Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act
Federal RegisterDec 19, 2019
Ask Donna
What actually matters in this document.
Text
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[EPA-HQ-OEM-2015-0725; FRL-10002-69-OLEM]
RIN 2050-AG95
Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Final rule.
SUMMARY:
The Environmental Protection Agency (EPA) is revising regulations that are designed to reduce the risk of accidental releases of hazardous chemicals. These regulations are part of the EPA's Risk Management Program (RMP), which the Agency established under authority in the Clean Air Act and recently amended on January 13, 2017. After a process of reconsidering several parts of the 2017 rule, EPA has concluded that a better approach is to improve the performance of a subset of facilities by achieving greater compliance with RMP regulations instead of imposing additional regulatory requirements on the larger population of facilities that is generally performing well in preventing accidental releases. For this and other reasons, EPA is rescinding recent amendments to these regulations that we no longer consider reasonable or practicable relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor regulatory changes. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, and public meetings. In addition, the Agency is changing compliance dates for some of these provisions.
DATES:
This final rule is effective on December 19, 2019.
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
website. Although listed in the index, some information is not publicly available,
e.g.,
Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through
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: William Noggle, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 566-1306; email address:
noggle.william@epa.gov
.
Electronic copies of this document and related news releases are available on EPA's website at
http://www.epa.gov/rmp
. Copies of this final rule are also available at
http://www.regulations.gov
.
SUPPLEMENTARY INFORMATION:
Good cause finding.
The EPA finds that there is good cause under Administrative Procedures Act (APA) section 553(d)(3) for this rule to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Most provisions of this final rule rescind regulatory requirements or revise regulatory requirements that sources are not yet required to comply with. The rule does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. For these reasons, the EPA finds good cause under APA section 553(d)(3) for this rule to become effective on the date of publication of this action.
Acronyms and abbreviations.
We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:
AAH Air Alliance Houston
ACC American Chemistry Council
BATF Bureau of Alcohol, Tobacco, Firearms, and Explosives
CAA Clean Air Act
CAAA Clean Air Act Amendments of 1990
CalARP California Accidental Release Prevention
CBI confidential business information
CCC Contra Costa County
CCPS Center for Chemical Process Safety
CFATS Chemical Facility Anti-Terrorism Standards
CFR Code of Federal Regulations
CSB U.S. Chemical Safety and Hazard Investigation Board
CSAG Chemical Safety Advocacy Group
CSISSFRRA Chemical Safety Information, Site Security and Fuels Regulatory Relief Act
CVI Chemical-terrorism Vulnerability Information
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOT Department of Transportation
EJ environmental justice
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning & Community Right-To-Know Act
FOIA Freedom of Information Act
FR Federal Register
ICR information collection request
ICS Incident Command System
ISD inherently safer design
ISO Industrial Safety Ordinance
ISSA inherently safer systems analysis
IST inherently safer technology
LEPC local emergency planning committee
NAAQS National Ambient Air Quality Standards
NAICS North American Industrial Classification System
NESHAP National Emissions Standards for Hazardous Air Pollutants
NIMS National Incident Management System
NPRM Notice of Proposed Rulemaking
NSI National Security Information
NRC National Response Center
OCA offsite consequences analysis
OLEM Office of Land and Emergency Management
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PCII Protected Critical Infrastructure Information
PHA process hazard analysis
PRA Paperwork Reduction Act
PSI process safety information
PSM Process Safety Management
RIA Regulatory Impact Analysis
RFA Regulatory Flexibility Act
RFI request for information
RMP Risk Management Program or risk management plan
RTC Response to Comments
SBAR Small Business Advocacy Review
SBREFA Small Business Regulatory Enforcement Fairness Act
SDS safety data sheet
SSI Sensitive Security Information
STAA safer technology and alternatives analysis
TCPA Toxic Catastrophe Prevention Act
TCEQ Texas Commission on Environmental Quality
TQ threshold quantity
TRI Toxic Release Inventory
TURA Toxic Use Reduction Act
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
USCA United States Court of Appeals
US SOC United States Special Operations Command
Organization of this document.
The contents of this preamble are:
I. General Information
A. What is the Risk Management Program?
B. Does this action apply to me?
C. What action is the Agency taking?
D. What is the Agency's authority for taking this action?
E. What are the incremental costs and benefits of taking this action?
F. What are the procedures for judicial review?
II. Background
A. Overview of EPA's Risk Management Program Regulations
B. Events Leading to This Action
C. EPA's Authority To Reconsider and Revise the 2017 RMP Amendments Rule
D. EPA's Principal Rationale for Final Rule Actions
III. General Comments and Legal Authority
A. Discussion of Comments on Procedural Requirements
B. Discussion of Comments on EPA's Substantive Authority Under CAA Section 112(r)
C. Discussion of General Comments on Costs and Benefits
IV. Rescinded Incident Investigation, Third-Party Audit, Safer Technology and Alternatives Analysis (STAA), and Other Prevention Program Amendments
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
V. Rescinded and Modified Information Availability Amendments
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
VI. Modified Local Coordination Amendments
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
VII. Modified Exercise Amendments
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
VIII. Revised Emergency Response Contacts Provided in Risk Management Plan
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
IX. Revised Compliance Dates
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
X. Corrections to Cross Referenced CFR Sections
A. Summary of Proposed Rulemaking
B. Summary of Final Rule
C. Discussion of Comments and Basis for Final Rule Provisions
XI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
L. Congressional Review Act (CRA)
I. General Information
A. What is the Risk Management Program?
The Risk Management Program regulations (40 CFR part 68) aim to prevent or minimize the consequences of accidental chemical releases. These regulations require facilities that use, manufacture and store particular hazardous chemicals to implement management program elements that integrate technologies, procedures, and management practices. In addition, 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).
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 1 provides industrial sectors and the associated North American Industrial Classification System (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
.
Table 1—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
1
44, 45, 48, 54, 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
C. What action is the Agency taking?
1
For descriptions of NAICS codes, see
http://www.census.gov/cgi-bin/sssd/naics/naicsrch
.
1. Purpose of the Regulatory Action
The purpose of this action is to make changes to the Risk Management Program regulations (40 CFR part 68) to reduce chemical facility accidents without disproportionately increasing compliance costs or otherwise imposing regulatory requirements that are not reasonable or practicable. This rule addresses issues raised in three petitions for EPA to reconsider amendments EPA made to the RMP regulations in 2017 and other issues that EPA believed warranted reconsideration.
On January 13, 2017, the EPA issued a final rule (82 FR 4594) amending 40 CFR part 68, the chemical accident prevention provisions under section 112(r) of the CAA (42 U.S.C. 7412(r)). The 2017 rule addressed various aspects of risk management programs, including prevention programs at stationary sources, emergency response preparedness requirements, information availability, and various other changes to clarify and otherwise technically correct the underlying rules. This rulemaking is known as the “Risk Management Program Amendments” or “RMP Amendments” rule.
Prior to the RMP Amendments rule taking effect, EPA received three petitions for reconsideration of the rule under CAA section 307(d)(7)(B), two from industry groups
2
and one from a group of states.
3
Under that provision, the Administrator is to commence a reconsideration proceeding if, in the Administrator's judgement, the petitioner raises an objection to a rule that was impracticable to raise during the comment period or if the grounds for the objection arose after the comment period but within the period for judicial review. In either case, to convene a proceeding for reconsideration, the Administrator must also conclude that the objection is of central relevance to the outcome of the rule.
2
RMP Coalition's Petition for Reconsideration and Request for Agency Stay Pending Reconsideration of Final RMP rule (82 FR 4594, January 13, 2017), February 28, 2017. Hogan Lovells US LLP, Washington, DC. Document ID: EPA-HQ-OEM-2015-0725-0759 and Chemical Safety Advocacy Group (CSAG)'s Petition and Reconsideration and Stay Request of the Final RMP rule (82 FR 4594, January 13, 2017) March 13, 2017, Hunton & Williams, San Francisco, CA, EPA-HQ-OEM-2015-0725-0766 and EPA-HQ-OEM-2015-0725-0765 (supplemental petition).
3
Petition for Reconsideration and Stay on behalf of States of Louisiana, Arizona, Arkansas, Florida, Kansas, Texas, Oklahoma, South Carolina, Wisconsin, West Virginia, and the Commonwealth of Kentucky with respect to Risk Management Program Final Rule, (82 FR 4594, January 13, 2017), March 14, 2017. State of Louisiana, Department of Justice, Attorney General. EPA-HQ-OEM-2015-0725-0762.
In a letter dated March 13, 2017, the Administrator responded to the first of the reconsideration petitions received by announcing the convening of a proceeding for reconsideration of the RMP Amendments.
4
As explained in that letter, having considered the objections raised in the petition, the Administrator determined that the criteria for reconsideration had been met for at least one of the objections. This action addresses the issues raised in all three petitions for reconsideration, as well as other issues that EPA believed warranted reconsideration.
4
EPA-HQ-OEM-2015-0725-0758.
2. Summary of the Provisions of the Regulatory Action
The major provisions of this rule include rescinding amendments made to the Risk Management Program in 2017 relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor provisions. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, and public meetings after an accident, changing the compliance dates for some of these provisions and modifying risk management plan and air permit requirements relating to rescinded or modified provisions.
a. Chemical Accident Prevention Provisions
This action rescinds almost all the requirements added in 2017 to the accident prevention program provisions of Subparts C (for Program 2 processes) and D (for Program 3 processes). EPA is rescinding all requirements for third-party compliance audits (§§ 68.58, 68.59, 68.79 and 68.80), safer technology and alternatives analysis (STAA) (§ 68.67(c)(8)) for facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) and removing the words “for each covered process” from the compliance audit provisions in §§ 68.58 and 68.79. This action also rescinds the requirement in § 68.50(a)(2) for the hazard review to include findings from incident investigations. For incident investigations (§§ 68.60 and 68.81), this action rescinds the following requirements added in 2017:
1. Conducting root cause analysis;
2. Added data elements for incident investigation reports, including a schedule to address recommendations and a 12-month completion deadline, and
3. Investigating any incident resulting in a catastrophic release that also results in the affected process being decommissioned or destroyed.
In §§ 68.60 and 68.81, EPA is also removing text “(
i.e.,
was a near miss)” that EPA added in 2017 to describe an incident that could reasonably have resulted in a catastrophic release. In § 68.60, EPA is retaining the term “report(s)” instead of replacing with the word “summary(ies)” and is retaining the requirement for Program 2 processes to establish an incident investigation team consisting of at least one person knowledgeable in the process involved and other persons with experience to investigate an incident.
This action removes the language added to the Program 2 (§ 68.54) and Program 3 (§ 68.71) training requirements, which more explicitly included supervisors and others involved in operating a process. This action also rescinds minor wording changes in § 68.54 describing employees involved in operating a process. EPA is also rescinding the requirement in § 68.65 for the owner or operator to keep process safety information up-to-date and the requirement in § 68.67(c)(2) for the process hazard analysis to address the findings from all incident investigations required under § 68.81, as well as any other potential failure scenarios. EPA will retain two changes that revised the term “Material Safety Data Sheets” to “Safety Data Sheets (SDS)” in §§ 68.48 and 68.65.
This action rescinds the following definitions in § 68.3: Active measures, inherently safer technology or design, passive measures, practicability, and procedural measures related to amendments to requirements in § 68.67; root cause related to amendments to requirements in § 68.60 and § 68.81; and third-party audit related to amendments to requirements in §§ 68.58 and 68.79 and added in §§ 68.59 and 68.80.
b. Emergency Response Provisions
This action modifies the local emergency response coordination amendments by replacing the phrase in § 68.93(b) that requires facilities to share information that local emergency planning and response organizations identify as relevant to local emergency response planning with revised language pertaining to sharing information necessary for developing and implementing the local emergency response plan.
EPA is retaining the requirement for owners or operators to provide the local emergency planning and response organizations with the stationary source's emergency response plan (if one exists), emergency action plan, and updated emergency contact information, as well as the requirement for the owner or operator to request an opportunity to meet with the local emergency planning committee (or equivalent) and/or local fire department as appropriate to review and discuss these materials. EPA is also incorporating appropriate classified and restricted information protections to regulated substance and stationary source information required to be provided under § 68.93 and revising the existing classified information provision of § 68.210 to incorporate protections for restricted information identical to those in § 68.93. Restricted information includes Sensitive Security Information (SSI), Protected Critical Infrastructure Information (PCII), Chemical-terrorism Vulnerability Information (CVI), and any other information restricted by Federal statutes or laws.
This action is modifying the exercise program provisions of § 68.96(b), by removing the minimum frequency requirement for field exercises. EPA is also establishing more flexible scope and documentation provisions for both field and tabletop exercises by only recommending, and not requiring, items specified for inclusion in exercises and exercise evaluation reports, while still requiring documentation of both types of exercises. This action retains the notification exercise requirement of § 68.96(a) and the provision for alternative means of meeting exercise requirements of § 68.96(c).
c. Public Information Availability Provisions
This action rescinds the requirements for providing to the public upon request, chemical hazard information and access to community emergency preparedness information in § 68.210(b) through (d), as well as the requirement to provide specific chemical hazard information at public meetings required under § 68.210(e).
This action modifies the requirement in § 68.210(e) [now redesignated as § 68.210(b) because former paragraphs (b) through (d) are rescinded] for the owner/operator of a stationary source to hold a public meeting to provide accident information required under § 68.42(b) by only requiring a public meeting following the occurrence of a risk management plan (or RMP
5
) reportable accident with offsite impacts specified in § 68.42(a) (
i.e.,
known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage). This is a modification to the RMP Amendments rule that required a public meeting after any accident subject to reporting under § 68.42, including accidents that resulted in on-site impacts only.
5
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” is also used to refer 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.
EPA will retain the requirement that public meetings required under § 68.210(e) [now redesignated as § 68.210(b)] occur within 90 days of an accident. EPA will also retain the change to § 68.210(a) that added 40 CFR part 1400 as a limitation on RMP availability (part 1400 addresses restrictions on disclosing RMP offsite consequence analysis information under CSISSFRRA),
6
and the provision for control of classified information in § 68.210(f) [now redesignated as § 68.210(c)], with a modification to address restricted information under the provision (
e.g.,
PCII, SSI, and CVI). This action deletes the provision for CBI in § 68.210(g), because the only remaining information required to be provided at the public meeting is the source's five-year accident history, which § 68.151(b)(3) prohibits the owner or operator from claiming as CBI.
