Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act Publication info: The Federal Register / FIND ; Washington , Vol. 82, Iss. 009, (Jan 13, 2017). ProQuest document link ABSTRACT (ABSTRACT) Final rule. CFR Part: "40 CFR Part 68" RIN Number: "RIN 2050-AG82" Citation: "82 FR 4594" Document Number: "EPA-HQ-OEM-2015-0725; FRL-9954-46-OLEM" Page Number: "4594" "Rules and Regulations" SUMMARY: The Environmental Protection Agency (EPA), in response to Executive Order 13650, is amending its Risk Management Program regulations. The revisions contain several changes to the accident prevention program requirements including an additional analysis of safer technology and alternatives as part of the process hazard analysis for some Program 3 processes, third-party audits and incident investigation root cause analysis for Program 2 and Program 3 processes; enhancements to the emergency preparedness requirements; increased public availability of chemical hazard information; and several other changes to certain regulatory definitions and data elements submitted in risk management plans. These amendments seek to improve chemical process safety, assist local emergency authorities in planning for and responding to accidents, and improve public awareness of chemical hazards at regulated sources. FULL TEXT Source: ENVIRONMENTAL PROTECTION AGENCY (EPA) Final rule. CFR Part: "40 CFR Part 68" RIN Number: "RIN 2050-AG82" Citation: "82 FR 4594" Document Number: "EPA-HQ-OEM-2015-0725; FRL-9954-46-OLEM" Page Number: "4594" "Rules and Regulations" SUMMARY: The Environmental Protection Agency (EPA), in response to Executive Order 13650, is amending its Risk Management Program regulations. The revisions contain several changes to the accident prevention program requirements including an additional analysis of safer technology and alternatives as part of the process hazard analysis for some Program 3 processes, third-party audits and incident investigation root cause analysis for Program 2 and Program 3 processes; enhancements to the emergency preparedness requirements; increased public availability of chemical hazard information; and several other changes to certain regulatory definitions and data elements submitted in risk management plans. These amendments seek to improve chemical process safety, assist local emergency authorities in planning for and responding to accidents, and improve public awareness of PDF GENERATED BY SEARCH.PROQUEST.COM Page 1 of 194 chemical hazards at regulated sources. EFFECTIVE DATE: This final rule is effective on March 14, 2017. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OEM-2015-0725. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: James Belke, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW., (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-8023; email address: belke.jim@epa.gov, or: Kathy Franklin, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW., (Mail Code 5104A), Washington, DC, 20460; telephone number: (202) 564-7987; email address: franklin.kathy@epa.gov. Electronic copies of this document and related news releases are available on EPA's Web site at http://www.epa.gov/rmp. Copies of this final rule are also available at http://www.regulations.gov. SUPPLEMENTARY INFORMATION: The contents of this preamble are: I. General Information A. Executive Summary B. Does this action apply to me? II. Background A. Events Leading to This Action B. Overview of EPA's Risk Management Program Regulations III. Additional Information A. Agency's Authority for Taking This Action B. List of Regulated Substances IV. Prevention Program Requirements A. Incident Investigation and Accident History Requirements B. Third-Party Audits C. Safer Technology and Alternatives Analysis (STAA) D. Stationary Source Location and Emergency Shutdown V. Emergency Response Preparedness Requirements A. Emergency Response Program Coordination With Local Responders B. Facility Exercises VI. Information Availability Requirements A. Disclosure Requirements to LEPCs or Emergency Response Officials B. Information Availability to the Public C. Public Meetings VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule Technical Corrections A. Revisions to SEC 68.160 (Registration) B. Revisions to SEC 68.170 (Prevention Program/Program 2) C. Revisions to SEC 68.175 (Prevention Program/Program 3) D. Revisions to SEC 68.180 (Emergency Response Program) E. Technical Corrections VIII. Compliance Dates A. Summary of Proposed Rulemaking B. Summary of Final Rule C. Discussion of Comments PDF GENERATED BY SEARCH.PROQUEST.COM Page 2 of 194 D. Compliance Date Examples IX. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions 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 LowIncome Populations K. Congressional Review Act (CRA) I. General Information A. Executive Summary 1. Purpose of the Regulatory Action The purpose of this action is to improve safety at facilities that use and distribute hazardous chemicals. In response to catastrophic chemical facility incidents in the United States, including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013 that killed 15 people (on May 11, 2016, ATF ruled that the fire was intentionally set.) /1/ President Obama issued Executive Order 13650, "Improving Chemical Facility Safety and Security," on August 1, 2013. /2/ FOOTNOTE 1 See ATF Announces $50,000 Reward in West, Texas Fatality Fire, https://www.atf.gov/news/pr/atfannounces-50000-reward-west-texas-fatality-fire. END FOOTNOTE FOOTNOTE 2 For more information on the Executive Order see https://www.whitehouse.gov/the-pressoffice/2013/08/01/executive-order-improving-chemical-facility-safety-and-security. END FOOTNOTE Section 6(a)(i) of Executive Order 13650 requires that various Federal agencies develop options for improved chemical facility safety and security that identify "improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations." One existing agency program is the Risk Management Program implemented by EPA under section 112(r) of the Clean Air Act (CAA) (42 U.S.C. 7412(r)). Section 6(c) of Executive Order 13650 requires the Administrator of EPA to review the chemical hazards covered by the Risk Management Program and expand, implement and enforce the Risk Management Program to address any additional hazards. EPA proposed changes to its Risk Management Program regulations (40 CFR part 68) on March 14, 2016 (81 FR 13637) after publishing a "Request for Information" notice or "RFI" that solicited comments and information from the public regarding potential changes to the Risk Management Program regulations (July 31, 2014, 79 FR 44604). While developing the proposed rulemaking, EPA convened a Small Business Advocacy Review (SBAR) panel to receive input from Small Entity Representatives (SERs). EPA also hosted a public hearing on March 29, 2016 to provide interested parties the opportunity to present data, views or arguments concerning the proposed action. The Risk Management Program regulations have been effective in preventing and mitigating chemical accidents in the United States. However, EPA believes that revisions could further protect human health and the environment from chemical hazards through advancement of process safety management based on lessons learned. 2. Summary of the Major Provisions of the Regulatory Action This action amends EPA's Risk Management Program 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 PDF GENERATED BY SEARCH.PROQUEST.COM Page 3 of 194 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 revisions is introduced in the following paragraphs of this section and described in greater detail in sections IV through VI, later in this preamble. Certain revised provisions would 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 II of this preamble. a. Accident Prevention Program Revisions This action includes three changes to the accident prevention program requirements. First, the rule requires all facilities with Program 2 or 3 processes to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss). This provision is intended to reduce the number of chemical accidents by requiring facilities to identify the underlying causes of an incident so that they may be addressed. Identifying the root causes, rather than isolating and correcting solely the immediate cause of the incident, will help prevent similar incidents at other locations, and will yield the maximum benefit or lessons learned from the incident investigation. Second, the rule requires regulated facilities with Program 2 or 3 processes to contract with an independent third-party, or assemble an audit team led by an independent third-party, to perform a compliance audit after the facility has an RMP reportable accident. Compliance audits are required under the existing rule, but are allowed to be self-audits (i.e., performed by the owner or operator of the regulated facility). This provision is intended to reduce the risk of future accidents by requiring an objective auditing process to determine whether the owner or operator of the facility is effectively complying with the accident prevention procedures and practices required under 40 CFR part 68. The third revision to the prevention program adds an element to the process hazard analysis (PHA), which is updated every five years. Specifically, owners or operators of facilities with Program 3 regulated processes in North American Industrial Classification System (NAICS) codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) are required to conduct a safer technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the practicability of any inherently safer technology (IST) identified. The current PHA requirements include consideration of active, passive, and procedural measures to control hazards. These revisions support the analysis of those measures and adds consideration of IST alternatives. The provision is intended to reduce the risk of serious accidental releases by requiring facilities in these sectors to conduct a careful examination of potentially safer technology and designs that they could implement in lieu of, or in addition to, their current technologies. b. Emergency Response Enhancements This action also enhances the rule's emergency response requirements. Owners or operators of all facilities with Program 2 or 3 processes are required to coordinate with the local emergency response agencies at least once a year to determine how the source is addressed in the community emergency response plan and to ensure that local response organizations are aware of the regulated substances at the source, their quantities, the risks presented by covered processes, and the resources and capabilities at the facility to respond to an accidental release of a regulated substance. Additionally, all facilities with Program 2 or 3 processes are required to conduct notification exercises annually to ensure that their emergency contact information is accurate and complete. This provision is intended to reduce the impact of accidents by ensuring that appropriate mechanisms and processes are in place to notify local responders when an accident occurs. One of the factors that can contribute to the severity of chemical accidents is a lack of effective coordination between a facility and local emergency responders. Increasing such coordination PDF GENERATED BY SEARCH.PROQUEST.COM Page 4 of 194 and establishing appropriate emergency response procedures can help reduce the effects of accidents. This action also requires that all facilities subject to the emergency response program requirements of subpart E of the rule (or "responding facilities") conduct field exercises and tabletop exercises. The frequency of these exercises shall be established in consultation with local emergency response officials, but at a minimum, full field exercises will be conducted at least once every ten years and tabletop