therefore difficult to
quantify.\43\ Both the Senate and the House committee reports on the
CAAA specifically identify the Union Carbide-Bhopal incident as one
that demonstrated the need for the accidental release prevention
provision (House Report at 155-57; Senate Report at 134-35, 143-44).
The congressional reports and floor debates also cite an EPA study
identifying 17 events that, based only the volume and toxicity of the
chemicals involved (and not accounting for factors such as location,
climate, and operating conditions) had the potential for more damage
than the Union Carbide-Bhopal incident.\44\ Therefore, when assessing
the reasonableness of the benefits and burdens of various regulatory
options, EPA places weight on both preventing more common accidental
releases captured in the accident history portion of the RMP database
while also placing weight on less quantifiable potential catastrophic
events. Our judgment as to what regulations are ``reasonable'' is
informed by both quantifiable and unquantifiable burdens and benefits.
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\43\ Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule. This document is available in the
docket for this rulemaking (EPA-HQ-OLEM-2022-0174).
\44\ Senate Report at 135; House Report at 155; Representative
Richardson, 136 Congressional Record 35082 (1990) (statement of
Representative Richardson); 136 Congressional Record 36057 (1990)
(statement of Senator Durenberger).
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The fact that accidents continue to occur shows that we still have
reason to exercise statutory authority to promulgate reasonable
regulations to provide for the prevention and detection of those
accidents to the greatest extent practicable when the opportunity
exists to improve the performance of our regulatory program. In
determining what is ``reasonable'' when developing regulations under
CAA section 112(r)(7)(B), EPA acknowledges that some facilities are
less likely to have an accidental release than others and that the
statute gives the Agency the authority to distinguish among classes of
facilities. When developing this rulemaking, EPA therefore had the
authority to include multiple factors when determining what is
reasonable, such as frequency of RMP accidents or proximity to both
nearby communities and other RMP facilities that could, as a result,
make the communities and other facilities be more susceptible when it
comes to being exposed to a worst-case scenario. For example, as
mentioned in the proposed rulemaking, the per facility accident rate
between 2016 and 2020 \45\ 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). Also, 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 (87 FR 53578).\46\ Also
mentioned in the proposed rulemaking, these surrounding communities
would benefit from rule-based prevention prior to incidents, rather
than the case-by-case oversight approach of the 2019 reconsideration
rule (87 FR 53565). Therefore, EPA now believes the benefits of rule-
based prevention for certain high-risk classes of facilities could help
prevent high consequence accidents that affect communities and are
therefore reasonable and necessary to meet the statutory objective ``to
the greatest extent practicable.''
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\45\ Due to a lack of alternative data describing RMP accident
impacts more comprehensively, EPA chose this five-year dataset to
reflect the most recent trends regarding RMP accidents. EPA used the
August 1, 2021, version of the RMP database to complete its analysis
because under 40 CFR 68.195(a), facilities are required to report
RMP accidents and specific associated information within six months
to the RMP database. Therefore, the RMP database as of August 1,
2021, is expected to include RMP accidents and their specific
associated information as of December 31, 2020. However, because
accident data are reported to the RMP database by facility owners
and operators, EPA acknowledges the likelihood of late-reported
accidents affecting these last few years of data because some
facilities may have not reported their RMP accidents as they are
required to do. While some commenters have suggested that late
reporting may impact the count of total accidents in recent years,
neither the commenters nor EPA have identified any impacts of late
reporting on the distribution of accidents by sector. See sections
3.2 and 3.3 of the RIA for more on this and other limitations on the
number and costs of baseline accidents.
\46\ In the 2022 SCCAP proposed rule, EPA acknowledged the
likelihood of late-reported accidents affecting the last few years
of data. Based on its prior experience, EPA judged that there would
be a slight increase in the number of accidents in the last few
years of data.
---------------------------------------------------------------------------

As mentioned in the proposed rulemaking, in contrast to the
approach in the 2019 reconsideration rule, the approach taken in this
action for the new prevention program provisions--STAA, root cause
analysis incident investigation (RCA), and third-party compliance
audits--refines the focused regulatory approach found in the 2017
amendments rule, and finalizes provisions 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 so-called ``compliance-driven''
approach in the 2019 reconsideration rule, this rule will further
protect human health and the environment from chemical hazards through
process safety advancement without undue burden. Similarly, other
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. By contrast with the prior approach, the approach of
this final rule is expected to be both reasonable and more protective,
and thus provide for release prevention, detection, and response to the
greatest extent practicable. EPA has determined, based on the updated
factual and scientific record now before the agency, including a
thorough evaluation of public comments, and in view of its statutory
responsibilty and legal authority, to be the approach it needs to take,
among the potentially available or reasonable approaches.

IV. Discussion of General Comments

This section of this preamble focuses on general comments on the
2022 SCCAP proposed rule in its entirety and EPA's response to those
comments. Comments and discussion on provision-specific topics can be
found under each individual provision heading. Comments received on
additional considerations posed in the 2022 SCCAP proposed rule but
outside the scope of this rulemaking are included the Response to
Comments document,\47\ available in the docket for this

[[Page 17634]]

rulemaking.\48\ In the proposal EPA acknowledged the need for reviewing
the list of RMP-regulated substances. Section 112(r)(3) requires
periodic review of the RMP regulated substance list. A priority
chemical for EPA's upcoming review will be ammonium nitrate. EPA
continues to review the stakeholder input from this solicitation.
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\47\ 2023. EPA Response to Comments on the 2022 SCCAP Proposed
Rule (August 31, 2022; 87 FR 53556). This document is available in
the docket for this rulemaking.
\48\ For example, one such consideration posed outside the scope
of this rulemaking was the need for reviewing the list of RMP-
regulated substances. EPA still acknowledges the need for reviewing
the list and will consider received comments when determining
whether to take further action on this issue.
---------------------------------------------------------------------------

A. General Comments

Many commenters provided general comments about the proposed
rulemaking. Several commenters supported EPA's proposed rule, including
some offering suggestions for improvement. Several commenters requested
EPA consider making the proposed rule stronger than it is currently
written. Several of these commenters provided detailed examples of
recent accidents and incidents, including health impacts to the
community, dating back to 2004 that they hope stronger RMP regulations
would prevent. A few commenters provided additional steps EPA should
take in tandem with the proposed rule. Another commenter stated that
the current process puts the onus on community members in close
proximity to facilities to protect themselves when it is EPA's
responsibility to regulate these facilities and ensure that the public
is safe. The commenter noted that there needs to be more enforcement by
the Federal Government to hold facilities accountable, especially in
States lacking enforcement. Several commenters stated that the proposed
rule relies too much on voluntary commitments from RMP facilities. One
commenter noted that the current process remains reactive rather than
proactive and corrective rather than preventative.
Several commenters opposed EPA's proposed rule, including some
recommending that EPA withdraw the proposed rule. A few commenters
opposed the proposed rule due to what the commenters asserted are vague
standards and definitions that could create uncertainties. Several
commenters stated that the new requirements under the 2022 SCCAP
proposed rule would impose unnecessary burdens to facilities, including
new training and analyses, higher costs, or lower effectiveness of the
program. Several commenters asserted that there is no basis or evidence
that the 2022 SCCAP proposed rule is necessary.

B. EPA Responses

EPA is finalizing several amendments to the RMP rule to further
protect human health and the environment from RMP accidents. The final
rule's emphasis is on protecting communities most at risk of having an
accidental release from a facility in their midst. Under the final
rule, facilities in these communities will be required to do more to
prevent chemical accidents, including conducting an STAA, more thorough
incident investigations, and third-party audits. The final rule also
includes new prevention provisions that have not been addressed in
prior RMP rules, including empowering workers to make safety decisions
and report non-compliance. The Agency is also increasing access to RMP
facility information for fenceline communities in commonly spoken
languages. EPA believes this final rule promotes transparency and gives
more opportunities for the public and workers to be involved in
accident prevention and emergency planning. EPA believes that in most
cases, facilities needing to adopt the finalized provisions from
scratch are most likely facilities that have not fully developed strong
programs to ensure their commitment to process safety; strengthening
prevention and response programs at such facilities will help to
prevent and minimize accidental releases of toxic and flammable
regulated substances.
EPA disagrees that that there is no basis or evidence that the
proposed rule is necessary. Congress charged EPA to promulgate
reasonable regulations to provide to the greatest extent practicable
for the prevention and detection of accidental releases. Even when EPA
has discharged its mandatory duty under CAA section 112(r)(7)(B), the
Agency retains the discretion to amend the regulations when they can be
improved to further the intent of the statute. Therefore, when major
concerning RMP accidents, including major accidents, continue to occur
as they have,\49\ it is EPA's responsibility to further protect human
health and the environment, if there are reasonable opportunities to do
so. Many of the amendments being finalized in this action, some
stronger than what was proposed, were informed by commenters, including
many that suffer the consequences of accidents occurring at RMP
facilities or work in RMP-covered processes. The amendments are also
informed by RMP accident data which indicate trends in accident
occurrence. For example, as discussed in the proposal, recent accidents
highlight that while the annual count of accidents decreased overall
between 2016 and 2020, in 2019, the TPC Group (TPC) explosion and fire
in Port Neches, Texas, reported the largest number of persons ever
evacuated (50,000 people) as the result of an RMP-reportable incident,
as well as $153 million in offsite property damage.\50\ EPA did not
conduct an inspection at TPC just prior to this accident because as
indicated in the 2019 reconsideration rule, EPA prioritizes inspections
at facilities that have had accidental releases. TPC had no recent
prior RMP accidental release and was not otherwise due for inspection
under EPA's routine oversight plan. Therefore, we believe our current
enforcement resources, and even prioritizing inspections, are not
capable of effectively addressing accident-prone facilities without
additional regulatory requirements mandates.
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\49\ As part of this rule, EPA analyzed accidents from 2016 to
2020. The impacts of high consequence RMP-reportable accident events
between 2016 and 2020 demonstrate the impact of low probability,
high consequence events on annual averages. For more information see
the Regulatory Impact Analysis: Safer Communities by Chemical
Accident Prevention: Final Rule.
\50\ The U.S. Chemical Safety Board's TPC incident investigation
report outlines the safety issues contributing to the incident,
conclusions, recommendations, and key lessons for the industry.
<a href="https://www.csb.gov/tpc-port-neches-explosions-and-fire/">https://www.csb.gov/tpc-port-neches-explosions-and-fire/</a>.
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While large events are rare, CAA section 112(r) was intended as a
prevention program for large catastrophic releases as well as more
common accidental releases. Post-event compliance measures such as
outreach and enforcement are ``too little, too late'' for such large,
but rare, events. Therefore, this final rule provides additional
prevention program provisions reasonably calculated for stationary
sources handling dangerous chemicals to prevent potentially
catastrophic incidents. EPA therefore believes the provisions of this
final rule will be generally effective to help improve chemical process
safety by preventing accidents that result in harm and damage; assist
in planning, preparedness, and responding to RMP-reportable accidents;
and improve public awareness of chemical hazards at regulated sources.
Thus, these are necessary updates to the existing RMP rule to ensure
chemical accident prevention and mitigation. Further, while many of the
provisions of this final rule reinforce each other, it is EPA's intent
that each one is merited on its own, and they are thus severable.

