# Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-04458 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 11, 2024 - **Citation:** 89 FR 17622 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 68 [EPA-HQ-OLEM-2022-0174; FRL-5766.6-02-OLEM] RIN 2050-AH22 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency (EPA) is amending its Risk Management Program (RMP) regulations as a result of Agency review. The revisions include several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, improvements to the public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. As major and other serious and concerning RMP accidents continue to occur, the record shows and EPA believes that this final rule will help further protect human health and the environment from chemical hazards through advancement of process safety based on lessons learned. These amendments seek to improve chemical process safety; assist in planning, preparedness, and response to Risk Management Program-reportable accidents; and improve public awareness of chemical hazards at regulated sources. While many of the provisions of this final rule reinforce each other, it is EPA's intent that each one is merited on its own, and thus severable. DATES: This final rule is effective on May 10, 2024. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OLEM-2022-0174. All documents in the docket are listed on the https://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 https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Deanne Grant, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-564-1096; email: grant.deanne@epa.gov. SUPPLEMENTARY INFORMATION: Preamble acronyms and abbreviations. EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, EPA defines the following terms and acronyms here: List of Abbreviations and Acronyms ANSI American National Standards Institute API American Petroleum Institute CAA Clean Air Act CAAA Clean Air Act Amendments CBI Confidential Business Information CCPS Center for Chemical Process Safety CERCLA Comprehensive Environmental Response, Compensation, and Liability Act CFATS Chemical Facility Anti-Terrorism Standards CFR Code of Federal Regulations CISA Cybersecurity & Infrastructure Security Agency CSB Chemical Safety and Hazard Investigation Board CSISSFRRA Chemical Safety Information, Site Security and Fuels Regulatory Relief Act CVI Chemical-terrorism Vulnerability Information DHS Department of Homeland Security DOJ Department of Justice DOT Department of Transportation EHS Extremely Hazardous Substances EJ Environmental Justice E.O. Executive Order EPA Environmental Protection Agency EPCRA Emergency Planning and Community Right-To-Know Act FBI Federal Bureau of Investigation FOIA Freedom of Information Act FR Federal Register GDC General Duty Clause HF hydrofluoric acid HHC highly hazardous chemical ICR Information Collection Request IIAR International Institute of Ammonia Refrigeration IPAWS Integrated Public Alert & Warning System ISD inherently safer design IST inherently safer technology LEPC Local Emergency Planning Committee LOPA Layers of Protection Analysis NAICS North American Industry Classification System NASTTPO National Association of SARA Title III Program Officials NECI National Enforcement and Compliance Initiative NJDEP New Jersey Department of Environmental Protection NRC National Response Center NRI National Risk Index NTTAA National Technology and Transfer Advancement Act OCA offsite consequence analysis OMB Office of Management and Budget OSHA Occupational Safety and Health Administration PES Philadelphia Energy Solutions PHA process hazard analysis PHMSA Pipeline and Hazardous Materials Safety Administration PRA Paperwork Reduction Act PSI process safety information PSM process safety management RAGAGEP recognized and generally accepted good engineering practices RCA root cause analysis incident investigation RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RMP Risk Management Program or risk management plan SARA Superfund Amendments and Reauthorization Act SCCAP Safer Communities by Chemical Accident Prevention SDS Safety Data Sheet SERC State Emergency Response Commission STAA safer technology and alternatives analysis TCPA Toxic Catastrophe Prevention Act TMA trimethylamine TQ threshold quantity UMRA Unfunded Mandates Reform Act The contents of this preamble are: I. Executive Summary A. Purpose of the Regulatory Action B. Summary of the Major Provisions of the Regulatory Action C. Costs and Benefits II. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency's authority for taking this action? D. What are the incremental costs and benefits of this action? III. Background A. Overview of EPA's Risk Management Program B. Events Leading to This Action C. EPA's Authority To Revise the RMP Rule IV. Discussion of General Comments A. General Comments B. EPA Responses V. Prevention Program Requirements A. Hazard Evaluation Amplifications B. Safer Technology and Alternatives Analysis (STAA) C. Root Cause Analysis D. Third-Party Compliance Audits E. Employee Participation VI. Emergency Response A. Summary of Proposed Rulemaking B. Summary of Final Rule C. Discussion of Comments VII. Information Availability A. Summary of Proposed Rulemaking B. Summary of Final Rule C. Discussion of Comments and Basis for Final Rule Provisions VIII. Other Areas of Technical Clarification/Enforcement Issues A. Summary of Proposed Rulemaking B. Summary of Final Rule C. Discussion of Comments and Basis for Final Rule Provisions IX. Compliance Dates A. Summary of Proposed Rulemaking B. Summary of Final Rule C. Discussion of Comments and Basis for Final Rule Provisions X. Statutory and Executive Orders Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. Executive Summary A. Purpose of the Regulatory Action The purpose of this action is to make changes to the Risk Management Program (RMP) rule in order to improve safety at facilities that use and distribute hazardous chemicals. Because major and other serious and concerning RMP accidents continue to occur, this final rule aims to better identify and further regulate risky facilities to prevent accidental releases before they can occur. As explained in further detail in following sections of this preamble, EPA maintains that by taking a rule-based, prevention-focused approach in this action rather than the so-called “compliance-driven,” mostly post-incident, approach in the 2019 reconsideration rule (84 FR 69834, December 19, 2019), this rule will further protect human health and the environment from chemical hazards through process safety advancement without undue burden. EPA proposed changes to its RMP regulations (40 Code of Federal Regulations (CFR) part 68) on August 31, 2022 (87 Federal Register (FR) 53556), after publishing a “Notice of virtual public listening sessions; request for public comment” (86 FR 28828) that solicited comments and information from the public regarding potential changes to the RMP regulations. EPA also hosted a series of virtual public hearings on September 26-28, 2022, to provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. B. Summary of the Major Provisions of the Regulatory Action This action amends EPA's RMP regulations at 40 CFR part 68. These regulations apply to stationary sources (also referred to as “facilities”) that hold specific “regulated substances” in excess of threshold quantities. These facilities are required to assess their potential release impacts, undertake steps to prevent releases, plan for emergency response to releases, and summarize this information in a risk management plan (RMP) submitted to EPA. The release prevention steps vary depending on the type of process, but progressively gain granularity and rigor over three program levels ( i.e., Program 1, Program 2, and Program 3). The major provisions of this rule include several changes to the accident prevention program requirements, as well as enhancements to the emergency response requirements, and improvements to the public availability of chemical hazard information. Each of these provisions is introduced in the following paragraphs of this section and described in greater detail in sections V through VIII of this preamble. Additionally, certain revised provisions apply to a subset of the processes based on program levels described in 40 CFR part 68 (or in one case, to a subset of processes within a program level). A full description of these program levels is provided in section III.A. of this preamble. Additional provisions are targeted at subgroups of processes that pose an elevated likelihood of impacting nearby communities. Factors elevating the likelihood of impacting nearby communities include source-specific accident history, industry accident history, and co-location with multiple facilities. Furthermore, some sectors are targeted for additional provisions due to recent accidents and widely known safer alternative technologies. C. Costs and Benefits Approximately 11,740 facilities have filed current RMPs with EPA and are potentially affected by the rule. These facilities include petroleum refineries and large chemical manufacturers; water and wastewater treatment systems; chemical and petroleum wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and a limited number of other sources, including Federal installations that use RMP-regulated substances. In total, EPA estimates annualized final rule costs of $256.9 million at a 3% discount rate and $296.9 million at a 7% discount rate over a 10-year period. The largest annualized cost of the final rule is the Safer Technologies and Alternatives Analysis (STAA) implementation cost ($168.7 million at a 3% discount rate and $204.9 million at a 7% discount rate), followed by the practicability study ($27.0 million at a 3% discount rate and $28.6 million at a 7% discount rate), the STAA initial evaluation ($18.5 million at a 3% discount rate and $19.7 million at a 7% discount rate), information availability ($12.8 million at both 3% and 7% discount rates), employee participation plans ($11.5 million at both 3% and 7% discount rates), third-party audits ($7.5 million at both 3% and 7% discount rates), rule familiarization ($5.8 million at a 3% discount rate and $6.8 million at a 7% discount rate), and community notification systems ($4.0 million at both 3% and 7% discount rates). The remaining provisions impose annualized costs under $1 million, including root cause analysis ($0.7 million at both 3% and 7% discount rates), emergency backup power for perimeter monitors ($0.3 million at both 3% and 7% discount rates), and RMP justifications for natural hazards, facility siting, recognized and generally accepted good engineering practices (RAGAGEP), and no backup power, each have annualized costs below $0.1 million (at both 3% and 7% discount rates). The Agency has determined that among the 2,636 potentially regulated private sector small entities impacted, 2,393, or 90.8 percent, may experience a cost of revenue impact of less than one percent, with an average small entity cost of $72,525; 167, or 6.3 percent, may experience an impact of between 1 and 3 percent of revenues with an average small entity cost of $629,271; and 75, or 2.8 percent, may experience an impact of greater than 3 percent with an average small entity cost of $1,083,823. The industry sectors of Farm Supplies Merchant Wholesalers and Farm Product Warehousing and Storage had the most entities potentially affected, with 146 and 96 entities, respectively. Within the Farm Supplies Merchant Wholesalers sector, the Agency determined that only 8 of the 146 small entities (6 percent of small entities) will experience impacts of between 1 and 3 percent of revenues and only 2 small entities (1 percent of small entities) will experience impacts of more than 3 percent of revenue. Within the Farm Product Warehousing and Storage sector, the Agency determined that only 5 of the 96 small entities (5 percent of small entities) will experience impacts of between 1 and 3 percent of revenues and no small entities will experience impacts of more than 3 percent of revenue. Among the 630 small government entities potentially affected, the minimum cost any entity will incur is $2,000; 365, or 58 percent, would incur costs ranging from $2,000 to $3,000; 248, or 39 percent, will incur costs ranging from $3,000 to $10,000; and 17, or 3 percent, will incur costs greater than $10,000. EPA estimated that for the rule to have a larger than 1 percent impact on the government entity with the largest cost impact, the entity would need to have revenue of less than $120 per resident. For the rule to have a larger than 1 percent impact on the smallest government entity identified in the data, the entity would need to have revenue of less than $650 per resident. Details of these analyses are presented in Chapter 8 of the RIA, which is available in the docket. Major and other serious and concerning RMP accidents have continued to occur. EPA anticipates that promulgation and implementation of this final rule will reduce the risk of such accidents and the severity of the impacts when they occur. RMP accident data show past accidents have generated highly variable impacts, so the impacts of future accidents are difficult to predict. Nevertheless, it is clear from RMP accident data 1 and other relevant data from RMP regulated industry sectors, 2 that chemical accidents can impose substantial costs on firms, employees, emergency responders, the community, and the broader economy. 