6
Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Public Law 106-40. EPA-HQ-OEM-2015-0725-0135.
d. Risk Management Plan
This action rescinds requirements to report in the risk management plan any information associated with the rescinded provisions of third-party audits, incident investigation, safer technology and alternatives analysis, and information availability to the public (except that pertaining to the public meeting requirement now in § 68.210(b)). The list of RMP registration information in § 68.151(b)(1) excluded from being claimed as CBI, is modified by the final rule to also exclude from CBI claims, whether a public meeting was held following an RMP accident, pursuant to § 68.210(b). This public meeting reporting is to be included in the RMP under § 68.160(b)(21). This action also slightly modifies the emergency response contact information required by § 68.180(a)(1) to be provided in a facility's RMP.
e. Compliance Dates
This action requires compliance with the revised emergency response coordination requirements on the effective date of the final rule. This action retains the compliance date for public meetings established in the final Amendments rule and therefore requires that the owner or operator comply with the revised public meeting requirements following any RMP reportable accident with offsite impacts specified in § 68.42(a) that occurs after March 15, 2021. This action delays the rule's compliance dates in § 68.10 and § 68.96 as follows:
i. Emergency response exercises:
A.
Planning and Scheduling.
Owners and operators will be required to have exercise plans and schedules meeting the requirements of §§ 68.93 and 68.96 in place by December 19, 2023;
B.
Notification exercise.
Perform first notification exercise by December 19, 2024;
C. Perform first tabletop exercise by December 21, 2026; and
D.
Field exercise.
There is no specified deadline to perform the first field exercise, other than that established by the owner or operator's exercise schedule in coordination with local response agencies; and
ii. Updating risk management plan provisions for the following, only for initial RMP submissions or when re-submission or update for an existing RMP is required under § 68.190:
A. Reporting under § 68.160(b)(21) after December 19, 2024, whether a public meeting required by § 68.210(b) occurred; and
B. Reporting after December 19, 2024, emergency response program information specified in § 68.180 as revised by the January 13, 2017 final Amendments rule and this final rule.
For a detailed review of the changes from the regulatory text (which has the
2017 Amendments rule changes incorporated), EPA has provided a copy of 40 CFR part 68 with changes shown in redline/strikeout format, which is available in the rulemaking docket.
7
7
EPA. 40 CFR part 68 Regulatory Text Redline/Strikeout Changes for Final RMP Reconsideration Rule.
D. What is the Agency's authority for taking this action?
The statutory authority for this action is provided by section 112(r) of the CAA (42 U.S.C. 7412(r)). Each of the portions of the Risk Management Program rule we are modifying in this document is based on section 112(r) of the CAA. EPA's authority for convening a reconsideration proceeding for certain issues is found under CAA section 307(d)(7)(B) or 42 U.S.C. 7607(d)(7)(B). The Agency's procedures in this rulemaking are controlled by CAA section 307(d). EPA's authority for convening a reconsideration proceeding for certain issues is found under CAA section 307(d)(7)(B) or 42 U.S.C. 7607(d)(7)(B). A more detailed explanation of these authorities can be found in Section II.C. of this preamble,
EPA's authority to reconsider and revise the RMP Amendments rule
.
E. What are the incremental costs and benefits of taking this action?
1. Summary of Potential Cost Savings
Approximately 12,500 facilities have filed current RMPs with EPA and are potentially affected by this action. 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 2 presents the number of facilities according to the RMP reporting as of February 2015 by industrial sector and chemical use.
Table 2—Number of Affected Facilities by Sector
[As of February 2015]
Sector
NAICS codes
Total facilities
Chemical uses
Administration of environmental quality programs (
i.e.
, governments)
924
1,923
Use chlorine and other chemicals for treatment.
Agricultural chemical distributors/wholesalers
111, 112, 115, 42491
3,667
Store ammonia for sale; some in NAICS 111 and 115 use ammonia as a refrigerant.
Chemical manufacturing
325
1,466
Manufacture, process, store.
Chemical wholesalers
4246
333
Store for sale.
Food and beverage manufacturing
311, 312
1,476
Use mostly ammonia as a refrigerant.
Oil and gas extraction
211
741
Intermediate processing (mostly regulated flammable substances and flammable mixtures).
Other
44, 45, 48, 54, 56, 61, 72
248
Use chemicals for wastewater treatment, refrigeration, store chemicals for sale.
Other manufacturing
313, 326, 327, 33
384
Use various chemicals 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 products manufacturing
324
156
Manufacture, process, store (mostly regulated flammable substances and flammable mixtures).
Petroleum wholesalers
4247
276
Store for sale (mostly regulated flammable substances and flammable mixtures).
Utilities
221
343
Use chlorine (mostly for water treatment), ammonia and other chemicals.
Warehousing and storage
493
1,056
Use mostly ammonia as a refrigerant.
Water/wastewater Treatment systems
22131, 22132
102
Use chlorine and other chemicals.
Total
12,542
Table 3 presents a summary of the annualized cost savings estimated in the regulatory impact analysis.
8
In total, EPA estimates annualized cost savings of $87.4 million at a 3% discount rate and $87.8 million at a 7% discount rate.
8
A full description of costs and benefits for this rule can be found in the Regulatory Impact Analysis—Reconsideration of the 2017 Amendments to the 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-OEM-2015-0725).
Table 3—Summary of Annualized Cost Savings
[Millions, 2015 dollars]
Provision
3%
7%
Third-party Audits
(9.8)
(9.8)
Incident Investigation/Root Cause
(1.8)
(1.8)
STAA
(70.0)
(70.0)
Information Availability
(3.1)
(3.1)
Public Meetings
(0.28)
(0.28)
Rule Familiarization (net)
(2.4)
(2.8)
Total Cost Savings *
(87.4)
(87.8)
* Values may not sum due to rounding.
Most of the annual cost savings under this action are due to the repeal of the STAA provision (annual savings of $70 million), followed by third-party audits (annual savings of $9.8 million), information availability (annual savings of $3.1 million), rule familiarization (annual net savings of $2.8 million), root-cause incident investigation (annual savings of $1.8 million), and public meetings (annual savings of $0.28 million).
2. Summary of Potential Benefits and Benefit Reductions
The January 2017 RMP Amendments rule was estimated to result in a variety of benefits from prevention and mitigation of future RMP and non-RMP accidents at RMP facilities, avoided catastrophes at RMP facilities, and easier access to facility chemical hazard information. This final Reconsideration rule will largely retain the revised local emergency coordination and exercise provisions of the RMP Amendments rule, which convey mitigation benefits. The rescission of the prevention program requirements (
i.e.,
third-party audits, incident investigation, STAA), will result in a reduction in the magnitude of accident prevention benefits that we projected would have accrued under the RMP Amendments. As discussed in this notice and supporting documents, in developing this final rule, we have received data and conducted analyses that call into question whether some of the originally projected accident reduction benefits claimed by the Agency when promulgating the RMP Amendments would have been likely to occur. The rescission of the chemical hazard information availability provision will result in a reduction of the information sharing benefit, although a portion of this benefit from the RMP Amendments rule would still be conveyed by the public meeting, emergency coordination and exercise provisions. This action will also convey the benefit of improved chemical site security, by modifying previously open-ended information sharing provisions of the RMP Amendments rule that might have resulted in an increased risk of terrorism against regulated sources. See the RIA for additional information on benefits and benefit reductions.
F. What are the procedures for judicial review?
Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by February 18, 2020. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review.
II. Background
A. Overview of EPA's Risk Management Program Regulations
EPA's RMP regulations were initially published in two stages. The Agency first published the list of regulated substances and TQs in 1994 (59 FR4478, January 31, 1994) (the “list rule”).
9
EPA then published the RMP final regulation, containing risk management requirements for covered sources, in 1996 (61 FR 31668, June 20, 1996) (the “RMP rule”).
10 11
Subsequent modifications to the list rule and RMP rule were made as discussed in the RMP Amendments rule (82 FR 4594, January 13, 2017 at 4600). Prior to development of EPA's 1996 RMP rule, the Occupational Safety and Health Administration (OSHA) published its Process Safety Management (PSM) standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 CAAA, using its authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29 CFR 1910.119. The EPA RMP rule and the OSHA PSM standard 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, the EPA 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).
9
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.
10
Documents and information related to development of the RMP rule can be found in EPA docket number A-91-73.
11
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.
The EPA's risk management program requirements include the following: (1) Conducting a worst-case release scenario analysis, alternative release scenario analyses, and a review of accident history; (2) coordinating emergency response procedures with local response organizations; (3) conducting a hazard assessment; (4) documenting a management system; (5) implementing a prevention program and an emergency response program; and (6) submitting a risk management plan that addresses all aspects of the risk management program for all covered processes and chemicals. A process at a source is covered under one of three different prevention programs (Program1, Program 2 or Program 3) based on the threat posed to the community and the environment. Program 1 has minimal requirements and is for processes that have not had an accidental release with specified off-site consequences in the last five years prior to submission of the source's risk management plan, and that have no public receptors within the worst-case release scenario vulnerable zone for the process. Program 3 has the most requirements and applies to processes not eligible for RMP Program 1 and covered by the OSHA PSM standard or classified in specified industrial sectors.
12
Program 2 has fewer requirements than Program 3 and applies to any process not covered under Programs 1 or 3. Programs 2 and
3 both require a hazard assessment, a prevention program and an emergency response program, although Program 2 prevention program requirements are less extensive and more streamlined. For example, the Program 2 prevention program was intended to cover simpler processes located at smaller businesses and does not require the following process safety elements: Management of change, pre-startup review, contractors, employee participation and hot work permits. The Program 3 prevention program is fundamentally identical to the OSHA PSM standard and designed to cover those processes in the chemical industry. For further explanation and comparison of the PSM standard and RMP requirements, see the “Process Safety Management and Risk Management Plan Comparison Tool” published by OSHA and EPA in October 2016.
13
12
See ten industry NAICS codes listed at § 68.10(d)(1) [redesignated as § 68.10(h)(1) in this final rule] representing pulp mills, petroleum refineries, petrochemical manufacturing, alkalies and chlorine manufacturing, all other basic inorganic chemical manufacturing, cyclic crude and intermediates manufacturing, all other basic chemical manufacturing, plastic material and resin manufacturing, nitrogenous fertilizer manufacturing and pesticide and other agricultural chemicals manufacturing.
13
Available at
https://www.osha.gov/chemicalexecutiveorder/psm_terminology.html.
EPA-HQ-OEM-2015-0725-0922.
B. Events Leading to This Action
1. 2017 Final Rule
On January 13, 2017, the EPA issued a final rule amending 40 CFR part 68, the chemical accident prevention provisions under section 112(r) of the CAA (42 U.S.C. 7412(r)) (
i.e.,
the “RMP Amendments” rule). The RMP Amendments addressed various aspects of risk management programs, including prevention programs at stationary sources, emergency response preparedness requirements, information availability, and various other changes to clarify and otherwise technically correct the underlying rules.
a. Accident Prevention Program Requirements
The RMP Amendments added new accident prevention program provisions in 40 CFR 68 Subparts C (for Program 2 processes) and D (for Program 3 processes), including:
i. A requirement in § 68.60 and § 68.81 for all facilities with Program 2 or 3 processes to conduct a root cause analysis using a recognized method 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).
ii. Requirements in § 68.58 and§ 68.79 for regulated facilities with Program 2 or Program 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 or when an implementing agency requires a third-party audit due to conditions at the stationary source that could lead to an accidental release of a regulated substance, or when a previous third-party audit failed to meet the specified competency or independence criteria. Requirements were established in new § 68.59 and § 68.80 for third-party auditor competency, independence, and responsibilities and for third-party audit reports and audit findings response reports.
iii. A requirement in § 68.67(c)(8) for facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) to conduct a safer technologies and alternatives analysis (STAA) as part of their process hazard analysis (PHA).
The RMP Amendments rule also made several other minor changes to the Subparts C and D prevention program requirements.
b. New Emergency Response Requirements
The RMP Amendments added new emergency response program requirements in 40 CFR 68 Subpart E, including:
i. Requirements for owners or operators of “responding” and “non-responding” stationary sources to perform emergency response coordination activities under new § 68.93. These activities included coordinating response needs at least annually with local emergency planning and response organizations, as well as documenting these coordination activities.
ii. Requirements for owners and operators of responding facilities to conduct exercises under a new § 68.96—Emergency response exercises. Required exercises included annual notification exercises, tabletop exercises at least once every three years, and field exercises at least once every ten years. Exercises schedules and plans are required to be coordinated with local emergency response officials, and the owner or operator must also document completed exercises.
The RMP Amendments also made other minor changes to the emergency response provisions of Subpart E.
c. New Information Availability Requirements
The RMP Amendments added new information availability requirements in 40 CFR 68 Subpart H, including:
i. A requirement for the owner or operator to provide, within 45 days of receiving a request by any member of the public, specified chemical hazard information for all regulated processes. The provision requires the owner or operator to provide ongoing notification on a company website, social media platforms, or through other publicly accessible means that the information is available to the public upon request, along with the information elements that may be requested and instructions for how to request the information.
ii. A requirement for the owner or operator of any facility having an accident meeting RMP reporting criteria to hold a public meeting within 90 days of the accident to provide information about the accident to members of the public.
iii. New provisions in § 68.210 to address classified information and confidential business information (CBI) claims for information required to be provided to the public.
The RMP Amendments also made other minor changes to Subpart H.
d. Updated Facility Risk Management Plan Requirements
Lastly, the RMP Amendments contained a requirement to update a facility's risk management plan to reflect information associated with new provisions, made other minor changes and technical corrections to 40 CFR part 68, and established various compliance dates for new provisions. For further information on the RMP Amendments, see 82 FR 4594 (January 13, 2017).
2. Delay-Related Actions and Requests to Reconsider
On January 26, 2017, the EPA published a final rule delaying the effective date of the RMP Amendments from March 14, 2017 to March 21, 2017, see 82 FR 8499. This revision to the effective date of the RMP Amendments was part of an EPA final rule implementing a memorandum dated January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review.” This memorandum directed the heads of agencies to postpone, until 60 days after the date of its issuance, the effective date of rules that were published prior to January 20, 2017, but which had not yet become effective.
In a letter dated February 28, 2017, a group known as the “RMP Coalition,” submitted a petition for reconsideration of the RMP Amendments (“RMP Coalition Petition”) as provided for in CAA section 307(d)(7)(B) (42 U.S.C.7607(d)(7)(B)).