[[Page 17635]]

EPA also believes that because of the performance-based nature of
the regulation, and the similar nature of these amendments, the
requirements provide facility owners with latitude in their methods of
implementing the requirements. This type of regulation does not create
uncertainties or unnecessary burdens, but rather offers reasonable
flexibilities in adopting the most effective measures to prevent and
mitigate accidents. For example, while EPA requires implementation of
at least one practicable passive measure, or its equivalent, the new
STAA requirements are not prescriptive in nature as to what a facility
can choose as its measure. The rule gives facilities flexibility and
allows facility owners and operators to exercise reasonable judgement
to determine what technology or risk reduction measures work best for
their particular chemical uses, processes, or facility. The final
rule's emergency exercise requirements also give owners and operators
significant flexibility in establishing exercise schedules and exercise
scenarios. Other provisions of the final rule afford similar
flexibilities.
EPA agrees assistance, outreach, and enforcement will help ensure
compliance with the rule. For example, enforcement of the RMP
regulation has and will continue to occur. Because of that fact, EPA
expects most facilities will proactively make the necessary prevention
improvements in order to comply with the rule and thus avoid
enforcement. Enforcement of RMP facilities remains an Agency priority,
as indicated by its adoption as a National Enforcement and Compliance
Initiative (NECI) since 2017. The goal of this NECI is to reduce the
risk to human health and the environment by decreasing the likelihood
of chemical accidents. Activities under the initiative include having
regulated facilities and industry associations work to improve safety;
increase compliance with RMP; and promote coordination and
communication with State and local responders and communities. The
capacity built by the NECI will continue to benefit oversight by EPA
and its partner implementing agencies even after the NECI. Furthermore,
EPA intends to publish guidance for certain provisions, such as STAA,
root cause analysis, third-party audits, and employee participation.
Once these materials are complete, owners and operators can familiarize
themselves with resources and best practices that EPA has gathered and
found to be useful in helping to develop and maintain strong prevention
programs. The Agency views these compliance activities as a complement
to strong accidental release prevention and response, but they are not
a substitute for the stronger prevention measures and response
provisions set forth in the final rule.

V. Prevention Program Requirements

A. Hazard Evaluation Amplifications

1. Summary of Proposed Rulemaking
a. Natural Hazards, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(5) and 68.67(c)(8) 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. EPA
proposed to define natural hazards as naturally occurring events with
the potential for negative impacts, including meteorological hazards
due to weather and climate, as well as geological hazards.
In addition to the proposed approach, EPA requested comment on
whether the Agency should 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. EPA further asked whether 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.
b. Power Loss, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(3) and 68.67(c)(3) explicitly address the risk of power
failure, as well as standby or emergency power systems. EPA also
proposed to require that air pollution control or monitoring equipment
associated with prevention and detection of accidental release from
RMP-regulated processes have standby or backup power to ensure
compliance with the intent of the rule. In addition to the proposed
approach for standby or backup power for air pollution control or
monitoring equipment, EPA requested comment on any potential safety
issues associated with the requirement.
c. Stationary Source Siting, 40 CFR 68.50 and 68.67
EPA proposed to require that hazard evaluations under 40 CFR
68.50(a)(6) and 68.67(c)(5) 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.
d. Hazard Evaluation Information Availability, 40 CFR 68.170 and 68.175
EPA proposed to require that risk management plans under 40 CFR
68.170(e)(7) and 68.175(e)(8) include declined natural hazard, power
loss, and siting hazard evaluation recommendations and their associated
justifications. In addition to the proposed approach, EPA requested
comment on whether the Agency should require declined natural hazard,
power loss, and siting hazard evaluation recommendations to be included
in narrative form and 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 submitted
RMP. Further, EPA requested comment on methods to provide justification
for declining relevant hazard evaluation recommendations.
2. Summary of Final Rule
Based on comments on both the proposed options and alternative
approaches presented, EPA is finalizing the proposed provisions with
the following modifications:
<bullet> Revising the definition of ``natural hazards'' at 40 CFR
68.3 to mean meteorological, environmental, or geological phenomena
that have the potential for negative impact, accounting for impacts due
to climate change.
<bullet> Revising the hazard evaluation regulatory text at 40 CFR
68.50(a)(5) and 68.67(c)(8) to focus amplifying language on natural
hazards rather than ``external hazards'' and include ``exacerbate'' as
an influence on an accidental release from natural hazards in addition
to ``cause.'' EPA is also removing the description of climate change in
this section of regulatory text because the definition of natural
hazards at 40 CFR 68.3 now includes accounting for climate change.
<bullet> Revising 40 CFR 68.50(a)(3) and 68.67(c)(3) to require
monitoring equipment associated with prevention and detection of
accidental releases from covered processes to have standby or backup
power.
<bullet> Revising 40 CFR 68.52(b)(9) and 68.69(a)(4) to require
documentation of

[[Page 17636]]

removal of monitoring equipment associated with prevention and
detection of accidental releases from covered processes during imminent
natural hazards.
<bullet> Revising 40 CFR 68.50(a)(6) and 68.67(c)(5) to correct the
technical term of ``facilities'' to ``stationary sources.''
3. Discussion of Comments and Basis for Final Rule Provisions
The discussion and basis for each provision is below. The section
is organized by including comments and EPA's responses grouped by the
various aspects of each provision the Agency received comments on
(italicized headings). The same organization is used for the Discussion
of Comments and Basis for Final Rule Provisions sections throughout
this preamble.
a. Natural Hazards
EPA's Proposed Approach
i. Comments
Several commenters expressed support for EPA requiring facilities
to conduct natural hazard assessments since natural hazards have the
potential to initiate accidents at RMP facilities. A few commenters
provided examples of natural disasters that have resulted in chemical
accidents and stated that natural hazard assessments could better
protect workers and surrounding communities from these types of
incidents. One commenter suggested that EPA require that RMP facilities
act to address all natural hazard threats as they will only worsen in
the face of climate change. The commenter also suggested that the
requirement should apply to all RMP facilities.
One commenter noted that improving the resilience of facilities to
extreme weather events is warranted because of the direct, substantial,
and cumulative risk to EJ communities with EJ concerns that are more
likely to be located in areas susceptible to flooding. One commenter
noted that EPA's findings on risks to facilities from natural hazards
is consistent with States' and municipalities' analysis. The commenter
noted that several States have already taken steps to require
facilities to consider threats from extreme weather, including
Massachusetts and New York. A couple of commenters expressed support
for the inclusion of natural hazard analysis but recommended that EPA
clarify the language in the proposed rule to better define natural
hazards and climate-related hazards. One of the commenters suggested
that the definition of natural hazard assessments provided in the
Center for Chemical Process Safety's (CCPS), ``Guidelines for Hazard
Evaluation Procedures,'' 3rd edition (2008) is suitable.
Several commenters expressed opposition to the inclusion of natural
hazard assessments. For example, several commenters stated that EPA has
not provided sufficient justification for these new requirements. One
of the commenters stated that EPA has not indicated why the existing
regulations are inadequate. Similarly, several commenters noted that
facilities are managing natural hazards well, and therefore the
commenters suggested that additional requirements are not necessary.
Several commenters noted that the number of accidental releases
caused by natural hazards is small compared to other causes, and small
compared to how many natural hazards occur daily, and therefore does
not justify EPA adding additional requirements for assessing natural
hazards or other external events. One of the commenters noted that the
small number of accidents may be attributed to the effectiveness of
existing regulations and voluntary measures regarding emergency
planning.
Several commenters noted that the natural hazard assessment
provisions are already considered in the process hazard analysis (PHA)
or other current regulations and are, therefore, redundant. Several
commenters indicated that the natural hazard provisions in the proposed
rule overlap with or are redundant of existing OSHA regulations and
recommended that EPA not conflict or compete with OSHA standards, as
including them in EPA's rules would create duplicative work for
facilities and introduce uneven enforcement between the two agencies.
Several commenters stated that the proposed natural hazard
assessment provisions are overly burdensome to facilities. One of the
commenters stated that EPA does not have authorization from Congress to
transform the PHA program to include natural hazards ``caused by
climate change or other triggering events.'' One commenter suggested
that the determination of whether or not to implement additional layers
of protection from natural hazards should be left to the facility and
not subject to regulatory scrutiny.
One commenter stated that the reference to external events should
be removed because it is an undefined and vague term. The commenter
added that the proposed requirement that the PHA include natural
hazards ``caused by climate change or other triggering events'' is
overly broad in that it appears to include events that go well beyond
the proposed definition of natural hazards. The commenter stated that
these broadly defined and ambiguous terms in the regulatory text could
lead to an infinite list of external events and associated
recommendations from the PHA a facility must consider. The commenter
urged that EPA must provide much-needed clarity and explanation for the
proposed language.
ii. EPA Responses
EPA agrees that natural hazards are hazards for chemical facilities
because they have the potential to initiate accidents that threaten
human health and the environment and disagrees with comments that the
Agency did not provide sufficient justification for the new
requirements. In the proposal, the Agency provided data which indicate
that, while not all, some RMP accidents are being reported as having a
natural cause as the initiating event and include unusual weather
conditions as a contributing factor.\51\ EPA believes that adding
clarifying language to a provision is a simple way to promote awareness
of these potential accidents which should help prevent some.
Additionally, EPA agrees that climate change increases the threat of
extreme weather as a natural hazard and should be taken into account at
covered facilities when evaluating hazard frequency and severity. EPA
is finalizing the proposed provisions because the Agency believes that
making the requirement more explicit to evaluate natural hazards, which
includes taking into account climate change, in hazard evaluations for
Program 2 and Program 3 RMP-regulated processes will ensure that the
threats of natural hazards are properly evaluated and managed to
prevent or mitigate releases of RMP-regulated substances at covered
facilities. EPA agrees that doing so will better protect surrounding
communities from these types of incidents.
---------------------------------------------------------------------------