1 EPA estimated monetized damages from RMP facility accidents of $540.23 million per year. 2 Marsh JLT Specialty, “100 Largest Losses in the Hydrocarbon Industry,” 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry from 1974 to 2021 in current and 2021 dollars and in a few cases, business loss costs. Specifically, the EPA expects the final rule provisions to result in a reduced frequency and magnitude of damages from releases, including damages that are quantified for the baseline period such as fatalities, injuries, property damage, hospitalizations, medical treatment, sheltering in place, and evacuations. EPA also expects the final rule provisions to reduce baseline damages that are not quantified. These damages include potential health risks from toxic chemical exposure, lost productivity at affected facilities, emergency response costs, transaction costs from potential subsequent legal battles, property value losses in nearby neighborhoods, environmental damage and costs of evacuation and sheltering-in-place events, and others. They have not been quantified because there is either limited or no information in the RMP data that could allow for precise quantification. However, in some cases, these damages could be even more detrimental to the facility and community than those damages that can be quantified. For example, regarding lost productivity, costs are highly variable based on the type of release, the extent of the damage, the location of the facility, and product being produced. Yet, Marsh Specialty, a risk management and energy consultancy, has collected data on 10,000 accidents in the petrochemical sector over 40 years and published 27 editions of its “100 Largest Losses” reports. 3 Their data suggest that lost productivity is typically two or three times the cost of property damage. 4 Another example of unquantified impacts can be examined with property value impacts. A recent hedonic property value analysis has examined the impact of RMP facility accidents on residential property values (Guignet et al. 2023a, b). 5 The analysis found that accidents with only onsite impacts reduced nearby property values between zero and two percent. However, accidents with impacts that occurred offsite, including fatalities, hospitalizations, people in need of medical treatment, evacuations, sheltering in place events, and/or property and environmental damage, reduced home values by two to three percent. The lower values persisted for about 10 to 12 years on average. The paper estimates an average loss of $5,350 per home in 2021-year values. Aggregating across the communities near the 661 facilities that experienced an offsite impact accident in their data, they calculate a total $39.5 billion loss. These studies strongly suggest that preventing or mitigating an accident at a chemical facility may prevent or mitigate lost productivity at RMP facilities and property value losses in nearby neighborhoods. 3 Marsh JLT Specialty, “100 Largest Losses in the Hydrocarbon Industry,” 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry from 1974 to 2021 in current and 2021 dollars and in a few cases, business loss costs. 4 Marsh JLT Specialty, “100 Largest Losses 1974-2015: Large property damage losses in the hydrocarbon industry,” 24th Edition, March 2016. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry and in a few cases, business loss costs. 5 Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and James Belke. 2023a. The External Costs of Industrial Chemical Accidents: A Nationwide Property Value Study. Journal of Housing Economics. 62 (2023) 101954. Further, in enacting section 112(r), Congress was focused on catastrophic accidents such as the 1984 Union Carbide industrial disaster in Bhopal, India, 6 which are extremely rare, but very high consequence events. While large chemical facility accidents that have occurred in the U.S. and Europe have not approached this level of damage, it is possible that could happen. For example, one of the most consequential chemical accidents in the U.S. 7 was the 1989 explosion at the Phillips facility in Pasadena, TX, that killed 23 workers ($239 million in 2022 dollars), injured at least 150 more ($7.5 million), and caused $1.8 billion in property damage. 8 6 Union Carbide release of approximately 40 tons of methyl isocyanate into the air killed over 3,700 people. Most of the deaths and injuries occurred in a residential area near the plant.; Lees, Frank P. Loss Prevention in the Process Industries, Volume 3, 2nd ed. Appendix 5, Bhopal (Oxford: Butterworth-Heinemann, 1996). 7 As compared to consequences resulting from RMP accidents 2004-2020 listed in Appendix A of the Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 8 EPA estimated the values of injuries and deaths that occurred in Pasadena using the same values applied to injuries and deaths at RMP facility-reported accidents. See Exhibit 3-15 in the accompanying RIA for specific values and section 3.2.5.1 “Fatalities and Injuries” in the RIA for detailed explanations of how those values were estimated. The $1.8 billion in property damage was estimated by Marsh JLT Specialty, “100 Largest Losses in the Hydrocarbon Industry,” 27th ed., March 2022. https://www.marsh.com/us/industries/energy-and-power/insights/100-largest-losses/100-largest-losses-report-download.html. The five-year baseline period accident costs included in EPA's analysis is $540 million per year. This cost was estimated using impacts from accidents during 2016 through 2020 (the last year with complete data) reported to the RMP plan reporting database by facility owners and operators. EPA used this dataset due to a lack of alternative data describing accident impacts more comprehensively. This estimate does not include a major catastrophe on the scale of Union Carbide-Bhopal, or even Phillips-Pasadena. If the final rule provisions were to prevent or substantially mitigate even one accident of this magnitude, the benefits generated, quantified and unquantified, will be dramatic. Further, some accidents that occurred at RMP facilities during the five-year period were not reported to EPA because the facility either closed after the accident, decommissioned the process, or removed the regulated substance from the process involved in the accident before it was required to submit a report to the RMP Database. 9 Additionally, the many baseline accident impacts that are not reflected in the $540 million baseline accident cost estimate because EPA was unable to monetize them, 10 yet are expected to be avoided as a benefit of the final provisions, include responder costs, transaction costs, property value reductions, unmonetized costs of evacuations and sheltering-in-place, the costs of potential health effects from exposure to toxic chemicals, and productivity losses, among others. The $540 million estimate also does not reflect the full set of baseline inefficiencies that may be mitigated due to the improved information offered by several of the final provisions such as the community notification requirements and the back-up power for monitors. As the range of monetized accident impacts suggests (from $100 to $700 million for 2016 to 2020 11 ), the variation in monetized damages is substantial. Preventing a single high-cost accident annually would offset annual rule costs. 9 For example, the Philadelphia Energy Solutions Refining and Marketing LLC facility in Philadelphia, PA, had a fire and explosions in the PES Girard Point refinery HF alkylation unit on June 21, 2019, which resulted in the release of HF. This facility deregistered the affected process before the deadline for their subsequent RMP report. For a description of damages from this accident see section 3.2.1 of the RIA and the CSB Report, Fire and Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf. 10 For descriptions on why EPA was unable to monetize each of these impacts, see Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). Chapter 6, Section 6.2. 11 Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). When considering this final rule's likely benefits of avoiding some portion of the monetized accident impacts, as well as the additional nonmonetized benefits, EPA believes the costs of the rule are reasonable in comparison to its expected benefits. When assessing the reasonableness of the benefits and burdens of various regulatory options, EPA places weight on both preventing more common accidental releases captured in the accident history portion of the RMP database while also placing weight on less quantifiable potential catastrophic events. The Agency's judgment as to what regulations are “reasonable” is informed by both quantifiable and unquantifiable burdens and benefits as discussed more fully in section III.C of this preamble. II. General Information A. Does this action apply to me? This rule applies to those facilities (referred to as “stationary sources” under the Clean Air Act, or CAA (42 U.S.C. 7412(r))) that are subject to the chemical accident prevention requirements at 40 CFR part 68. This includes stationary sources holding more than a threshold quantity (TQ) of a regulated substance in a process. Nothing in this rule impacts the scope and applicability of the General Duty Clause (GDC) in CAA section 112(r)(1), 42 U.S.C. 7412(r)(1). See 40 CFR 68.1. Table 1 provides industrial sectors and the associated North American Industry Classification System (NAICS) codes for entities potentially affected by this action. The Agency's goal is to provide a guide on entities that might be affected by this action. However, this action may affect other entities not listed in this table. If you have questions about the applicability of this action to a particular entity, consult the person(s) listed in the FOR FURTHER INFORMATION CONTACT section of this preamble. Table 1—Entities Potentially Affected by the Final Rule Sector NAICS codes Number of facilities Chemical uses Administration of environmental quality programs ( i.e., governments, government-owned water) 92, 2213 (government-owned) 1,449 Use chlorine and other chemicals for water treatment. Agricultural chemical distributors/wholesalers 11, 424 (except 4246, 4247) 3,315 Store ammonia for sale; some in NAICS 111 and 115 use ammonia as a refrigerant. Chemical manufacturing 325 1,502 Manufacture, process, store. Chemical wholesalers 4246 317 Store for sale. Food and beverage manufacturing 311, 312 1,571 Use (mostly ammonia) as a refrigerant. Oil and gas extraction 211 719 Intermediate processing (mostly regulated flammable substances and flammable mixtures). Other 21 (except 211), 23, 44, 45, 48, 491, 54, 55, 56, 61, 62, 71, 72, 81, 99 246 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale. Other manufacturing 313, 314, 315, 326, 327, 33 375 Use various chemicals in manufacturing process, waste treatment. Other wholesale 421, 422, 423 39 Use (mostly ammonia) as a refrigerant. Paper manufacturing 321, 322 55 Use various chemicals in pulp and paper manufacturing. Petroleum and coal products manufacturing 324 156 Manufacture, process, store (mostly regulated flammable substances and flammable mixtures). Petroleum wholesalers 4247 367 Store for sale (mostly regulated flammable substances and flammable mixtures). Utilities/water/wastewater 221 (non-government-owned water) 519 Use chlorine (mostly for water treatment) and other chemicals. Warehousing and storage 493 1,110 Use (mostly ammonia) as a refrigerant. Total 11,740 B. What action is the Agency taking? EPA is amending its RMP regulations as a result of Agency review. The revisions include several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, improvements to the public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. Because major and other serious and concerning RMP accidents continue to occur, EPA believes that this final rule will help further protect human health and the environment from chemical hazards through advancement of process safety based on lessons learned. These amendments seek to improve chemical process safety; assist in planning, preparedness, and response to RMP-reportable accidents; and improve public awareness of chemical hazards at regulated sources. C. What is the Agency's authority for taking this action? The statutory authority for this action is provided by section 112(r) of the CAA as amended (42 U.S.C. 7412(r)). Each modification of the RMP rule that EPA finalizes in this document is based on EPA's rulemaking authority under CAA section 112(r)(7) (42 U.S.C. 7412(r)(7)). When promulgating rules under CAA section 112(r)(7)(A) and (B), EPA must follow the procedures for rulemaking set out in CAA section 307(d) (see CAA sections 112(r)(7)(E) and 307(d)(1)(C)). Among other things, CAA section 307(d) sets out requirements for the content of proposed and final rules, the docket for each rulemaking, opportunities for oral testimony on proposed rulemakings, the length of time for comments, and judicial review. D. What are the incremental costs and benefits of this action? 1. Summary of Estimated Costs Table 2 presents a summary of the annualized final rule costs estimated in the Regulatory Impact Analysis (RIA). 