exercises conducted at least once every three years. Responding facilities that have an RMP reportable accident, and document the response activities in an after-action report comparable to the exercise evaluation reports may use that response to satisfy the field exercise requirements. Furthermore, owner and operators of responding facilities that conduct exercises to meet other Federal, state or local exercise requirements may satisfy the RMP exercise requirements provided that the scope of the exercise includes the objectives of an RMP exercise. The purpose of this provision is to reduce the impact of accidents by ensuring that emergency response personnel understand their roles in the event of an incident, that local responders are familiar with the hazards at a facility, and that the emergency response plan is up-to-date. Improved coordination with emergency response personnel will better prepare responders to respond effectively to an incident and take steps to notify the community of appropriate actions, such as shelter-in-place or evacuation. c. Enhanced Availability of Information This action includes various enhancements to the public availability of chemical hazard information. The rule requires all facilities to provide certain basic information to the public, upon request. The owner or operator of the facility shall provide ongoing notification of availability of information elements on a company Web site, social media platforms, or through some other publicly accessible means. The rule also requires all facilities to hold a public meeting for the local community within 90 days of an RMP reportable accident. This provision will ensure that first responders and members of the community have easier access to appropriate facility chemical hazard information, which can significantly improve emergency preparedness and their understanding of how the facility is addressing potential risks. EPA proposed requirements for facilities to provide certain information to the Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC) /3/ or other local emergency response agencies. However, rather than prescribe information elements that must be provided upon request, EPA is requiring the owner or operator of a stationary source to share information that is relevant to emergency response planning as part of the coordination activities that occur annually between facility representatives and local emergency response agencies. FOOTNOTE 3 Note for the purposes of this document the term TEPC can be substituted for LEPC, as appropriate. END FOOTNOTE In addition to the major provisions described previously in this section, this action discusses comments received on other aspects of the proposed action including revisions to the list of regulated substances, location of stationary sources (related to their proximity to public receptors), requirements for emergency shutdown systems, compliance dates, technical corrections and revisions to the RMP requirements. 3. Costs and Benefits a. Summary of Potential Costs Approximately 12,500 facilities have filed current RMPs with EPA and are potentially affected by the revised rule. These facilities range from petroleum refineries and large chemical manufacturers to water and wastewater treatment systems; chemical and petroleum wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and a limited number of other sources, including Federal installations that use RMP-regulated substances. Table 1 presents the number of facilities according to the latest RMP reporting as of February 2015 by industrial sector and chemical use. PDF GENERATED BY SEARCH.PROQUEST.COM Page 5 of 194 _____Table_1--Number_of_Affected_Facilities_by_Sector Sector________________NAICS_codes______Total_facilities_Chemical_uses Administration_of_____924______________1,923____________Use_chlorine_and environmental_quality___________________________________other_chemicals_for programs_(i.e.,_________________________________________treatment. governments) Agricultural_chemical_111,_112,_115,___3,667____________Store_ammonia_for distributors/wholesal_42491_____________________________sale;_some_in_NAICS ers_____________________________________________________111_and_115_use ________________________________________________________ammonia_as_a ________________________________________________________refrigerant. Chemical______________325______________1,466____________Manufacture,_process, manufacturing___________________________________________store. Chemical_wholesalers__4246_____________333______________Store_for_sale. Food_and_beverage_____311,_312_________1,476____________Use--mostly_ammonia manufacturing___________________________________________as_a_refrigerant. Oil_and_gas___________211______________741______________Intermediate extraction______________________________________________processing_(mostly ________________________________________________________regulated_flammable ________________________________________________________substances_and ________________________________________________________flammable_mixtures). Other_________________44,_45,_48,_54,__247______________Use_chemicals_for ______________________56,_61,_72________________________wastewater_treatment, PDF GENERATED BY SEARCH.PROQUEST.COM Page 6 of 194 ________________________________________________________refrigeration,_store ________________________________________________________chemicals_for_sale. Other_manufacturing___313,_326,_327,___384______________Use_various_chemicals ______________________33________________________________in_manufacturing ________________________________________________________process,_waste ________________________________________________________treatment. Other_wholesale_______423,_424_________302______________Use_(mostly_ammonia ________________________________________________________as_a_refrigerant). Paper_manufacturing___322______________70_______________Use_various_chemicals ________________________________________________________in_pulp_and_paper ________________________________________________________manufacturing. Petroleum_and_coal____324______________156______________Manufacture,_process, products________________________________________________store_(mostly manufacturing___________________________________________regulated_flammable ________________________________________________________substances_and ________________________________________________________flammable_mixtures). Petroleum_wholesalers_4247_____________276______________Store_for_sale ________________________________________________________(mostly_regulated ________________________________________________________flammable_substances ________________________________________________________and_flammable ________________________________________________________mixtures). Utilities_____________221______________445______________Use_chlorine_(mostly ________________________________________________________for_water_treatment) PDF GENERATED BY SEARCH.PROQUEST.COM Page 7 of 194 ________________________________________________________and_other_chemicals. Warehousing_and_______493______________1,056____________Use_mostly_ammonia_as storage_________________________________________________a_refrigerant. Total__________________________________12,542 Table 2 presents a summary of the annualized costs estimated in the regulatory impact analysis. /4/ In total, EPA estimates annualized costs of $131.2 million at a 3% discount rate and $131.8 million at a 7% discount rate. FOOTNOTE 4 A full description of costs and benefits for this final rule can be found in the Regulatory Impact Analysis--Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7). This document is available in the docket for this rulemaking (Docket ID Number EPA-HQ-OEM2015-0725). END FOOTNOTE _____Table_2--Summary_of_Annualized_Costs _____[Millions,_2015_dollars] Provision___________________________________________3___________7 ____________________________________________________(percent)___(percent) Third-party_Audits___________________________________$9.8________$9.8 Incident_Investigation/Root_Cause___________________1.8_________1.8 STAA________________________________________________70.0________70.0 Coordination________________________________________16.0________16.0 Notification_Exercises______________________________1.4_________1.4 Facility_Exercises__________________________________24.7________24.7 Information_Sharing_with_the_Public_________________3.1_________3.1 Public_Meeting______________________________________0.4_________0.4 Rule_Familiarization________________________________3.9_________4.6 Total_Cost_*________________________________________131.2_______131.8 ___*_Totals_may_not_sum_due_to_rounding. PDF GENERATED BY SEARCH.PROQUEST.COM Page 8 of 194 The largest average annual cost of the final rule is the STAA costs ($70.0 million), followed by the exercise costs ($24.7 million), coordination ($16 million), and third-party audits ($9.8 million). The remaining provisions impose average annual costs under $5 million each, including rule familiarization ($3.9-4.6 million), information sharing with the public ($3.1 million), incident investigation/root cause analysis ($1.8 million), notification exercises ($1.4 million), and public meetings ($0.4 million). b. Summary of Potential Benefits EPA anticipates that promulgation and implementation of this rule would result in a reduction of the frequency and magnitude of damages from releases. Accidents and releases from RMP facilities occur every year, causing fires and explosions; damage to property; acute and chronic exposures of workers and nearby residents to hazardous materials; and resulting in serious injuries and death. Although we are unable to quantify what specific reductions may occur as a result of these revisions, we are able to present data on the total damages that currently occur at RMP facilities each year. The data presented is based on a 10-year baseline period, summarizing RMP accident impacts and, when possible, monetizing them. EPA expects that some portion of future damages would be prevented through implementation of this final rule. Table 3 presents a summary of the quantified damages identified in the analysis. _____Table_3--Summary_of_Quantified_Damages _____[Millions,_2015_dollars] ______________________________Unit_value__10-year_____Average/yea_Average/ __________________________________________total_______r___________accident _____On-site Fatalities_____________________$8.6________$497.8______$49.8_______$0.33 Injuries______________________0.05________105.2_______10.5________0.69 Property_Damage___________________________2,054.9_____205.5_______1.4 On-site_Total_____________________________2,657.9_____265.8_______1.8 _____Offsite Fatalities____________________8.6_________8.6_________0.86________0.01 Hospitalizations______________0.4_________6.8_________0.68________0.004 Medical_Treatment_____________0.001_______14.8________1.5_________0.01 Evacuations_*_________________0.0_________7.0_________0.70________0.004 Sheltering_in_Place_*_________0.0_________40.9________4.1_________0.03 PDF GENERATED BY SEARCH.PROQUEST.COM Page 9 of 194 Property_Damage___________________________11.4________1.1_________0.007 Offsite_Total_____________________________89.5________8.9_________0.06 Total_____________________________________2,747.3_____274.7_______1.8 ___*_The_unit_value_for_evacuations_is_less_than_two_hundred_dollars_and_for_sheltering_in_place_is_less_tha n_one_hundred_dollars_so_when_expressed_in_rounded_millions_the_value_represented_in_the_table_is_zero. EPA monetized both on-site and offsite damages. EPA estimated total average annual on-site damages of $265.8 million. The largest monetized average annual on-site damage was on-site property damage, which resulted in average annual damage of approximately $205.5 million. The next largest