\51\ 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).
---------------------------------------------------------------------------

In response to the comment that improving the resilience of
facilities to extreme weather events is warranted due to the risk posed
to communities with EJ concerns, EPA agrees that accidental releases of
regulated chemicals from RMP-regulated facilities likely pose
disproportionate risks to historically marginalized communities. EPA
expects that the benefits of this clarified provision may lower
potential exposure for fenceline communities with historically
underserved and

[[Page 17637]]

overburdened populations by reducing disproportionate damages that RMP-
reportable accidents might otherwise inflict on those populations.
EPA agrees with the comment that the Agency's findings on risks to
facilities from natural hazards are consistent with those of States
that already require facilities to consider threats from extreme
weather. However, because not all States require facilities to consider
natural hazards, and because EPA continues to see natural hazards as a
factor in RMP accidents, the Agency believes the requirement to
evaluate and control natural hazards should be explicitly stated in the
RMP regulation. Moreover, EPA notes that doing so is consistent with
other countries that are also expanding efforts to address natural
hazards at chemical facilities, as discussed in the 2022 SCCAP proposed
rule (87 FR 53568).
In response to the comments requesting that EPA better define
natural hazards and climate-related hazards, EPA notes that it has
revised its definition to be more closely align with language used in
the Federal Emergency Management Agency's (FEMA) National Risk Index
(NRI) \52\ and Climate Essentials for Emergency Managers \53\
resources. For this final rule, EPA is defining natural hazards to mean
meteorological, climatological, environmental, or geological phenomena
that have the potential for negative impact, accounting for impacts due
to climate change. Examples of such hazards include, but are not
limited to, avalanche, coastal flooding, cold wave, drought,
earthquake, hail, heat wave, hurricane, ice storm, landslide,
lightning, riverine flooding, strong wind, tornado, tsunami, volcanic
activity, wildfire, and winter weather. EPA believes CCPS' definition
and guidance \54\ presented in the 2022 SCCAP proposed rule, is still
useful for facilities' evaluation of natural hazards for process
safety, however, the Agency believes these FEMA resources reflect a
more comprehensive base to identify, evaluate and understand relative
natural hazard risk, particularly how natural hazards must account for
a changing climate. For example, the NRI identifies 18 specific natural
hazards, which EPA has identified in its definition, that are further
supported as their designation as natural hazards and are able to be
represented in terms of expected annual loss, which incorporate data
for exposure, annualized frequency, and historic loss ratio.\55\
Additionally, the Climate Essentials for Emergency Managers points to
many climate change resources including the Climate Risk & Resilience
Portal \56\ and the Climate Mapping for Adaption and Resilience Tool
\57\ that allows users to examine simulated future climate conditions
associated with the natural hazards identified in the NRI.
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\52\ <a href="https://hazards.fema.gov/nri/natural-hazards">https://hazards.fema.gov/nri/natural-hazards</a>.
\53\ <a href="https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf">https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf</a>.
\54\ 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>.
\55\ <a href="https://hazards.fema.gov/nri/natural-hazards">https://hazards.fema.gov/nri/natural-hazards</a>.
\56\ <a href="https://disgeoportal.egs.anl.gov/ClimRR/">https://disgeoportal.egs.anl.gov/ClimRR/</a>.
\57\ <a href="https://resilience.climate.gov/">https://resilience.climate.gov/</a>.
---------------------------------------------------------------------------

EPA disagrees that the natural hazard assessment provisions are
redundant and will result in uneven enforcement due to them already
being considered in both the PHA requirements and current OSHA
regulations. EPA's goal of this provision is to better reflect the
Agency's longstanding regulatory requirement, rather than to impose
additional regulatory requirements (and thus potential additional
costs) that conflict with the OSHA PSM regulatory requirements. In
fact, EPA has coordinated with OSHA throughout the rulemaking process
to ensure the intent of adding explicit natural hazard regulatory text
does not create conflicting requirements between the two regulatory
programs.
In response to comments that the natural hazard assessment
provisions are overly burdensome to facilities, and that the Agency
does not have authorization from Congress to transform the PHA program
to include natural hazards ``caused by climate change or other
triggering events'', EPA disagrees. EPA has stated this provision makes
more explicit what is already required in the RMP regulations. As noted
in the proposed rule, since the 1996 RMP rule, EPA has said events such
as floods and high winds should be considered as potential release-
initiating events when conducting a PHA, and the RMP guidance further
expands on this point.\58\ Furthermore, the hazard evaluation
amplifications reflect existing industry practice, and therefore, EPA
assumes that these hazard evaluation amplifications impose no new
requirements or costs on facilities that are in compliance with the RMP
rule and common industry practice. By amplifying and making more
explicit the need to evaluate natural hazards as potential causes of
releases, EPA expects those facilities that are currently not
performing such evaluations will better understand what the rule
requires. Additionally, each modification of the RMP rule that EPA
proposed and is finalizing is based on EPA's rulemaking authority under
CAA section 112(r)(7). EPA has outlined its authority for all the
changes to the regulation in section III.C of this preamble.
---------------------------------------------------------------------------

\58\ 87 FR 53567, August 31, 2022.
---------------------------------------------------------------------------

In response to comments that the determination of whether to
implement additional layers of protection from natural hazards should
be left to the facility and not subject to regulatory scrutiny, EPA
notes that it is not requiring implementation of protective measures.
At this time, EPA is simply emphasizing the already-existing
requirement that the evaluation of natural hazards be explicitly
included in hazard reviews and PHAs for Program 2 and Program 3 RMP-
regulated processes. The Agency expects stationary source management to
make reasonable decisions based on the information collected through
this provision, like other provisions in the PHA. EPA acknowledges that
natural hazards and process operations vary throughout the United
States, and implementation of protective measures will therefore also
vary among RMP processes. However, because the RMP rule is performance-
based, EPA believes that all regulated RMP facilities can ultimately be
successful in addressing natural hazards for their locations within
their risk management programs.
In response to the comment that the reference to external events
should be removed because it is vague and overly broad, EPA
acknowledges that analysis of external events may be broader than
expected. EPA is therefore revising the regulatory language in the
final rule to focus on natural hazards rather than external hazards.
Additionally, EPA is including ``exacerbate'' as an influence of an
accident from natural hazards in addition to ``cause'' to further
clarify the regulatory language. As a few commenters discussed, and EPA
agrees, in some cases natural hazards can be a contributing factor for
accidental releases, making them more extreme or likely, rather than
causing them independently. Finally, EPA is removing the description of
climate change in the hazard evaluation regulatory language to
eliminate redundancy, as EPA is defining natural hazard as taking into
account climate change impacts.