14
Under that
provision, the Administrator is to commence a reconsideration proceeding if, in the Administrator's judgement, the petitioner raises an objection to a rule that was impracticable to raise during the comment period or if the grounds for the objection arose after the comment period but within the period for judicial review and if the objection is of central relevance to the outcome of the rule. The Administrator may stay the effective date of the rule for up to three months during such a reconsideration. On March 13, 2017, the Chemical Safety Advocacy Group (“CSAG”) also submitted a petition (“CSAG Petition”) for reconsideration and stay (including a March 14, 2017 supplement to the CSAG Petition).
15
On March 14, 2017, the EPA received a third petition for reconsideration and stay from the State of Louisiana, joined by Arizona, Arkansas, Florida, Kansas, Oklahoma, South Carolina, Texas, Wisconsin, West Virginia, and the Commonwealth of Kentucky (the “States Petition”).
16
The Petitioners CSAG and States also requested that EPA delay the various compliance dates of the RMP Amendments.
14
RMP Coalition's Petition for Reconsideration and Request for Agency Stay Pending Reconsideration of Final RMP rule (82 FR 4594, January 13, 2017), February 28, 2017. Hogan Lovells
US LLP, Washington, DC. Document ID: EPA-HQ-OEM-2015-0725-0759.
15
Chemical Safety Advocacy Group (CSAG)'s Petition and Reconsideration and Stay Request of the Final RMP rule (82 FR 4594, January 13, 2017) March 13, 2017, Hunton & Williams, San Francisco, CA, EPA-HQ-OEM-2015-0725-0766 and EPA-HQ-OEM-2015-0725-0765 (supplemental petition).
16
Petition for Reconsideration and Stay on behalf of States of Louisiana, Arizona, Arkansas, Florida, Kansas, Texas, Oklahoma, South Carolina, Wisconsin, West Virginia, and the Commonwealth of Kentucky with respect to Risk Management Program Final Rule, (82 FR 4594, January 13, 2017), March 14, 2017. State of Louisiana, Department of Justice, Attorney General. EPA-HQ-OEM-2015-0725-0762.
In a letter dated March 13, 2017, the Administrator announced the convening of a proceeding for reconsideration of the Risk Management Program Amendments (a copy of this letter is included in the docket for this rule, Docket ID No. EPA-HQ-OEM-2015-0725).
17
As explained in that letter, having considered the objections raised in the RMP Coalition Petition, the Administrator determined that the criteria for reconsideration had been met for at least one of the objections. EPA issued a three-month (90-day) administrative stay of the effective date of the Risk Management Program Amendments until June 19, 2017 (82 FR 13968, March 16, 2017). EPA subsequently further delayed the effective date of the Risk Management Program Amendments until February 19, 2019, via notice and comment rulemaking, referred to herein as the “Delay Rule” (82 FR 27133, June 14, 2017). The purpose of the Delay Rule was to allow EPA to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment. On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in
Air Alliance Houston, et. al.,
v
EPA,
906 F.3d 1049 (D.C. Cir. 2018), vacating the Delay Rule, and on September 21, 2018, the Court issued its mandate which made the RMP Amendments rule immediately effective.
17
EPA-HQ-OEM-2015-0725-0758.
3. 2018 RMP Reconsideration Proposed Rule
EPA published a proposed rulemaking to reconsider the RMP Amendments on May 30, 2018 (83 FR 24850). The proposed rule (Reconsideration proposal) proposed several changes to the RMP Amendments. These included:
a. Rescinding the accident prevention program provisions of the RMP Amendments rule (
i.e.,
third-party audits, STAA, incident investigation root cause analysis, and most other minor changes to the prevention program).
b. Rescinding the public information availability provisions to provide chemical hazard information, exercise schedules, local emergency contacts and community preparedness information to the public upon request.
c. Modifying the public meeting provision by retaining the requirement for the facility to provide accident history elements but eliminating the requirement to provide “other relevant chemical hazard information” at the meeting.
d. Modifying the emergency coordination and exercise provisions of the Amendments rule to address security concerns raised by petitioners and give more flexibility to regulated facilities in complying with these provisions.
e. Extending compliance dates for modified provisions to provide additional time for regulated sources to comply with revised provisions. For additional information on the proposed Reconsideration rule, see 83 FR 24850, May 30, 2018.
EPA hosted a public hearing on June 14, 2018
18
to provide interested parties the opportunity to present data, views or arguments concerning the proposed action. EPA received a total of 77,360 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 76,355 letters and signatures were contained in these several comments, related to 12 different form letter campaigns. The remaining comments include 987 submissions with unique content, 13 duplicate submissions, and 5 non-germane submissions. Included in this count of public submissions are written comments and verbal comments from 38 members of the public that provided verbal comments at a public hearing on June 14, 2018. Discussion of public comments can be found in topics included in this final rule and in the Response to Comments document,
19
available in the docket for this rulemaking.
18
See written transcript of public meeting, EPA-HQ-OEM-2015-0725-0985.
19
Response to Comments on the 2018 Proposed Rule (May 30, 2018; 83 FR 24850) Reconsidering EPA's Risk Management Program 2017 Amendments Rule (January 13, 2017; 82 FR 4594). This document is available in the docket for this rulemaking, EPA-HQ-OEM-2015-0725.
C. EPA's Authority To Reconsider and Revise the 2017 RMP Amendments Rule
1. Procedural Requirements for Reconsidering RMP Amendments
Congress granted the EPA the authority for rulemaking on the prevention of chemical accidental releases as well as the correction or response to such releases in subparagraphs (A) and (B) of CAA section 112(r)(7). The substantive scope of this authority is discussed in more detail in the next section. The EPA has used its authority under CAA section 112(r)(7) to issue the RMP Rule (61 FR 31668, June 20, 1996), the RMP Amendments rule, and this Reconsideration rulemaking.
When promulgating rules under CAA section 112(r)(7)(A) and (B), the EPA must follow the procedures for rulemaking set out in CAA section 307(d). See CAA sections 112(r)(7)(E)
and
307(d)(1)(C). Among other things, section 307(d) sets out requirements for the content of proposed and final rules, the docket for rulemakings, requirement to provide an opportunity for oral testimony on the proposed rulemaking, the length of time for comments, and judicial review. Only objections raised with reasonable specificity during the public comment period may be raised during judicial review. Section 307(d) has a provision that requires the EPA to convene a reconsideration proceeding when the person makes an objection that meets specific criteria set out in
CAA section307(d)(7)(B). The statute provides:
If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the comment period] or if the grounds for such objection arose after the period for public comment (but within the time period specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed.
As noted in the previous section, when several parties petitioned for reconsideration of the RMP Amendments, the Administrator found that at least one objection the petitioners raised met the specific criteria for mandatory reconsideration and therefore he convened a proceeding for reconsideration under CAA section 307(d)(7)(B). While section 307(d)(7)(B) sets out criteria for when the Agency must conduct a reconsideration, the Agency has the discretion to reopen, revisit, amend and revise a rule under the rulemaking authority granted in CAA section 112(r)(7) by following the procedures of CAA 307(d) at any time, including while it conducts a reconsideration proceeding required by CAA section 307(d)(7)(B). In light of the fact that EPA must already grant petitioners “the same procedural rights as would have been afforded had the information been available at the time the rule was proposed,” it is efficient to conduct a discretionary amendment proceeding simultaneously with the reconsideration proceeding.
As previously noted, EPA issued a rule delaying the effectiveness of the RMP Amendments in 2017 only to have the rule vacated in
Air Alliance Houston
v.
EPA,
906 F.3d 1049 (D.C. Cir. 2018). The Court held that EPA could not delay the effective date of provisions of a CAA section 112(r)(7) rule beyond three months for the purpose of allowing itself a longer period of time to conduct a CAA section 307(d)(7)(B) reconsideration.
Id.
at 1063. The Court also found EPA's action was inconsistent with the mandate in CAA section 112(r)(7)(A) that we set effective dates that “assur[e] compliance as expeditiously as practicable” when our delay of effectiveness merely delayed the Amendments “based on speculation about future amendments,” rather than new evidence or a new substantive conclusion regarding preventing accidents.
Id.
at 1065. Finally, the Court found EPA's reasoning to be arbitrary and capricious because we failed to explain why the rule could not become effective while we conducted our reconsideration, did not contradict the previous conclusions about how long was needed for compliance, and did not limit delays based on the late finding regarding the West Fertilizer incident
20
to provisions clearly implicated by that report.
See id.
at 1066-69.
20
On May 11, 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF) announced its conclusion that the fire at the West Fertilizer facility was intentionally set. See EPA-HQ-OEM-2015-0725-0641.
2. EPA's Substantive Authority Under Clean Air Act Section 112(r)(7)
Congress granted EPA authority for accident prevention rules under two provisions in CAA section 112(r)(7). Under subparagraph (A) of CAA section 112(r)(7), EPA may set rules addressing the prevention, detection, and correction of accidental releases of substances listed by EPA by rule (“regulated substances” listed in the tables in 40 CFR 68.130). Such rules may include data collection, training, design, equipment, work practice, and operational requirements. EPA has discretion regarding the effective date (“as determined by the Administrator, assuring compliance as expeditiously as practicable”).
Under subparagraph (B) of CAA section 112(r)(7), Congress authorized EPA to develop “reasonable regulations and appropriate guidance” that provide for the prevention and detection of accidental releases and the response to such releases, “to the greatest extent practicable.” Congress required an initial rulemaking under this subparagraph by November 15, 1993. Subparagraph (B) sets out a series of mandatory subjects to address, interagency consultation requirements, and discretionary provisions that allowed EPA to tailor requirements to make them reasonable and practicable. For example, the regulations needed to address “storage, as well as operations” and “emergency response after accidental releases;” EPA was to use the expertise of the Secretaries of Labor and Transportation in promulgating the regulations; and EPA had the discretion (“shall, as appropriate”) to recognize differences in “size, operations, processes . . . and the voluntary actions” of regulated sources to prevent and respond to accidental releases (CAA section 112(r)(7)(B)(i)). At a minimum, the regulations had to require stationary sources with more than a “threshold quantity to prepare and implement a risk management plan.” Such plans needed to provide for compliance with rule requirements under CAA section 112(r) and include a hazard assessment with release scenarios and an accident history, a release prevention program, and a response program (CAA section 112(r)(7)(B)(ii)). Plans were to be registered with EPA and submitted to various planning entities (CAA section 112(r)(7)(B)(iii)). The rules would apply to sources three years after promulgation or three years after a substance was first listed for regulation under CAA section 112(r). (CAA section 112(r)(7)(B)(i)).
In addition to the direction to use the expertise of the Secretaries of Labor and Transportation in subparagraph (B) of CAA section 112(r)(7), the statute requires EPA to consult with these secretaries when carrying out the authority of CAA section 112(r)(7) and to “coordinate any requirements under [CAA section 112(r)(7)] with any requirements established for comparable purposes by” OSHA. (CAA section 112(r)(7)(D)). This consultation and coordination language derives from and expands upon provisions on hazard assessments in the bill that eventually passed the Senate as its version of the 1990 CAAA, section 129(e)(4) of S. 1630. The Senate committee report on this language notes that the purpose of the coordination requirement is to ensure that “requirements imposed by both agencies to accomplish the same purpose are not unduly burdensome or duplicative.” Senate Report at 244.
21
The mandate for coordination in the area of safer chemical processes was incorporated into the CAA in section 112(r)(7)(D). In the same legislation, Congress directed OSHA to promulgate a process safety standard that became the PSM standard. See CAAA of 1990 section 304.
21
Clean Air Act Amendments of 1989, Report of the Committee on Environment and Public Works, U.S. Senate together with Additional and Minority Views to Accompany S. 1630. S. Report No. 101-228. 101st Congress, 1st Session, December 20, 1989.—“Senate Report” EPA-HQ-OEM-2015-0725-0645.
The 2017 RMP Amendments and this reconsideration rule address the following three requirements of the Risk Management Program: Prevention programs, emergency response provisions, and information disclosure requirements. The prevention program provisions rescinded in this rule (third-party auditing, incident investigation, and safer technologies and 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 releases by the owners or operators of the sources of such releases.” The
information disclosure provisions that are rescinded or modified in this document are related to 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.”
22
(CAA section 112(r)(7)(B)(i)).
22
Incident investigation, compliance auditing, and STAA are also authorized as release prevention requirements pertaining to stationary source “design, equipment . . . and work practice” as well as “record-keeping [and] reporting.” Information disclosure is also authorized as “reporting.” CAA section 112(r)(7)(A).
In considering whether it is legally permissible for the Agency to rescind and/or modify provisions of the RMP Amendments rule while continuing to meet EPA's obligations under CAA section 112(r), EPA notes that the CAA did not require EPA to promulgate the RMP Amendments rule. There are four provisions of CAA section 112(r) that require or authorize the Administrator to promulgate regulations. The first two relate to the list of regulated substances and their threshold quantities. CAA section 112(r)(3) required EPA to promulgate a list of at least 100 regulated substances. Section 112(r)(5) required EPA to establish, by rule, a threshold quantity for each listed substance. EPA met these obligations in 1994 with the publication of the list of regulated substances and threshold quantities (59 FR 4493, January 31, 1994). Section 112(r)(7) contains the other two regulatory provisions. Section 112(r)(7)(B) required EPA to publish accidental release prevention, detection, and response requirements and guidance. EPA met this obligation in 1996 with the publication of the original RMP rule (61 FR 31668, June 20, 1996), and associated guidance documents published in the late 1990s. The other regulatory promulgation provision of section 112(r)(7)—section 112(r)(7)(A)—is permissive. Subparagraph (A) authorizes EPA to promulgate regulations but does not require it.
Therefore, EPA had met all of its mandatory duty regulatory obligations under section 112(r) prior to promulgating the RMP Amendments rule. In promulgating the RMP Amendments rule, EPA took a discretionary regulatory action in response to Executive Order 13650, “Improving Chemical Safety and Security.”
23
We have made discretionary amendments to the RMP rule several times without a dispute over our authority to issue discretionary amendments. See 64 FR 964 (January 6, 1999); 64 FR 28696 (May 26, 1999); 69 FR 18819 (April 9, 2004). As EPA's action in the 2017 RMP Amendments rule was discretionary, the Agency may take additional action to rescind or modify provisions adopted in the 2017 rule if the Agency finds that it is reasonable to do so. The
Air Alliance Houston (AAH)
decision noted that “EPA retains the authority under Section 7412(r)(7) [CAA section 112(r)(7)] to substantively amend the programmatic requirements of the [2017 RMP Amendments] . . . subject to arbitrary and capricious review.” 906 F.3d at 1066. This rule makes substantive amendments to 40 CFR part 68. Our action is authorized by both CAA 112(r)(7)(A) and (B), as explained herein.
23
See 82 FR 4594, January 13, 2017: “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.”