12 In total, EPA estimates annualized costs of $256.9 million at a 3% discount rate and $296.9 million at a 7% discount rate. 12 Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). Table 2—Summary of Estimated Annualized Costs [Millions, 2022 Dollars] Over a 10-Year Period Cost elements Total undiscounted Total discounted (3%) Total discounted (7%) Annualized (3%) Annualized (7%) Third-party Audits $75.2 $64.2 $52.8 $7.5 $7.5 Root Cause Analysis 7.3 6.2 5.1 0.7 0.7 Safer Technology and Alternatives Analysis (STAA): Initial Evaluation 176.4 158.2 138.3 18.5 19.7 Practicability Study 256.9 230.2 201.0 27.0 28.6 Implementation 1,700.4 1,438.9 1,172.6 168.7 204.9 Backup Power for Perimeter Monitors 3.3 2.8 2.3 0.3 0.3 Employee Participation Plan 114.7 97.9 80.6 11.5 11.5 RMP Justifications: No Backup Power .2 0.1 0.1 ** 0.0 ** 0.0 Natural Hazards .4 0.4 0.3 ** 0.0 ** 0.0 Facility Siting .4 0.4 0.3 ** 0.0 ** 0.0 RAGAGEP .3 0.2 0.2 ** 0.0 ** 0.0 Community Notification System 39.7 33.9 27.9 4.0 4.0 Information Availability 127.6 108.8 89.6 12.8 12.8 Rule Familiarization 50.9 49.5 47.6 5.8 6.8 Total Cost * 2,554.0 2,191.7 1,818.9 256.9 296.9 * Totals may not sum due to rounding. ** Costs are zero due to rounding, Unrounded costs are $42,307 for Natural Hazards and Facility Siting, $27,582 for RAGAGEP, and $15,798 for No Backup Power. The largest annualized cost of the final rule is the STAA implementation cost ($168.7 million at a 3% discount rate and $204.9 million at a 7% discount rate), followed by practicability study ($27.0 million at a 3% discount rate and $28.6 million at a 7% discount rate), STAA initial evaluation ($18.5 million at a 3% discount rate and $19.7 million at a 7% discount rate), information availability ($12.8 million at both 3% and 7% discount rates), employee participation plans ($11.5 million at both 3% and 7% discount rates), third-party audits ($7.5 million at both 3% and 7% discount rates), rule familiarization ($5.8 million at a 3% discount rate and $6.8 million at a 7% discount rate), and community notification systems ($4.0 million at both 3% and 7% discount rates). The remaining provisions impose annualized costs under $1 million, including root cause analysis ($0.7 million at both 3% and 7% discount rates), emergency backup power for perimeter monitors ($0.3 million at both 3% and 7% discount rates), and RMP justifications for natural hazards, facility siting, RAGAGEP, and no backup power, that each have annualized costs below $0.1 million (at both 3% and 7% discount rates). The Agency has determined that among the 2,636 potentially regulated private sector small entities impacted by this rule, 2,393, or 90.8 percent, may experience an impact of less than 1 percent of revenue with an average small entity cost of $72,525; 167, or 6.3 percent, may experience an impact of between 1 and 3 percent of revenues with an average small entity cost of $629,271; and 75, or 2.8 percent, may experience an impact of greater than 3 percent with an average small entity cost of $1,083,823. Among the 630 small government entities potentially affected, none would incur costs of less than $2,000; 365, or 58 percent, would incur costs ranging from $2,000 to $3,000; 248, or 39 percent, would incur costs ranging from $3,000 to $10,000; and 17, or 3 percent, would incur costs greater than $10,000. EPA estimated that for the rule to have a larger than 1 percent impact on the government entity with the largest cost impact, it would need to have revenue of less than $120 per resident. For the rule to have a larger than 1 percent impact on the smallest government entity identified in the data, it would need to have revenue of less than $650 per resident. 13 13 The Regulatory Flexibility Act defines small governments as governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000. Most governmental RMP facilities are water and wastewater treatment systems and listed a city or county as the owner entity. 2. Baseline Damages Accidents and chemical releases from RMP facilities occur every year. They cause fires and explosions, damage to property, acute and chronic exposures of workers and nearby residents to hazardous materials, and serious injuries and fatalities. EPA is able to present data on the total damages that currently occur at RMP facilities each year. In this final rule, EPA presents the data based on a 5-year baseline period (2016-2020), summarizes RMP accident impacts and, when possible, monetizes them. Due to a lack of alternative data describing RMP accident impacts more comprehensively, EPA chose this five-year dataset to reflect the most recent trends regarding RMP accidents. 14 It is important to note, however, that many accident costs are not required to be reported under the RMP accident reporting provisions (40 CFR 68.42(b)) and thus are not reflected in the data. These include responder costs, transaction costs, property value reductions, unmonetized costs of evacuations and sheltering-in-place, the costs of potential health effects, and productivity losses, among others. 15 In addition, some accidents that occurred at RMP facilities during the five-year period were not reported to EPA because the facility either closed after the accident, decommissioned the process, or removed the regulated substance from the process involved in the accident before it was required to submit a report to the RMP Database. For example, the Philadelphia Energy Solutions (PES) Refining and Marketing LLC facility in Philadelphia, PA, had a fire and explosions in the PES Girard Point refinery hydrofluoric acid (HF) alkylation unit on June 21, 2019, which resulted in the release of HF. 16 This facility deregistered the affected process before the deadline for their subsequent RMP report. Due to the omission of such accidents and the omission of the cost categories listed in the beginning of this paragraph, the monetized costs of RMP accidents to society underestimate the number and magnitude of RMP chemical accidents. Nonetheless, EPA expects that some portion of future damages will be prevented through implementation of the final rule. Table 3 presents a summary of the quantified damages identified in the analysis. 14 EPA used the August 1, 2021, version of the RMP database to complete its analysis because under 40 CFR 68.195(a), facilities are required to report RMP accidents and specific associated information within six months to the RMP database. Therefore, the RMP database as of August 1, 2021, is expected to include RMP accidents and their specific associated information as of December 31, 2020. However, because accident data are reported to the RMP database by facility owners and operators, EPA acknowledges the likelihood of late-reported accidents affecting these last few years of data because some facilities may have not reported their RMP accidents as they are required to do. See sections 3.2 and 3.3 of the RIA for more on this and other limitations on the number and costs of baseline accidents. 15 Further discussed in detail in Chapter 6 of the RIA. 16 For a description of damages from this case see section 3.2.1 of the RIA and the CSB Report, Fire and Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf. Table 3—Summary of Quantified Damages [Millions, 2022 dollars] Unit value 5-Year total Average/ year Average/ accident On site Fatalities $10.4 $187.9 $37.57 $0.38 Injuries 0.05 28.75 5.75 0.06 Property Damage 2,273 454.58 4.66 Onsite Total 2,489.49 497.90 5.10 Off site Fatalities 10.4 0.00 0.00 0.00 Hospitalizations 0.045 1.40 0.28 0.003 Medical Treatment 0.001 0.13 0.03 0.0003 Evacuations * 0.00 18.99 3.80 0.039 Sheltering in Place * 0.00 12.58 2.52 0.026 Property Damage 178.55 35.71 0.37 Offsite Total 211.66 42.33 0.43 Total 2,701.14 540.23 5.54 * The unit value is $293 for evacuations and $147 for sheltering in place, so when expressed in rounded millions the value represented in the table is zero. In total, EPA estimated monetized damages from RMP facility accidents of $540.23 million per year, which are divided into onsite and offsite categories where possible. EPA estimated total, average annual onsite damages from chemical releases at RMP facilities of $497.90 million. The largest monetized category was onsite property damage, valued at $454.58 million. The next largest impacts were onsite fatalities ($37.57 million) and injuries ($5.75 million). EPA estimated total, average annual offsite damages of $42.33 million. Property damage again was the highest value category, estimated at approximately $35.71 million. In decreasing order, the next largest average annual offsite impact was from evacuations ($3.80 million), then sheltering in place ($2.52 million), hospitalizations ($0.28 million), and medical treatment ($0.03 million). Regarding small entities, there were 86 accidents at facilities owned by small entities in the 2016-2020 period, or about 18 percent of all accidents. 17 These accidents cost $141.14 million in total over the 5-years, with an average cost of $28.23 million per year, and average per accident cost of $0.29 million. These accidents costs represent about 5% of the costs of all accidents. 17 There are accidents at 97 facilities that were not matched in the small entity analysis, so it is not possible to determine if they are owned by small or large entities with the data EPA has. EPA also evaluated the range of significant baseline damages in Table 3 that could not be quantified. These damages include major catastrophic releases, potential health risks from toxic chemical exposure, lost productivity at affected facilities, emergency response costs, transaction costs from potential subsequent legal battles, property value losses in nearby neighborhoods, environmental damage, unquantified costs of evacuation and sheltering-in-place events, and others. They have not been quantified because there is either limited or no information in the RMP data. However, in some cases, these damages could be even more detrimental to the facility and community than those damages that can be quantified. For example, regarding lost productivity, costs are highly variable based on the type of release, the extent of the damage, the location of the facility, and product being produced. Yet, Marsh Specialty, a risk management and energy consultancy, has collected data on 10,000 accidents in the petrochemical sector over 40 years and published 27 editions of its “100 Largest Losses” reports. 18 The data suggest that lost productivity may range from zero to four to five is typically two to three times the cost of property damage. 19 Another example of unquantified impacts can be examined with property value impacts. A recent hedonic property value analysis has examined the impact of RMP facility accidents on residential property values (Guignet et al. 2023a, b). 20 The analysis found that accidents with only onsite impacts reduced nearby property values between zero and two percent. However, accidents with impacts that occurred offsite, including fatalities, hospitalizations, people in need of medical treatment, evacuations, sheltering in place events, and/or property and environmental damage, reduced home values by two to three percent. The lower values persisted for about 10 to 12 years on average. The paper estimates an average loss of $5,350 per home in 2021-year values. Aggregating across the communities near the 661 facilities that experienced an offsite impact accident in their data, they calculate a total $39.5 billion loss. 18 Marsh JLT Specialty, “100 Largest Losses in the Hydrocarbon Industry,” 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry from 1974 to 2021 in current and 2021 dollars and in a few cases, business loss costs. 19 Marsh JLT Specialty, “100 Largest Losses 1974-2015: Large property damage losses in the hydrocarbon industry,” 24th Edition, March 2016. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry and in a few cases, business loss costs. 20 Guignet, Dennis, Robin R. Jenkins, Christoph Nolte, and James Belke. 2023a. The External Costs of Industrial Chemical Accidents: A Nationwide Property Value Study. Journal of Housing Economics. 62 (2023) 101954. Further, the five-year baseline period included in this analysis ($540 million per year) does not include a major catastrophe. In enacting section 112(r), Congress was focused on catastrophic accidents such as Union Carbide-Bhopal, which are extremely rare, but very high consequence events. The large chemical facility accidents that have occurred in the U.S. and Europe have not approached this level of damage, although it is possible that could happen. As mentioned previously, one of the most consequential accidents in the U.S., 21 the explosion at the Phillips facility in Pasadena, TX, in 1989, killed 23 workers ($239 million in 2022 dollars), injured at least 150 more ($7.5 million), and caused $1.8 billion in property damage. These baseline damages are discussed in greater detail in Chapter 6 of the RIA. 21 As compared to consequences resulting from RMP accidents 2004-2020 listed in Appendix A of the Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 3. Summary of Estimated Benefits RMP accident data show past accidents have generated highly variable impacts, so the impacts of future accidents are difficult to predict. Nevertheless, it is clear from RMP accident data 22 and other relevant data from RMP regulated industry sectors, 23 that chemical accidents can impose substantial costs on firms, employees, emergency responders, the community, and the broader economy. Notwithstanding EPA's current rules, RMP accidents have continued to occur. EPA anticipates that promulgation and implementation of this final rule will improve the health and safety protection provided by the RMP rule and result in a reduced frequency and magnitude of damages from releases, including damages that are quantified in Table 3 such as fatalities, injuries, property damage, hospitalizations, medical treatment, sheltering in place, and so on. EPA also expects that the final rule provisions will reduce baseline damages that are not quantified in Table 3 such as lost productivity, responder costs, property value reductions, damages from catastrophes, transaction costs, environmental impacts, and so on. Although EPA was unable to quantify the reductions in damages that may occur as a result of the final rule provisions, EPA expects that a portion of future damages will be prevented by the final rule. 24 Table 4 summarizes five broad social benefit categories related to accident prevention and mitigation, including prevention of RMP accidents, mitigation of RMP accidents, prevention and mitigation of non-RMP accidents at RMP facilities, and prevention of major catastrophes. The table explains each and identifies thirteen associated specific benefit categories, ranging from avoided fatalities to avoided emergency response costs. 22 EPA estimated monetized damages from RMP facility accidents of $540.23 million per year. 23 Marsh JLT Specialty, “100 Largest Losses in the Hydrocarbon Industry,” 27th Edition, March 2022. Accessed from https://www.marsh.com/uk/industries/energy-and-power/insights/100-largest-losses.html. Marsh provides estimates of large property damage losses in the hydrocarbon industry from 1974 to 2021 in current and 2021 dollars and in a few cases, business loss costs. 24 For the discussion of how final rule provisions are intended to lower the likelihood of future accidents of the same or similar type, see section 6.1.1 of the RIA. Table 4—Summary of Social Benefits of Final Rule Provisions Broad benefit category Explanation Specific benefit categories Accident Prevention Prevention of future RMP facility accidents • Reduced Fatalities. • Reduced Injuries. • Reduced Property Damage. • Fewer People Sheltered-in-Place. Accident Mitigation Mitigation of future RMP facility accidents. • Fewer Evacuations. • Avoided Health Risks from Exposure to Toxics. Non-RMP Accident Prevention and Mitigation Prevention and mitigation of future non-RMP accidents at RMP facilities. • Avoided Lost Productivity. • Avoided Emergency Response Costs. • Avoided Transaction Costs. • Avoided Property Value Impacts.