[[Page 17638]]

Alternative Approaches for Specifying Areas Most at Risk and
Identifying Sources With Heightened Risk of Climate Events or
Earthquakes
i. Comments
Several commenters expressed support for EPA specifying areas most
at risk from climate or other natural events. One of the commenters
indicated that adopting the list of areas exposed to heightened risk of
wildfire, flooding, storm surge, or coastal flooding is necessary
because facilities would face difficulties in assessing future climate
risks without this additional guidance from EPA. A couple of commenters
recommended that EPA use the list in the U.S. Government Accountability
Office's 2022 report, ``Chemical Accident Prevention: EPA Should Ensure
Regulated Facilities Consider Risks from Climate Change.'' \59\ One of
the commenters also recommended using the list in the 2021 report,
``Preventing Double Disasters,'' from David Flores et al.\60\ A couple
of commenters suggested that the list of at-risk facilities or
geographic areas should be regularly updated using the latest available
data. A couple of commenters clarified that such a list of at-risk
areas should not be used to limit the number of facilities that are
required to conduct a natural hazard or climate change hazard analysis.
---------------------------------------------------------------------------

\59\ <a href="https://www.gao.gov/assets/gao-22-104494.pdf">https://www.gao.gov/assets/gao-22-104494.pdf</a>.
\60\ <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>.
---------------------------------------------------------------------------

A couple of commenters expressed opposition to the development of a
list of geographic areas most at risk from natural hazards or climate-
related hazards. One of the commenters indicated that such a list is
not necessary because facilities in these areas are generally aware of
the potential for those hazards. The commenter stated that EPA has not
demonstrated sufficient need to apply geographic distinctions as a part
of the regulatory approach. One commenter stated that according to the
Intergovernmental Panel on Climate Change's reporting, there are
challenges with attributing events to climate change; therefore, the
commenter stated that they oppose EPA specifying geographic areas most
at risk from climate impacts.
One commenter expressed support for EPA requiring sources in areas
exposed to heightened risk of natural disasters to conduct hazard
evaluations associated with climate or earthquakes as a minimum, while
also requiring all sources to consider the potential for natural
hazards unrelated to climate or earthquakes in their specific
locations. Similarly, another commenter urged that it is EPA's
responsibility to regulate chemical facilities appropriately. The
commenter noted that the co-location of multiple polluting sites in
climate vulnerable areas is common, with roughly a third of the
nation's RMP facilities at increased risk from climate impacts;
however, despite known risks, RMP facilities are not currently required
to plan for scenarios such as inland flooding, coastal flooding, storm
surge, and wildfires.
Conversely, one commenter stated that EPA does not need to apply
different regulatory requirements based on geography, since EPA has not
demonstrated sufficient need to apply such geographic distinctions as
part of any regulatory approach. Instead, the commenter stated that a
general provision to require hazard reviews and PHAs to evaluate the
potential for natural hazards, such as (but not necessarily limited to)
specific examples, would be more practical.
ii. EPA Response
While EPA agrees it could be useful to specify areas most at risk
from natural events and identify sources with heightened risk of
climate events, EPA is not finalizing a regulatory provision that will
adopt these approaches at this time. Rather, EPA will use these
comments, as well as those received on guidance development, to update
the current hazard evaluation guidance and initiate ways to share
natural hazard resources with facility owners and operators to help
them identify and evaluate potential natural hazard risks. EPA expects
to develop and release this guidance approximately one year after this
final rule. The 2022 SCCAP proposed rule identified relevant new
studies for RMP facilities and the threat of natural hazards to them.
Those studies included the Center for Progressive Reform, Earthjustice,
and the Union of Concerned Scientists' report ``Preventing Double
Disasters'' \61\ and the Government Accountability Office's report
``Chemical Accident Prevention: EPA Should Ensure Regulated Facilities
Consider Risks from Climate Change.'' \62\ EPA also believes CCPS'
guidance presented in the 2022 SCCAP proposed rule, is still useful for
facilities' evaluation of natural hazards for process safety. Lastly,
EPA now also recognizes the identification of hazards in FEMA's NRI
\63\ and Climate Essentials for Emergency Managers \64\ as the most
comprehensive foundation to identify, evaluate and understand relative
natural hazard risk, particularly how natural hazards must account for
a changing climate. EPA intends to incorporate and further evaluate
other resources as a minimum in its guidance and expects that
information available in these resources can be helpful to be consulted
to complement a facility's more localized information available from
the State and local government.
---------------------------------------------------------------------------

\61\ 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>.
\62\ 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>.
\63\ <a href="https://hazards.fema.gov/nri/">https://hazards.fema.gov/nri/</a>.
\64\ <a href="https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf">https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf</a>.
---------------------------------------------------------------------------

b. Power Loss
EPA's Proposed Approach
i. Comments
One commenter agreed with EPA's approach to add regulatory text to
emphasize that loss of power is among the hazards that must be
addressed within hazard review. A few commenters expressed support for
facilities having contingency plans to handle potential power loss. A
few commenters noted that power loss has been identified as the cause
of hazardous chemical releases, such as the Shell East Site and Arkema
incidents, and stated it is clear that more stringent requirements are
needed. One commenter stated that they did not oppose requiring hazard
reviews and PHAs to address power loss, but noted that in many cases, a
company's RMP already considers both natural hazards and power loss.
One commenter stated that facilities should provide information to
local responders about their backup power capabilities during a hazard
event, including the backup generation source, fuel type, capacity
(operational hours), and process consequences for extended power loss.
The commenter stated that the information provided should address how
long a facility can maintain the RMP process(es) safely with backup
power. Several commenters urged EPA to require facilities to have
backup power systems. A few commenters noted that EPA should require
facilities to have enough backup power to safely run or shut down the
entire facility in the event of power loss.
Several commenters noted that EPA has not provided data showing
that power loss is a significant cause of accidents, and therefore the
proposed

[[Page 17639]]

rule is unwarranted. A few commenters stated that from 2016-2020, only
7 out of 448 reported accidents were linked to power loss. A few
commenters stated that EPA did not adequately consider the costs and
benefits of the proposed power loss provisions.
A couple commenters noted that EPA's proposal to explicitly require
evaluation of standby and emergency power systems diverges with OSHA's
PSM requirements in the PHA. The commenter stated that this proposal
would inappropriately create an inconsistency between the two
regulatory programs, injecting ambiguity and uncertainty into the PHA
process. Another commenter urged EPA to not include these additional
provisions in RMP regulations and instead allow OSHA to continue its
oversight of these hazards.
One commenter strongly supported requiring air pollution control or
monitoring equipment associated with prevention and detection of
accidental releases from RMP-regulated facilities to have standby or
backup power. The commenter claimed, however, that the proposed
amendments to 40 CFR 68.50 and 68.67 are extremely vague regarding this
requirement.
Another commenter noted that, while fenceline monitors could detect
an accidental release in some circumstances, high wind events such as
hurricanes can render them useless such that a loss of power to
monitors would have no adverse effect on the source or the surrounding
community. A couple of commenters stated that a focus on maintaining
air pollution control or monitoring equipment during a power loss,
while important, may detract from the fundamental purpose of the RMP.
One commenter requested that the final rule require all facilities
to have real-time fenceline air monitors with enforcement mechanisms
and robust penalties for intentionally removing air monitors from
service. The commenter stated that there are currently no penalties for
facilities that shut down their monitoring during an incident. The
commenter requested that EPA strengthen the proposed rule to require
expanded fenceline monitoring and adequate backup power for air
monitors to operate continuously and that this be documented in a
written plan that includes the location of the monitors. Conversely, a
couple of commenters claimed that EPA made an unjustified assumption in
the preamble of the proposed rule that facilities will remove air
monitoring and control equipment from service prior to a natural
disaster to evade monitoring requirements. The commenters stated that
the suggestion that facilities attempt to evade regulatory agency
requirements in the event of a natural disaster is improper and
inappropriate.
A few commenters stated that EPA's proposal to explicitly require
backup and emergency power systems exceeds the scope of RMP without
proper justification. One commenter expressed concern that the proposed
backup power requirements exceed EPA's statutory authority and lack a
reasoned basis. A couple of commenters also questioned whether EPA's
statutory authority allows it to require such actions. The commenters
contended that air emission monitoring equipment is typically regulated
under other EPA CAA regulatory programs (New Source Performance
Standards, National Emission Standards for Hazardous Air Pollutants,
and Title V permitting program).
ii. EPA Responses
EPA agrees that power loss can threaten RMP-regulated processes and
cause accidental releases if not properly managed, and therefore
disagrees that the provisions are unwarranted. In the proposed rule,
EPA provided data showing that power loss has resulted in serious
accidental release incidents at RMP-regulated facilities (87 FR 53569),
and EPA believes making more explicit this already-existing accident
prevention program requirement to evaluate hazards of the process \65\
will ensure that threats of power loss are properly evaluated and
managed to prevent or mitigate releases of RMP-regulated substances at
covered facilities. Therefore, EPA is finalizing the proposed
revisions.
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\65\ 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) through (c) for Program 3
processes.
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In response to the comment that facilities should provide local
responders with their backup power capabilities during a hazard event,
EPA maintains that it is very important to ensure that Local Emergency
Planning Committees (LEPCs) or local emergency response officials have
the information necessary for developing local emergency response
plans; however, EPA believes it is not necessary to specify in the RMP
rule the types or format of information that LEPCs or emergency
response officials may request. Section 303(d)(3) of the Emergency
Planning and Community Right to Know Act already provides the necessary
authority to allow LEPCs to request information needed to develop the
local emergency response plan. Furthermore, as part of the annual
coordination between facilities and local emergency responders,
responders may obtain information on backup power as appropriate.
In response to the comments requesting that EPA require facilities
to have enough backup power to safely run in the event of power loss,
EPA is not requiring implementation of standby or emergency power for
the entirety of an RMP process at this time. However, the Agency is
requiring the source to consider the appropriateness of backup power
for their process and to explain decisions not to implement backup
power. There may be situations where backup power is not critical to
chemical release prevention, so the rule provides sources the
opportunity to explain their decision-making. Such an approach is
consistent with the performance-based structure of the rule that relies
on examination of process safety issues by the source, rational
decision-making on the part of owners and operators, and oversight by
implementing agencies through compliance assistance and enforcement and
the public through disclosure. EPA takes a slightly different approach
with respect to backup power for monitors. EPA is requiring standby or
backup power for air pollution control or monitoring equipment
associated with prevention and detection of accidental releases from
RMP-regulated processes and has amended regulatory language to reflect
the requirement. EPA believes that doing so will help ensure compliance
with the intent of the rule and ensure that the 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. While the Agency acknowledges that there
may be processes that do not require backup power, the Agency believes
that once a facility has made and documented the determination that it
is appropriate to have monitors for accidental releases, then ensuring
their operation through requiring backup power is an appropriate
operational requirement.
In response to comments that the requirements would create
inconsistency between EPA and OSHA regulatory programs, EPA seeks only
to better reflect its longstanding regulatory requirement that loss of
power is among the hazards that must be addressed within hazard
evaluations, rather than impose additional regulatory requirements (and
thus potential additional costs) that conflict with the OSHA PSM
regulatory requirements.