impact was on-site fatalities ($49.8 million) and injuries ($10.5 million). EPA estimated total average annual offsite damages of $8.9 million. The largest monetized average annual offsite damage was from sheltering in place ($4.1 million), followed by medical treatment ($1.5 million), property damage ($1.1 million), fatalities ($0.86 million), evacuations ($0.7 million), and hospitalizations ($0.68 million). In total, EPA estimated monetized damages from RMP facility accidents of $274.7 million per year. The 10-year RMP baseline suggests that considering only the monetized impacts of RMP accidents would mean that the rule's costs may outweigh the portion of avoided impacts from improved prevention and mitigation that were monetized. The annualized cost of the final rule (approximately $142 million annually) is approximately 52% of the average annual monetized costs in the 10-year baseline. However, the monetized impacts omit many important categories of accident impacts including lost productivity, the costs of emergency response, transaction costs, property value impacts in the surrounding community (that overlap with other benefit categories), and environmental impacts. Also not reflected in the 10-year baseline costs are the impacts of non-RMP accidents at RMP facilities and any potential impacts of rare high consequence catastrophes. A final omission is related to the information provision. Reducing the probability of chemical accidents and the severity of their impacts, and improving information disclosure by chemical facilities, as the provisions intend, would provide benefits to potentially affected members of society. Table 4 summarizes four broad social benefit categories related to accident prevention and mitigation including prevention of RMP accidents, mitigation of RMP accidents, prevention and mitigation of non-RMP accidents at RMP facilities, and prevention of major catastrophes. The table explains each and identifies ten associated specific benefit categories, ranging from avoided fatalities to avoided emergency response costs. Table 4 also highlights and explains the information disclosure benefit category and identifies two specific benefits associated with it: Improved efficiency of property markets and allocation of emergency resources. When considering the rule's likely benefits that are due to avoiding some portion of the monetized accident impacts, as well as the additional non-monetized benefits described previously, EPA believes the costs of the rule are reasonable in comparison to its benefits. _____Table_4--Summary_of_Social_Benefits_of_Final_Rule_Provisions Broad_benefit_category___Explanation______________Specific_benefit __________________________________________________categories Accident_Prevention______Prevention_of_future_RMP_._Reduced_Fatalities. PDF GENERATED BY SEARCH.PROQUEST.COM Page 10 of 194 _________________________facility_accidents Accident_Mitigation______Mitigation_of_future_RMP_._Reduced_Injuries. _________________________facility_accidents Non-RMP_accident_________Prevention_and___________._Reduced_Property prevention_and___________mitigation_of_future_____Damage. mitigation_______________non-RMP_accidents_at_RMP_._Fewer_People_Sheltered _________________________facilities_______________in_Place. Avoided_Catastrophes_____Prevention_of_rare_but___._Fewer_Evacuations. _________________________extremely_high___________._Avoided_Lost _________________________consequence_events_______Productivity. __________________________________________________._Avoided_Emergency __________________________________________________Response_Costs. __________________________________________________._Avoided_Transaction __________________________________________________Costs. __________________________________________________._Avoided_Property_Value __________________________________________________Impacts.* __________________________________________________._Avoided_Environmental __________________________________________________Impacts. Information_Disclosure___Provision_of_information_._Improved_efficiency_of _________________________to_the_public____________property_markets. __________________________________________________._Improved_emergency __________________________________________________response_resource __________________________________________________allocation. PDF GENERATED BY SEARCH.PROQUEST.COM Page 11 of 194 ___*_These_impacts_partially_overlap_with_several_other_categories_such_as_reduced_health_and_environment al_impacts. B. Does this action apply to me? This rule applies to those facilities (referred to as "stationary sources" under the CAA) that are subject to the chemical accident prevention requirements at 40 CFR part 68. This includes stationary sources holding more than a threshold quantity (TQ) of a regulated substance in a process. Table 5 provides industrial sectors and the associated NAICS codes for entities potentially affected by this action. The Agency's goal is to provide a guide for readers to consider regarding entities that potentially could be affected by this action. However, this action may affect other entities not listed in this table. If you have questions regarding the applicability of this action to a particular entity, consult the person(s) listed in the introductory section of this action under the heading entitled FOR FURTHER INFORMATION CONTACT. FOOTNOTE 5 For descriptions of NAICS codes, see http://www.census.gov/cgi-bin/sssd/naics/naicsrch. END FOOTNOTE _____Table_5--Industrial_Sectors_and_Associated_NAICS_Codes_for_Entities _____Potentially_Affected_by_This_Action Sector____________________________________________________NAICS_code Administration_of_Environmental_Quality_Programs__________924. Agricultural_Chemical_Distributors: Crop_Production___________________________________________111. Animal_Production_and_Aquaculture_________________________112. Support_Activities_for_Agriculture_and_Forestry_Farm______115. Supplies_Merchant_Wholesalers_____________________________42491. Chemical_Manufacturing____________________________________325. Chemical_and_Allied_Products_Merchant_Wholesalers_________4246. Food_Manufacturing________________________________________311. Beverage_Manufacturing____________________________________3121. Oil_and_Gas_Extraction____________________________________211. Other(5M)_________________________________________________44,_45,_48,_54, PDF GENERATED BY SEARCH.PROQUEST.COM Page 12 of 194 __________________________________________________________56,_61,_72. Other_manufacturing_______________________________________313,_326,_327,_33. Other_Wholesale: Merchant_Wholesalers,_Durable_Goods_______________________423. Merchant_Wholesalers,_Nondurable_Goods____________________424. Paper_Manufacturing_______________________________________322. Petroleum_and_Coal_Products_Manufacturing_________________324. Petroleum_and_Petroleum_Products_Merchant_Wholesalers_____4247. Utilities_________________________________________________221. Warehousing_and_Storage___________________________________493. II. Background A. Events Leading to This Action Recent catastrophic chemical facility incidents in the United States prompted President Obama to issue Executive Order 13650, "Improving Chemical Facility Safety and Security," on August 1, 2013. /6/ The purpose of the Executive Order is to enhance the safety and security of chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and communities. The Executive Order establishes the Chemical Facility Safety and Security Working Group ("Working Group"), co-chaired by the Secretary of Homeland Security, the Administrator of EPA, and the Secretary of Labor or their designated representatives at the Assistant Secretary level or higher, and composed of senior representatives of other Federal departments, agencies, and offices. The Executive Order requires the Working Group to carry out a number of tasks whose overall aim is to prevent chemical accidents. In addition to the tragedy at the West Fertilizer facility in West, Texas, on April 17, 2013, /7/ a number of other incidents have demonstrated a significant risk to the safety of American workers and communities. On March 23, 2005, explosions at the BP Refinery in Texas City, Texas, killed 15 people and injured more than 170 people. /8/ On April 2, 2010, an explosion and fire at the Tesoro Refinery in Anacortes, Washington, killed seven people. /9/ On August 6, 2012, at the Chevron Refinery in Richmond, California, a fire involving flammable fluids endangered 19 Chevron employees and created a large plume of highly hazardous chemicals that traveled across the Richmond, California, area. /10/ Nearly 15,000 residents sought medical treatment due to the release. On June 13, 2013, a fire and explosion at Williams Olefins in Geismar, Louisiana, killed two people and injured many more. /11/ FOOTNOTE 6 For more information on the Executive Order see https://www.whitehouse.gov/the-pressoffice/2013/08/01/executive-order-improving-chemical-facility-safety-and-security. END FOOTNOTE FOOTNOTE 7 CSB. January 2016. Final Investigation Report, West Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. REPORT 2013-02-I-TX. http://www.csb.gov/west-fertilizer-explosion-and-fire-/. On May 11, 2016, ATF ruled that the fire was intentionally set. See ATF Announces $50,000 Reward in West, Texas Fatality Fire, https://www.atf.gov/news/pr/atf-announces-50000-reward-west-texas-fatality-fire. END FOOTNOTE FOOTNOTE 8 U.S. Chemical Safety and Hazard Investigation Board (CSB). March 2007. Investigation Report: PDF GENERATED BY SEARCH.PROQUEST.COM Page 13 of 194 Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 2005. Report No. 2005-04-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf. END FOOTNOTE FOOTNOTE 9 CSB. May 2014. Investigation Report: Catastrophic Rupture of Heat Exchanger, Tesoro Anacortes Refinery, Anacortes, Washington, April 2, 2010. Report No. 2010-08-I-WA. http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf. END FOOTNOTE FOOTNOTE 10 CSB. January 2014. Regulatory Report: Chevron Richmond Refinery Pipe Rupture and Fire, Chevron Richmond Refinery #4 Crude Unit, Richmond, California, August 6, 2012. Report No. 2012-03-I-CA. http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf. END FOOTNOTE FOOTNOTE 11 CSB. October 2016. Case Study: Williams Geismar Olefins Plant Reboiler Rupture and Fire, Geismar, Louisiana. Incident Date: June 13, 2013, No. 2013-03-I-LA. US Chemical Safety and Hazard Investigation Board, Washington, DC http://www.csb.gov/williams-olefins-plant-explosion-and-fire-/. END FOOTNOTE Section 6 of the Executive Order is entitled "Policy, Regulation, and Standards Modernization." This section, among other things, requires certain Federal agencies to consider possible changes to existing chemical safety and security regulations. To solicit comments and information from the public regarding potential changes to EPA's Risk Management Program regulations (40 CFR part 68), on July 31, 2014, EPA published an RFI (79 FR 44604). Information collected through the RFI informed the proposed rulemaking that was published on March 14, 2016 (81 FR 13637). EPA received a total of 61,716 public comments on the proposed rulemaking. Several public comments were the result of various mass mail campaigns and contained numerous copies of letters or petition signatures. Approximately 61,467 letters and signatures were contained in these several comments. The remaining comments include 235 submissions with unique content, 10 duplicate submissions, and 4 non-germane submissions. In addition to these public submissions, EPA also received 8 written comments and had 22 members of the public provide verbal comments at a public hearing on March 29, 2016. Discussion of public comments can be found in topics included in this final rule and in the Response to Comments