* Avoided Catastrophes Prevention of rare but extremely high consequence events. • Avoided Environmental Impacts. Information Availability Provision of information to the public and emergency responders • Improved Efficiency of Property Markets. • Improved Resource Allocation. * These impacts partially overlap with several other categories. For details on how quantified benefits were estimated or discussion on unquantified benefits, including the difficulty in their quantification see Chapter 6 of the RIA. When considering this final rule's likely benefits of this of avoiding some portion of the monetized accident impacts, as well as the additional nonmonetized benefits, EPA believes the costs of the rule are reasonable in comparison to its expected benefits. When assessing the reasonableness of the benefits and burdens of various regulatory options, EPA places weight on both preventing more common accidental releases captured in the accident history portion of the RMP database while also placing weight on less quantifiable potential catastrophic events. The Agency's judgment as to what regulations are “reasonable” is informed by both quantifiable and unquantifiable burdens and benefits. III. Background A. Overview of EPA's Risk Management Program EPA originally issued the RMP regulations in two stages. First, the Agency published the list of regulated substances and TQs in 1994: “List of Regulated Substances and Thresholds for Accidental Release Prevention; Requirements for Petitions Under Section 112(r) of the Clean Air Act as Amended” (59 FR 4478, January 31, 1994), hereinafter referred to as the “list rule.” 25 The Agency then published the RMP regulations, containing risk management requirements for covered sources, in 1996: “Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)” (61 FR 31668, June 20, 1996), hereinafter referred to as the “1996 RMP rule.” 26 27 Subsequent modifications to the list rule and the 1996 RMP rule were made as discussed in the 2017 amendments rule (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act”; 82 FR 4594 at 4600, January 13, 2017, hereinafter referred to as the “2017 amendments rule”). In addition to requiring implementation of management program elements, the RMP rule requires any covered source to submit (to EPA) a document summarizing the source's risk management program—called a risk management plan (or RMP). 25 Documents and information related to development of the list rule can be found in the EPA docket for the rulemaking, docket number A-91-74. 26 Documents and information related to development of the 1996 RMP rule can be found in EPA docket number A-91-73. 27 The regulation at 40 CFR part 68 applies to owners and operators of stationary sources that have more than a TQ of a regulated substance within a process. The regulations do not apply to chemical hazards other than listed substances held above a TQ within a regulated process. Prior to development of EPA's 1996 RMP rule, the Occupational Safety and Health Administration (OSHA) published its Process Safety Management (PSM) standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 Clean Air Act Amendments (CAAA), using its authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29 CFR 1910.119. Both the OSHA PSM standard and EPA's RMP rule aim to prevent or minimize the consequences of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management practices. EPA's RMP requirements include conducting a worst-case scenario analysis and a review of accident history, coordinating emergency response procedures with local response organizations, conducting a hazard assessment, documenting a management system, implementing a prevention program and an emergency response program, and submitting a risk management plan that addresses all aspects of the RMP for all covered processes and chemicals. A process at a source is covered under one of three different prevention programs (Program 1, Program 2, or Program 3) based directly or indirectly on the threat posed to the community and the environment. Program 1 has minimal requirements and is for processes that have not had an accidental release with offsite consequences in the last 5 years before submission of the source's risk management plan, and that have no public receptors within the worst-case release scenario vulnerable zone for the process. Program 3 applies to processes not eligible for Program 1, has the most requirements, and applies to processes covered by the OSHA PSM standard or classified in specified industrial sectors. Program 2 has fewer requirements than Program 3 and applies to any process not covered under Programs 1 or 3. Programs 2 and 3 both require a hazard assessment, a prevention program, and an emergency response program, although Program 2 requirements are less extensive and more streamlined. For example, the Program 2 prevention program was intended to cover, in many cases, simpler processes at smaller businesses and does not require the following process safety elements: management of change, pre-startup review, contractors, employee participation, and hot work permits. The Program 3 prevention program is similar to the OSHA PSM standard and designed to cover those processes in the chemical industry. EPA notes that nothing in this final rule changes the applicability determinations or designations of whether a process at a stationary source is covered under one of the three different prevention programs. B. Events Leading to This Action On January 13, 2017, EPA published amendments to the RMP rule (82 FR 4594). The 2017 amendments rule was prompted by E.O. 13650, “Improving Chemical Facility Safety and Security,” 28 which directed EPA (and several other Federal agencies) to, among other things, modernize policies, regulations, and standards to enhance safety and security in chemical facilities. The 2017 amendments rule contained various new provisions applicable to RMP-regulated facilities addressing prevention program elements (STAA, incident investigation root cause analysis, and third-party compliance audits); emergency response coordination with local responders (including emergency response exercises); and availability of information to the public. EPA received three petitions for reconsideration of the 2017 amendments rule under CAA section 307(d)(7)(B). 29 In December 2019, EPA finalized revisions to the RMP regulations to reconsider the rule changes made in January 2017 (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,” 84 FR 69834, December 19, 2019, hereinafter referred to as the “2019 reconsideration rule”). The 2019 reconsideration rule rescinded certain information disclosure provisions of the 2017 amendments rule, removed most new accident prevention requirements added by the 2017 amendments rule, and modified some other provisions of the 2017 amendments rule. The rule changes made by the 2019 reconsideration rule reflect the current RMP regulations to date. There are petitions for judicial review of both the 2017 amendments and the 2019 reconsideration rules. The 2019 reconsideration rule challenges are being held in abeyance until March 1, 2024, by which time the parties must submit motions to govern. The case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case. 28 https://obamawhitehouse.archives.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security. 29 https://www.epa.gov/petitions/petitions-office-land-and-emergency-management. On January 20, 2021, President Biden issued E.O. 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the ClimateCrisis.” 30 E.O. 13990 directed Federal agencies to review existing regulations and take action to address priorities established by the Biden Administration, which include bolstering resilience to the impacts of climate change and prioritizing EJ. As a result, EPA was tasked to review the current RMP regulations. 30 https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/. While the Agency reviewed the RMP rule under E.O. 13990, the E.O. did not specifically direct EPA to publish a solicitation for comment or information from the public. Nevertheless, EPA held virtual public listening sessions on June 16 and July 8, 2021, and had an open docket for public comment (86 FR 28828, May 28, 2021). In the request for public comment, the Agency asked for information on the adequacy of revisions to the RMP regulations completed since 2017, incorporating consideration of climate change risks and impacts into the regulations and expanding the application of EJ. EPA received a total of 27,828 public comments in response to the request for comments. This included 27,720 received at regulations.gov, 31 35 provided during the listening session on June 16, 2021, 32 and 73 provided during the listening session on July 8, 2021. 33 Most of the comments received in the docket were copies of form letters related to four different form letter campaigns. The remaining comments included 302 submissions containing unique content. Of the 302 unique submissions, a total of 163 were deemed to be substantive ( i.e., the commenters presented both a position and a reasoned argument in support of the position). Information collected through these comments informed the proposal. 31 EPA-HQ-OLEM-2021-0312. 32 EPA-HQ-OLEM-2021-0312-0011. 33 EPA-HQ-OLEM-2021-0312-0020. EPA published the “RMP Safer Communities by Chemical Accident Prevention,” (SCCAP) proposed rulemaking on August 31, 2022 (87 FR 53556), hereinafter referred to as the “2022 SCCAP proposed rule.” The 2022 SCCAP proposed rule included several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, improvements to the public availability of chemical hazard information, and several other changes to certain regulatory definitions or points of clarification. EPA hosted virtual public hearings on September 26, 27, and 28, 2022 to provide interested parties the opportunity to present data, views or arguments concerning the proposed action. EPA received a total of 494 discrete public comments deemed as substantive ( i.e., the commenters presented both a position and a reasoned argument in support of the position) on the proposed rulemaking. Of the 494 comments, 370 were written submitted comments and 124 were from members of the public that provided verbal comments at the public hearings on September 26, 27, and 28, 2022. Of the 370, 142 were from 101 unique organizations, 6 were the result of various mass mail campaigns and contained numerous copies of letters or petition signatures (approximately 57,505 letters and signatures were contained in these several comments), and 31 were from individual citizens. Discussion of public comments can be found in topics included in this final rule and in the Response to Comments document, 34 available in the docket for this rulemaking. 34 2023. EPA Response to Comments on the 2022 SCCAP Proposed Rule (August 31, 2022; 87 FR 53556). This document is available in the docket for this rulemaking. The notice of proposed rulemaking (NPRM) discussed how the various proposed provisions amendments to the RMP rule were not only integrated, reinforcing, and complementary but also how each was merited on its own and severable. 87 FR 53566 (August 31, 2022). For example, EPA noted that new substantive prevention requirements like STAA and third-party audits triggered by NAICS, location, and accident history were reinforced by provisions like local information access and enhanced employee participation. Nevertheless, in the body of the preamble for the 2022 SCCAP proposed rule, the Agency explained how each of these provisions would help prevent accidents and improve release mitigation and emergency response on its own merits. C. EPA's Authority To Revise the RMP Rule The statutory authority for this action is provided by CAA section 112(r) (42 U.S.C. 7412(r)). Each of the portions of the RMP regulations we are amending in this action are based on EPA's rulemaking authority under CAA section 112(r)(7). Under CAA section 112(r)(7)(A), EPA may set rules addressing the prevention, detection, and correction of accidental releases of substances listed by EPA (“regulated substances” listed in the tables 1 through 4 to 40 CFR 68.130). Such rules may include requirements related to monitoring, data collection, training, design, equipment, work practice, and operations. In promulgating its regulations, EPA may draw distinctions between types, classes, and kinds of facilities by taking into consideration various factors including size and location. A more detailed discussion of the underlying statutory authority for the current RMP regulations appears in the initial 1993 action that proposed the RMP regulations (58 FR 54190-3, October 20, 1993). Under CAA 112(r)(7)(B)(i), Congress authorized EPA to develop “reasonable regulations and appropriate guidance” that provide for the prevention and detection of accidental releases and the response to such releases, “to the greatest extent practicable.” Congress required an initial rulemaking under this paragraph by November 15, 1993. Section 112(r)(7)(B) sets out a series of mandatory subjects to address, interagency consultation requirements, and discretionary provisions that allowed EPA to tailor requirements to make them reasonable and practicable. The prevention program provisions discussed in this action (hazard evaluations of natural hazards, power loss and stationary source siting, safer technologies and alternatives analysis, root cause analysis incident investigation, third party compliance auditing, and employee participation) derive from EPA's authority to promulgate reasonable regulations for the “prevention and detection of accidental releases” (CAA section 112(r)(7)(B)(i)). Similarly, the emergency coordination and exercises provisions in this rule derive from EPA's authority to promulgate reasonable regulations to address “response to such [accidental] releases by the owners or operators of the source of such releases” Id. Section 