[[Page 17640]]

In response to the comment that the amendments to 40 CFR 68.50 and
68.67 are vague, EPA again notes these amplifications are already
preexisting requirements. Also, EPA's general approach in 40 CFR part
68 has been to recognize that process safety requires owners and
operators to exercise reasonable judgement in making their facility
safer. Therefore, EPA has, and continues to, allow substantial
flexibility for sources on how to comply with the RMP rule. As noted in
the proposal, EPA believes many facilities are already managing the
hazard of power loss well and thus does not believe the amplification
of power loss in the hazard evaluation regulatory text will negatively
affect evaluation of this hazard.
In response to comments regarding facilities' removal of air
monitoring equipment,\66\ EPA notes that the final rule is revising 40
CFR 68.52(b)(9) and 68.69(a)(4) to require documentation of the removal
of monitoring equipment for accidental releases during disasters in
facility operating procedures. In doing so, the Agency addresses the
concern that the threat of extreme weather events has, and will
continue to 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 (87 FR 53571). To prevent
accidental releases, RMP owners or operators are required to develop a
program that includes monitoring for such releases. EPA does not
believe all natural disasters should be treated as an exception to this
requirement. However, EPA understands that, in some situations, such as
hurricane winds, there is a potential for damage to, or by, monitoring
equipment if not secured and allows a source to shut down monitoring
equipment in such cases provided that an explanation is included in its
RMP.
---------------------------------------------------------------------------

\66\ The backup power requirement of this rule only addresses
monitors for accidental releases of regulated substances under 40
CFR 68.130. This rule does not create any obligation to provide
backup power to monitors that may be required by other CAA programs.
---------------------------------------------------------------------------

EPA disagrees that the backup and emergency power system
requirements exceed the scope of the RMP rule and EPA's statutory
authority and also disagrees that the monitoring requirements may
detract from the fundamental purpose of the RMP rule. Each modification
of the RMP rule that EPA proposed and is finalizing is based on EPA's
rulemaking authority under CAA section 112(r)(7). Both paragraph (A)
and subparagraph (B)(i) of section 112(r)(7) explicitly grant EPA the
authority to require monitoring for accidental releases. See CAA
section 112(r)(7)(A)) (EPA ``authorized to promulgate release
prevention, detection, and correction requirements which may include
monitoring''); CAA section 112(r)(7)(B)(I) (as appropriate, the
accidental release regulations shall cover the use, operation, and
upkeep of equipment to monitor accidental releases). The original rule
established, through its statutory authority, the requirement to
monitor for accidental releases to help prevent and mitigate releases.
Therefore, backup and emergency power system requirements being
finalized in this rule simply ensure proper operation of monitors and
continuous compliance with the existing requirement.
In response to comments that EPA did not adequately consider the
costs and benefits of the power loss provisions, EPA notes that it is
not finalizing additional regulatory requirements from what already
exists in the RMP regulations. The current RMP rule's PHA requirements
include determining and evaluating ``the hazards of the process'' as
well as ``engineering . . . controls applicable to the hazards and
their interrelationships such as appropriate application of detection
methodologies.'' (40 CFR 68.67(c)(1) and (3)) Loss of power is one such
hazard, and backup power is an engineering control applicable to the
hazard and detection methodologies. Similar but less detailed
requirements apply to Program 2 processes (40 CFR 68.50(a)). The hazard
evaluation requirements reflect not only the OSHA and EPA rules but
also existing industry recommended practices, and therefore, EPA
assumes that these hazard evaluation amplifications impose no new
requirements or costs on facilities. As EPA has discussed in prior RMP
rulemaking RIAs, it is not possible to estimate quantitative benefits
for proposed rule provisions as EPA has no data to project the specific
contribution of each to an accident's impacts. As shown by accident
trends, accident frequency and severity are difficult to predict.
However, the 2022 SCCAP proposed rule and the accompanying Technical
Background Document show that past accidents have been caused by power
failure, and the backup power provisions target these events. Based on
RMP-reportable accident and other data from RMP regulated industry
sectors,\67\ chemical accidents can impose substantial costs on firms,
employees, emergency responders, the community, and the broader
economy. Reducing the risk of such accidents, the severity of the
impacts when accidents occur, and improving information availability,
as the provisions of this final rule intend, will provide benefits to
the potentially affected members of society.
---------------------------------------------------------------------------

\67\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
<a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
---------------------------------------------------------------------------

c. Stationary Source Siting
EPA's Proposed Approach
i. Comments
A few commenters expressed support for EPA's proposal to amend
regulatory text for Program 2 and 3 processes to define stationary
source siting evaluations as including placement of processes,
equipment, buildings, and hazards posed by proximate facilities and
accident release consequences posed by proximity to the public. One
commenter stated that doing so would ensure the protection of human
health and the environment. Another commenter stated that EPA should
require implementation of stationary source siting recommendations
found in the analysis to the greatest extent practicable to assure
protection for fenceline communities. Similarly, another commenter
suggested that if it is practicable for a facility to take an action to
eliminate or lessen hazards associated with RMP processes through
different siting, it should be required to do so.
Several commenters expressed concerns about the proposed
requirements related to siting evaluations. Several commenters noted
that implementing the facility siting requirements are unnecessary and
duplicative because facilities covered by OSHA's PSM regulations
already undergo similar requirements. The commenters stated that this
creates the opportunity for inconsistent enforcement between EPA and
OSHA.
Several commenters expressed concern that EPA did not define the
term ``proximate facilities.'' Many commenters were also concerned that
when these facilities are identified, it is not practical to expect
them to share information with each other due to confidential business
information (CBI) and security concerns. One of the commenters
suggested that EPA update the regulatory text to make an allowance for
instances where neighboring facilities do not cooperate in the siting
evaluation.

[[Page 17641]]

A couple of commenters stated that it is impracticable for EPA to
require existing facilities to move processes to comply with any new
siting requirements. The commenters suggested that EPA clarify that
these requirements do not apply to existing facilities. One commenter
stated that imposing new siting requirements after a facility that has
been established would raise fundamental fairness issues, as well as
possible regulatory ``takings'' issues, potentially requiring
compensation to the affected sources. One commenter noted that
conducting a siting analysis is a significant undertaking for existing
sources who do not have potential to cause offsite consequences. The
commenter stated that it would be a costly and arduous undertaking to
determine exactly what facilities are proximate and understand their
internal operations.
One of the commenters noted that the proposed requirements should
be narrowly interpreted to preserve local zoning authority. Another
commenter mentioned that neither the facility nor EPA have any
authority or control over local zoning ordinances that may have allowed
development within an area that EPA's new criteria may deem to have
inappropriate buffers or setbacks. Another commenter stated that the
facility siting provision could negatively affect where facilities
could be built, depending on the distance between a facility process
and offsite populations. The commenter encouraged EPA to consider a
policy restricting outside populations from building close to a
facility which could interfere with real estate plans and impact local
building regulations.
ii. EPA Responses
EPA agrees that amending the regulatory text to make more explicit
the requirement that process hazard evaluations for both Program 2
(hazard review) and Program 3 (PHA) include in the siting evaluation
the placement of processes, equipment, buildings, and hazards posed by
proximate facilities, and accident release consequences posed by
proximity to the public, will help ensure the protection of human
health and the environment. As discussed in the proposal, 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. The proposal offered several examples of
accidental releases which illustrate the significant effects of the
lack of sufficient distance between the source boundary and neighboring
residential areas.
In response to comments that EPA should require implementation of
stationary source recommendations, EPA notes that, at this time, the
Agency 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 instead 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. EPA continues to believe the performance-based nature of
both this provision and the overall rule allow facility owners and
operators the discretion to determine what risk reduction measures work
best for their particular chemical use, process, or facility.
Furthermore, EPA disagrees with comments that implementing the facility
siting requirements would create the opportunity for inconsistent
enforcement between EPA and OSHA. 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.\68\ 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.\69\
---------------------------------------------------------------------------