D. EPA's Principal Rationale for Final Rule Actions
The Supreme Court has recognized that agencies may change policy when such changes are “permissible under the statute, . . . there are good reasons for [them], and that the agency
believes
[them] to be better” than prior policies.
See FCC
v.
Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009) (emphasis original). As discussed in detail below, there are good reasons for the policies adopted in this rule and the EPA believes they are better than policies we are rescinding or amending.
In the 2017 RMP Amendments rule, we found that the costs of the changes we made were reasonable in comparison to what we called the “likely benefits,” which included non-monetized benefits and some unspecified portion of accidents that we did monetize that we believed would be prevented. 82 FR 4598 (January 13, 2017). After taking comment on the issue of the reasonableness of the burdens and the appropriate role of cost in our decision-making, we remain convinced that a more reasonable and practicable approach to accident prevention is to emphasize case-specific oversight of those facilities that are performing poorly over regulatory changes that increase compliance costs for the entire regulated community. Such an approach recognizes that, because a relatively small number of facilities have accidental releases, the Agency can best prevent future accidents by enhancing safety measures at the poorest performers, through tailored injunctive relief when appropriate, to best suit the circumstances of each case rather than imposing broad regulatory requirements that unreasonably impose additional burdens on the vast majority of regulated facilities that have performed well. We previously labeled this approach as “enforcement-led,” but is better described as “compliance-driven” because it involves both routine compliance oversight of all facilities and more intensive post-accident oversight of weaker performers, including requiring additional safety measures as injunctive relief in enforcement actions.
Furthermore, we believe it is better not to impose substantial new regulatory requirements on all facilities in the RMP program on the basis of information about individual incidents and opinions where available, more comprehensive data does not demonstrate the efficacy of such a requirement across the board. EPA considered stakeholder input that both favored and opposed the rescission of the prevention program elements adopted in 2017 and considered data submitted by commenters. We also analyzed multiple years of accident history data in the RMP database, both nationally and in states and localities with programs that contain some or all the elements of the prevention program provisions. Based on this assessment, it cannot be established that regulatory programs that emphasize inherently safer technologies (IST) methods, such as chemical substitution and process redesign, have resulted in a reduction in accident rates involving RMP chemicals. This evidence suggests that IST regulations would not likely be effective at reducing accidents if applied on a national scale.
We do not dispute that there may be circumstances where the prevention program measures we adopted in the RMP Amendments rule are effective. However, we believe that many of the sources that would have had to conduct STAA and the other 2017 prevention measures already have successful prevention programs. The data support the conclusion that incorporating STAA into all such programs will not clearly reduce accidents (see
section IV.C
for further discussion of data relating to the effectiveness of STAA). Thus, rather than take a rule-driven approach that requires an STAA and/or new auditing and investigation requirements at all facilities, we have concluded that we can obtain accident-prevention benefits at lower cost through implementing and enforcing the pre-2017 RMP prevention program rules, and that the finalized regulatory changes in 2017 were a less appropriate execution of the statutory direction to establish reasonable regulations that promote the prevention, detection, and response to accidents to
the greatest extent practicable than the measures in this final rule. Through oversight on a source-specific basis, when we identify a facility that is not implementing a successful prevention program, we have the ability to seek injunctive relief that includes appropriate safety measures. This approach is supported by the observed reduction in the rate of RMP-reportable accidents over many years.
Reconsideration petitioners asserted that EPA failed to sufficiently coordinate the changes to the RMP regulations with OSHA, and that the regulations as revised by the Amendments rule left important gaps and created compliance uncertainties. Our approach in the final rule is more consistent with our historic practice to keep the EPA and OSHA prevention programs in alignment to the extent we are able to do so consistent with each Agency's statutory mission. It is plain from the legislative history and text of the statute that the interaction of the two programs was a concern of Congress at the time of the 1990 Clean Air Act Amendments. EPA does not delegate to OSHA or assign it primacy in the subject matter. We do not take the position that neither agency can act without the other moving in synch. Rather, reflecting on the potential burden of the changes adopted in the RMP Amendments as well as the lack of data concerning the benefits of the rule-driven approach adopted in the Amendments, we believe more work with OSHA on the issues being addressed would lead to better accident prevention.
We also believe that it is better to reduce the costs of compliance with regulatory requirements, when that is reasonable and practicable and has no significant impact on accidental release prevention and response. We recognize the terms of the statute allow for many policy considerations in deciding what is reasonable and practicable. To the extent the statute provides us with the flexibility to reflect the considerations in numerous executive orders, the Administrator has decided to use his discretion to take actions consistent with those executive orders. Of greatest concern to commenters has been executive orders issued by President Trump, but the rule also reflects consideration of other executive orders that predate this Administration. The decision to reduce regulatory burden by eliminating many of the prevention program provisions, as well as largely redundant information disclosures, is consistent not only with the executive orders but also is consistent with what may be considered as reasonable and practicable under the statute.
The final rule also addresses important security concerns that were raised in reconsideration petitions and by numerous commenters. We granted the RMP Coalition's request for reconsideration of the 2017 Amendments in part because of the timing of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) finding that the West Fertilizer incident was caused by a criminal act. In the proposed rule, EPA requested additional comment on the import of that finding. See 83 FR 24870, May 30, 2018. After weighing comments received on this issue, we reaffirm our view of the importance of balancing the public's need for chemical hazard information with chemical facility security. From the beginning of the Risk Management Program, one of its objectives has been to improve the availability of information about chemical hazards to community members and emergency planners in order to improve emergency preparedness. However, the sensitivity of certain information elements associated with RMP-regulated facilities has required Congress and EPA to strike a balance between a community's right-to-know and facility security. The Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA), Public Law 106-40, recognized the need for such a balance by restricting the availability of certain information relating to the potential offsite effects of releases while also requiring it to be made available under controlled circumstances (
i.e.,
dissemination at public meetings and availability in reading rooms). EPA's final rule action addresses these issues in similar fashion—the final rule makes minor changes to the emergency coordination and public meeting provisions of the Amendments to avoid potential security risks associated with two open-ended information disclosure provisions. EPA does not believe these changes will impede the ability of local emergency planners and responders or members of the public to obtain necessary information about chemical facility hazards.
There are good reasons to retain the improvements to the emergency response provisions adopted in 2017, but with a few changes that make these provisions better. The West Fertilizer incident and others showed that improvements in the rule's emergency response provisions were necessary, and we reaffirm this view with this action. The final rule therefore retains the enhanced emergency coordination provisions adopted in 2017 with minor changes as described above and below. The emergency exercise provisions of the RMP Amendments rule are also mostly retained. However, EPA's final rule changes in this area are intended to allow facilities and local responders greater time and flexibility in meeting the exercise provisions. We believe these changes are particularly important in communities with multiple RMP-regulated facilities, where the RMP Amendments rule's exercise provisions could have overburdened local responders with requests to participate in exercises.
III. General Comments and Legal Authority
After EPA solicited public comments, commenters raised numerous issues that included discussion on:
1. Statutory authority and procedural issues;
2. Costs and benefits of various regulatory provisions;
3. EPA's rationale for rescinding or modifying various regulatory provisions;
4. Maintaining consistency with the OSHA PSM standard;
5. Numbers of accidents and accident rates;
6. Accidents occurring during adverse weather events;
7. Security concerns regarding accident prevention, emergency response coordination and information availability provisions;
8. Timing and scope of public meetings after an accident;
9. Information disclosure during local emergency coordination;
10. Frequency, scope, documentation and other aspects of emergency exercises; and
11. Concerns from communities about the impact of accidents, especially those affecting low-income and minority populations.
We have structured the discussion of comments as they correspond to various topics: Statutory authority and procedural issues, accident prevention provisions, information availability provisions (including public meetings), local emergency coordination, emergency response exercises and compliance dates.
This section focuses on general comments regarding procedural aspects of the reconsideration rulemaking, EPA's authority under the statute to revise the RMP Amendments and to rescind aspects of that rule, and general comments on costs and benefits. Procedural objections include claims that EPA violated notice and comment requirements. Commenters also identified purported docketing deficiencies, raised claims of impermissible bias on the part of various decisionmakers, and found fault with EPA's choice to follow various
executive orders in its decision making. General substantive authority issues discussed below include whether EPA may emphasize compliance and enforcement rather than new regulations under the CAA, whether EPA has the authority to consider costs under CAA section 112(r)(7), whether EPA's approach is consistent with the requirement that reasonable regulations provide for the preventing and mitigating of accidents “to the greatest extent practicable,” and whether EPA may rescind provisions purportedly related to CSB recommendations. Cost and benefit issues include whether the vacatur of the Delay rule should affect estimated cost savings, cost impacts to fence line communities, accident data submitted by commenters relating to estimated accident costs, and other arguments for and against EPA's cost-benefit analysis and cost-saving rationale. Some cost/benefit issues that relate to specific regulatory provisions are discussed in subsequent sections relating to those provisions.
A. Discussion of Comments on Procedural Requirements
1. Claims That EPA Violated Notice-and-Comment Requirements
Several advocacy groups asserted that EPA failed to consider what additional steps were necessary to allow for environmental justice communities a “reasonable period for public participation,” as required by 42 U.S.C. 7607(h). A joint submission from multiple advocacy groups argues that EPA's statement that its proposal “does not impose any additional costs on affected communities” is incorrect and arbitrary because EPA's own record highlights the costs for fence-line communities in the form of deaths, injuries, toxic exposure, and other harm related to shelter-in-place and evacuation orders, as well as property value and other economic harms. The commenter asserted that the CAA requires EPA to provide a reasonable opportunity for an oral presentation of data, views, or arguments, and that EPA has failed to do so by providing insufficient time to register for the public hearing and holding a hearing in one location only. The commenter also contended that EPA's justification for not performing any additional engagement activities, and not providing any community-based public hearings or listening sessions contravenes the statutory requirement for a “reasonable period for public participation,” and is arbitrary and capricious.
The same commenter contended that EPA did not provide 30 days' notice of the public hearing scheduled for June 14, 2018 because the notice of hearing was published on May 30, 2018 and CAA 7607(h) requires EPA to “ensure a reasonable period for public participation of at least 30 days” in conjunction with giving interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions.” 42 U.S.C. 7607(d)(5). This commenter noted that because the hearing notice also stated that “[t]he last day to preregister in advance to speak at the hearing is June 8, 2018,” this implied that participants should register to ensure they could participate in that hearing and gave communities only nine days to do so. This commenter stated that EPA refused to hold public hearings elsewhere or to provide a second public hearing, despite requests from stakeholders to do so. This commenter argued that EPA provided no opportunity for telephone presentation/participation and agreed to provide a “listen-only” phone line. The commenter argued that only communities that had been in contact with EPA or were checking the EPA website were made aware of this line because EPA gave no public notice of the listen-only phone line.
The commenter also argued that EPA held two rounds of public comment and included eight public listening sessions in the first round of participation for the RMP Amendments rule, but the Agency's decision to hold only a single public hearing (in D.C.) makes this rulemaking process inadequate and its proposed action arbitrary. This commenter maintains having only one hearing was contrary to EPA's original practice on this rule and its own recognition previously that it is necessary and important to consider input from the most affected and most-exposed community members who live and work near RMP facilities.
The commenter also contended that EPA refused to give the minimum of 30 days' accurate notice even though the REAL ID Act requirements it had provided in its initial notice were incorrect, as they stated that if a participant had a driver's license from 12 listed states or territories, that additional identification would be required to attend the hearing. This commenter stated that EPA admitted the public notice was incorrect after receiving questions from the public and then published on its website, but not in the
Federal Register
, the information that no state residents, and only American Samoa residents, would be required to provide an additional form of identification. This commenter argues that EPA's failure to provide public notice of this error and to delay its hearing or hold a second hearing in response renders its process unlawful and arbitrary because REAL ID Act requirements pose an additional and disproportionate barrier to individuals who do not speak English as their first language and the lack of adequate notice by EPA made it impossible for them to participate.
EPA Response:
EPA disagrees with these comments. The Agency met the statutory requirement to provide a “reasonable period for public participation.” We believe the initial notice and hearing were sufficient to satisfy the requirements of CAA section 307(d) and other relevant rulemaking procedures that apply to this rulemaking. The “reasonable period for public participation” referred to in CAA 307(h) is the presumptive minimum comment period for a proposed rule and not a mandatory minimum period before a public hearing. Regarding the commenter's contention that EPA was required to give more than 15-days' notice prior to the hearing, the Federal Register Act provides that a notice of a hearing required by statute “shall be deemed to have been given to all persons” when the notice is published in the
Federal Register
“not less than fifteen days” prior to the date of the hearing, “without prejudice, however, to the effectiveness of a notice of less than fifteen days where the shorter period is reasonable.” 44 U.S.C. 1508. The public hearing for the RMP Reconsideration Proposal was held on June 14, 2018, 15 days after publication of the notice of proposed rulemaking (NPRM) in the
Federal Register
. Additionally, EPA notes that the date and location of the public hearing were fixed in advanced, and web-accessible copies of the NPRM were made available to the public a few hours after the Administrator's signature on the NPRM on May 17, 2018.
Another public participation provision of the CAA requires that the rulemaking docket must remain open for public comment at least 30 days after the last hearing (CAA section 307(d)(5)). The initial close of comment period was July 30, 2018 (60 days after notice), and the comment period was later extended to August 23, 2018. Therefore, the statutory requirement for public participation of at least 30 days was met.
The implication made by the commenter that hearing participants had to register by June 8, 2018 in order
to participate in the hearing is incorrect. The May 30, 2018
Federal Register
notice (83 FR 24850) for the hearing made clear that pre-registration was intended to assist EPA and participants to determine preferences on speaking time and how they could fit into the hearing schedule. The FR notice explained that requests to speak would also be taken at the day of the hearing at the registration desk and anyone wishing to make a comment as a walk-in registrant would be heard after any scheduled speakers. Thus, speakers at the hearing were not required to pre-register.
EPA did decline a request from an advocacy group for additional public hearings. EPA believes that holding a public hearing in Washington, DC, on June 14, 2018, and the notice announcing the hearing, meet the requirements of CAA section 307(d), as well as other relevant federal statutes.
While EPA did provide listening-only telephone participation for this hearing, this was beyond what is necessary for compliance with proper rulemaking procedure, and EPA did so to facilitate additional participation.
The procedures EPA followed here are consistent with how the Agency proceeds in other rulemakings under section 307(d). For example, providing fifteen days between publication of an NPRM and a public hearing is routine, and holding one hearing at EPA headquarters is also not uncommon even when all the affected communities are outside Washington.