112(r)(7)(B)(i) calls for EPA's regulations to recognize differences in “size, operations, processes, class and categories of sources.” For that reason, this action maintains distinctions in prevention program levels and in response actions authorized by this provision. Finally, the information availability provisions discussed in this action generally assist in the development of “procedures and measures for emergency response after an accidental release of a regulated substance in order to protect human health and the environment.” Id. These information availability provisions include requirements to disclose information to the public within a 6-mile radius of sources, and are designed to ensure that emergency plans for impacts on the community are based on more relevant and accurate information than would otherwise be available and ensures that the public can become an informed participant in such emergency planning. Also, as noted in the 2022 SCCAP proposed rule, requiring that information be made available to the public strengthens the prevention program by leveraging public oversight of facilities—especially prevention provisions that are triggered by source-specific accident history (87 FR 53566, August 31, 2022). This rulemaking action finalizes substantive amendments to 40 CFR part 68 and is authorized by CAA sections 112(r)(7)(A) and (B), as explained in more detail in the proposed action (87 FR 53563-6), and as explained herein. In considering whether it is legally permissible for EPA to modify provisions of the RMP regulations while continuing to meet its obligations under CAA section 112(r), the Agency notes that it has made discretionary amendments to the 1996 RMP rule several times without dispute over its authority to issue discretionary amendments. (See 64 FR 640, January 6, 1999; 64 FR 28696, May 26, 1999; 69 FR 18819, April 9, 2004.) According to the decision in Air Alliance Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018), “EPA retains the authority under Section 7412(r)(7) [CAA section 112(r)(7)] to substantively amend the programmatic requirements of the [2017 RMP amendments] . . . subject to arbitrary and capricious review” (906 F.3d at 1066). Therefore, EPA is authorized to modify the provisions of the current RMP regulations if it finds that it is reasonable to do so. 35 35 See Motor Vehicle Manufacturers. Association of the United States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983). In addressing the standard of review to reconsider a regulation, the Supreme Court stated that the rescission or modification of safety standards “is subject to the same test” as the “agency's action in promulgating such standards [and] may be set aside if found to be `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' ” (463 U.S. at 41, quoting 5 U.S.C. 706). The same standard that applies to the promulgation of a rule applies to the modification or rescission of that rule. The Supreme Court has also recognized that agencies have broad discretion to reconsider a regulation at any time so long as the changes in policy are “permissible under the statute, . . . there are good reasons for [them], and that the agency believes [them] to be better” than prior policies. (See Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); emphasis in quote original. 36 ) As explained in detail above and throughout this notice, the policy changes finalized in this action are permissible under the statute. 36 The full quote from Fox states: “But [the Agency] need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates” ( Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. at 515; emphasis original). Additionally, there are good reasons for the policies adopted in this rule. Accidental releases remain a significant concern to communities and cost society more than $540 million yearly. 37 EPA monetized both onsite and offsite damages from RMP facility accidents from 2016-2020, 38 when possible, to determine this amount. It is important to note, however, that many accident costs are not required to be reported under the RMP accident reporting provisions (40 CFR 68.42(b)) and thus are not reflected in the data. These include responder costs, transaction costs, property value reductions, unmonetized costs of evacuations and sheltering-in-place, the costs of potential health risks from exposure to toxic chemicals, and productivity losses, among others. 39 As mentioned previously, some accidents that occurred at RMP facilities during the five-year period were not reported to EPA because the facility either closed after the accident, decommissioned the process, or removed the regulated substance from the process involved in the accident before it was required to submit a report to the RMP Database. For example, the Philadelphia Energy Solutions Refining and Marketing LLC facility in Philadelphia, PA, had a fire and explosions in the PES Girard Point refinery HF alkylation unit on June 21, 2019, which resulted in the release of HF. 40 This facility deregistered the affected process before the deadline for their subsequent RMP report. Due to the omission of such accidents and the omission of the cost categories listed in the beginning of this paragraph, the monetized costs of RMP accidents to society underestimate the number and magnitude of RMP chemical accidents. 37 A full description of costs and benefits for this final rule can be found in the Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). 38 Due to a lack of alternative data describing RMP accident impacts more comprehensively, EPA chose this five-year dataset to reflect the most recent trends regarding RMP accidents. EPA used the August 1, 2021, version of the RMP database to complete its analysis because under 40 CFR 68.195(a), facilities are required to report RMP accidents and specific associated information within six months to the RMP database. Therefore, the RMP database as of August 1, 2021, is expected to include RMP accidents and their specific associated information as of December 31, 2020. However, because accident data are reported to the RMP database by facility owners and operators, EPA acknowledges the likelihood of late-reported accidents affecting these last few years of data because some facilities may have not reported their RMP accidents as they are required to do. See sections 3.2 and 3.3 of the RIA for more on this and other limitations on the number and costs of baseline accidents. 39 Further discussed in detail in Chapter 6 of the RIA. 40 For a description of damages from this case see section 3.2.1 of the RIA and the CSB Report, Fire and Explosions at Philadelphia Energy Solutions Refinery Hydrofluoric Acid Alkylation Unit, Factual Update, October 16, 2019, https://www.phila.gov/media/20191204161826/US-CSB-PES-Factual-Update.pdf. EPA estimated total average annual onsite damages of $497.9 million. The largest monetized, average annual, onsite damage category was property damage, which resulted in average annual damage of approximately $454.58 million. The next largest impact was onsite fatalities ($37.57 million) and injuries ($5.75 million). EPA estimated total average annual offsite damages of $42.33 million. The largest monetized, average annual, offsite damage category was property damage, which resulted in average annual damage of approximately $35.71 million. The next largest impact was from evacuations ($3.80 million), sheltering in place ($2.52 million), hospitalizations ($0.28 million), and medical treatment ($0.03 million). The risk of being impacted by an accidental release is even more apparent in communities where multiple RMP facilities are in close proximity to residential areas. 41 The 2022 SCCAP proposed rule not only discussed data demonstrating this elevated risk, but also noted that a higher frequency of accidental releases in such communities is consistent with the common-sense notion that, while accidental releases are low-probability, high consequence events, the more facilities near a community, the higher the likelihood that the community will be faced with such an event, or multiple events (all other factors being equal). Lowering the probability and magnitude of accidents by putting more of a focus on prevention reduces the risks posed by these RMP facilities, 42 which is one of the objectives of the present RMP amendments. 41 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). 42 EPA notes that the two industrial sectors that are the focus of more requirements under the SCCAP rule, petroleum refineries (NAICS 324) and chemical manufacturers (NAICS 325) have been responsible for 42% of the accidental releases in the RMP database over the years 2016-2020. Approximately 83% of the costs of RMP accidental releases during 2016-2020 are attributed to these sectors. More details on the number and costs of baseline RMP accidents can be found in the Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). EPA received various comments indicating that EPA has appropriate authority to revise RMP regulations. For the reasons stated directly above and throughout the proposal where we outline EPA's statutory authority under CAA section 112(r)(7), EPA agrees with these comments. Conversely, EPA also received comments that EPA is exceeding its statutory authority because it does not have jurisdiction over worker safety issues. EPA disagrees that it has exceeded its statutory authority in this way in this rulemaking. EPA acknowledges that both EPA and OSHA have separate mandates under the Occupational Safety and Health Act (29 U.S.C. 651), the CAA, and the requirements enacted in the CAAA. In the 1990s, both Agencies fulfilled their mandatory duties to promulgate and issue the rules required by CAA sections 112(r)(3)-(5) and 112(r)(7)(B), as well as section 304 of the CAAA. The focus of OSHA's regulations in the PSM standard is on workplace safety, while EPA's focus in the RMP regulations has been primarily on minimizing the public impacts of accidental releases through prevention and response. This rule maintains EPA's focus on minimizing the public impacts of accidental releases even as it also reduces impacts on facilities and workers. As explained throughout the proposal and in this final action, the OSHA PSM standard and EPA RMP regulations are closely aligned in content, policy interpretations, and enforcement. This is not surprising, as accident prevention steps that make a process safe for workers often will be similar, or the same as, steps that would prevent deleterious impacts on the public. Congress recognized this relationship by requiring EPA to coordinate its requirements with those of OSHA in developing accident prevention regulations and requiring OSHA to coordinate with EPA when developing its PSM standard (see CAA section 112(r)(7)(D) and CAAA section 304(a)). Therefore, since the inception of these regulations, EPA and OSHA have coordinated closely on their implementation in order to minimize regulatory burden and avoid conflicting requirements for regulated facilities. This coordination has continued throughout the development of this rule and is explained further in the relevant sections below. A couple of commenters called on EPA to exercise its “full statutory authority” to issue measures that prevent disasters “ `to the greatest extent practicable.' ”EPA disagrees with these comments. As mentioned above, while EPA is authorized to promulgate regulations that provide for the prevention and detection of accidental releases to the greatest extent practicable, so too must these regulations be reasonable. The relevant statutory phrase describing EPA's authority to regulate under CAA section 112(r)(7)(B)(i), authorizes “reasonable regulations . . . to provide, to the greatest extent practicable,” for the prevention and detection of and response to accidental releases of substances listed in 40 CFR 68.130. EPA interprets the term “practicable” in this context to include concepts such as cost-effectiveness of the regulatory and implementation approach, as well as the availability of relevant technical expertise and resources to the implementing and enforcement agencies and the owners and operators who must comply with the rule. Further, an interpretation of the statute that does not give meaning to the qualifier “reasonable” to the authority to regulate “to the greatest extent practicable,” as the commenters suggest, would be inconsistent with the structure of the statute. The terms “reasonable” and “practicable” operate both as authorization for EPA's regulations and as limitations on the scope of EPA's authority under CAA section 112(r)(7)(B)(i), while the phrase “greatest extent practicable” directs EPA to select the regulatory option that “provide[s] the greatest level of practicable protection” from “among those regulatory options that are reasonable.” 84 FR 69849 (Dec. 19, 2019); see also 87 FR 53566 (Aug. 31, 2022). To the extent both the 2019 compliance-driven and the 2022 rule-based, prevention-focused approaches are reasonable, the approach of this final rule would be more protective and therefore be “ `to the greatest extent practicable' among the reasonable approaches.” As recognized by the Supreme Court in Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015), “reasonable regulation” generally involves some sort of examination of the benefits and the burdens of a rule. Nevertheless, the Court in Michigan v. EPA did not mandate a strict analysis of quantified cost and benefits and limit the Agency to adopting only those measures that have quantified costs exceeding benefits. In assessing the types of benefits EPA should consider in a rulemaking under CAA 112(r)(7), EPA recognizes that a major purpose of the accidental release provisions of the CAA is to help mitigate and prevent large scale catastrophic incidents that are rare and therefore difficult to quantify. 43 Both the Senate and the House committee reports on the CAAA specifically identify the Union Carbide-Bhopal incident as one that demonstrated the need for the accidental release prevention provision (House Report at 155-57; Senate Report at 134-35, 143-44). The congressional reports and floor debates also cite an EPA study identifying 17 events that, based only the volume and toxicity of the chemicals involved (and not accounting for factors such as location, climate, and operating conditions) had the potential for more damage than the Union Carbide-Bhopal incident. 