\68\ OSHA, Final Rule on Process Safety Management of Highly
Hazardous Chemicals; Explosives and Blasting Agents, 29 CFR part
1910 (1992), 57 FR 6356 (February 24, 1991), <a href="https://www.osha.gov/laws-regs/federalregister/1992-02-24">https://www.osha.gov/laws-regs/federalregister/1992-02-24</a>.
\69\ 61 FR 31687, June 20, 1996.
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In response to the comments regarding the definition of ``proximate
facilities'' and CBI, EPA notes that the provision is for facility
owners and operators to be aware of and consider the apparent presence
of facilities within release impact zones that could occur from their
facility, and how those releases would be affected because of the
presence of nearby facilities. While EPA encourages sharing of chemical
and process information between facilities, particularly for emergency
response purposes, EPA does not believe this is required in order to
comply with the provision. Nevertheless, when conducting siting
evaluations, EPA would reasonably expect sources to consult publicly
accessible information on nearby sources, such as RMPs and information
available through LEPCs. This type of information is not CBI.
EPA disagrees that it is impracticable to require existing
facilities to comply with siting requirements. EPA notes that there is
a breadth of guidance on siting, and the Agency therefore believes
there is adequate information available for facilities to comply with
the text in this final rule. EPA expects facilities to continue to use
available resources and any additional industry-specific guidance to
properly evaluate siting hazards. The rule does not mandate that
existing sources modify their footprint as a result of a siting
analysis. The approach taken in this rule is similar to how hazard
evaluations have proceeded in the past: require the analysis of hazards
and rely upon owners and operators to use the information reasonably
when determining what measures should be undertaken. The Agency also
notes that Program 1 processes are not covered by this requirement;
Program 2 and 3 sources subject to this requirement will have
undertaken offsite consequence analyses and determined that they may
have offsite impacts that disqualify them from Program 1. Finally,
while EPA has in the past discussed the potential for requiring minimal
setbacks and other specific location restrictions, notwithstanding
local zoning, the siting requirement in this rule does not contain such
a restrictions on location.
d. Hazard Evaluation Information Availability
EPA's Proposed Approach
i. Comments
Several commenters expressed support for EPA's proposed hazard
evaluation information availability requirements. One commenter stated
that failing to finalize the proposal would be arbitrary and capricious
because owners and operators can continue to ignore recommendations
from hazard evaluations with no justification, even if the
recommendations are feasible and effective. One commenter strongly
supported EPA's decision to require RMP facilities to report declined
recommendations in hazard evaluations but also suggested there should
be a baseline checklist of natural hazard mitigation measures. A couple
of the commenters noted that facilities should

[[Page 17642]]

be required to implement practicable recommendations.
Several commenters expressed concern that there is no reasonable
explanation for requiring the reporting of rejected recommendations. A
few commenters mentioned that the proposed requirements are unnecessary
because this information is already documented as part of the PHA or
Layers of Protection Analysis (LOPA) and adding it to the RMP only
produces double documentation without added benefit. Some commenters
mentioned that EPA did not consider the labor costs and time that would
be devoted to preparing a written justification for rejected
recommendations. One of the commenters stated that the time and
resources could be better spent on implementing accepted
recommendations. A few commenters suggested that there is no evidence
that requiring individual facilities to provide such documentation will
reduce accident rates and may lead some to believe that it is possible
to eliminate all risks, including potential risks, which could lead to
a release.
Some commenters noted that the requirement will likely cause
facilities to consider a narrower scope of recommendations to avoid
making this exercise more burdensome. Similarly, one commenter
expressed concern that the proposed requirement will discourage
facility leaders from pushing their PHA/LOPA teams from identifying
unmitigated hazards to limit the amount of information they are
required to report to EPA. Another commenter recommended that EPA make
clear that an appropriately justified denial during initial review of a
facility's RMP plan should not have to be re-justified in subsequent
reviews of the plan.
ii. EPA Responses
EPA believes that finalizing the hazard evaluation recommendation
information availability provisions will enable the public to ensure
facilities have conducted appropriate evaluations to address potential
hazards that can affect communities near the fenceline of facilities.
At this time, EPA is not requiring facilities to implement practicable
recommendations from natural hazard, power loss, and siting hazard
evaluations, as long as facilities list in their risk management plans
the recommendations that were not implemented and the justification for
those decisions. EPA disagrees that the requirements are unnecessary
and provide no benefits. EPA believes the requirements are important to
help the public understand how facilities address the hazards that may
affect their community to keep the risk at or below an ``acceptable
level,'' which include adherence to RAGAGEP, and the reasonable
judgments and efforts of compliance programs aimed at preventing or
mitigating accidental releases. In response to comments that requiring
such documentation will not reduce accident rates, EPA believes that
when local citizens have adequate information and knowledge about the
risks associated with facility hazards, facility owners and operators
may be motivated to further improve their safety performance in
response to community oversight. At a minimum, better community
understanding of identified hazards and remedies not implemented will
promote better community emergency planning.
In response to comments that EPA did not consider the costs of
preparing written justifications for rejected recommendations, EPA
notes that the RIA for the final rule estimates anticipated costs for
preparing written justifications.
In response to the comments that the requirement will discourage
facilities from considering recommendations and identifying unmitigated
hazards, EPA notes that the hazard evaluation requirements for Program
2 (40 CFR 68.50) and Program 3 (40 CFR 68.67) processes remain
unchanged--to identify, evaluate, and control hazards involved in the
process, assuring the recommendations are resolved in a timely manner.
When facilities fail to conduct these activities, they will not be in
compliance with the hazard evaluation provisions. EPA believes the
flexibility permitted in hazards evaluations, that is, allowing
facility owners and operators to choose which recommendations will be
implemented, is the best approach for exercising reasonable judgement
to determine what risk reduction measures work best for their
particular chemical use, process, or facility. However, EPA views
choosing to leave hazards unaddressed out of fear of public scrutiny as
not exercising reasonable judgement, particularly when it may leave the
process more vulnerable to accidental releases.
Methods To Provide Justification
i. Comments
A few commenters expressed support for using categories, such as
those in OSHA's 1994 Compliance Directive,\70\ for declining to adopt a
PHA recommendation. One of the commenters noted that requiring owners
and operators to choose one of four pre-selected categories makes it
easier for owners and operators to understand and comply with their
duties. The commenter suggested that EPA should not include alternative
categories or a catch-all ``other'' category because doing so would
dilute the purpose of the amendment by allowing facilities to decline
recommendations for potentially insufficient reasons. Another commenter
expressed concern that the list of possible natural hazards, loss of
power, and siting evaluation recommendations that might not be adopted
could be expansive; therefore, the commenter suggests EPA should
provide specific categories of recommendations for facilities to choose
from when reporting.
---------------------------------------------------------------------------

\70\ <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>.
---------------------------------------------------------------------------

One commenter recommended that the information be presented in a
public and easily accessible space across many different sites and
locations. Similarly, another commenter suggested that owners of RMP
facilities should be obligated to post hazard-related information
online and provide a link in risk management plans so responders and
local communities can access this information.
A commenter recommended that EPA require owners and operators to
include not only documentation that one of the four justifications is
met, but also a narrative explaining how the documentation shows that
the justification has been met. Conversely, another commenter noted
that requiring covered facilities to provide declined hazard evaluation
recommendations in narrative form is an unnecessary intrusion into
internal practices at a facility that does not improve that facility's
safety.
One commenter noted that the proposed requirement for selection of
``preselected categories'' does not appear in the proposed regulatory
text and recommended that if EPA intends to make the use of these
categories mandatory, it must put them into the regulatory text. The
commenter also noted that these categories are good conclusions for
internal facility evaluations that assess complex considerations, but
they provide little to no useful information to LEPCs and local
communities.
ii. EPA Responses
EPA agrees that requiring owners and operators to choose one of
four pre-selected categories makes it easier for owners and operators
to understand and comply with their duties and is thus finalizing this
component in the rule. EPA is not requiring narrative

[[Page 17643]]

explanations to be reported as there is concern that such explanations
may be greatly inconsistent as they would require large amounts of
technically challenging and varying information to be comparably
condensed. The Agency believes the four pre-selected categories ensures
a balanced approach to providing beneficial data to the public as well
as a straightforward method of reporting for facility owners/operators.
While EPA is not adding the categories to the regulatory text, EPA will
plan to revise its online RMP submission system, RMP*eSubmit,\71\ to
include the categories,\72\ similar to the those in OSHA's 1994
Compliance Directive, which will mimic the approach for other data
components required by 40 CFR 68.170 and 68.175. Sources will therefore
be able to update their RMPs with the information once the additional
data field is incorporated into the system, and in accordance with
applicable compliance dates. EPA also plans to update the RMP*eSubmit
User's Manual \73\ to provide guidance for entering declined
recommendations and applying these categories to them.
---------------------------------------------------------------------------

\71\ <a href="https://www.epa.gov/rmp/rmpesubmit">https://www.epa.gov/rmp/rmpesubmit</a>.
\72\ These changes will be made to the submission system prior
to the 4-year compliance date as described further in section
IX.C.8. of this preamble.
\73\ <a href="https://www.epa.gov/rmp/rmpesubmit">https://www.epa.gov/rmp/rmpesubmit</a>-users-manual.
---------------------------------------------------------------------------