The commenter is incorrect that EPA held two rounds of public hearings for the Amendments rule, and EPA disagrees that having only one hearing for the RMP Reconsideration rule was contrary to EPA's original practice on the RMP Amendments rule. EPA had only one public hearing on the RMP Amendments rule content, which was held on March 29, 2016. EPA held another hearing (April 18, 2017) for a separate rulemaking on the delay of the effective date for the RMP Amendments while the Agency began the reconsideration process for the RMP Amendments rule. Therefore, the opportunity to comment on the RMP Reconsideration proposed rule was similar to the opportunity to comment on the proposal underlying the RMP Amendments.
The eight public listening sessions to which the commenter refers were held prior to EPA proposing the RMP Amendments and were not part of the comment period for the Amendments rulemaking. Rather, these listening sessions were part of the Agency's input-gathering process under Executive Order 13650, which was a broader initiative directing the federal government to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to workers and communities.
EPA disagrees that community members who live and work near RMP facilities did not have sufficient opportunity to participate in the proposed Reconsideration rule public hearing held on June 14, 2018. Holding a hearing in Washington, DC represented a reasonable balance of the need to have agency personnel familiar with the rule at the hearing, as well as accessibility to representatives of various stakeholders. With approximately 12,500 stationary sources in over 1,000 counties subject to the RMP rule, it would have been impossible to conduct hearings in all locales.
Furthermore, participation in the public hearing for the proposed RMP Reconsideration rule was larger (38 speakers) than the public hearing held for the proposed RMP Amendments rule (22 speakers) or the public hearing for the proposed Delay rule held on April 19, 2017 (28 speakers). Local and state advocacy and community groups were well represented at the Reconsideration rule hearing, numbering 13 of the 38 speakers. EPA also notes that states that had not previously commented on the Amendments rule and that had not sought to implement the RMP program through delegation were active in this rulemaking and testified during the June 14, 2018 public hearing.
Regarding the commenter's contention that the REAL ID Act requirements posed an additional and disproportionate barrier to individuals who do not speak English as their first language, EPA must follow these requirements for persons entering Federal buildings. The REAL ID Act requirements allow for other types of IDs to be used as acceptable alternative forms of identification. Once EPA made further inquiries about the ID requirements and discovered that many of the ID restrictions for 11 of the 12 states and territories had been removed, EPA provided the updated REAL ID Act requirements on the public hearing registration web page whose internet address was provided in the FR notice to direct potential hearing speakers to pre-register. The number of states/territories with restrictions on type of ID accepted were less than indicated by the FR notice, so providing valid ID for the hearing should not have been problematic. EPA was not contacted by or made aware of any potential speakers who were deterred by the REAL ID Act requirements.
2. Claims of Omitted Documents in Rulemaking Docket
A joint comment submission from multiple advocacy groups and other commenters argued that EPA violated notice- and comment requirements by failing to provide a meaningful opportunity for public participation in the rulemaking by omitting key documents from the public docket, including a March 2018 version of the RMP database, query techniques used to obtain facility counts from the RMP database, and spreadsheet outputs of queries.
EPA Response:
Regarding the commenters' claim that EPA omitted key documents from the public docket, EPA disagrees with this claim. EPA docketed a November 2017 version of the RMP database that was used to obtain facility statistics for the 2014-2016 period on July 11, 2018 (Docket ID EPA-HQ-OEM-2015-0725-0989) and provided it directly to one of these commenters a day earlier. EPA also, on a notice of data availability published on July 24, 2018,
24
extended the comment period for the proposed rule from July 30 to August 23, 2018, to give other members of the public an opportunity to obtain the more recent database if they so desired. Furthermore, as EPA explained in the notice of data availability for the November 2017 database, because the November 2017 database was used mostly for corroboration, we do not believe there were fundamental data about sources subject to the RMP Rule that could not have been observed in the 2015 database that was already in the docket.
24
83 FR 34967, July 24, 2018, EPA-HQ-OEM-2015-0725-1389.
In addition to docketing an updated version of the database at the request of a commenter, EPA used a March 2018 version of the RMP database only to extract accident statistics for the 2014-2016 period, which were presented in the RIA. Because EPA used this version of the database only for accident information, instead of docketing the entire database, EPA docketed an Excel spreadsheet output of accident records for 2014-2016 derived from this version of the database prior to publishing the proposed rule. See Docket ID: EPA-HQ-OEM-2015-0725-0909. The accident counts from this spreadsheet were presented in the RIA to corroborate the decline in accidents seen in the 2004-2013 period. On October 3, 2018, EPA also docketed a spreadsheet containing
RMP facility accidents that occurred during 2017, extracted from the September 2018 version of the RMP database. EPA docketed this spreadsheet to corroborate the continued decline in RMP facility accidents in 2017 (there were 94 RMP facility accidents reported to EPA in 2017). See Docket ID: EPA-HQ-OEM-2015-0725-1974.
EPA also disagrees that it failed to adequately explain query techniques used to obtain information from the RMP database. At the request of a commenter, EPA held an information session for the commenter and other associated commenters on July 26, 2018, where EPA demonstrated methods and techniques for querying the RMP database and demonstrated how EPA obtained facility, process and accident counts from the database.
25
During that session, commenters noted no errors associated with EPA's query methods or results. A record of this meeting and a copy of the presented materials were placed in the docket on August 6, 2018.
26
EPA notes that other commenters were able to extract information from the docketed database and provide it in their public comments without apparent difficulty.
25
EPA. July 26, 2018. Summary of Meeting between EPA and Earthjustice, Union of Concerned Scientists and NY Attorney General's Office regarding Analysis of RMP Database. EPA-HQ-OEM-2015-0725-1463.
26
EPA-HQ-OEM-2015-0725-1463.
3. Claims That Trump Administration Executive Orders Undermined the Rulemaking Process
A joint comment submission from multiple advocacy groups and other commenters argued that the presence of E.O.s 13771, 13777, and 13783
27
in EPA's decision-making process undermined the integrity of the agency rulemaking process and violated the Due Process clause by forcing the agency to act with an unalterably closed mind. The commenters cited the legal standard established in
Air Transp. Ass'n of Am., Inc.
v.
Nat'l Mediation Bd.,
(663 F.3d 476, 487 (D.C. Cir. 2011)), asserting that the Executive Orders left EPA with no option but to deregulate (or else be forced to promulgate significant deregulatory actions elsewhere to balance out the cost), leaving the EPA unwilling or unable to rationally consider arguments. The commenters concluded that this limitation on EPA's decision-making is antithetical to reasoned decision making, making the proposed rule arbitrary and capricious and in violation of the Due Process Clause.
27
E.O. 13771 “Reducing Regulation and Controlling Regulatory Costs”, January 30, 2017; E.O. 13777 “Enforcing the Regulatory Reform Agenda”, February 24, 2017 and E.O. 13783 “Promoting Energy Independence and Economic Growth”, March 28, 2017. EPA-HQ-OEM-2015-0725-0863, -0864, and -0865.
EPA Response:
EPA disagrees that the Agency's consideration of E.O.s 13771, 13777, and 13783 undermines the integrity of the rulemaking process, violates the Due Process Clause, or is otherwise unconstitutional, unlawful, or irrational. EPA agrees that the Agency may not rely on executive orders as the basis for rulemaking—the Agency must have statutory authority to issue regulations, as it does in this case. While the action we take is consistent with the executive orders as a matter of policy, we have not acted inconsistently with CAA section 112(r) and other statutes in this rulemaking, nor have we relied on the executive orders as a source of authority to take this action. The E.O.s do not supersede any provision of the CAA, and they are not the cause or legal basis of EPA's decision to undergo this rulemaking or the outcome reached in the final rule. Nevertheless, we believe the orders themselves can be seen as identifying reasonable concerns about how we implement our underlying authority, much like E.O. 13132 (Federalism), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), E.O. 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations), and other E.O.s To the extent the underlying statutes allow, we may consider the policies of the E.O.s in determining how to reasonably exercise our authority.
As the proposal notes, E.O.s 13771, 13777, and 13783 all support a policy direction of carefully examining the economic burden of regulations, which is “directly relevant to whether the Amendments are `practicable' for sources, as that term is used in CAA section 112(r)(7).” 83 FR 24871. We have placed greater weight on the lack of demonstrable accident prevention benefits than we had at the time of promulgating the 2017 RMP Amendments. Id. The accident history analyses in the record support the conclusion that the economic burdens of the 2017 Amendments' prevention provisions were unreasonably disproportionate to the accident prevention benefits. While our further analysis of the burdens of the rule are in keeping with the themes or general direction of the E.O.s, assessing the reasonableness and practicability of the 2017 Amendments is consistent with CAA section 112(r)(7) and would be appropriate regardless of the E.O.s
Id.
The Agency's rationale for rescissions and modifications to the Amendments rule is multifaceted—it includes maintaining consistency in accident prevention requirements with the OSHA PSM standard, addressing security concerns with the Amendments, and reducing unnecessary regulations and regulatory costs, consistent with EPA's statutory authority. If EPA had relied on these E.O.s without other considerations and was acting with an “unalterably closed mind,” the Agency would have simply rescinded the entire Amendments rule, rather than retain significant portions of it. EPA's actions in the final rule demonstrate that the Agency carefully and rationally considered public comments and arguments. For example, EPA carefully analyzed available data relating to the Amendments rule's prevention provisions prior to rescinding them, made narrowly-tailored changes to the emergency coordination, emergency exercise, and public meeting provisions, and carefully considered security and burden concerns prior to rescinding the information availability provisions. Further evidence that EPA did not approach this rule with an unalterably closed mind can be seen from EPA not going forward with various proposed deregulatory revisions as a result of comments. For example, while we proposed deletion of the requirement to provide information to local emergency planners upon request altogether, we finalized an amendment that required sources to provide information necessary for the emergency plan upon request.
B. Discussion of Comments on EPA's Substantive Authority Under CAA Section 112(r)
While many commenters agreed that EPA has ample authority to make substantive changes to the RMP rules, various other commenters suggested that particular provisions of the proposed rulemaking were not consistent with or violated 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,
28
available in the docket for this rulemaking.
28
EPA. Response to Comments on the 2018 Proposed Rule Reconsidering EPA's Risk Management Program 2017 Amendments Rule. This document is available in the docket for this rulemaking.
1. Claims That Prioritizing Compliance With Existing Regulations Over Imposing New Requirements Violates CAA
Several commenters, including advocacy groups and State elected officials, stated that EPA's proposal to prioritize enforcement of the pre-2017 RMP rule over the additional requirements of the 2017 RMP Amendments rule was inconsistent with Congress's mandate in the CAA. These commenters stated that the emphasis on compliance oversight proposed by EPA violates the statute because the CAA requires EPA to promulgate “regulations” that provide “to the greatest extent practicable” for the prevention of chemical disasters. Another commenter stated that Congress clearly intended that accident risk be minimized at the outset, not only after an accident has occurred, which the commenter argued could not be achieved through enforcement alone.
EPA Response:
EPA disagrees with these comments. The relevant statutory phrase describing EPA's authority to regulate under CAA 112(r)(7)(B)(i), authorizes “reasonable regulations . . . to provide, to the greatest extent practicable,” for the prevention and detection of and response to accidental releases of substances listed in 40 CFR 68.130 (“regulated substances,” as the phrase is used in CAA 112(r)). An interpretation of the statute that does not give meaning to the qualifier “reasonable” to the authority to regulate “to the greatest extent practicable,” as the commenters suggest, is not in keeping with the structure of the statute. As recognized by the Supreme Court in
Michigan
v.
EPA,
135 S. Ct. 2699, 2707 (2015), “reasonable regulation” generally involves some sort of examination of the benefits and the burdens of a rule.
EPA recognizes that the “reasonable regulations” should promote the prevention, detection, and response to accidents to the greatest extent practicable, but we must also construe “practicable” when developing regulations under CAA 112(r)(7)(B). We interpret the term practicable to include concepts such as cost-effectiveness of the regulatory and implementation approach, as well as the availability of relevant technical expertise and resources to the implementing and enforcement agencies and the owners and operators who must comply with the rule. While the Supreme Court recognized in the
Michigan
case that phrases that ordinarily encompass cost as a consideration may be further constrained in specific settings, because of the inclusion of the word “practicable,” we do not read “to the greatest extent practicable” to be such a constraint.
We interpret the CAA to give us the discretion, when assessing whether specific provisions (such as the STAA) are in fact “reasonable regulations,” to consider the prior rule structure and the enforcement and implementation program under it, and then determine, based on data on accident history required to be collected by the statute, that the STAA provision is not reasonable because it targets entire sectors rather than the facilities within those sectors that have problematic prevention programs.
The RMP accident data show that over a ten-year period, at least 90% of the RMP facilities have had no reported accidents, 6% had only one accident, and about 2% had two or more accidents. Nearly half of the total reportable accidents were from less than 2% of the RMP facilities, which reported multiple releases.
29
29
EPA. March 9, 2017. Notes and Documentation Related to a March 9, 2017 Meeting between the Risk Management Programs (RMP) Coalition and EPA regarding a Petition for Reconsideration of the RMP Amendments rule (82 FR 4594, January 13, 2017). EPA-HQ-OEM-2015-0725-0929 and American Chemistry Council public comments, August 17, 2018. EPA-HQ-OEM-2015-0725-1628.
Given the relatively small number of facilities that have RMP-reportable accidents, rather than imposing new requirements on all facilities that are costly and diffuse in targeting, a better approach is to retain the RMP rule as it stood prior to the 2017 RMP Amendments rule and improve compliance with that rule in the population of sources that are underperforming. This is both reasonable and addresses accidents to the greatest extent “practicable.” Broad regulatory requirements that unnecessarily impose burdens on the vast majority of regulated facilities that are performing well are not reasonable regulations. Reasonable and practicable prevention, protection, and response can be achieved by requiring those facilities that are not complying with the RMP rules to improve regulatory compliance through injunctive relief in enforcement actions. Such an approach is more practicable than the rescinded prevention provisions because EPA can tailor relief to best suit the circumstances of the case without unduly burdening sources that are implementing effective prevention programs.
2. EPA's Authority To Consider Regulatory Costs
A few commenters stated that the CAA does not permit EPA to rescind provisions of the RMP Amendments rule based on cost. These commenters stated that EPA has failed to identify its authority to consider cost in its analysis of whether or not to revise the RMP Amendments rule. Some commenters argued that the reduction of cost is an unlawful consideration and irrelevant because the CAA requires regulation based on certain factors, which do not include cost.