44 Therefore, when assessing the reasonableness of the benefits and burdens of various regulatory options, EPA places weight on both preventing more common accidental releases captured in the accident history portion of the RMP database while also placing weight on less quantifiable potential catastrophic events. Our judgment as to what regulations are “reasonable” is informed by both quantifiable and unquantifiable burdens and benefits. 43 Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. This document is available in the docket for this rulemaking (EPA-HQ-OLEM-2022-0174). 44 Senate Report at 135; House Report at 155; Representative Richardson, 136 Congressional Record 35082 (1990) (statement of Representative Richardson); 136 Congressional Record 36057 (1990) (statement of Senator Durenberger). The fact that accidents continue to occur shows that we still have reason to exercise statutory authority to promulgate reasonable regulations to provide for the prevention and detection of those accidents to the greatest extent practicable when the opportunity exists to improve the performance of our regulatory program. In determining what is “reasonable” when developing regulations under CAA section 112(r)(7)(B), EPA acknowledges that some facilities are less likely to have an accidental release than others and that the statute gives the Agency the authority to distinguish among classes of facilities. When developing this rulemaking, EPA therefore had the authority to include multiple factors when determining what is reasonable, such as frequency of RMP accidents or proximity to both nearby communities and other RMP facilities that could, as a result, make the communities and other facilities be more susceptible when it comes to being exposed to a worst-case scenario. For example, as mentioned in the proposed rulemaking, the per facility accident rate between 2016 and 2020 45 for all regulated facilities was 3 percent (n = 382 facilities reporting at least one accident out of 12,855 unique facilities reporting between 2016 and 2020), the sector accident rates (number of unique facilities with accidents per sector divided by the number of unique facilities in each sector) for petroleum and coal manufacturing were seven times higher (23 percent, n = 41 out of 177) and two times higher for chemical manufacturing (6 percent, n = 96 out of 1631). Also, based on accidents occurring between 2016 and 2020, communities located near facilities in NAICS 324/325 that are located within 1 mile of another 324/325 facility are 1.5 times more likely to have been exposed to accidents at these facilities as compared to communities near facilities in NAICS 324/325 that are not located within 1 mile of another 324/325 facility (87 FR 53578). 46 Also mentioned in the proposed rulemaking, these surrounding communities would benefit from rule-based prevention prior to incidents, rather than the case-by-case oversight approach of the 2019 reconsideration rule (87 FR 53565). Therefore, EPA now believes the benefits of rule-based prevention for certain high-risk classes of facilities could help prevent high consequence accidents that affect communities and are therefore reasonable and necessary to meet the statutory objective “to the greatest extent practicable.” 45 Due to a lack of alternative data describing RMP accident impacts more comprehensively, EPA chose this five-year dataset to reflect the most recent trends regarding RMP accidents. EPA used the August 1, 2021, version of the RMP database to complete its analysis because under 40 CFR 68.195(a), facilities are required to report RMP accidents and specific associated information within six months to the RMP database. Therefore, the RMP database as of August 1, 2021, is expected to include RMP accidents and their specific associated information as of December 31, 2020. However, because accident data are reported to the RMP database by facility owners and operators, EPA acknowledges the likelihood of late-reported accidents affecting these last few years of data because some facilities may have not reported their RMP accidents as they are required to do. While some commenters have suggested that late reporting may impact the count of total accidents in recent years, neither the commenters nor EPA have identified any impacts of late reporting on the distribution of accidents by sector. See sections 3.2 and 3.3 of the RIA for more on this and other limitations on the number and costs of baseline accidents. 46 In the 2022 SCCAP proposed rule, EPA acknowledged the likelihood of late-reported accidents affecting the last few years of data. Based on its prior experience, EPA judged that there would be a slight increase in the number of accidents in the last few years of data. As mentioned in the proposed rulemaking, in contrast to the approach in the 2019 reconsideration rule, the approach taken in this action for the new prevention program provisions—STAA, root cause analysis incident investigation (RCA), and third-party compliance audits—refines the focused regulatory approach found in the 2017 amendments rule, and finalizes provisions to better identify risky facilities to prevent accidental releases before they can occur. As explained in further detail in following sections of this preamble, EPA therefore maintains that by taking a rule-based, prevention-focused approach in this action rather than the so-called “compliance-driven” approach in the 2019 reconsideration rule, this rule will further protect human health and the environment from chemical hazards through process safety advancement without undue burden. Similarly, other modifications to approaches adopted in 2019 to information disclosure and emergency response will also better balance security concerns with improved community awareness and lead to better community preparedness for accidents. By contrast with the prior approach, the approach of this final rule is expected to be both reasonable and more protective, and thus provide for release prevention, detection, and response to the greatest extent practicable. EPA has determined, based on the updated factual and scientific record now before the agency, including a thorough evaluation of public comments, and in view of its statutory responsibilty and legal authority, to be the approach it needs to take, among the potentially available or reasonable approaches. IV. Discussion of General Comments This section of this preamble focuses on general comments on the 2022 SCCAP proposed rule in its entirety and EPA's response to those comments. Comments and discussion on provision-specific topics can be found under each individual provision heading. Comments received on additional considerations posed in the 2022 SCCAP proposed rule but outside the scope of this rulemaking are included the Response to Comments document, 47 available in the docket for this rulemaking. 48 In the proposal EPA acknowledged the need for reviewing the list of RMP-regulated substances. Section 112(r)(3) requires periodic review of the RMP regulated substance list. A priority chemical for EPA's upcoming review will be ammonium nitrate. EPA continues to review the stakeholder input from this solicitation. 47 2023. EPA Response to Comments on the 2022 SCCAP Proposed Rule (August 31, 2022; 87 FR 53556). This document is available in the docket for this rulemaking. 48 For example, one such consideration posed outside the scope of this rulemaking was the need for reviewing the list of RMP-regulated substances. EPA still acknowledges the need for reviewing the list and will consider received comments when determining whether to take further action on this issue. A. General Comments Many commenters provided general comments about the proposed rulemaking. Several commenters supported EPA's proposed rule, including some offering suggestions for improvement. Several commenters requested EPA consider making the proposed rule stronger than it is currently written. Several of these commenters provided detailed examples of recent accidents and incidents, including health impacts to the community, dating back to 2004 that they hope stronger RMP regulations would prevent. A few commenters provided additional steps EPA should take in tandem with the proposed rule. Another commenter stated that the current process puts the onus on community members in close proximity to facilities to protect themselves when it is EPA's responsibility to regulate these facilities and ensure that the public is safe. The commenter noted that there needs to be more enforcement by the Federal Government to hold facilities accountable, especially in States lacking enforcement. Several commenters stated that the proposed rule relies too much on voluntary commitments from RMP facilities. One commenter noted that the current process remains reactive rather than proactive and corrective rather than preventative. Several commenters opposed EPA's proposed rule, including some recommending that EPA withdraw the proposed rule. A few commenters opposed the proposed rule due to what the commenters asserted are vague standards and definitions that could create uncertainties. Several commenters stated that the new requirements under the 2022 SCCAP proposed rule would impose unnecessary burdens to facilities, including new training and analyses, higher costs, or lower effectiveness of the program. Several commenters asserted that there is no basis or evidence that the 2022 SCCAP proposed rule is necessary. B. EPA Responses EPA is finalizing several amendments to the RMP rule to further protect human health and the environment from RMP accidents. The final rule's emphasis is on protecting communities most at risk of having an accidental release from a facility in their midst. Under the final rule, facilities in these communities will be required to do more to prevent chemical accidents, including conducting an STAA, more thorough incident investigations, and third-party audits. The final rule also includes new prevention provisions that have not been addressed in prior RMP rules, including empowering workers to make safety decisions and report non-compliance. The Agency is also increasing access to RMP facility information for fenceline communities in commonly spoken languages. EPA believes this final rule promotes transparency and gives more opportunities for the public and workers to be involved in accident prevention and emergency planning. EPA believes that in most cases, facilities needing to adopt the finalized provisions from scratch are most likely facilities that have not fully developed strong programs to ensure their commitment to process safety; strengthening prevention and response programs at such facilities will help to prevent and minimize accidental releases of toxic and flammable regulated substances. EPA disagrees that that there is no basis or evidence that the proposed rule is necessary. Congress charged EPA to promulgate reasonable regulations to provide to the greatest extent practicable for the prevention and detection of accidental releases. Even when EPA has discharged its mandatory duty under CAA section 112(r)(7)(B), the Agency retains the discretion to amend the regulations when they can be improved to further the intent of the statute. Therefore, when major concerning RMP accidents, including major accidents, continue to occur as they have, 49 it is EPA's responsibility to further protect human health and the environment, if there are reasonable opportunities to do so. Many of the amendments being finalized in this action, some stronger than what was proposed, were informed by commenters, including many that suffer the consequences of accidents occurring at RMP facilities or work in RMP-covered processes. The amendments are also informed by RMP accident data which indicate trends in accident occurrence. For example, as discussed in the proposal, recent accidents highlight that while the annual count of accidents decreased overall between 2016 and 2020, in 2019, the TPC Group (TPC) explosion and fire in Port Neches, Texas, reported the largest number of persons ever evacuated (50,000 people) as the result of an RMP-reportable incident, as well as $153 million in offsite property damage. 50 EPA did not conduct an inspection at TPC just prior to this accident because as indicated in the 2019 reconsideration rule, EPA prioritizes inspections at facilities that have had accidental releases. TPC had no recent prior RMP accidental release and was not otherwise due for inspection under EPA's routine oversight plan. Therefore, we believe our current enforcement resources, and even prioritizing inspections, are not capable of effectively addressing accident-prone facilities without additional regulatory requirements mandates. 