document, /12/ available in the docket for this rulemaking. FOOTNOTE 12 2016. EPA Response to Comments on the 2016 Proposed Rulemaking Amending EPA's Risk Management Program Regulations. This document is available in the docket for this rulemaking. END FOOTNOTE B. Overview of EPA's Risk Management Program Regulations Both EPA's 40 CFR part 68 RMP regulation /13/ and Occupational Safety and Health Administration's (OSHA) 29 CFR 1910.119 Process Safety Management (PSM) standard were authorized in the CAA Amendments of 1990. This was in response to a number of catastrophic chemical accidents occurring worldwide that had resulted in public and worker fatalities and injuries, environmental damage, and other community impacts. OSHA published the PSM standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 CAAA, using its authority under 29 U.S.C. 653. FOOTNOTE 13 40 CFR part 68 is titled, "Chemical Accident Prevention Provisions," but is more commonly known as the "RMP regulation," the "RMP rule," or the "Risk Management Program." This document uses all three terms to refer to 40 CFR part 68. The term "RMP" refers to the document required to be submitted under subpart F of 40 CFR part 68, the Risk Management Plan. See https://www.epa.gov/rmp for more information on the Risk Management Program. END FOOTNOTE The 1990 CAA Amendments added accidental release provisions under section 112(r). The statute required EPA to develop a list of at least 100 regulated substances for accident prevention and related thresholds (CAA section 112(r)(3) through (5)), and authorized EPA to issue accident prevention regulations (CAA section 112(r)(7)(A)). The statute also required EPA to develop "reasonable regulations" requiring facilities with over a TQ of a regulated substance to undertake accident prevention steps and submit a "risk management plan" to various local, state, and Federal planning entities (CAA section 112(r)(7)(B)). EPA published the RMP regulation in two stages. The Agency published the list of regulated substances and TQs in 1994 (59 FR 4478, January 31, 1994) (the "list rule") /14/ and published the RMP final regulation, containing risk PDF GENERATED BY SEARCH.PROQUEST.COM Page 14 of 194 management requirements for covered sources, in 1996 (61 FR 31668, June 20, 1996) (the "RMP rule"). /15/ /16/ Both the OSHA PSM standard and the EPA RMP rule aim to prevent or minimize the consequences of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management practices. In addition to requiring implementation of management program elements, the RMP rule requires covered sources to submit (to EPA) a document summarizing the source's risk management program--called a Risk Management Plan (or RMP). The RMP rule required covered sources to comply with its requirements and submit initial RMPs to EPA by June 21, 1999. Each RMP must be revised and updated at least once every five years from the date the plan was initially submitted. FOOTNOTE 14 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. END FOOTNOTE FOOTNOTE 15 Documents and information related to development of the RMP rule can be found in EPA docket number A-91-73. END FOOTNOTE FOOTNOTE 16 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. END FOOTNOTE EPA later revised the list rule and the RMP rule. EPA modified the regulated list of substances by exempting solutions with less than 37% concentrations of hydrochloric acid (62 FR 45130, August 25, 1997). EPA also deleted the category of Department of Transportation Division 1.1 explosives, and exempted flammable substances in gasoline used as fuel and in naturally occurring hydrocarbon mixtures prior to initial processing (63 FR 640, January 6, 1998). EPA subsequently modified the RMP rule five times. First, in 1999, EPA revised the facility identification data and contact information reported in the RMP (64 FR 964, January 6, 1999). Next, EPA revised assumptions for the worst case scenario analysis for flammable substances and clarified what the Agency means by chemical storage not incidental to transportation (64 FR 28696, May 26, 1999). After the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) was enacted on August 5, 1999, EPA excluded regulated flammable substances when used as a fuel or held for sale as a fuel at a retail facility (65 FR 13243, March 13, 2000). Later, EPA restricted access to offsite consequence analysis (OCA) data for the public and government officials to minimize the security risks associated with posting the information on the Internet (65 FR 48108, August 4, 2000). Finally, EPA revised the RMP executive summary to remove a requirement to describe the OCA; revised reporting deadlines for RMP reportable accidents and emergency contact changes; and made other minor revisions to RMP facility contact information (69 FR 18819, April 8, 2004). The RMP rule establishes three "program levels" for regulated processes: Program 1 applies to processes that would not affect the public in the case of a worst-case release and that have had no accidents with specific offsite consequences within the past five years. Program 1 imposes limited hazard assessment requirements, requires coordination with local response agencies, and requires submission of an RMP. Program 2 applies to processes not eligible for Program 1 or subject to Program 3, and imposes streamlined prevention program requirements, including safety information, hazard review, operating procedures, training, maintenance, compliance audits, and incident investigation elements. Program 2 also imposes additional hazard assessment, management, and emergency response requirements. Program 3 applies to processes not eligible for Program 1 and either subject to OSHA's PSM standard under Federal or state OSHA programs or classified in one of ten specified industry sectors identified by their 2002 NAICS codes listed at SEC 68.10(d)(1). These industries were selected because they had a higher frequency of the most serious accidents as compared to other industry sectors. The ten NAICS codes and the industries they represent are 32211 (pulp mills), 32411 (petroleum refineries), 32511 (petrochemical manufacturing), 325181 (alkalies and chlorine manufacturing), 325188 (all other basic inorganic chemical manufacturing), 325192 (cyclic crude and intermediate manufacturing), 325199 (all other basic chemical manufacturing), 325211 (plastics PDF GENERATED BY SEARCH.PROQUEST.COM Page 15 of 194 material and resin manufacturing), 325311 (nitrogenous fertilizer manufacturing), or 32532 (pesticide and other agricultural chemicals manufacturing). /17/ Program 3 imposes elements nearly identical to those in OSHA's PSM standard as the accident prevention program. The Program 3 prevention program includes requirements relating to process safety information (PSI), PHA, operating procedures, training, mechanical integrity, management of change (MOC), pre-startup review, compliance audits, incident investigations, employee participation, hot work permits, and contractors. Program 3 also imposes the same hazard assessment, management, and emergency response requirements that are required for Program 2. FOOTNOTE 17 NAICS codes 325181 and 325188 are now combined and represented as revised NAICS code 325180 in the 2012 and 2017 code versions (other basic inorganic chemical manufacturing). NAICS code 325192 is now revised NAICS code 325194 (cyclic crude, intermediate, and gum and wood chemical manufacturing) in the 2012 and 2017 code versions. END FOOTNOTE The RMP rule has been effective in preventing and mitigating chemical accidents in the United States and protecting human health and the environment from chemical hazards. However, major incidents, such as the West, Texas explosion, /18/ highlight the importance of reviewing and evaluating current practices and regulatory requirements, and applying lessons learned from other incident investigations to advance process safety where needed. FOOTNOTE 18 CSB. January 2016. Final Investigation Report, West Fertilizer Company Fire and Explosion, West, TX, April 17, 2013. REPORT 2013-02-I-TX. http://www.csb.gov/west-fertilizer-explosion-and-fire-/. END FOOTNOTE III. Additional Information A. 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 of the portions of the Risk Management Program rule we are amending in this document are based on EPA's rulemaking authority under section 112(r)(7) of the CAA (42 U.S.C. 7412(r)(7)). A more detailed discussion of the underlying statutory authority for the current requirements of the Risk Management Program rule appears in the action that proposed the Risk Management Program (58 FR 54190, 54191-93, October 20, 1993). The prevention program provisions discussed in this preamble (auditing, incident investigation, and safer technologies alternatives analysis) address the "prevention and detection of accidental releases." The emergency coordination and exercises provisions in this rule modify existing provisions that provide for "response to such release by the owners or operators of the sources of such releases" (CAA section 112(r)(7)(B)(i)). This paragraph in the statute calls for EPA's regulations to recognize differences in "size, operations, processes, class and categories of sources." In this document, we maintain the distinctions in prevention program levels and in response actions authorized by this provision. The information disclosure provisions discussed in this document 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." This information disclosure ensures the 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. Various commenters suggested that particular provisions of the proposed rulemaking were not consistent with CAA section 112(r) or other relevant statutes. We address these comments in each relevant section of the preamble and in the Response to Comments document, /19/ available in the docket for this rulemaking. Some commenters also suggested that EPA has not complied with the requirements in CAA section 112(r)(7)(D) for the Administrator to "consult with the Secretary of Labor and the Secretary of Transportation" and "coordinate any requirements under this paragraph with any requirements established for comparable purposes by the Occupational Safety and Health Administration or the Department of Transportation." FOOTNOTE 19 2016. EPA Response to Comments on the 2016 Proposed Rulemaking Amending EPA's Risk Management Program Regulations. This document is available in the docket for this rulemaking. END FOOTNOTE EPA disagrees with these comments. Under section 6 of Executive Order 13650, "Improving Chemical Facility PDF GENERATED BY SEARCH.PROQUEST.COM Page 16 of 194 Safety and Security," the Executive Order Working Group, chaired by EPA, OSHA, and Department of Homeland Security (DHS), was tasked with enhancing safety at chemical facilities by identifying key improvements to existing risk management practices through guidance, policies, procedures, outreach, and regulations. As part of this task, the Working Group conducted extensive interagency coordination, and solicited public comment on potential options for improving chemical facility safety. EPA's coordination efforts included discussions with numerous Federal agencies, including OSHA and the Department of Transportation (DOT), on potential changes to the Risk Management Program rule. As EPA explained in the preamble to the proposed rulemaking, the OSHA PSM standard and EPA RMP regulation are closely aligned in content, policy interpretations, Agency guidance, and enforcement. 