EPA Response:
EPA disagrees with these comments. The common definitions of the words “reasonable” and “practicable” permit the consideration of cost. Merriam-Webster provides “not too expensive” as one definition for “reasonable” and indicates “Practicable implies that something may be effected by available means or under current conditions.” See
https://www.merriam-webster.com/dictionary/reasonable; https://www.merriam-webster.com/dictionary/practicable.
In
Michigan
v.
EPA,
the Supreme Court held that “reasonable regulation ordinarily requires paying attention to the advantages
and
the disadvantages of agency decisions.”
Michigan
v.
EPA,
135 S. Ct. at 2707 (2015) (original emphasis). A practicable measure would be one that can come to fruition without imposing unreasonable demands. See
https://thelawdictionary.org/practicable/.
Synonyms not only include terms like feasible and possible but also viable and workable. See
https://www.merriam-webster.com/dictionary/practicable.
The lack of a specific reference to cost as a statutory factor should not be read to prohibit EPA from considering cost when the word “reasonable” ordinarily requires such consideration and what is “practicable” has the flexibility to encompass what is workable and not unreasonable. Cf.
Entergy Corp.
v.
Riverkeeper, Inc.,
556 U.S. 208, 222 (2009) (silence regarding cost and other factors, without more, does not prohibit their consideration in standard-setting).
The legislative history of section 112(r) supports this reading. The House Energy and Commerce (HE&C) Committee version of the accident prevention provisions contained the phrase “reasonable regulations . . . to provide, to the greatest extent practicable, for the prevention and detection of accidental releases.” [House Rep. at 87 (HR 3030 section 112(m)].
30
The HE&C Committee Report explains that its bill would create a program to “prevent and detect accidental releases to the maximum extent practicable.” [House Rep. at 157.] While the reasonable regulations/greatest extent practicable language was ultimately retained in CAA section 112(r)(7)(B)(i), additional language not in the House committee version of the accident prevention provisions emerged at various stages of Senate and House consideration of the 1990 CAA Amendments that clarified that one of the goals of Congress was to have EPA consider the burden it would be imposing when it drafted its accident prevention Risk Management Program. As noted in the proposed rule preamble (83 FR 24864-5, May 30, 2018), in discussing the purpose of the coordination language of section 112(r)(7)(D), the Senate Committee asked both EPA and OSHA to coordinate to ensure the regulations would not be “unduly burdensome.” Senate Rep. at 244. Clean Air Act Amendments of 1989, Report of the Committee on Environment and Public Works, U.S. Senate together with Additional and Minority Views to Accompany S. 1630. S. Report No. 101-228. 101st Congress, 1st Session, December 20, 1989. EPA-HQ-OEM-2015-0725-0645.
30
CRS. November 1993. A Legislative History of the Clean Air Act Amendments of 1990 S. Prt. 103-38
Committee Print,
Volume II, Report
accompanying H.R. 3030 (H. Rept. 101-490). Prepared by the Congressional Research Service (CRS) for U.S. Senate Committee on Environment and Public Works. 103d Congress, 1st Session, available in the rulemaking docket.
Section 112(r)(7)(C) also requires that the regulations be consistent with third-party-set standards and recommendations “to the maximum extent practicable,” and that EPA take into account the concerns of small businesses. The Senate Committee report discussion of the hazard assessment provisions that are early versions of section 112(r)(7)(C) show that the Senate was concerned about minimizing the burden of its hazard assessment provisions. Senate Rep. at 226-27. In the context of the overall requirements for accident prevention regulations, it would be difficult to prohibit EPA from considering the burdens associated with the regulations authorized by CAA section 112(r)(7) and still fulfill these portions of the statute. Therefore, we believe that an interpretation that allows EPA to consider cost issues and other burdens of compliance among the factors in deciding what is a reasonable regulation to prevent accidents better fulfills the intent of the statute than the position offered by the commenters.
3. Regulations Must Prevent and Mitigate Accidents “to the Greatest Extent Practicable”
A few commenters stated that the Reconsideration rule is inconsistent with CAA requirement that regulations prevent and minimize risks from chemical accidents “to the greatest extent practicable.” One commenter stated that none of EPA's rationales demonstrate the legal or rational justification needed for EPA to be able to finalize the proposal or satisfy the CAA's requirements to prevent and reduce chemical releases. The commenters also stated that EPA may not rely on any generalized justification without explaining how or why the rationale provides a reasoned explanation for each of EPA's specific proposed actions, based on the record. One commenter stated that rescinding portions of the Amendments rule based on a rationale that accident rates at RMP facilities have declined would be entirely inconsistent with the EPA's statutory obligation for an RMP program that prevents and mitigates accidents “to the greatest extent practicable.”
EPA Response:
EPA disagrees with these comments. As discussed above, the concept of “to the greatest extent practicable” allows for EPA to consider burden issues for sources and implementing agencies as well as other factors that would lead EPA to consider the rules workable and effective at preventing accidents and providing for response. For example, imposing the burden of the new STAA assessments on whole industry sectors when most individual sources have successful accident prevention programs may be less workable and effective, even counterproductive for safety, than a compliance-driven alternative if the STAA requirement requires a source with an effective prevention program to divert resources from implementing another safety measure.
See Entergy Corp.,
556 U.S. at 232-233 (Breyer, J., concurring in part and dissenting in part) (“an absolute prohibition [on the consideration of costs and benefits] would bring about irrational results . . . in an age of limited resources available to deal with grave environmental problems, where too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems”). In another example discussed below, EPA views a requirement for sources to have field exercises at least every 10 years to be impracticable because the burden it would impose on many local emergency response organizations with multiple RMP-covered facilities would discourage the participation of such organizations in the exercises; in other words, it would not be workable and effective.
Moreover, even before considering practicability, the regulations must be reasonable. In this rulemaking, EPA has concluded that some of the provisions adopted in 2017 are not “reasonable regulations” on one or more of the following grounds: (1) The requirement has burdens that are disproportionate to the accident prevention benefits that can be established; (2) the requirement increases the potential for chemical disasters through the creation of heightened security risks; or (3) the regulation diverges from OSHA's PSM requirements without demonstrably improving prevention performance.
Where a regulation is clearly not reasonable, then we need not assess whether it provides protection to the greatest extent practicable. However, among those regulatory options that are reasonable, the statute directs that EPA provide the greatest level of practicable protection in its regulations. We consider the workability, effectiveness, and reasonableness of demands on impacted entities when assessing if an option is practicable.
In considering whether regulations are both reasonable and practicable, burdens we considered included not only costs to regulated entities but also impacts on local emergency response organizations and their ability to carry out coordinated planning for response. Benefits and disbenefits to impacted entities (
e.g.,
the public, workers, or the sources themselves) that we considered include improvements in or lessening of incident prevention. These principles drawn from the terms “reasonable” and “practicable” guided our decisions on the prevention program and other aspects of this rule.
4. Rescinding Provisions Relating to Chemical Safety Board Recommendations
A joint submission from multiple advocacy groups and other commenters stated that EPA's failure to acknowledge that it is rescinding provisions that responded to rule changes recommended by the Chemical Safety Board (CSB) based on their review of specific incidents also renders the proposed rescissions arbitrary and capricious. The commenters cite page 246 of the Amendments RTC document, which states: “Several of the amendments respond to CSB's suggested rule changes based on their review of specific incidents, which is
consistent with the structure of CAA 112(r)(6)(C)(ii) and EPA's rulemaking authority in CAA 112(r)(7).” The commenters argued that to create a valid regulation, EPA must acknowledge these recommendations, citing as an example the investigation recommendations from the Tesoro Refinery accident in Anacortes, Washington, and explain how its newly proposed regulations will respond to them. Relatedly, the commenters argued that the EPA generally failed to consider evidence from experts like the CSB on the increased, foreseeable, and preventable health and safety threats at chemical facilities.
EPA Response:
EPA disagrees with this comment. Since the CSB became operational, it has been the practice of EPA to respond to individual incident investigation reports with letters to the CSB as called for in CAA 112(r)(6)(I). In the excerpt from the RMP Amendments rule response to comment (RTC) document cited by commenters, EPA uses the term “respond” in the sense of being responsive, rather than constituting the Agency's official response as required under CAA 112(r)(6)(I). Our response letters did not commit to implement these recommendations in full or in part in a rule. EPA therefore disagrees with the assertion that we are rescinding provisions that were our required response to CSB recommendations. Although the STAA provision of the RMP Amendments rule may have been responsive to a CSB recommendation in the sense it addresses the same matter raised by the CSB, EPA has reexamined its position taken in 2017 and concluded that the STAA requirement is not a reasonable regulation because its costs are disproportionate to its benefits.
EPA also disagrees that, as a general matter, the Agency failed to consider input from the CSB in the final rule. This preamble and the response to comments contain multiple discussions of specific CSB investigations and recommendations that EPA has considered as input from the CSB along with other public comments on the Reconsideration proposal. (See the RTC document for additional responses to public comments.) We recognize that the proposed and final RMP Amendments contain extensive citations to incident investigation reports of the CSB for both factual descriptions of incidents and recommendations resulting from investigations. Nevertheless, EPA disagrees that rescinding provisions that are based in part on CSB report recommendations renders the rescissions arbitrary and capricious. The record as a whole as discussed in the Reconsideration proposed and final rules and supporting documents explains the basis for changing our position on the need for new regulation. EPA's responses to CSB recommendations did not commit the Agency to making specific regulatory changes, and the Clean Air Act does not require EPA to implement every recommendation received from the CSB.
Among the CSB recommendations issued under CAA 112(r)(6)(C)(ii), the one most directly related to the RMP Amendments rule prevention provisions is the STAA/IST recommendation from the CSB's investigation of the Tesoro Refinery accident in Anacortes, Washington. Our statutorily required response to the Tesoro recommendation indicated that we would evaluate and determine whether regulatory changes should be made.
31
In the case of the Tesoro Refinery accident, cited by the commenter, the CSB recommended that EPA revise 40 CFR part 68 to “require the documented use of inherently safer systems analysis and the hierarchy of controls to the greatest extent feasible when facilities are establishing safeguards for identified process hazards.” The CSB also recommended that EPA “enforce through the Clean Air Act's General Duty Clause, section 112(r)(1), 42 U.S.C.§ 7412(r)(1), the use of inherently safer systems analysis and the hierarchy of controls to the greatest extent feasible when facilities are establishing safeguards for identified process hazards.”
31
EPA. February 25, 2015. Letter from Mathy Stanislaus, EPA, Office of Land and Emergency Management to Rafael Moure-Eraso, Ph.D., Chemical Safety and Hazard Investigation Board (CSB) responding to CSB's recommendations on the April 2, 2010 accident at Tesoro Refinery in Anacortes. Washington. pp 2 and 5. Available in the rulemaking docket.
Our response to the CSB indicated that EPA would develop an alert and voluntary guidance on safer technology and alternatives analysis and consider regulatory options. Our response did not commit to adoption of the CSB recommendation via rulemaking. Regardless of whether EPA's RMP Amendments rule STAA provision addressed the same issues as CSB's Tesoro incident recommendations, EPA's more recent analysis of data relevant to the 2017 RMP Amendments rule's STAA requirement indicates that such requirements have not been effective at improving accidental release prevention rates when enacted at the state level, while their costs remain high.
See
sections III.C.2 and IV.C.2.c, below. Therefore, notwithstanding any CSB recommendations on this subject, EPA's view is that it is not reasonable or practicable to impose the 2017 STAA requirement through a generally-applicable regulation.
C. Discussion of General Comments on Costs and Benefits
1. Effect of Delay Rule Vacatur on Estimated Costs
Multiple state elected officials stated that the assumptions underlying EPA's estimate of the proposal's costs and benefits are no longer accurate since the D.C. Circuit Court vacated the Delay rule in
Air Alliance Houston et al.
v.
EPA et al.
The commenter stated that the proposed rule assumes that the Amendments rule will not go into effect, but with the court ruling on the delay, those provisions will go into effect, therefore influencing the cost-benefit analysis. An advocacy group commented that this assumption directly overlooks numerous benefits to the information availability provisions in the Amendments rule.
EPA Response:
EPA disagrees that the Delay rule vacatur materially impacts EPA's estimates in the cost benefit analysis. The Court of Appeals issued the
AAH
decision on August 17, 2108, and the vacatur of the RMP Delay rule made the Amendments rule effective on September 21, 2018. At that time, the only major provision of the Amendments rule that required immediate compliance was the emergency coordination provision.
32
All other major provisions of the Amendments rule had compliance dates in 2021 or later. By the time of the Delay rule vacatur, EPA had already proposed to rescind or modify most of the Amendments rule's provisions.
32
Various other provisions that we have labelled the “minor changes” also became effective, but the RIA for the 2017 Amendments rule did not attribute costs to these provisions and the RIA for this final rule attributes no cost savings to those minor changes that we rescind in this rule.
Our estimates of the cost and benefit impact of this final rule reflect reasonable judgments about the behavior of affected entities during the reconsideration process, including that period before the
AAH
decision vacated the Delay rule. In the Reconsideration RIA, EPA assumed a new cost associated with the labor of becoming familiar with the non-rescinded and revised provisions of the 2017 Amendments rule, and a cost savings associated with regulated facilities not being required to become familiar with the provisions of the 2017 RMP Amendments final rule. The emergency coordination provision is not rescinded in this rulemaking and therefore rule
familiarization burden for this provision is accounted for in the Reconsideration RIA. With EPA's proposal, regulated facilities could reasonably expect that Amendments rule provisions with future compliance dates might either be rescinded or modified before the original compliance date occurred.
33
Given this regulatory landscape, most sources would reasonably choose to delay complying with or preparing to comply with remaining Amendments rule provisions (
i.e.,
all major prevention provisions and the information disclosure provisions excluding public meetings) except those requiring immediate compliance due to the Delay rule vacatur. Therefore, it is reasonable for EPA to assume that the Delay rule vacatur has had a de minimis impact on EPA's estimates in the cost benefit analysis.
33
We also note that, prior to the vacatur of the Delay rule, sources had a basis to believe that compliance with the 2017 RMP Amendments would not be required so long as the rule had not become effective.
EPA has acknowledged in the Reconsideration RIA that the elimination of the Amendments rule information availability provisions will reduce the magnitude of the rule's information disclosure benefits. EPA notes, however, that almost all of the information elements provided under the Amendments rule were already publicly available via other means, so this loss of benefits should be small. EPA has decided to rescind the information availability provisions of the Amendments to address facility security concerns. In the preamble to the proposed Reconsideration rule, EPA stated that “EPA in the final amendments may not have struck the appropriate balance between various relevant policy concerns, including information availability, community right to know, minimizing facility burden, and minimizing information security risks. EPA agrees with petitioners that requiring unlimited disclosure of the chemical hazard information elements required under the RMP Amendments may create additional policy concerns, particularly with regard to the potential security risks created by disclosing such information.” Despite the acknowledgement that some of the benefits of the information availability provisions will be lost, EPA determined that the rescission of these provisions was necessary to more appropriately balance these benefits with facility security concerns.