B. Safer Technology and Alternatives Analysis (STAA)

1. Summary of Proposed Rulemaking
a. Definitions, 40 CFR 68.3
EPA proposed to define ``inherently safer technology or design''
(IST/ISD) to mean risk management measures that minimize the use of
regulated substances, substitute less hazardous substances, moderate
the use of regulated substances, or simplify covered processes in order
to make accidental releases less likely, or the impacts of such
releases less severe.
EPA also proposed definitions for ``passive,'' ``active,'' and
``procedural'' measures. EPA proposed to define ``passive measures'' as
risk management measures that use design features that reduce either
the frequency or consequence of the hazard without human, mechanical,
or other energy input. EPA proposed to define ``active measures'' as
risk management measures or engineering controls that rely on
mechanical, or other energy input to detect and respond to process
deviations. Lastly, EPA proposed a definition for ``procedural
measures'' as risk management measures such as policies, operating
procedures, training, administrative controls, and emergency response
actions to prevent or minimize incidents.
Finally, EPA proposed to define ``practicability'' as the
capability of being successfully accomplished within a reasonable time,
accounting for technological, environmental, legal, social, and
economic factors.
b. Process Hazard Analysis, 40 CFR 68.67
EPA proposed to modify the PHA provisions by adding an additional
paragraph (c)(9) to 40 CFR 68.67 to require that the owner or operator
of a facility with Program 3 processes in NAICS codes 324 and 325
located within 1 mile of another 324 and 325 regulated facility process
address safer technology and alternative risk management measures
applicable to eliminating or reducing risk from process hazards. EPA
proposed that ``1 mile'' be interpreted to mean ``1 mile to the nearest
fenceline'' for a facility with a NAICS 324 or 325 process. EPA
proposed to add paragraph (c)(9)(i) to specify that the analysis
include, in the following order, IST or ISD, passive measures, active
measures, and procedural measures. EPA also proposed that all
facilities with 324 processes using hydrofluoric acid (HF) in an
alkylation unit conduct an STAA for the use of safer alternatives
compared to HF alkylation, regardless of proximity to another NAICS
324- or 325-regulated facility process.
EPA proposed to require owners and operators subject to the STAA
provision to include an evaluation, including the results of the STAA
analysis, as part of the PHA requirements in 40 CFR 68.67(e). In
addition, EPA proposed to add paragraph (c)(9)(ii) to require that the
owner or operator determine and document the practicability of the IST
or ISD considered. This process would be separate and additional to the
PHA requirements in 40 CFR 68.67(e). 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. Lastly, EPA proposed to add paragraph (c)(9)(iii) to
require 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.
In addition to the proposed approach to STAA, EPA sought feedback
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. EPA solicited comment on
whether the Agency should only require the STAA as part of the PHA,
without the additional practicability assessment. EPA also sought
comment on other alternative approaches considered. One approach was
applying STAA requirements to facility processes in NAICS codes 324 and
325 with a reportable accident within the last 5 years. Another
approach was applying these provisions to all NAICS codes 324 and 325
facility processes. Lastly, EPA sought comment on whether the Agency
should require implementation of technically practicable IST/ISD and
STAAs.
c. STAA Technology Transfer, 40 CFR 68.175(e)(7)
EPA proposed to add 40 CFR 68.175(e)(7) to require owners or
operators to report whether their current PHA addresses the STAA
requirement proposed in 40 CFR 68.67(c)(9), whether any IST/ISD was
implemented as a result of 40 CFR 68.67(c)(9)(ii), and if any IST/ISD
was implemented, to identify the measure and technology category.
2. Summary of Final Rule
As discussed below, the final rule adopts three measures related to
STAA: a broad requirement to conduct a STAA applicable to two sectors,
petroleum refining (NAICS 324) and chemical manufacturing (NAICS 325);
a requirement to conduct a practicability assessment for IST/ISD for a
subset of facilities with processes in these sectors (co-located
sources within 1 mile, refinery HF alkylation processes, and those that
have had a reportable accident within the 5 preceding years); and a
requirement for the same subset of facilities to implement at least one
practicable passive measure or similarly protective active or
procedural measure(s) after each STAA. These measures also are
severable from each other. Even without a mandate to implement any
measures resulting from an STAA or to conduct a formal, documented
practicability assessment, an owner or operator of a facility may
identify and decide to implement new prevention measures resulting from
the STAA. Similarly, even without a requirement to implement
practicable IST/ISD measures or conduct a broader STAA review, a
practicability assessment may lead to the adoption of an IST or ISD at
the subset of sources required to conduct such an assessment. Finally,
the requirement for a subset of sources to implement a passive measure
or an equally protective active

[[Page 17644]]

measure(s) or procedural control(s) does not depend on whether an IST/
ISD practicability assessment was performed or whether the broader
industry is performing a STAA. While each of these measures relate to
STAA generally, they are distinct regulatory requirements of value
independent of each other.
The Agency acknowledges that, prior to this final rule, EPA has not
made implementation of any IST/ISD or any measure identified in a STAA
either a preferred option at proposal or an adopted requirement in a
final rule. Our prior rulemakings have discussed our policy view of the
merits of requiring implementation. Our prior decisions have not
questioned what we view to be clear on the face of the statute: that
the CAA authorizes EPA to require implementation of IST/ISD and other
STAA measures. As discussed below (section V.B.3--Hydrogen fluoride),
both subparagraphs (A) and (B) of CAA section 112(r)(7) authorize
requiring implementation of safer technologies, and as discussed in the
``safeguard implementation'' section, EPA has appropriately justified
our change in our view of the policy merits of the requirement
promulgated in this final rule. The 2017 amendments rule, the 2019
reconsideration rule, and the 2022 SCCAP proposed rule all had vigorous
discussion of the merits of implementing STAA throughout the rulemaking
process, and the 2022 SCCAP proposed rule solicited comment on whether
implementation should be required. Therefore, sources were on notice
that the decision was an open matter and any reliance that we would not
adopt an implementation requirement in response to comments and data
was not reasonable. Moreover, to the extent sources relied on our
preferred option regarding implementation at proposal, EPA believes the
compliance period is adequate to allows sources to meet the rule
requirements.
Based on comments on both the proposed options and the alternative
approaches presented, EPA is finalizing the proposed provisions for
STAA with the following modifications:
<bullet> Revising 40 CFR 68.67(c)(9) to expand the STAA evaluation
to all regulated facilities with Program 3 processes in NAICS codes 324
and 325.
<bullet> Revising 40 CFR 68.67(c)(9)(ii) to expand the IST/ISD
practicability assessment to regulated facilities with Program 3
processes in NAICS codes 324 and 325 that also have had at least one
RMP-reportable accident under 40 CFR 68.42 since the facility's most
recent PHA.
<bullet> Adding 40 CFR 68.67(h) to require implementation of at
least one passive measure at an applicable facility, or an inherently
safer technology or design, or a combination of active and procedural
measures equivalent to or greater than the risk reduction of a passive
measure.
3. Discussion of Comments and Basis for Final Rule Provisions
a. General STAA Provision Comments
STAA as Part of PHA
i. Comments
A couple of commenters stated that they support EPA's proposal that
owners and operators of RMP-covered facilities be required to include
consideration and documentation of the feasibility of applying safer
technologies and alternatives in their PHAs. One of the commenters
noted, however, that only doing STAAs within the PHA will limit the
effectiveness of the evaluations, and therefore, STAA should be
evaluated within the PHA process as well as outside of the PHA in a
separate study to evaluate each existing process.
Some commenters expressed opposition to EPA requiring a mandatory
STAA component in the PHA. A few commenters noted that mandating a full
IST or ISD review would require a completely different PHA team,
extensively increase the time and resources necessary to complete a
PHA, require the PHA team to perform hazard assessments of ever-
changing technology they may not be familiar with, and dilute a PHA's
core purpose.
One commenter noted that the proposed rule's STAA requirements do
not acknowledge the value of the PHA risk assessment function. Another
commenter stated that the analysis of passive measures, active
measures, and procedural measures already occurs as part of the PHA, as
required by 40 CFR 68.67(c)(3) and (4) and (6) and (7), and no
modification of the current regulations is thus required to ensure that
this analysis occurs. The commenter added that STAA requirements will
detract from and reduce the effectiveness of PHAs as it will divert
resources from PHA processes that are currently working well at
regulated facilities. The commenter noted the effectiveness of a PHA
depends heavily upon the availability of high-quality process safety
information (PSI), yet the proposed rule provides no direction on how
the PHA team is to assemble the PSI needed to perform the STAA. The
commenter explained that facilities would not normally have information
about processes not in use there. The commenter added this detracts
from the PHA focus on existing facility processes and potentially
reduces the effectiveness of the analysis.
ii. EPA Responses
EPA believes that STAA analysis can be incorporated in the existing
RMP PHAs by using PHA techniques such as the Hazard and Operability
Study, What-If? Method, checklists, a combination of these, or other
appropriate equivalent methodologies. (See 40 CFR 68.67(b)) These
techniques themselves are not requirements, but tools available to help
the facility owner or operator to identify, evaluate, and control the
hazards involved in the process. The Agency also notes that, when EPA
previously considered an IST requirement, commenters noted that ``PHA
teams regularly suggest viable, effective (and inherently safer)
alternatives for risk reduction,'' and EPA observed that ``good PHA
techniques often reveal opportunities for continuous improvement of
existing processes and operations'' (61 FR 31699-700).
Therefore, EPA agrees with commenters expressing support for
including a STAA in the PHA and disagrees with commenters that argue it
is not appropriate to include a STAA in the PHA. In fact, the RMP PHA
requirements include other aspects of analysis that are typically
associated with process design. For example, the PHA must also address
stationary source siting issues, which involve the location and
proximity of the source relative to local populations.
Nevertheless, EPA agrees that for situations where a STAA involves
a novel process that is entirely different from the current process,
the process design must exist or be developed within the industry, and
PSI be compiled, to conduct a PHA for this new process. EPA does not
expect facility owners or operators to research and create new
processes or conduct research into all possibilities for the use of new
chemicals. Instead, the STAA should focus on the industry known and
existing substitute processes and chemicals that have been demonstrated
to be safe in commercial use.
If a facility is considering an IST chemical substitution or
process change from their STAA that involves a significant redesign of
their process, such efforts involved with redesign and its evaluation
may need to be undertaken as part of a practicability study. The
definition of practicability allows for consideration of technological
factors, which could include whether the potential safer