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 on OSHA's initial steps toward proposing potential changes to the PSM standard. EPA's coordination with DOT was less extensive because nothing in this rule changes its basic applicability provisions, which apply the rule only to stationary sources, and exclude transportation. However, EPA continues to coordinate with DOT through ongoing Executive Order activities, which includes updates on RMP regulatory development, and this coordination is sufficient to meet EPA's obligations under CAA section 112(r)(7)(D). As with OSHA, EPA has a long history of close coordination with DOT on implementation of the RMP, particularly where potential transportation-related issues arise, and the Agency fully intends for such coordination to continue. B. List of Regulated Substances As part of its work under Executive Order 13650, the Working Group solicited public comment on potential changes to the list of regulated substances for the Risk Management Program, including what actions to take to address ammonium nitrate (AN). EPA did not propose revisions to the list of regulated substances. Instead, EPA explained the actions other agencies in the Executive Order Working Group are considering to address AN and indicated that EPA will coordinate any potential changes to the list of substances in 40 CFR part 68 with the actions of these other agencies. EPA received several comments related to revising the list of regulated substances and whether to expand the list to include AN. 1. Discussion of Comments on the List of Regulated Substances A couple of commenters expressed support for expanding the scope of regulated substances under the RMP rule. One private citizen stated that EPA should broaden the range of chemicals covered under RMP and account for effects on vulnerable populations including children and the elderly. A professional organization asserted that EPA should update the list of regulated substances and require facilities to "evaluate the risk of a reactive chemical accident and take appropriate measures, even if the chemicals in question are not on the list." However, multiple commenters supported EPA's decision not to revise the list of regulated substances in this action. These commenters opposed adding toxic or flammable substances to the list of regulated substances in a separate action. One industry commenter opposed the addition of combustible dust to the list, arguing that it is already regulated under OSHA and constitutes a low risk to the public. EPA will consider these comments when determining whether to propose revisions to the list of substances. 2. Discussion of Comments on AN Many commenters supported regulating AN in the RMP rule. Several commenters requested that EPA consider the danger to the public from AN, and other reactive chemicals, in its rulemaking. A state agency further asked EPA to ensure that calculations for the OCA consider the unique explosive characteristics of fertilizer grade ammonium nitrate (FGAN) and develop specific RMP guidance for regulated FGAN facilities. One commenter supported adding AN to the list of regulated substances but requested unique requirements for AN formulated as an explosive or blasting agent and FGAN. Another commenter claimed that EPA failed to address Executive Order 13650 by failing to address AN in the proposed rulemaking. However, EPA also received comments opposed to adding AN to the list of regulated substances. One commenter stated that EPA didn't have authority to regulate FGAN under the CAA and urged the Agency against PDF GENERATED BY SEARCH.PROQUEST.COM Page 17 of 194 including FGAN under the RMP regulations. Another commenter supported EPA's decision not to change current threshold quantities and toxic endpoints. An industry trade association requested EPA's support and recognition of its voluntary private sector comprehensive inspection and assessment organization and FGAN guidelines for fertilizer retail facilities. EPA acknowledges that there is both support and opposition to regulating AN and will consider these comments when determining whether to take further action on this issue. In the interim, EPA encourages fertilizer retailers to review and use existing guidance. OSHA compiles several resources on their Fertilizer Industry Guidance on Storage and Use of Ammonium Nitrate Web page at https://www.osha.gov/dep/fertilizer_industry/. EPA disagrees with the commenter that indicated that EPA failed to address Executive Order 13650 when we chose not to propose to list AN in the list of regulated substances for the RMP regulations. In the proposed rulemaking, EPA explained that other agencies, including OSHA and DHS, are considering modifications to their regulations, and EPA will coordinate any potential changes to the list of substances in 40 CFR part 68 with the actions of these other agencies. IV. Prevention Program Requirements A. Incident Investigation and Accident History Requirements 1. Summary of Proposed Rulemaking a. Definitions, SEC 68.3 EPA proposed to revise the definition of "catastrophic release" in SEC 68.3 to include impact categories identical to the description of accidental releases required to be reported under the accident history reporting requirements in SEC 68.42. The proposed definition, in SEC 68.3, would replace the phrase "that presents imminent and substantial endangerment to public health and the environment" with impacts categories including impacts that resulted in: * On-site: Deaths, injuries, or significant property damage; or * Offsite: Known deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage. EPA proposed to define "root cause" in SEC 68.3 to mean a fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems. b. Incident Investigation Sections, SUBSEC 68.60 and 68.81 EPA proposed a number of revisions to the incident investigation provisions. EPA proposed to revise SEC 68.60, which is applicable to Program 2 processes, and SEC 68.81, which is applicable to Program 3 processes, by revising paragraph (a) to add subparagraphs (a)(1) and (a)(2) to better clarify the scope of incidents that must be investigated. Proposed subparagraph (a)(1) applied to an incident that resulted in a catastrophic release and clarifies that the owner or operator must investigate the incident even if the process involving the regulated substance is destroyed or decommissioned. Proposed subparagraph (a)(2) applied to a near-miss, which is an incident that could reasonably have resulted in a catastrophic release. EPA also proposed removing the phrase "of a regulated substance" from paragraph (a) because it is duplicative. The definition of "catastrophic release" refers to releases of regulated substances. EPA also proposed to add a new paragraph (c) to SEC 68.60 requiring that an incident investigation team be established and consist of at least one person knowledgeable in the process involved and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident. This is similar to the existing requirement in SEC 68.81(c) for Program 3 processes. EPA proposed that current SEC 68.60(c) through (f) would become SEC 68.60(d) through (g). EPA proposed to revise the redesignated paragraph (d) in SEC 68.60 and current paragraph (d) in SEC 68.81 to revise the incident investigation report requirements. EPA proposed to change the word "summary" to "report" and require facility owners or operators to complete incident investigation reports within 12 months unless the implementing agency approves, in writing, an extension of time. In addition, EPA proposed to amend and add new subparagraphs in the redesignated paragraph (d) in SEC 68.60 and current paragraph (d) in SEC 68.81 requiring additional elements in an incident investigation report. PDF GENERATED BY SEARCH.PROQUEST.COM Page 18 of 194 Specifically, EPA proposed to: * Revise paragraph (d)(1) to require the time and location of the incident in the investigation report; * Revise paragraph (d)(3) to specify that the description of the incident be in chronological order and provide all relevant facts; * Add paragraph (d)(4) to require that the investigation report include the name and amount of the regulated substance involved in the release or near miss and the duration of the event; * Add paragraph (d)(5) to require a description of the consequences, if any, of the incident; * Add paragraph (d)(6) to require a description of emergency response actions taken; * Renumber current paragraph (d)(4) to (d)(7) and require additional criteria related to the factors contributing to the incident, including the initiating event, direct and indirect contributing factors, and root causes. EPA also proposed to add language to paragraph (d)(7) to require that root causes be determined through the use of a recognized method. * Renumber the current paragraph (d)(5) to (d)(8) and add language to require a schedule for addressing recommendations resulting from the investigation to be included in the investigation report. Finally, in the redesignated SEC 68.60(g), EPA proposed to add the word incident before investigation and change "summaries" to "reports" for consistency. c. Accident History, SEC 68.42 EPA also proposed to amend the five-year accident history section to require reporting of categories of root causes identified in the root cause analysis proposed to be required in SUBSEC 68.60(d)(7) and 68.81(d)(7). d. Hazard Review, SEC 68.50 For the Hazard review section, EPA proposed to amend subparagraph (a)(2) by adding a phrase at the end to require the owner or operator to consider findings from incident investigations. e. Process Hazard Analysis (PHA), SEC 68.67 In the PHA section, EPA proposed to add subparagraph (c)(2) to require the owner or operator to address findings from incident investigations, as well as any other potential failure scenarios (e.g., incidents that occurred at other similar facilities and or processes, failure mechanisms discovered in literature or from other sources of information). f. Updates, SEC 68.190 In the Updates section, EPA proposed to amend paragraph (c) to require the owner or operator to report any accidents covered by SEC 68.42 and conduct incident investigations required under SEC 68.60 and/or SEC 68.81 prior to de-registering a process or stationary source that is no longer subject to the RMP rule. 2. Summary of Final Rule EPA is not finalizing the proposed definition for catastrophic release and is instead maintaining the existing definition. Additionally, EPA is finalizing a modified version of the proposed definition of the term "root cause." In the final definition EPA deleted the phrase "that identifies a correctable failure(s) in management systems." EPA is not finalizing the proposed revisions to the five-year accident history section in the final rule. EPA is finalizing the following provisions as proposed: * Hazard review section, SEC 68.50; * Incident investigation section SUBSEC 68.60 and 68.81; * Process hazard analysis (PHA) section, SEC 68.67, to add subparagraph (c)(2). * Updates section, SEC 68.190. 