2. Comments Regarding EPA's Cost-Saving Rationale
Some commenters supported EPA's approach in the proposed Reconsideration rule to reducing unnecessary regulations and regulatory costs. An industry trade association, supporting the proposed rule, stated that the Amendments rule provided no quantifiable benefits relative to its high compliance costs. Another commenter stated that the proposed rule is necessary because the Amendments would be costly to regulated entities and do little to prevent chemical accidents. Similarly, two industry trade associations expressed support for EPA's reconsideration proposal because the costs of the Amendments rule far exceeded the benefits of the rulemaking, and another industry trade association stated that while it supports the Reconsideration rulemaking, they believe the rulemaking understates the costs and overstates the benefits of the Amendments rule. Another industry trade association stated that the Amendments rule would substantially increase the burdens and costs associated with RMP compliance and would not help the cause of process safety. A trade association commented that the benefits of the Reconsideration rulemaking are clear, due to the heavy cost burden placed on regulated entities in the Amendments rule.
In contrast, other commenters disagreed with EPA's cost-saving rationale. An advocacy group and several other commenters stated that the proposed rule emphasized industry cost savings over public safety and that the costs in the Amendments rule are small when spread across thousands of regulated facilities. The advocacy group also stated that EPA does not and cannot show that the cost savings to the facilities that pose the risk of accidental releases would be greater than the foregone benefits to the public and environment that bear the risk.
Several commenters, including State elected officials and a State government, argued that the proposed rescissions in the Reconsideration rule are arbitrary and capricious. Multiple State elected officials commented that EPA's cost-saving rationale does not provide the “more detailed justification” necessary for EPA to disregard its previous findings to the contrary. An advocacy group argued that a lopsided focus on the compliance costs of a regulatory action is arbitrary and capricious. Specifically, the commenter stated that EPA's emphasis on reducing regulatory burden above the benefits of the protections provided by the rule is unreasonable. A joint submission from multiple advocacy groups and other commenters stated that EPA's preference to avoid cost on industry, while neglecting the health and financial cost to communities, prioritizes industry's interest over people and is arbitrary and capricious. The commenters also argued that the proposed rule and Regulatory Impact Analysis (RIA) are unlawful and arbitrary because EPA failed to meet its own cost-benefit goals of finding that the benefits of the Reconsideration rule outweigh the costs, and its statements disregarding the benefits of the Amendments rule because of uncertainty are unsupported and contradictory to the record. A joint submission from multiple advocacy groups and other commenters stated that EPA's adoption of the enforcement-led approach in the proposed Reconsideration rule is arbitrary and capricious because the Agency has not provided a reasoned explanation for the change or the requisite detailed explanation for abandoning its prior findings in the Amendments rule that the enforcement-led approach was insufficient. This commenter also stated that it would be arbitrary and capricious for EPA to proceed with the proposed Reconsideration rule because it runs directly counter to the effective and efficient measures that several State and local developments represent (referring to the New Jersey TCPA, Massachusetts TURA, and CCC ISO regulatory programs), and that it would be arbitrary and capricious to proceed with the rule without fully evaluating those initiatives. And, for the State and local initiatives that EPA had relied upon as a rationale for the Amendments rule, the commenters argued that EPA has provided no basis to change its opinion that these initiatives demonstrate the need and likely benefits of the Amendments rule.
EPA Response:
The Agency has provided a detailed rationale for rescission of each of the Amendments rule provisions removed by the final rule. Regulatory costs are an important consideration in the rescission of some provisions, but EPA's decision also considered other factors, including the potential lack of effectiveness of some provisions, EPA's ability to obtain the benefits of certain provisions without imposing regulatory mandates, the desire for regulatory consistency with the OSHA PSM standard, and security risks.
In the Amendments rule, EPA indicated that “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.” EPA also noted that the monetized impacts omitted other categories of accident impacts, including lost productivity, the costs of emergency response, transaction costs, property value impacts in the surrounding community, environmental impacts, and the impacts of non-RMP accidents at RMP facilities and any potential impacts of rare high consequence catastrophes. However, EPA had no data on any of these additional benefit categories and some of them were speculative, in the sense there was an argument that the benefit would exist but no studies confirming its existence. For example, EPA is aware of no studies of property value impacts in areas surrounding RMP facilities that have had accidents, and no studies quantifying the reduction, if any, in non-RMP accidents at RMP facilities. Were these benefits sizeable, we think the multiple rounds of comments on the RFI, the 2017 Amendments rule, and the Reconsideration would have highlighted to us relevant studies. Therefore, even prior to initiating the Reconsideration proceeding, EPA believed that absent other non-monetized benefits, the Amendments rule provisions would need to prevent a large fraction of the annual average number of RMP-facility accidents in the 10-year baseline in order to be cost effective. (82 FR 4597-8, Jan. 13, 2017).
EPA now believes that its previous estimate of the benefits of the Amendments rule was overly optimistic, for two reasons. First, the average number of accidents in the baseline (whose costs were used as a proxy for the possible monetized benefits of preventing RMP facility accidents), and their impacts, likely overestimates the actual number and impact of accidents that will occur under the final Reconsideration rule going forward. Over the pre-Amendments rule ten-year baseline, RMP facility accidents did not occur at a steady rate but declined in frequency. EPA's RIA for the Reconsideration rule shows that from 2004 through 2016, RMP facility accidents declined at a rate of approximately 3.5% per year. The most recent three-years of accident data available in the docket show that the number of RMP facility accidents in the years 2014-2016 were 128, 113, and 99, respectively. While these numbers may increase slightly due to late reporting, they indicate that the declining trend in accident frequency seen under the pre-Amendments rule continues. Two commenters (ACC and CSAG) presented additional analysis showing that the impacts of accidents, as measured by deaths, injuries, and property damage, have also declined. While the costs of some Amendments rule provisions (
e.g.,
third-party audits, root cause analysis) also scale with the number of accidents, and would therefore also decline with fewer accidents, most of the costs of the Amendments rule were “fixed” in that they were imposed on regulated facilities whether an accident occurred or not. For example, the costliest provision of the Amendments rule—STAA—would have impacted all facilities with Program 3 processes in NAICS 322, 324, and 325. Also, even for provisions such as root cause analysis or third-party audits, that are triggered by an accident, some costs, such as investigator training or auditor screening, may occur without any accident occurring.
This means that to have costs that are not disproportionate to their benefits, Amendments rule provisions would have needed to prevent a greater share of future accidents than previously thought. For example, if the future rate of RMP-facility accidents under the pre-Amendments rule has declined to about 100 accidents per year, and the consequences of accidents remain at the level seen during the baseline, the Amendments rule would have needed to prevent more than 70% of future accidents to be cost effective, absent other non-monetized impacts. But since the consequences of accidents have also declined, as indicated by commenters' analyses
34
and corroborated by EPA's own analysis,
35
the Amendments rule would need to prevent an even greater share of accidents to not have unreasonable, disproportionate costs.
34
See American Chemistry Council public comments, August 17, 2018, EPA-HQ-OEM-2015-0725-1628, and Chemical Safety Advocacy Group public comments, August 23, 2018, EPA-HQ-OEM-2015-0725-1930.
35
See attachments to EPA-HQ-OEM-2015-0725-0929, EPA Verification of ACC's RMP Accident Analysis with 2 Tables, March 26, 2018, and RMP Accident Data 2004-2013, EPA Verification of ACC Analysis.
However, EPA now believes the Amendments rule was likely to be less effective at preventing accidents than the Agency previously believed. Prior to its reconsideration of the Amendments, EPA had not attempted to quantify the effects of state level regulations that are comparable to the Amendments rule's STAA provision. EPA has now conducted a detailed analysis of RMP-facility accident rates in New Jersey and Massachusetts—two states with long-established state-level regulations comparable to the Amendments rule STAA provision—and found that accident rates in these states have not improved more than accident rates at RMP facilities nationwide under the pre-Amendments rule. In fact, the average number of accidents per RMP facility in both states have exceeded the national average. Therefore, EPA believes that the STAA provision of the Amendments is an unreasonable regulation because its costs are disproportionate to its benefits.
EPA disagrees that its approach to the Reconsideration rule is a lopsided focus on costs. As EPA has described above, the Agency considered both costs and effectiveness of regulatory provisions, as well as other factors. If a regulatory provision is of minimal or no effectiveness (
e.g.,
STAA), virtually any cost imposed for its implementation would be unjustified. For other prevention provisions of the Amendments rescinded under the final rule—third-party audits and root cause analysis—these take place after an accident has occurred, and the Agency can still obtain their benefits through compliance settlement agreements if these are appropriate based on the violation alleged, without imposing a broad regulatory mandate. Therefore, the Agency is not merely considering the cost savings associated with rescinding these provisions, but rather whether those costs are disproportionate to any benefits gained, and whether those benefits can be obtained more efficiently without a regulatory mandate. Additionally, the disproportionality of costs versus benefits is not the only rationale that EPA relied upon to rescind the prevention program provisions of the Amendments. Rescinding these provisions will also bring the RMP prevention program provisions back into alignment with the OSHA PSM standard, which will avoid confusion among facilities subject to both regulations due to divergent regulatory requirements.
Regarding the Agency's rescission of the information availability provision, while the Agency noted that rescission of this provision would reduce regulatory costs, the primary justification for its removal was not its cost, but rather the increased security risks associated with the provision. As EPA stated in the proposed rule preamble, “EPA now proposes
for security reasons
to rescind the requirements for providing to the public upon request, chemical hazard information and access to community emergency preparedness information in
§ 68.210 (b) through (d). . . .” (83 FR at 24859, May 30, 2018) (emphasis added). Therefore, the final rule's rescission of this provision cannot fairly be described as a lopsided focus on its compliance costs.
EPA also disagrees that the Reconsideration rule avoids cost on industry by neglecting the health and financial cost to communities. The final rule does not make this tradeoff. Rather, the rule provides for streamlining of the RMP Amendments to provide appropriate regulatory requirements to address risks from RMP facility processes, including security risks from terrorism. The rule also facilitates rule implementation by removing potential inconsistencies with the OSHA Process Safety Management standard. While EPA indicated that rescinding certain provisions of the Amendments rule may result in foregone benefits, EPA had no data to demonstrate the benefits of specific provisions of the Amendments rule. EPA again notes that the rate of accidents at RMP facilities in New Jersey since the enactment of that state's TCPA IST provision has declined less than the rate of accidents at RMP facilities nationwide, suggesting that the STAA provision of the Amendments rule may not have had a significant impact on accident prevention. EPA retains the ability to continue to employ such prevention measures in enforcement actions as appropriate, which we believe can be a more effective way to employ these measures than a broad regulatory mandate that may unnecessarily impose burden on many regulated facilities. It is also important to note that the Reconsideration rule does not eliminate the body of comprehensive RMP requirements that existed prior to the Amendments rule. Facilities that were previously required to identify and control process hazards, implement operating procedures, investigate incidents, and comply with the other parts of the pre-Amendments RMP rule are still required to do so. The preventive and mitigative effects of these regulatory requirements remain in full effect. Under the pre-Amendments rule, the rate and consequences of RMP-reportable accidents have reached their lowest levels since EPA began collecting these data.
36
36
The RIA for the final rule demonstrates that the number of accidents in 2016 was lower than for any prior year over the period studied for this rule (2004-2016). EPA also compiled a spreadsheet containing RMP facility accidents for 2017 to corroborate the continued decline in RMP facility accidents (there were 94 RMP facility accidents reported to EPA in 2017). See Docket ID: EPA-HQ-OEM-2015-0725-1974. The complete accident record at RMP facilities since 1999 (the year the original RMP regulation went into effect) through 2016 is contained within the RMP database (Docket ID EPA-HQ-OEM-2015-0725-0989). Studies of RMP facility accident data conducted by the Wharton School at the University of Pennsylvania confirm that RMP accident totals for all prior years were well above 2016 and 2017 levels. See,
e.g., Kleindorfer
, et al., Accident Epidemiology and the RMP Rule: Learning from a Decade of Accident History Data for the U.S. Chemical Industry, Final Report for Cooperative Agreement R‐83033301 between Risk Management and Decision Processes Center, The Wharton School of the University of Pennsylvania and Office of Emergency Management. U.S. Environmental Protection Agency, December 18, 2007, Figure 5.1 (showing number of accidents from cohort of RMP facilities that filed in first two five-year “waves” of RMP submissions). See also sections III.C.2 and IV.C.2.c, below.
EPA disagrees that the proposed rule and RIA are unlawful or arbitrary because of any failure to conclude that the benefits of the Reconsideration rule exceed its costs. For reasons stated above, EPA believes that the costs of the final rule are reasonable in comparison to its benefits. In short, EPA believes the benefits of rescinded Amendments rule provisions were likely to be lower than previously thought, making the costs of the Amendments rule disproportionate to its benefits. EPA also disagrees that the Agency's current reliance on a compliance-driven approach is arbitrary or that EPA has not provided a reasoned explanation for this change in position from the 2017 RMP Amendments rule. In EPA's most specific rejection in 2017 of reliance on enforcement rather than new regulations, we relied on incident discussions in the proposed rule as well as “lessons learned” from these incidents and our experience to support the 2017 RMP Amendments rule.
37
As EPA has noted above, the Agency's latest analysis has demonstrated that RMP facility accidents have declined substantially under the pre-Amendments rule and are currently at the lowest levels since EPA began collecting these data. This low level of accidents diminishes the potential benefits of any additional accident prevention regulations, particularly when the benefits of those provisions are in doubt (
e.g.,
STAA). It also makes a compliance-driven approach more feasible. While EPA cannot inspect every RMP facility every year, the Agency performs approximately 300 RMP facility inspections each year and prioritizes inspections at facilities that have had accidental releases. Therefore, EPA's enforcement resources and posture are capable of addressing accident-prone facilities without additional broad regulatory mandates. The Agency's choice to use a more surgical approach to accident prevention at these facilities is reasonable and practicable.
37
Amendments rule Response to Comments at 246 (“the history of implementation of the RMP rule has given EPA sufficient experience to support modernizing and improving the underlying RMP rule and not simply resort to compliance oversight of the existing rule”). Commenters also suggested EPA enforce existing requirements rather than issue new rule provisions regarding third-party audits and emergency coordination.