49 As part of this rule, EPA analyzed accidents from 2016 to 2020. The impacts of high consequence RMP-reportable accident events between 2016 and 2020 demonstrate the impact of low probability, high consequence events on annual averages. For more information see the Regulatory Impact Analysis: Safer Communities by Chemical Accident Prevention: Final Rule. 50 The U.S. Chemical Safety Board's TPC incident investigation report outlines the safety issues contributing to the incident, conclusions, recommendations, and key lessons for the industry. https://www.csb.gov/tpc-port-neches-explosions-and-fire/. While large events are rare, CAA section 112(r) was intended as a prevention program for large catastrophic releases as well as more common accidental releases. Post-event compliance measures such as outreach and enforcement are “too little, too late” for such large, but rare, events. Therefore, this final rule provides additional prevention program provisions reasonably calculated for stationary sources handling dangerous chemicals to prevent potentially catastrophic incidents. EPA therefore believes the provisions of this final rule will be generally effective to help improve chemical process safety by preventing accidents that result in harm and damage; assist in planning, preparedness, and responding to RMP-reportable accidents; and improve public awareness of chemical hazards at regulated sources. Thus, these are necessary updates to the existing RMP rule to ensure chemical accident prevention and mitigation. Further, while many of the provisions of this final rule reinforce each other, it is EPA's intent that each one is merited on its own, and they are thus severable. EPA also believes that because of the performance-based nature of the regulation, and the similar nature of these amendments, the requirements provide facility owners with latitude in their methods of implementing the requirements. This type of regulation does not create uncertainties or unnecessary burdens, but rather offers reasonable flexibilities in adopting the most effective measures to prevent and mitigate accidents. For example, while EPA requires implementation of at least one practicable passive measure, or its equivalent, the new STAA requirements are not prescriptive in nature as to what a facility can choose as its measure. The rule gives facilities flexibility and allows facility owners and operators to exercise reasonable judgement to determine what technology or risk reduction measures work best for their particular chemical uses, processes, or facility. The final rule's emergency exercise requirements also give owners and operators significant flexibility in establishing exercise schedules and exercise scenarios. Other provisions of the final rule afford similar flexibilities. EPA agrees assistance, outreach, and enforcement will help ensure compliance with the rule. For example, enforcement of the RMP regulation has and will continue to occur. Because of that fact, EPA expects most facilities will proactively make the necessary prevention improvements in order to comply with the rule and thus avoid enforcement. Enforcement of RMP facilities remains an Agency priority, as indicated by its adoption as a National Enforcement and Compliance Initiative (NECI) since 2017. The goal of this NECI is to reduce the risk to human health and the environment by decreasing the likelihood of chemical accidents. Activities under the initiative include having regulated facilities and industry associations work to improve safety; increase compliance with RMP; and promote coordination and communication with State and local responders and communities. The capacity built by the NECI will continue to benefit oversight by EPA and its partner implementing agencies even after the NECI. Furthermore, EPA intends to publish guidance for certain provisions, such as STAA, root cause analysis, third-party audits, and employee participation. Once these materials are complete, owners and operators can familiarize themselves with resources and best practices that EPA has gathered and found to be useful in helping to develop and maintain strong prevention programs. The Agency views these compliance activities as a complement to strong accidental release prevention and response, but they are not a substitute for the stronger prevention measures and response provisions set forth in the final rule. V. Prevention Program Requirements A. Hazard Evaluation Amplifications 1. Summary of Proposed Rulemaking a. Natural Hazards, 40 CFR 68.50 and 68.67 EPA proposed to require that hazard evaluations under 40 CFR 68.50(a)(5) and 68.67(c)(8) explicitly address external events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release. EPA proposed to define natural hazards as naturally occurring events with the potential for negative impacts, including meteorological hazards due to weather and climate, as well as geological hazards. In addition to the proposed approach, EPA requested comment on whether the Agency should specify geographic areas most at risk from climate or other natural events by adopting the list of areas exposed to heightened risk of wildfire, flooding storm surge, or coastal flooding. EPA further asked whether the Agency should require sources in areas exposed to heightened risk of wildfire, flooding, storm surge, coastal flooding, or earthquake, to conduct hazard evaluations associated with climate or earthquake as a minimum, while also requiring all sources to consider the potential for natural hazards unrelated to climate or earthquake in their specific locations. b. Power Loss, 40 CFR 68.50 and 68.67 EPA proposed to require that hazard evaluations under 40 CFR 68.50(a)(3) and 68.67(c)(3) explicitly address the risk of power failure, as well as standby or emergency power systems. EPA also proposed to require that air pollution control or monitoring equipment associated with prevention and detection of accidental release from RMP-regulated processes have standby or backup power to ensure compliance with the intent of the rule. In addition to the proposed approach for standby or backup power for air pollution control or monitoring equipment, EPA requested comment on any potential safety issues associated with the requirement. c. Stationary Source Siting, 40 CFR 68.50 and 68.67 EPA proposed to require that hazard evaluations under 40 CFR 68.50(a)(6) and 68.67(c)(5) explicitly define stationary source siting as inclusive of the placement of processes, equipment, buildings within the facility, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to the public and public receptors. d. Hazard Evaluation Information Availability, 40 CFR 68.170 and 68.175 EPA proposed to require that risk management plans under 40 CFR 68.170(e)(7) and 68.175(e)(8) include declined natural hazard, power loss, and siting hazard evaluation recommendations and their associated justifications. In addition to the proposed approach, EPA requested comment on whether the Agency should require declined natural hazard, power loss, and siting hazard evaluation recommendations to be included in narrative form and whether the Agency should provide specific categories of recommendations for facilities to choose from when reporting or allowing the owner or operator to post this information online and provide a link to their information within their submitted RMP. Further, EPA requested comment on methods to provide justification for declining relevant hazard evaluation recommendations. 2. Summary of Final Rule Based on comments on both the proposed options and alternative approaches presented, EPA is finalizing the proposed provisions with the following modifications: • Revising the definition of “natural hazards” at 40 CFR 68.3 to mean meteorological, environmental, or geological phenomena that have the potential for negative impact, accounting for impacts due to climate change. • Revising the hazard evaluation regulatory text at 40 CFR 68.50(a)(5) and 68.67(c)(8) to focus amplifying language on natural hazards rather than “external hazards” and include “exacerbate” as an influence on an accidental release from natural hazards in addition to “cause.” EPA is also removing the description of climate change in this section of regulatory text because the definition of natural hazards at 40 CFR 68.3 now includes accounting for climate change. • Revising 40 CFR 68.50(a)(3) and 68.67(c)(3) to require monitoring equipment associated with prevention and detection of accidental releases from covered processes to have standby or backup power. • Revising 40 CFR 68.52(b)(9) and 68.69(a)(4) to require documentation of removal of monitoring equipment associated with prevention and detection of accidental releases from covered processes during imminent natural hazards. • Revising 40 CFR 68.50(a)(6) and 68.67(c)(5) to correct the technical term of “facilities” to “stationary sources.” 3. Discussion of Comments and Basis for Final Rule Provisions The discussion and basis for each provision is below. The section is organized by including comments and EPA's responses grouped by the various aspects of each provision the Agency received comments on (italicized headings). The same organization is used for the Discussion of Comments and Basis for Final Rule Provisions sections throughout this preamble. a. Natural Hazards EPA's Proposed Approach i. Comments Several commenters expressed support for EPA requiring facilities to conduct natural hazard assessments since natural hazards have the potential to initiate accidents at RMP facilities. A few commenters provided examples of natural disasters that have resulted in chemical accidents and stated that natural hazard assessments could better protect workers and surrounding communities from these types of incidents. One commenter suggested that EPA require that RMP facilities act to address all natural hazard threats as they will only worsen in the face of climate change. The commenter also suggested that the requirement should apply to all RMP facilities. One commenter noted that improving the resilience of facilities to extreme weather events is warranted because of the direct, substantial, and cumulative risk to EJ communities with EJ concerns that are more likely to be located in areas susceptible to flooding. One commenter noted that EPA's findings on risks to facilities from natural hazards is consistent with States' and municipalities' analysis. The commenter noted that several States have already taken steps to require facilities to consider threats from extreme weather, including Massachusetts and New York. A couple of commenters expressed support for the inclusion of natural hazard analysis but recommended that EPA clarify the language in the proposed rule to better define natural hazards and climate-related hazards. One of the commenters suggested that the definition of natural hazard assessments provided in the Center for Chemical Process Safety's (CCPS), “Guidelines for Hazard Evaluation Procedures,” 3rd edition (2008) is suitable. Several commenters expressed opposition to the inclusion of natural hazard assessments. For example, several commenters stated that EPA has not provided sufficient justification for these new requirements. One of the commenters stated that EPA has not indicated why the existing regulations are inadequate. Similarly, several commenters noted that facilities are managing natural hazards well, and therefore the commenters suggested that additional requirements are not necessary. Several commenters noted that the number of accidental releases caused by natural hazards is small compared to other causes, and small compared to how many natural hazards occur daily, and therefore does not justify EPA adding additional requirements for assessing natural hazards or other external events. One of the commenters noted that the small number of accidents may be attributed to the effectiveness of existing regulations and voluntary measures regarding emergency planning. Several commenters noted that the natural hazard assessment provisions are already considered in the process hazard analysis (PHA) or other current regulations and are, therefore, redundant. Several commenters indicated that the natural hazard provisions in the proposed rule overlap with or are redundant of existing OSHA regulations and recommended that EPA not conflict or compete with OSHA standards, as including them in EPA's rules would create duplicative work for facilities and introduce uneven enforcement between the two agencies. Several commenters stated that the proposed natural hazard assessment provisions are overly burdensome to facilities. One of the commenters stated that EPA does not have authorization from Congress to transform the PHA program to include natural hazards “caused by climate change or other triggering events.” One commenter suggested that the determination of whether or not to implement additional layers of protection from natural hazards should be left to the facility and not subject to regulatory scrutiny. One commenter stated that the reference to external events should be removed because it is an undefined and vague term. The commenter added that the proposed requirement that the PHA include natural hazards “caused by climate change or other triggering events” is overly broad in that it appears to include events that go well beyond the proposed definition of natural hazards. The commenter stated that these broadly defined and ambiguous terms in the regulatory text could lead to an infinite list of external events and associated recommendations from the PHA a facility must consider. The commenter urged that EPA must provide much-needed clarity and explanation for the proposed language. ii. EPA Responses EPA agrees that natural hazards are hazards for chemical facilities because they have the potential to initiate accidents that threaten human health and the environment and disagrees with comments that the Agency did not provide sufficient justification for the new requirements. In the proposal, the Agency provided data which indicate that, while not all, some RMP accidents are being reported as having a natural cause as the initiating event and include unusual weather conditions as a contributing factor. 51 EPA believes that adding clarifying language to a provision is a simple way to promote awareness of these potential accidents which should help prevent some. Additionally, EPA agrees that climate change increases the threat of extreme weather as a natural hazard and should be taken into account at covered facilities when evaluating hazard frequency and severity. EPA is finalizing the proposed provisions because the Agency believes that making the requirement more explicit to evaluate natural hazards, which includes taking into account climate change, in hazard evaluations for Program 2 and Program 3 RMP-regulated processes will ensure that the threats of natural hazards are properly evaluated and managed to prevent or mitigate releases of RMP-regulated substances at covered facilities. EPA agrees that doing so will better protect surrounding communities from these types of incidents. 