3. Discussion of Comments and Basis for Final Rule Provisions EPA's rationale for modifying the accident investigation provisions to explicitly require root cause analysis for investigations of catastrophic releases and near miss events and to have the findings of these investigations integrated into the PHA remains generally the same as in the proposed rulemaking. In the discussion that follows and in the Response to Comment document, we explain the modifications to our approach and the basis for these modifications. /20/ The most significant change in approach is to retain the catastrophic release definition. As PDF GENERATED BY SEARCH.PROQUEST.COM Page 19 of 194 became apparent in the comments, our view that having a common definition of reportable accidental release and catastrophic release would simplify and clarify compliance was outweighed by the potential burden of inadvertently expanding the number of investigated accidental releases. We continue to require investigations of near misses, but have provided additional guidance as to what we intend by the term. Other changes from the proposal are similarly intended to clarify terms used in the rule. Identification of root cause categories in accident history reporting has been eliminated because identifying root cause categories only provides limited information for understanding the root cause which is best attained by reviewing the complete incident investigation report. Implementing agencies and/or local emergency planners may still obtain the investigation report through direct contact with the facility. The changes we adopt in this final rule strike a balance between ensuring facilities and planners learn about the causes of catastrophic releases and near misses while also better targeting the reporting to minimize burden. FOOTNOTE 20 2016. EPA Response to Comments on the 2016 Proposed Rulemaking Amending EPA's Risk Management Program Regulations. This document is available in the docket for this rulemaking. END FOOTNOTE a. Definitions Catastrophic release. Although EPA received some support for the proposed definition of "catastrophic release," many commenters were opposed to the revision. Many commenters, including government agencies, industry trade associations, and facilities, argued that EPA's proposed definition of "catastrophic release" (1) expands its scope, rather than clarifying it, (2) is redundant of OSHA's authority to regulate workplace safety by including onsite damage or injuries, and (3) exceeds the CAA authority to regulate only ambient air beyond a facility's property. EPA also received some comments identifying other concerns with the proposed change to the definition of "catastrophic release." Some commenters, including a few facilities, said that the proposed definition is too vague, and some commenters noted that terms such as "injuries," "significant property damage," "environmental damage," and "major" are not defined. A facility and a private citizen commented that the wording of the definition implies that a "catastrophic release" could include a fire, regardless of whether an actual release of regulated material occurs due to the fire, and also implies that releases involving on-site environmental damage would not be considered catastrophic. Many commenters, including a state government agency, facilities, and industry trade associations, argued that EPA's proposed definition of "catastrophic release" would regulate workplace safety concerns that are outside EPA's authority to regulate under the CAA. Commenters asserted that EPA has authority to address through regulation and enforcement offsite impacts of facility releases, not on-site impacts. A facility asserted that the proposed definition inappropriately expands the scope of EPA's reach into workplace safety by requiring investigations of releases that would also include impacts to on-site workers or property. An industry trade association stated that the definition ignores Congress's express prohibition against EPA "exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health." This commenter further argued that on-site injuries should be excluded from the proposed definition because OSHA already has jurisdiction in this area and because these often do not pose any risk to public health or the environment. A facility stated that the proposed revision directly contradicts EPA's long-held interpretation that the references in section 112(r)(2)(A) to "ambient" air limit the Agency's authority to activities with offsite consequences. The commenter asserted that in the proposed rulemaking the EPA does not acknowledge the contradiction from its previous position or explain what new statutory authority exists or why it now has the authority to regulate workplace incidents. Due to the large number of comments opposing the proposed revision to the definition of "catastrophic release," EPA has decided not to finalize the proposed language. EPA believed that providing a consistent trigger for accident investigations and reportable accidents under the accident history requirements of SEC 68.42 would simplify compliance for the regulated community. EPA acknowledges that the proposed revision may have inadvertently expanded the definition and therefore the type of accident that could trigger an investigation. Some PDF GENERATED BY SEARCH.PROQUEST.COM Page 20 of 194 reportable incidents under the accident history provision may not pose an imminent and substantial threat to public health and the environment (see 40 CFR 68.3 (Catastrophic release)). Due to EPA's decision to retain the existing "catastrophic release" definition and not go forward with the proposed revision, the authority issues raised in comments are moot. However, contrary to one commenter's claim, it has never been EPA's position that the references in section 112(r) to "ambient" air limit the Agency's authority to regulate only activities with offsite consequences. On the contrary, it has been the Agency's longstanding position that incidents that primarily or even exclusively impact on-site receptors are potentially relevant to protection of the public and the environment from the risks of an accidental release. As EPA explained in the Response to Comments document for the original RMP rule, certain on-site accident impacts are relevant because they "may reflect safety practices at the source" and because "accidental releases from covered processes which resulted in deaths, injuries, or significant property damage on-site, involve failures of sufficient magnitude that they have the potential to affect offsite areas." /21/ FOOTNOTE 21 EPA, Risk Management Plan Rule: Summary and Response to Comments, Excerpt from Volume 1: Table of Contents, Introduction, and Sections 3, 16 and 17. May 24, 1996, pp 3-11 and 17-4. Document No. EPA-HQOEM-2015-0725-0153, https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0153. END FOOTNOTE For similar reasons, requiring investigation of accidents with on-site impacts is not redundant to OSHA's authority when such accidents have the potential to affect offsite areas. Root cause. Many commenters opposed the proposed definition of "root cause." These commenters, which included industry trade associations, facilities, and a private citizen, said that EPA should revise the definition of "root cause" to remove "system-related" and "management system," reasoning that not all incidents are due to system failures. One commenter also stated that the definition assumes that there is only one root cause and that the failure is correctable, when there can be many causes and the investigators may not be able to determine what is "correctable." An association of government agencies agreed that the investigation should identify all root causes of failure, regardless of whether they are deemed correctable or related to the management system. An industry trade association stated that EPA should not define "root cause" and instead should defer to facilities to rely on standard definitions from independent safety organizations. Another industry trade association also argued that EPA does not need to define "root cause" because current incident investigator requirements, which call for the investigator to uncover "the factors that contributed to the incident," are sufficient. Other industry trade associations commented that it is very misleading and may lead to incorrect enforcement proceedings to require a facility to identify a management system failure as a root cause of incidents whose true root cause is a design deficiency, equipment failure, or misuse of equipment. EPA agrees with some of the comments, and is finalizing the proposed definition of "root cause" with modifications. EPA deleted the language regarding identifying correctable failure(s) in management systems. In response to the comment that the definition assumes that there is only one root cause, EPA agrees that there are often multiple root causes. The final rule defines "root cause" in the singular, but does not preclude the possibility of more than one root cause. EPA agrees with the comments that support investigations identifying all root causes, and the Agency notes that the root cause requirements in the final rule require the owner or operator to identify "root causes." b. Accident History Reporting Some government agencies, an industry trade association, and a professional association agreed that the RMP accident history should include the root causes of incidents. However, other commenters, including industry trade associations and a facility, stated that the existing reporting requirements in SEC 68.42 are sufficient, and that requiring root cause reporting in the five-year accident history is an additional burden that is not offset by improved performance. Although EPA believes there could be some benefit to identifying root cause categories within a facility's accident history, in most cases, the Agency believes the incident investigation report must be reviewed in order to fully understand root causes attributed to that incident. Implementing agency officials can obtain investigation reports during inspections or by using the Agency's information gathering authorities when needed. Therefore, EPA PDF GENERATED BY SEARCH.PROQUEST.COM Page 21 of 194 did not finalize the proposed requirement. c. Changes to Hazard Review ( SEC 68.50) and Process Hazard Analysis (PHA) ( SEC 68.67) Requirements Hazard review and PHA. Some commenters, including several government agencies, a professional organization, and an industry trade association, supported the requirement to include incident investigation findings in the hazard review. Other commenters opposed the requirement. Some of these commenters stated that the OSHA PSM standard already requires PHAs to address previous incidents, and EPA's changes are therefore unnecessary. One industry trade association commented that, as written, the proposal would require facilities to include all findings from all investigations for the facility's entire history. Another commenter argued that incident investigation findings should not be required for PHAs because PHA teams typically use established techniques and requiring the "findings from incident investigations" to be included would not be a good fit for these types of assessments. EPA disagrees with commenters and is finalizing these requirements as proposed, so that findings from incident investigations are considered when hazard reviews are conducted. EPA notes that the basic purpose of a hazard review is to identify what process equipment malfunctions or human errors could potentially lead to accidental releases, and then to identify what safeguards are needed in order to prevent such malfunctions and errors from occurring. An obvious source of information about such malfunctions and errors is information gained from investigating incidents that have previously occurred within the covered process. For this reason, the Program 3 analog to the hazard review, the PHA, already requires the owner or operator to identify any previous incidents that had a likely potential for catastrophic consequences when conducting the PHA. EPA therefore not only disagrees with the commenter who stated that including findings from incident investigations within the PHA "would not be a good fit" for the PHA (as the existing rule already contains this requirement), but also believes that this requirement should be incorporated into the hazard review. EPA also disagrees that widely-used PHA (or hazard review) techniques preclude consideration of prior incidents--all PHA and hazard review techniques that EPA is aware of are easily adapted to allow consideration of prior incident scenarios. The commenter provided the example of the Hazard and Operability Study (HAZOP) PHA technique as an example of a technique for PHAs that is widely accepted but does not consider prior incidents. EPA disagrees that the HAZOP may not be adapted to consider prior incident causes. In fact, this PHA technique, which EPA acknowledges is widely