See
82 FR 4613-144654.
EPA disagrees with the commenter's claim that it would be arbitrary and capricious for EPA to proceed with the proposed Reconsideration rule if it runs counter to State and local regulations. EPA has analyzed the state and local regulatory programs that commenters are referring to and does not agree that they provide evidence of the effectiveness of the Amendments rule. EPA's detailed examination of these regulatory programs is described elsewhere in this preamble and in the Response to Comments document.
3. Comments Relating to Environmental Justice and Fence-Line Communities
a. Proximity of RMP Facilities to EJ Communities
Many commenters, including multiple form letter campaigns, commented on the disproportionate proximity of minority populations, low-income populations, and/or indigenous peoples (“environmental justice (EJ) communities”) to RMP facilities and emphasized the risk posed by RMP facilities to these communities. Several of these commenters provided extensive data and descriptions in support of their comments. Two advocacy groups cited statistics describing the rates of student proximity to RMP vulnerability zones. A few commenters stated that the poverty rate near RMP facilities is 50 percent greater than the US average, and that the difference is more pronounced for low-income children of color.
An advocacy group stated that 15 percent of RMP-regulated facilities in New York are located in EJ areas. Another advocacy group commented that 600,000 people, or 67% of Louisville residents, live within three miles of 23 RMP facilities. The commenter stated that a large part of that population is black or Latino. The commenter went on to give some history of relaxed regulation, incidents, and the specific harms caused by RMP facilities in Louisville, noting especially an accident the commenter said was preventable at a Carbide Industries facility. An advocacy group stated that communities and individuals often live in proximity to RMP facilities unaware of the chemicals stored and their potential hazards and may be from different cultural communities who may
have a different way of handling emergencies. This commenter stated that EPA should work with states, regions and local government to explain to communities what chemicals are present and the dangers around them. An advocacy group commented that information could be more effectively shared through different channels, like churches.
EPA Response:
EPA agrees that RMP facilities are more likely to be located in EJ communities—EPA provided data in both the Amendments rulemaking and the Reconsideration proposal that characterize the disproportionate proximity of EJ communities to RMP facilities. However, neither this information, nor any submitted by commenters, allows EPA to more accurately characterize the effects of the Reconsideration proposal upon those communities.
Regarding community members' awareness of facility chemical hazards, EPA notes that since the 1986 enactment of EPCRA, facilities storing and handling hazardous substances must provide to local government emergency officials the identities and quantities of these hazardous chemicals through annual Hazardous Chemical Inventory reporting and through provision of Safety Data Sheets with the chemical, physical and hazardous properties of these chemicals stored on-site. The thousands of hazardous substances covered under these reporting requirements include the 140 substances regulated under the RMP regulations.
38
The LEPCs established under EPCRA use this information to develop community emergency response plans to address any accidental releases in the community involving these hazardous chemicals. Members of the public are allowed to participate on LEPCs, and EPA encourages interested community members to get involved with their LEPC or attend LEPC meetings to learn more about the chemical hazards in their community and how the community would receive notifications and other emergency information when a chemical accident occurs. Some local governments may provide information on warning systems or emergency procedures on government websites. Community members also can request copies of hazardous chemical inventory reports and Safety Data sheets from their local LEPC. LEPCs serve as focal point in the community for information and discussion about hazardous substance emergency planning.
38
EPA acknowledges that isolated industries, such as mining facilities, may not be subject to EPCRA 311 and 312, but in the vast majority of cases, RMP facilities will also be subject to the EPCRA SDS and inventory provisions.
b. Costs to Fence-Line Communities
Many commenters expressed concerns about the costs of the rule to fence-line communities. A commenter stated that EPA's cost estimate only calculates savings to regulated facilities and there is no attempt to estimate the costs of incidents to fence-line communities, emergency workers, the facilities' workers, and the public in terms of lost lives, injuries, illnesses and property damage. A joint submission from multiple advocacy groups and other commenters stated that there are significant costs imposed on local communities who live near and around chemical facilities. The commenters stated that there can be economic impacts to the community due to lost work days, time spent sheltering-in-place or evacuating, emergency response costs, and general disruption in the event of an emergency. A federally elected official stated that the proposed rule artificially diminishes the benefits associated with protecting EJ communities in order to avoid addressing or reducing the risk posed to those communities. An industry trade association stated that EPA should be aware that low income and minority communities will bear the brunt of the costs of the proposed rule. Similarly, an advocacy group stated that while the proposed rule would save industry money, it would impose costs on poor communities. The commenter provided estimates of the potential costs of chemical accidents to local communities and argued that local communities are more likely to have to pay these costs with the rescission of the Amendments rule. Another commenter stated that the Reconsideration rule would cause impacts including fires and toxic releases in disproportionately EJ communities. These impacts include health impacts to first responders, contamination of community property, and people being forced to shelter-in-place. Several commenters described past chemical plant accidents and their impacts on nearby communities, including explosions, hospitalizations, evacuations, deaths, and fear. A group of State elected officials provided an extensive discussion with information on the susceptibility of EJ communities to RMP-related harm in their States, with incidents and data on the same. A commenter stated that EJ populations are disproportionately affected by RMP-threats, and that past EPA accident calculations did not adequately address the impact of accidents to productivity, the environment, property values, regional economies, government expenses, and long-term health consequences. A group of U.S. Senate members compared EPA's projected cost savings of $88 million against the industry's $767 billion value and argued that this saving does not justify the Reconsideration rule's negative impacts to vulnerable communities. Similarly, a form letter campaign joined by approximately 35,000 individuals asserted that the dangers associated with RMP facilities fall disproportionately on EJ communities.
Some commenters stated that EPA failed to follow its own “Guidance on Environmental Justice During the Development of Regulatory Actions” by failing to act on any of the seven recommendations in the guidance, despite prompting from community groups. A tribal government and a tribal association stated that EPA's statement that the proposed rule would not impose any additional costs on affected communities amounted to a failure to consider health and safety impacts to EJ communities. A form letter campaign joined by approximately 2,500 individuals stated that the Reconsideration rule, if finalized, would disproportionately impact EJ communities and directly subvert the goals of E.O. 12898. An advocacy group discounted EPA's projection that the Reconsideration rule will benefit EJ communities, stating that such a claim lacks evidentiary support. The group cited a CSB report to assert that, on the contrary, evidence showed that removing chemical hazard information requirements would work to communities' detriment. The group also stated that EPA's claim runs contrary to EJ communities' own statements regarding their best interests. A joint submission from multiple advocacy groups and other commenters argued that the proposed removal of STAA provisions would particularly impact EJ communities. It stated that larger and more complex plants that would likely benefit from STAA requirements tend to be located in counties with larger African-American populations.
EPA Response:
EPA disagrees with the assertion that EPA did not attempt to evaluate the costs of incidents to offsite personnel and the broader community. In the Amendments rule RIA, EPA qualitatively described the benefits of the Amendments rule provisions, including the prevention and mitigation of future RMP accidents. EPA considered the benefits associated with preventing serious accidents, avoiding direct costs such as worker, responder, and public fatalities and
injuries, public evacuations, public sheltering-in-place, and property and environmental damage. The Amendments rule RIA also considered indirect costs such as lost productivity due to product damage and business interruption, both on-site and off-site, expenditure of emergency response resources and attendant transaction costs, and reduced offsite property values.
EPA acknowledges that it was not possible to estimate quantitative benefits for the 2017 Amendments rule and that EPA, in the Reconsideration rulemaking, remains unable to quantify foregone benefits of the rescinded Amendments rule provisions. However, EPA also notes that the rate and consequences of RMP-reportable accidents have reached their lowest levels since EPA began collecting these data. These trends have occurred under the pre-Amendments rule, and EPA believes that some benefits of the Amendments rule can be obtained through a compliance-driven approach without imposing broad regulatory mandates that may unnecessarily burden many facilities.
EPA disagrees that the Agency failed to adequately consider the consequences of the proposed Reconsideration rule on EJ communities or follow the Agency's own EJ guidance. EPA has acknowledged the disproportionate risks of RMP facilities to EJ communities. The Agency has documented its assessment of the EJ effects of the Reconsideration rule within the RIA. Within that assessment, EPA identified reduced risks to EJ populations from terrorism or related security hazards associated with avoiding the open-ended emergency coordination and public information availability provisions of the Amendments. We also believe that accident risks to surrounding communities are ameliorated by the emergency response coordination and public meeting provisions of the Reconsideration rule. At the same time, to the extent the Amendments rule provisions were effective at reducing risks, there would be some increase in risk to EJ communities as a result of rescinding some provisions of the Amendments rule. Given a lack of data, we have not attempted to quantify the combination of increases of risks to EJ communities and decreases of risks to those communities. We are therefore presenting those changes as a non-quantified set of risk changes, without inaccurately characterizing the net effects. EPA does not have the data to make those net calculations, nor have commenters provided such data. The rulemaking record does not provide enough information for anyone to determine the net risk effects to surrounding communities of the Reconsideration rule.
The Reconsideration rule makes small changes to the existing body of RMP regulatory requirements. The rule does not eliminate the comprehensive RMP requirements that existed prior to the Amendments rule. Facilities that were previously required to identify and control process hazards, implement operating procedures, investigate incidents, and comply with the other parts of the pre-Amendments RMP rule are still required to do so. The preventive and mitigative effects of these regulatory requirements remain in full effect. Under the pre-Amendments rule, the rate and consequences of RMP-reportable accidents have reached their lowest levels since EPA began collecting these data. Commenters have provided no data which would allow EPA to measure the risks posed by altering requirements for changes to existing audit requirements or incident investigations or safer technology analyses. Without this information, it is impossible to characterize these changes as imposing significant costs upon minority and low-income populations.
Regarding STAA, EPA is unable to gauge how facilities in the three affected sectors would have responded to the requirements to assess safer technologies for their processes. Under the 2017 Amendments rule STAA regulation, these facilities were empowered to make their own decisions about what kinds of facility changes might be beneficial. Under the Reconsideration rulemaking, those facilities still remain empowered to make those decisions. It is therefore unclear what the impact of this change, if any, would be on surrounding communities. EPA notes that accident data from RMP facilities in New Jersey since the enactment of that state's TCPA IST provision show less decline in accident rates than RMP facilities nationwide, which had no similar provision in place, suggesting that the STAA provision of the Amendments rule may not have had a significant impact on accident prevention.
c. Comments on Chronic Health and Environmental Impacts to Communities Near RMP Facilities
An advocacy group stated that EJ communities face greater impacts in the form of health and environmental consequences from unplanned releases from RMP facilities. It provided data from a Union of Concerned Scientists study on RMP accidents and their impacts of EJ communities. The comment cited increased rates of cancer resulting from air pollution as well as heightened rates of respiratory illness. Another stated that EJ communities are more likely to be exposed to chemical hazards in the form of dermal contact, ingestion, and inhalation. Other advocacy groups described the heightened vulnerability of EJ communities, stating that they tend to have higher rates of pollution and disease, while having less access to health care and other resources to deal with chemical hazards. A joint submission from multiple advocacy groups and other commenters cited a 51 percent elevated rate of acute lymphocytic leukemia in children living along the Houston Ship Channel, as well as other increased rates of leukemia in the area depending on RMP-proximity. Another advocacy group representing EJ communities commented that EPA should consider the cumulative impacts of pollution from exposure to multiple chemical facility sources. An advocacy group stated that the proposed rule RIA fails to consider the externalized social and health costs of cumulative exposure associated with RMP facilities. A tribal government also stated that the RIA does not attempt to quantify environmental impacts beyond human health.
EPA Response:
Regarding commenters' contention of increased rates of cancer and respiratory illness resulting from air pollution, the RMP rule is not intended to address chemical releases that cause cancer or other chronic illnesses
39
—other parts of the CAA (such as the NESHAP program) and other environmental laws are intended to address such health impacts. EPA is expressly prohibited from listing NAAQS pollutants under the RMP rule. Regarding the risk of impacts from accidental releases by multiple sources, the analysis supporting the RMP rule does not include assessing exposure to specific communities from RMP-regulated facilities. Rather, the rule requires regulated sources to take preventive and response actions designed to address hazards at each facility that may pose
risks from accidental releases to nearby communities. EPA does not believe, and has received no data indicating, that rescinding or modifying RMP Amendments rule provisions will increase the risk of accidents, whether from individual or multiple sources. EPA notes that the data presented in the RIA (chapter 8) indicate that less than 5% of the U.S. population is in close proximity to two or more RMP facilities. Regarding environmental impacts, in the 2017 Amendments rule RIA, EPA qualitatively described the benefits of the Amendments rule provisions, including the prevention and mitigation of future RMP accidents. EPA considered the benefits associated with preventing property and environmental damage. In the Reconsideration rulemaking, EPA acknowledges that rescinding some of the Amendments provisions could have an impact on the environment. However, given that EPA can likely obtain some of the benefits of the rescinded provisions through a compliance-driven approach, any such impacts should be small. EPA believes that it is not possible to estimate quantitative benefits or foregone benefits, including environmental impacts, for the final rule. EPA has no data to project the specific impact on accidents made by each rule provision.
39
See
Senate Report at 210-11 (new accidental release provisions not intended to cover releases “where the potential impact on public health is a measurable increase in the probability of death, illness or adverse effect which is normally associated with `chronic' exposures over a long period. Episodic releases of the latter kind are to be addressed under [the NESHAP authority of] section 112.”); 136 Cong. Record 36,058 (Oct. 27, 1990) (Sen. Durenberger explaining the air toxic problem of “accidental, catastrophic releases” as one that “may cause immediate death or injury”).
4. Comments Relating to Accident Data and Accident Rates
a. Comments Disagreeing With EPA's Characterization of RMP Facility Accident Rates
A labor union argued that EPA's characterization that there is a low and declining accident rate at RMP facilities is inaccurate because EPA failed to calculate or report any rates. The commenter asserted that EPA provided only the number of accidents that have occurred in certain years but failed to account for other relevant statistics that do not support an assertion of a decline in accident rates at RMP facilities. Specifically, the commenter argued that 2013, the most recent year for which complete data are available, saw more property damage due to RMP events than any year since 2008. Additionally, the commenter stated that 2012 saw more injuries and illnesses than any other year between 2004 and 2013 and saw more people evacuating or sheltering in place than any year since 2005.
A joint submission from multiple advocacy groups and other commenters stated that gaps in EPA's chemical accident data lead EPA to underestimate the problems that the Amendments rule was attempting to address. Specifically, the commenters argued that EPA's data underestimates the problem because it does not include incidents when a release occurred that either destroyed or decommissioned a process. This commenter also submitted data on all National
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.