51 Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs Under the Clean Air Act, section 112(r)(7); Safer Communities by Chemical Accident Prevention (April 19, 2022). In response to the comment that improving the resilience of facilities to extreme weather events is warranted due to the risk posed to communities with EJ concerns, EPA agrees that accidental releases of regulated chemicals from RMP-regulated facilities likely pose disproportionate risks to historically marginalized communities. EPA expects that the benefits of this clarified provision may lower potential exposure for fenceline communities with historically underserved and overburdened populations by reducing disproportionate damages that RMP-reportable accidents might otherwise inflict on those populations. EPA agrees with the comment that the Agency's findings on risks to facilities from natural hazards are consistent with those of States that already require facilities to consider threats from extreme weather. However, because not all States require facilities to consider natural hazards, and because EPA continues to see natural hazards as a factor in RMP accidents, the Agency believes the requirement to evaluate and control natural hazards should be explicitly stated in the RMP regulation. Moreover, EPA notes that doing so is consistent with other countries that are also expanding efforts to address natural hazards at chemical facilities, as discussed in the 2022 SCCAP proposed rule (87 FR 53568). In response to the comments requesting that EPA better define natural hazards and climate-related hazards, EPA notes that it has revised its definition to be more closely align with language used in the Federal Emergency Management Agency's (FEMA) National Risk Index (NRI) 52 and Climate Essentials for Emergency Managers 53 resources. For this final rule, EPA is defining natural hazards to mean meteorological, climatological, environmental, or geological phenomena that have the potential for negative impact, accounting for impacts due to climate change. Examples of such hazards include, but are not limited to, avalanche, coastal flooding, cold wave, drought, earthquake, hail, heat wave, hurricane, ice storm, landslide, lightning, riverine flooding, strong wind, tornado, tsunami, volcanic activity, wildfire, and winter weather. EPA believes CCPS' definition and guidance 54 presented in the 2022 SCCAP proposed rule, is still useful for facilities' evaluation of natural hazards for process safety, however, the Agency believes these FEMA resources reflect a more comprehensive base to identify, evaluate and understand relative natural hazard risk, particularly how natural hazards must account for a changing climate. For example, the NRI identifies 18 specific natural hazards, which EPA has identified in its definition, that are further supported as their designation as natural hazards and are able to be represented in terms of expected annual loss, which incorporate data for exposure, annualized frequency, and historic loss ratio. 55 Additionally, the Climate Essentials for Emergency Managers points to many climate change resources including the Climate Risk & Resilience Portal 56 and the Climate Mapping for Adaption and Resilience Tool 57 that allows users to examine simulated future climate conditions associated with the natural hazards identified in the NRI. 52 https://hazards.fema.gov/nri/natural-hazards. 53 https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf. 54 CCPS, CCPS Monograph: Assessment of and Planning For Natural Hazards (American Institute of Chemical Engineers, 2019), https://www.aiche.org/sites/default/files/html/536181/NaturalDisaster-CCPSmonograph.html. 55 https://hazards.fema.gov/nri/natural-hazards. 56 https://disgeoportal.egs.anl.gov/ClimRR/. 57 https://resilience.climate.gov/. EPA disagrees that the natural hazard assessment provisions are redundant and will result in uneven enforcement due to them already being considered in both the PHA requirements and current OSHA regulations. EPA's goal of this provision is to better reflect the Agency's longstanding regulatory requirement, rather than to impose additional regulatory requirements (and thus potential additional costs) that conflict with the OSHA PSM regulatory requirements. In fact, EPA has coordinated with OSHA throughout the rulemaking process to ensure the intent of adding explicit natural hazard regulatory text does not create conflicting requirements between the two regulatory programs. In response to comments that the natural hazard assessment provisions are overly burdensome to facilities, and that the Agency does not have authorization from Congress to transform the PHA program to include natural hazards “caused by climate change or other triggering events”, EPA disagrees. EPA has stated this provision makes more explicit what is already required in the RMP regulations. As noted in the proposed rule, since the 1996 RMP rule, EPA has said events such as floods and high winds should be considered as potential release-initiating events when conducting a PHA, and the RMP guidance further expands on this point. 58 Furthermore, the hazard evaluation amplifications reflect existing industry practice, and therefore, EPA assumes that these hazard evaluation amplifications impose no new requirements or costs on facilities that are in compliance with the RMP rule and common industry practice. By amplifying and making more explicit the need to evaluate natural hazards as potential causes of releases, EPA expects those facilities that are currently not performing such evaluations will better understand what the rule requires. Additionally, each modification of the RMP rule that EPA proposed and is finalizing is based on EPA's rulemaking authority under CAA section 112(r)(7). EPA has outlined its authority for all the changes to the regulation in section III.C of this preamble. 58 87 FR 53567, August 31, 2022. In response to comments that the determination of whether to implement additional layers of protection from natural hazards should be left to the facility and not subject to regulatory scrutiny, EPA notes that it is not requiring implementation of protective measures. At this time, EPA is simply emphasizing the already-existing requirement that the evaluation of natural hazards be explicitly included in hazard reviews and PHAs for Program 2 and Program 3 RMP-regulated processes. The Agency expects stationary source management to make reasonable decisions based on the information collected through this provision, like other provisions in the PHA. EPA acknowledges that natural hazards and process operations vary throughout the United States, and implementation of protective measures will therefore also vary among RMP processes. However, because the RMP rule is performance-based, EPA believes that all regulated RMP facilities can ultimately be successful in addressing natural hazards for their locations within their risk management programs. In response to the comment that the reference to external events should be removed because it is vague and overly broad, EPA acknowledges that analysis of external events may be broader than expected. EPA is therefore revising the regulatory language in the final rule to focus on natural hazards rather than external hazards. Additionally, EPA is including “exacerbate” as an influence of an accident from natural hazards in addition to “cause” to further clarify the regulatory language. As a few commenters discussed, and EPA agrees, in some cases natural hazards can be a contributing factor for accidental releases, making them more extreme or likely, rather than causing them independently. Finally, EPA is removing the description of climate change in the hazard evaluation regulatory language to eliminate redundancy, as EPA is defining natural hazard as taking into account climate change impacts. Alternative Approaches for Specifying Areas Most at Risk and Identifying Sources With Heightened Risk of Climate Events or Earthquakes i. Comments Several commenters expressed support for EPA specifying areas most at risk from climate or other natural events. One of the commenters indicated that adopting the list of areas exposed to heightened risk of wildfire, flooding, storm surge, or coastal flooding is necessary because facilities would face difficulties in assessing future climate risks without this additional guidance from EPA. A couple of commenters recommended that EPA use the list in the U.S. Government Accountability Office's 2022 report, “Chemical Accident Prevention: EPA Should Ensure Regulated Facilities Consider Risks from Climate Change.” 59 One of the commenters also recommended using the list in the 2021 report, “Preventing Double Disasters,” from David Flores et al. 60 A couple of commenters suggested that the list of at-risk facilities or geographic areas should be regularly updated using the latest available data. A couple of commenters clarified that such a list of at-risk areas should not be used to limit the number of facilities that are required to conduct a natural hazard or climate change hazard analysis. 59 https://www.gao.gov/assets/gao-22-104494.pdf. 60 https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf. A couple of commenters expressed opposition to the development of a list of geographic areas most at risk from natural hazards or climate-related hazards. One of the commenters indicated that such a list is not necessary because facilities in these areas are generally aware of the potential for those hazards. The commenter stated that EPA has not demonstrated sufficient need to apply geographic distinctions as a part of the regulatory approach. One commenter stated that according to the Intergovernmental Panel on Climate Change's reporting, there are challenges with attributing events to climate change; therefore, the commenter stated that they oppose EPA specifying geographic areas most at risk from climate impacts. One commenter expressed support for EPA requiring sources in areas exposed to heightened risk of natural disasters to conduct hazard evaluations associated with climate or earthquakes as a minimum, while also requiring all sources to consider the potential for natural hazards unrelated to climate or earthquakes in their specific locations. Similarly, another commenter urged that it is EPA's responsibility to regulate chemical facilities appropriately. The commenter noted that the co-location of multiple polluting sites in climate vulnerable areas is common, with roughly a third of the nation's RMP facilities at increased risk from climate impacts; however, despite known risks, RMP facilities are not currently required to plan for scenarios such as inland flooding, coastal flooding, storm surge, and wildfires. Conversely, one commenter stated that EPA does not need to apply different regulatory requirements based on geography, since EPA has not demonstrated sufficient need to apply such geographic distinctions as part of any regulatory approach. Instead, the commenter stated that a general provision to require hazard reviews and PHAs to evaluate the potential for natural hazards, such as (but not necessarily limited to) specific examples, would be more practical. ii. EPA Response While EPA agrees it could be useful to specify areas most at risk from natural events and identify sources with heightened risk of climate events, EPA is not finalizing a regulatory provision that will adopt these approaches at this time. Rather, EPA will use these comments, as well as those received on guidance development, to update the current hazard evaluation guidance and initiate ways to share natural hazard resources with facility owners and operators to help them identify and evaluate potential natural hazard risks. EPA expects to develop and release this guidance approximately one year after this final rule. The 2022 SCCAP proposed rule identified relevant new studies for RMP facilities and the threat of natural hazards to them. Those studies included the Center for Progressive Reform, Earthjustice, and the Union of Concerned Scientists' report “Preventing Double Disasters” 61 and the Government Accountability Office's report “Chemical Accident Prevention: EPA Should Ensure Regulated Facilities Consider Risks from Climate Change.” 62 EPA also believes CCPS' guidance presented in the 2022 SCCAP proposed rule, is still useful for facilities' evaluation of natural hazards for process safety. Lastly, EPA now also recognizes the identification of hazards in FEMA's NRI 63 and Climate Essentials for Emergency Managers 64 as the most comprehensive foundation to identify, evaluate and understand relative natural hazard risk, particularly how natural hazards must account for a changing climate. EPA intends to incorporate and further evaluate other resources as a minimum in its guidance and expects that information available in these resources can be helpful to be consulted to complement a facility's more localized information available from the State and local government. 61 David Flores, et al., Preventing “Double Disasters” (2021), https://www.ucsusa.org/sites/default/files/2021-07/preventing-double-disasters%20FINAL.pdf. 62 U.S. Government Accountability Office, Chemical Accident Prevention: EPA Should Ensure Regulated Facilities Consider Risks from Climate Change (2022), https://www.gao.gov/assets/gao-22-104494.pdf. 63 https://hazards.fema.gov/nri/. 64 https://www.fema.gov/sites/default/files/documents/fema_climate-essentials_072023.pdf. b. Power Loss EPA's Proposed Approach i. Comments One commenter agreed with EPA's approach to add regulatory text to emphasize that loss of power is among the hazards that must be addressed within hazard review. A few commenters expressed support for facilities having contingency plans to handle potential power loss. A few commenters noted that power loss has been identified as the cause of hazardous chemical releases, such as the Shell East Site and Arkema incidents, and stated it is clear that more stringent requirements are needed. One commenter stated that they did not oppose requiring hazard reviews and PHAs to address power loss, but noted that in many cases, a company's RMP already considers both natural hazards and power loss. One commenter stated that facilities should provide information to local responders about their b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-04458. Public record. Not legal advice.