[[Page 17645]]

alternative can be designed and operated to meet the process functions
needed. However, not all IST involves substituting a chemical or an
entirely new process. Also, there are other types of IST measures
(minimization, moderation, or simplification) that can be considered to
address various points within the current process where hazards and
risks exist.
Facilities may, if desired, conduct a separate STAA analysis of
each entire process, outside of the PHA process, as long as it is done
in the same timeframe as the PHA, and the results are documented. If a
facility does not have staff capable to identify and evaluate
alternatives, the facility owner or operator may obtain outside
assistance from engineering firms or consultants. Furthermore, the
Agency has accounted for the technical capabilities of facilities in
the sectors targeted for STAA when determining reasonable requirements
that provide for the prevention of accidents to the greatest extent
practicable.
Due to the performance-based approach of the current RMP PHA
requirements at 40 CFR 68.67(c)(3), to identify, evaluate, and control
the hazards involved in the process, EPA believes some facilities may
have already performed a STAA-type analysis as part of their PHA. If
the facility has already performed such STAA analysis in the past, then
the owner or operator should consider these analyses when updating or
revalidating their PHAs and determine whether there is new information
that should be considered as part of conducting the current STAA.
Costs and Benefits of Implementing STAA as Part of PHA
i. Comments
A couple of commenters stated that the STAA provisions would not be
cost-effective. The commenters stated that the STAA represents 70
percent of the total costs EPA estimated apply to the proposed rule.
The commenters noted that the proposed STAA requirement is solely for
consideration of possible alternatives and has unproven and
unquantified benefits that do not justify the annual cost of $51.8
million. One of the commenters added that EPA stated that they expect
``some portion of future damages would be prevented through
implementation of a Final Rule,'' but they did not identify any
benefits specifically tied to the STAA provision. The commenter stated
that there is consensus on the theoretical value of STAA as a tool to
inform future investment decisions and said that once a facility has
committed to a particular production technology, STAA is not
particularly useful nor informative. In contrast, another commenter
stated that the costs of transitioning to safer alternatives are not
sufficiently weighed against the costs of a major incident. The
commenter provided an example that indicates that safety improvements
could avoid major incidents costing owners $220 million on average. The
commenter also noted that this figure does not include costs to
society, such as human lives, economic stress, and health care and
emergency service costs.
ii. EPA Responses
EPA disagrees that the benefits of the STAA requirements do not
justify the costs. EPA believes that the STAA should identify potential
IST process changes that, if implemented, would result in owners or
operators using less hazardous substances, minimizing the amount of
regulated substances present in a process, moderating process
conditions and reducing process complexity. The STAA also should
identify potential passive, active, or procedural safeguards that, when
implemented, will result in changes to make processes safer. Such
changes help reduce the prevalence of higher risk processes and thereby
prevent accidents by either: (1) Eliminating the possibility of an
accidental release entirely, by making a process more fault-tolerant,
such that a minor process upset, or equipment malfunction does not
result in a serious accidental release; and (2) reducing the severity
of releases that do occur.
RMP accident data show past accidents have generated highly
variable impacts, so the impacts of future accidents are difficult to
predict. Nevertheless, it is clear from RMP accident data \74\ and
other data from RMP regulated industry sectors,\75\ that chemical
accidents can impose substantial costs on firms, employees, emergency
responders, the community, and the broader economy. Because major and
other concerning RMP accidents continue to occur, by lowering risk of
accidents, the benefits include: reductions in the number of fatalities
and injuries both onsite and offsite and residents evacuated or
otherwise inconvenienced by sheltering in place; reductions in the
damage caused to property onsite and offsite of the facility including
damages to product, equipment, and buildings; reductions in damages to
the environment and ecosystems; and reductions in resources diverted to
extinguish fires and clean up affected areas. Preventing serious
accidents avoids numerous direct costs, including worker, responder,
and public fatalities and injuries, public evacuations, public
sheltering in place, and property and environmental damage. It also
avoids indirect costs, such as lost productivity due to lost or damaged
property and business interruption both onsite and offsite, expenditure
of emergency response resources and attendant transaction costs, and
reduced offsite property values. Actions that prevent or reduce the
severity of accidents in RMP-covered processes are also likely to
prevent or mitigate non-RMP accidents at the same facilities because
the same or similar actions can be taken for processes and equipment
not subject to the regulation, often at minimal additional cost.
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\74\ EPA estimated monetized damages from RMP facility accidents
of $540.23 million per year.
\75\ Marsh JLT Specialty, ``100 Largest Losses in the
Hydrocarbon Industry,'' 27th Edition, March 2022. Accessed from
<a href="https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html">https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html</a>. Marsh provides estimates of large property
damage losses in the hydrocarbon industry from 1974 to 2021 in
current and 2021 dollars and in a few cases, business loss costs.
---------------------------------------------------------------------------

Further, for IST/ISD practicability and implementation of certain
measures, EPA recognizes facilities will most likely implement IST/ISD
when an IST/ISD's net cost is less than a passive measure's cost. The
Agency assumes owners and operators will likely explore specific
benefits to their facility when making decisions and expects the
evaluation to consider several factors, such as:
<bullet> Operating and Maintenance (O&M) cost--IST/ISD may have a
change in O&M costs compared to passive measures. For example,
chemicals used in the process may change, which could cause changes in
recurring input costs, including potentially lower those costs.
<bullet> Productivity improvements--IST/ISD could result in
productivity improvements from more efficient process and changes to
input costs.
<bullet> Safety improvements--IST/ISD may reduce risks of an
accident more than would a passive-equivalent measure. A lower accident
risk will result in facility safety benefits and social benefits from
fewer accidents.
<bullet> Capital/facility reduced losses--Similar to safety, a
lower accident risk will reduce losses to capital as well as shorter
than expected facility shutdown time from accidents.
These facility specific factors will further help owners and
operators justify identify facility-specific benefits associated with
the costs to comply with this provision. EPA continues to believe the
performance-based nature of both this provision and the overall rule
allow facility owners and operators the

[[Page 17646]]

discretion to determine which IST/ISDs and passive, active and
procedural safeguard measures work best for their particular chemical
use, process, or facility and for protecting the community potentially
affected.
EPA disagrees that the benefits of the STAA requirements are
unproven. Since 1996, EPA has seen that advances in ISTs and safer
alternatives are becoming more widely available and are being adopted
by some companies. Voluntary implementation of some ISTs has been
identified through surveys and studies and potential opportunities have
been identified through EPA enforcement cases and the U.S. Chemical
Safety and Hazard Investigation Board (CSB) incident investigations. As
discussed in the 2017 amendments rule (82 FR 4645, Jan. 13, 2017), the
Contra Costa County Health Services and New Jersey Department of
Environmental Protection (NJDEP) IST regulations have resulted in some
facilities adopting IST measures.
EPA disagrees that STAA is not useful or informative for facilities
that have committed to a particular production technology. Innovations
and research in chemical process safety have evolved and continue to
evolve. For those facilities who have not considered adopting any IST
or have only done so in limited fashion, EPA believes that there is
value in requiring facilities with regulated substances to evaluate
whether they can improve risk management of current hazards through
potential implementation of ISTs or risk management measures that are
more robust and reliable than ones currently in use at the facility.
For those facilities who have already considered IST, EPA believes
facilities should re-evaluate whether any improvements in hazard or
risk reduction can be made.
In response to the comment that EPA did not identify any benefits
specifically tied to the STAA provision, EPA was able to qualitatively
judge that the risk reduction from STAA implementation \76\ reasonably
justified the costs. In principle, the STAA eliminates or minimizes the
opportunities for a chemical release because identification and
implementation of ``safer'' technologies and alternatives, should
result in a hazard or risk reduction for a particular RMP chemical or
process. EPA recognizes that neither IST nor other procedural, active,
or passive measures alone will eliminate all hazards or risks and that
reliance on a combination of risk reduction measures will probably be
needed for other points in a process.
---------------------------------------------------------------------------

\76\ This is further discussed in greater detail in Chapter 6 of
the RIA.
---------------------------------------------------------------------------

Hydrogen Fluoride
i. Comments
Some commenters were concerned that the proposed rule leaves the
continued use of HF up to owners/operators. A few commenters urged EPA
to strengthen the proposed rule by requiring facilities to switch from
HF or other acutely toxic substances to a safer alternative whenever
feasible, since safer alternatives are available. One of the commenters
noted the CSB's 2022 report recommendations that HF in remaining
alkylation units in the U.S. be eliminated and replaced, if necessary,
with less hazardous chemicals that are consistent with ISD. One
commenter requested that safer alternatives to HF be implemented across
all oil refineries in the U.S.
One commenter stated that the proposed rule was not comprehensive
enough to adequately mitigate the inherent risks associated with using
HF. The commenter stated that asking these facilities to merely
consider switching from HF alkylation to safer alternatives and
requiring them to include an STAA as part of their PHA was not enough
to eliminate the inherent risk of having HF onsite. A couple of
commenters recommended that the use of HF in refineries be banned. One
of the commenters urged EPA to establish an aggressive timeline to
phase out HF's use and said that further study is a waste of time.
Another commenter contended that adding a larger scale ban of HF across
all the oil refineries in the U.S. would safeguard millions of
Americans from facing disaster in the event of an accidental release.
Several commenters stated that the history of HF use and accidents
supported the idea that stronger EPA action was necessary to protect
communities.
Several commenters stated a range of concerns regarding the dangers
of HF. A few of the commenters specifically noted near misses or
releases of HF and their associated harms and costs. One commenter
noted the dangers of HF and the risks to communities, workforces,
wildlife, hospitals, and first responders. Another commenter noted the
risk of a catastrophic event caused n

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