used, is specifically intended to identify process deviations that can lead to undesirable consequences, as well as the causes and consequences of such deviations, and safeguards necessary to protect against the deviation from occurring. Incident scenarios are a key source of knowledge for conducting this technique. According to the Center for Chemical Process Safety (CCPS) "Guidelines for Hazard Evaluation Procedures--Second Edition with Worked Examples" (AIChE/CCPS, 1992, pp 143) "the knowledge-based HAZOP Analysis study can help ensure that the company's practices, and therefore its experience, have indeed been incorporated in the design." The CCPS Guidelines also provide a specific example of how incident information can be incorporated into the HAZOP: As a more specific example, consider the discharge from a centrifugal pump. The guide-word HAZOP approach would apply the guide word "Reverse" to identify the need for a check valve. The knowledge-based HAZOP approach might also identify the need for a check valve because an actual problem was experienced with reverse flow. . . [emphasis added]. In response to the comment regarding the requirements of OSHA PSM, EPA notes that this final rule requirement is applicable to Program 2 covered processes, which are not subject to the OSHA PSM standard. Other potential failure scenarios. Some commenters opposed including "other potential failure scenarios" in the process hazards analysis (PHA). A state agency and an industry trade association stated that it is unclear what "any other potential failure scenarios" means. The state agency also said that facilities may not have access to or knowledge of issues at similar facilities. A facility said that EPA should provide a clearinghouse of "potential failure scenarios" so that facilities will have access to them. An industry trade association commented that a literature review would not provide much information and would be costly to conduct. PDF GENERATED BY SEARCH.PROQUEST.COM Page 22 of 194 In response, as stated in the preamble to the proposed rulemaking, other potential failure scenarios can include incidents that occurred at other similar facilities and or processes, failure mechanisms discovered in literature, or from other sources of information. EPA believes that it is appropriate to research information about other potential scenarios and consider these scenarios when conducting a (PHA). Regarding the comment to provide a clearinghouse of scenarios, given the variety of processes and stationary sources, and ongoing changes to technologies, it would be difficult to establish a one-stop resource that would identify all potential failure scenarios for all processes covered under the rule. However, EPA believes that owners and operators are in the best position to obtain incident information relevant to their own covered processes. In most cases, industry trade associations will be a useful source for this information. Such information is also commonly available in trade journals, at industry conferences, in industry newsletters, in the Chemical Safety Board's accident investigation reports, in reference publications (e.g., Lees' Loss Prevention in the Process Industries /22/), and through other professional networks. EPA therefore believes that information about other potential failure scenarios that are potentially relevant to a covered process should not be costly for the owner or operator to conduct and will benefit both the regulated stationary sources and its surrounding community. FOOTNOTE 22 Lees, Frank P. 2012. Loss Prevention in the Process Industries, Fourth Edition. ButterworthHeinemann. http://www.sciencedirect.com/science/book/9780123971890. END FOOTNOTE Regarding the comment that this provision will require the owner or operator to review findings from all incident investigations for the facility's entire history--EPA agrees that the owner or operator should review all available incident information, but notes that the rule does not require the owner or operator to retain incident investigation reports for more than five years. However, if the owner or operator has access to incident information beyond that period, they should incorporate it into their hazard review as appropriate. d. Destroyed or Decommissioned Processes EPA received various comments regarding the proposed rulemaking's requirement for investigation of incidents that resulted in destruction or decommissioning of a process. Several commenters, including local agencies, facilities, an advocacy group, and an association of government agencies, expressed support for the requirement that an incident investigation with a root cause analysis be performed for incidents involving processes units that were destroyed or will be decommissioned. A local agency and a facility explained that this information could improve safety for other processes at the same facility or at other facilities. EPA also received comments opposing incident investigations for destroyed or decommissioned processes. A facility and industry trade associations commented that there is no benefit to requiring investigations in cases where a process is decommissioned or destroyed. EPA also received comments in opposition to registration requirements for decommissioned processes. A facility and an industry trade association said that there is no incremental safety benefit to requiring a destroyed or decommissioned unit to remain registered under RMP until after the incident investigation is complete. The commenters argued that this requirement imposes additional paperwork burdens without any additional safety benefit. EPA is finalizing this requirement as proposed. The Agency agrees with the commenters who support this requirement because it will ensure that when incidents occur, particularly incidents so severe that the owner or operator elects to decommission the process involved or where the process is destroyed in the incident, lessons are learned as a result, both for the benefit of the owner/operator, and potentially for other stationary sources with similar processes. In response to the comments opposed to the registration requirements for decommissioned processes, EPA believes that the additional paperwork burden regarding such requirements is minimal, as the processes would have already been registered in the source's most recent RMP. New accident history information may be added to the RMP without performing a full update. Following that correction, if the affected process has been decommissioned or destroyed, and if the source has multiple covered processes, the owner or operator would update their RMP to reflect the loss of the affected process (this would be required whether or not the incident was PDF GENERATED BY SEARCH.PROQUEST.COM Page 23 of 194 investigated). If the affected process was the only process at the source, after completing the investigation and correcting the existing RMP, the owner or operator would submit a deregistration notice for the source to EPA. Deregistration is already required by SEC 68.190(c) when a source is no longer subject to Part 68. Therefore, from a paperwork standpoint, the primary effect of this change would be the timing of when deregistration occurs. EPA believes the potential benefits of the knowledge gained from the incident investigation warrant this delay in deregistering a source. e. Near Misses In the proposed rulemaking, EPA did not propose a definition for the term "near miss," although EPA did include the term in proposed revisions to SUBSEC 68.60 and 68.81, paragraph (a)(2), in the phrase: "Could reasonably have resulted in a catastrophic release (i.e., was a near miss)." EPA also sought public comment on whether to include a formal definition for the term. EPA received comments both supporting and opposing a definition of "near miss." Requests to define "near miss." Several commenters, including government agencies, industry trade associations, facilities, and an advocacy group, recommended defining "near miss" to reduce vagueness, uncertainty around which incidents require investigation, and the reliance on owners and operators to define the term. A local agency and an industry trade association suggested providing examples of near misses in guidance. A local agency said that EPA should clarify whether a release is considered a "near miss" if it was a controlled release. Other commenters, including a state agency and an industry trade association, opposed a regulatory definition of the term, stating that facilities should be permitted to determine what qualifies as a "near miss" that requires investigation. A state agency also said that EPA should not define "near miss" because it would be challenging to provide a definition that is suitable for all industry sectors. An industry trade association stated that the rule raises constitutional due process concerns because the rule lacks specificity to define the "near miss" standard and fails to provide adequate notice to the regulated community as to what the RMP rule will require. EPA is finalizing the language in paragraph (a)(2) of SUBSEC 68.60 and 68.81 as proposed, and has elected not to finalize a regulatory definition of "near miss" to identify incidents that require investigation. The criteria for determining incidents that require investigation will continue to include events that "could reasonably have resulted in a catastrophic release." Under the final rule, this criterion, rather than a definition of "near miss," applies to determine which incidents require investigation. However, the rule makes clear that a "near miss" is an example of an event that "could reasonably have resulted in a catastrophic release." EPA agrees with commenters who said it would be difficult to address in a single definition the various types of incidents that may occur in RMP-regulated sectors that should be considered near misses, and therefore be investigated. Instead, facility owners or operators will need to decide which incidents "could reasonably have resulted in a catastrophic release." This may be based on the seriousness of the incident, the process(es) involved, and the specific conditions and circumstances involved. In the 1996 Response to Comments on the original rule, EPA acknowledged that the range of incidents that reasonably could have resulted in a catastrophic release is very broad and cannot be specifically defined. /23/ EPA decided to leave it up to the owner or operator to determine whether an incident could reasonably have resulted in a catastrophic release and to investigate such incidents. FOOTNOTE 23 EPA. May 24, 1996. Risk Management Plan Rule, Summary and Response to Comments. Volume 1, p. 16-4. Docket No. A-91-73, Document No. IX-C-1. END FOOTNOTE EPA understands from the comments that there was some uncertainty about the term near miss. EPA's experiences with RMP facility inspections and incident investigations show there have been incidents that were not investigated, even though under slightly different circumstances, the incident could have resulted in a catastrophic release. While most of these events did not result in deaths, injuries, adverse health or environmental effects, or sheltering-in-place, the Agency believes that in some cases, if circumstances had been slightly different, a catastrophic release could reasonably have occurred. As described in the preamble to the proposed rulemaking, and as noted by one commenter, there is a CCPS definition of "near miss." CCPS defines a "near miss" as an event in which an accident causing injury, death, property damage, or environmental impact, could have plausibly resulted if circumstances had been slightly PDF GENERATED BY SEARCH.PROQUEST.COM Page 24 of 194 different. For example, a runaway reaction that is brought under control by operators is a near miss that may need to be investigated to determine why the problem occurred, even if it does not directly involve a covered process both because it may have led to a release from a nearby covered process or because it may indicate a safety management failure that applies to a covered process at the facility. Similarly, fires and explosions near or within a covered process, any unanticipated release of a regulated substance, and some process upsets could potentially lead to a catastrophic release. CCPS's "Process Safety Leading and Lagging Metrics--You Don't Improve What You Don't Measure" explains that a near miss has three essential elements. /24/ These include: FOOTNOTE 24 CCPS. January 2011. Process Safety Leading and Lagging Metrics--You Don't Improve What You Don't Measure, p. 36. CCPS, American Institute of Chemical Engineers, New York, NY. John Wiley and Sons. http://www.aiche.org/sites/default/files/docs/pages/CCPS_ProcessSafety_Lagging_2011_2-24.pdf. END FOOTNOTE * An event occurs, or a potentially unsafe situation is discovered; * The event or unsafe situation had reasonable potential to escalate; and * The potential escalation would have led to adverse impacts. The CCPS document and the CCPS "Guidelines for Investigating Chemical Process Incidents" contain many examples of near misses, which can be an actual event or discovery of a potentially unsafe situation. /25/ Examples of incidents that should be investigated include some process upsets, such as: excursions of process parameters beyond pre-established critical control limits; activation of layers of protection such as relief valves, interlocks, rupture discs, blowdown systems, halon systems, vapor release alarms, and fixed vapor spray systems; and activation of emergency shutdowns. FOOTNOTE 25 CCPS. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed., p. 68. END FOOTNOTE Near misses should also include any incidents at nearby processes or equipment outside of a regulated process if the incident had the potential to cause a catastrophic release from a nearby regulated process. An example would be a transformer explosion that could have impacted nearby regulated process equipment causing it to lose containment of a regulated substance. Near misses could also include process upsets such as activation of relief valves, interlocks, blowdown systems, or rupture disks. The intent is not to include every minor incident or leak, but focus on serious incidents that could reasonably have resulted in a catastrophic release, although EPA acknowledges this will require subjective judgment. EPA will update existing RMP guidance to reflect the revised RMP requirements and will provide guidance to identify what types of incidents could be considered near misses. The concept of "near miss" has a meaning in industry and in the chemical engineering profession. In this preamble and in guidance, EPA has explained the concept and has identified sources that explain the term, and EPA believes that this satisfies any due process concerns raised by commenters related to the definition of this term. These sources put the regulated community on notice of EPA's expectations under the rule and thus also address the due process concerns raised by commenters regarding notice to the regulated community as to what the RMP rule will require. EPA expects that by expanding the root cause analysis requirement to near misses that could have resulted in a catastrophic incident, some stationary sources will be able to take corrective actions before another similar, but catastrophic incident occurs in the future. For example, as discussed in the March 14, 2016 RMP proposed rulemaking (81 FR 13637), incidents at Tosco Refinery, Georgia Pacific, Shell Olefins, Morton International, BP Texas City Refinery and Millard Refrigerated Services all involved near-misses or less serious incidents involving the same cause as the later catastrophic release. Industry suggestions for clarifying near misses. A few industry trade associations commented that the examples of near misses that EPA provided in the NPRM, such as excursions of process parameters and activation of protections devices such as relief valves, should not be considered "near misses." The commenters said that many PDF GENERATED BY SEARCH.PROQUEST.COM Page 25 of 194 of these examples are safeguards that are designed to be used to prevent catastrophic releases. An industry trade association also proposed a definition of "near miss" that would be limited only to scenarios where the final safeguard or layer of protection is activated, such that a release would have occurred if not for that control. In response to these comments, EPA agrees that not all excursions of process parameters outside control levels or all instances of protective device activation should necessarily be considered to be near misses. EPA expects that activation of protective devices should be investigated when the failure of such devices could have reasonably resulted in a catastrophic release. However, EPA does not agree that near miss investigations should only include situations that resulted in activation of a final safeguard or layer of protection. This may be appropriate in some cases, but in others, multiple layers of protection may quickly fail. EPA believes that owners and operators must use reasonable judgement to decide which incidents, if they had occurred under slightly different circumstances, could reasonably have resulted in a catastrophic release, and investigate those incidents. f. Investigation Timeframe EPA received many comments in support of a shorter investigation timeframe. Many commenters, including a local agency and a professional association, stated that 12 months is too long to complete most investigations, and some commenters said that the timeframe should be shortened to five or six months. Some commenters also stated there should be a shorter timeframe, but with the ability to request an extension. Other commenters, including state and local agencies and industry trade associations, said that EPA should allow for 12 months to complete an investigation and also allow extensions for especially large or complex incidents. Some commenters also recommended requiring interim reports. An industry trade association asked EPA to clarify that the 12-month period is only for completing the investigation report, not for implementing the recommendations in the report. Other commenters, including facilities and industry trade associations, said that EPA should not impose any deadline for completing incident investigations. A few commenters, including a facility and industry trade associations, commented that an arbitrary deadline does not account for the complexity of the incident, the types of process units involved, or the need to retain outside consultants or experts to complete the investigation. After considering these comments, EPA has decided to finalize the requirement to complete incident investigations within twelve months as proposed. EPA believes that this timeframe will provide a reasonable amount of time to conduct most investigations, while also ensuring that investigation findings are available relatively quickly in order to assist in preventing future incidents. For very complex incident investigations that cannot be completed within 12 months, EPA is allowing an extension of time if the implementing agency approves such an extension, in writing. EPA encourages owners and operators to complete incident investigations as soon as practicable, and believes that 12 months is typically long enough to complete even complex incident investigations. However, EPA provided flexibility for facilities to request more time to complete investigations when they consult with their implementing agency and receive written approval for an extension. g. Incident Investigation Team Some commenters, including a Federal agency, local government agencies, an association of government agencies, and an industry trade association, supported the proposed requirements under SEC 68.60(c) for the owner or operator of a Program 2 process to establish an incident investigation team consisting of at least one person knowledgeable in the process involved and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident. Other commenters opposed these requirements. A facility commented that the incident investigation team requirements are unnecessary because they are already covered by the OSHA PSM standard. A private citizen commented that the requirement assumes that all investigations will be conducted by a team, when it is possible for a competent individual to perform all aspects of the investigation if given access and support by the facility owner or operator. The commenter also stated that although the proposed rulemaking provides significant information on who may perform a third-party audit, it does not specify the qualifications of persons who may perform investigations and certify investigation reports. EPA is finalizing the Program 2 incident investigation requirements, as proposed. The Agency agrees with the PDF GENERATED BY SEARCH.PROQUEST.COM Page 26 of 194 commenters who support requiring at least one person on the investigation team to be knowledgeable in the process involved and other persons with appropriate knowledge and experience in incident investigation techniques, as EPA believes these provisions are necessary to ensure that facilities thoroughly investigate and analyze incidents and their root causes. EPA disagrees that these incident investigation team requirements are already covered by the OSHA PSM standard. The requirements for Program 3 processes in the current rule already include a provision for incident investigation teams; however, the incident investigation team requirements in this rule apply to Program 2 processes, which by definition are not covered by the OSHA PSM standard. EPA agrees that the requirement assumes that all investigations will be conducted by a team. EPA believes that all incident investigations, whether conducted on Program 2 or Program 3 processes, should involve a team of at least two people, particularly given the requirement under the final rule for investigations to include analysis of root causes. However, beyond the requirements specified in the final rule (i.e., to establish an investigation team consisting of at least one person knowledgeable in the process involved and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident), the Agency does not believe it is necessary to specify additional qualification criteria for incident investigation team members. h. Root Causes Support for root cause requirements. Many commenters, including government agencies, advocacy groups, a facility, and others, expressed support for the requirements to determine root causes through the use of a recognized method and to include information on root causes in investigation reports. The commenters supported these provisions as a way to prevent future incidents. Most of these commenters also expressed support for applying the root cause analysis requirement to both catastrophic release incidents and to incidents that could reasonably have resulted in a catastrophic release (i.e. near misses). These commenters stated that conducting root cause analysis on near misses would allow the owner or operator to identify and make corrective actions before a catastrophic incident occurs. Some commenters also supported EPA's proposal to allow the use of any recognized method to complete a root cause analysis. EPA agrees with these comments and believes that requiring root cause analyses for catastrophic releases and near misses, and including root cause information in incident investigation reports is vital for understanding the nature of these events. EPA is finalizing, as proposed, the requirements that root causes must be determined through the...
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