Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)

SUMMARY: On October 20, 1993, EPA proposed risk management program

regulations, mandated under the accidental release provisions of the

Clean Air Act (CAA). The purpose of the proposed rule is to reduce the

number and severity of chemical accidents. Based on information

presented during public hearings and in comments on the proposed rule,

EPA is requesting additional comment on the following regulatory

options and issues: approaches for increasing compliance flexibility

and decreasing cost while still ensuring preparedness by tiering the

regulatory requirements to take into consideration differences between

various types, classes, and kinds of sources, devices, and systems; the

hazard assessment approaches (including worst-case scenarios); accident

information reporting; public participation in risk management program

and plan oversight; inherently safer approaches for sources' design and

operations; and the implementation of CAA section 112(r) regulations,

including methods of integrating these requirements into the title V

permitting requirements and the codification of approved state section

112(r) requirements.

DATES: Comments: Comments must be submitted on or before May 12, 1995.

Hearings: The Agency will hold a hearing on March 31 from 9 a.m.

until 4 p.m.

ADDRESSES: Comments: Written comments may be mailed or submitted to:

U.S. Environmental Protection Agency, Attn: Docket (A-91-73), Room

1500, 401 M Street, SW, Washington, DC 20460. Comments must be

submitted in duplicate. Comments may also be faxed to the docket at

202-260-4400, as long as faxes are followed by hard copies.

Hearings: The hearing will be held at the EPA Auditorium, 401 M

Street, SW, Washington, DC. People who want to testify at this hearing

should call 703-934-3158 by March 27.

Docket: Supporting information used in developing the accidental

release prevention regulations is contained in Docket No. A-91-73. This

docket is available for public inspection and copying between 8:00 a.m.

and 5:30 p.m., Monday through Friday (except government holidays) at

the address listed above. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Dr. Lyse D. Helsing at (202) 260-6128,

Chemical Emergency Preparedness and Prevention Office (5101), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460, or the Emergency Planning and Community Right-to-Know Hotline at

1-800-535-0202.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

A. Statutory Authority

B. Relationship of Section 112(r) to Other Requirements of the

Clean Air Act

C. Summary of the Proposed Risk Management Program Rule

II. Discussion of Issues and Approaches

A. Approaches for Tiering the Regulatory Requirements

B. Hazard Assessment

C. Accident Information Reporting

D. Public Participation

E. Inherently Safer Approaches

F. Implementation and Integration of Section 112(r) with State

Programs

III. Required Analyses

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Enhancing the Intergovernmental Partnership

D. Paperwork Reduction Act

I. Introduction and Background

A. Statutory Authority

This supplemental notice of proposed rulemaking is being issued

under sections 112(r) and 301(a)(1) of the Clean Air Act (CAA) as

amended (42 U.S.C. 7412(r) and 7601(a)(1)).

B. Relationship of Section 112(r) to Other Requirements of the Clean

Air Act

The Clean Air Act Amendments of 1990 amend CAA section 112 and add

a new paragraph (r). The intent of CAA section 112(r) is to prevent

accidental releases to the air and minimize the consequences of

releases by focusing preventive measures on chemicals that pose the

greatest risk to the public and the environment. For a summary of the

statutory requirements of section 112(r) and related statutory

provisions, see the notice of proposed rulemaking (NPRM) (58 FR 54190;

October 20, 1993).

Since the October 20, 1993, notice, the Environmental Protection

Agency (EPA) has taken various additional regulatory actions relevant

to the section 112(r) program. EPA promulgated the List of Regulated

Substances and Thresholds for Accidental Release Prevention on January

31, 1994 (59 FR 4478). The list of regulated substances and thresholds

will determine which sources must comply with the accident prevention

regulations.

CAA section 112(l) contains the statutory authority for EPA to

approve and delegate specific Federal authorities to states. EPA

promulgated a rule under section 112(l) on November 26, 1993 (58 FR

62262) that addresses the approval of both state programs for section

112 that mirror the Federal requirements and programs that differ from

Federal requirements. Approval of state rules addressing section 112(r)

requirements is addressed in the section 112(l) rule.

Certain other regulatory actions that predate the October 20, 1993,

NPRM are relevant to today's supplemental notice. Specifically, section

112(r) is addressed in CAA title V, operating permits, and the

subsequent rulemaking in 40 CFR part 70 (part 70) published on July 10,

1992 (57 FR 32250). Section 112(r) listed substances are ``regulated

air pollutants,'' and the accident prevention regulations developed

under section 112(r)(7) are ``applicable requirements'' for the

purposes of CAA title V and part 70.

C. Summary of the Proposed Risk Management Program Rule

The proposed rule would require sources to:

Register with EPA not later than three years after

publication of the final rule;

Develop and implement a risk management program that

includes a hazard assessment, prevention program, and emergency

response program, and maintain on-site documentation of the program's

implementation. The hazard assessment would include offsite consequence

analyses and a five-year accident history;

Develop and submit to Federal, state, and local

authorities a risk management plan (RMP) that documents the risk

management program. This plan will be available to the public; and

Update the risk management program and plan as required by

rule, audit, or process or chemical changes at the source.

The risk management program addresses the general requirements of

CAA section 112(r)(7)(B) for regulations to provide for accidental

release detection and prevention. The risk management plan, referred to

as the [[Page 13527]] RMP in this notice, addresses the specific

requirements of CAA section 112(r)(7)(B) for a plan that provides

governmental entities and the public with information on the hazards

found at sources and the source's plans for addressing the hazards.

These hazards would be identified and addressed through implementation

of the risk management program elements. Therefore, the RMP would

summarize the results of hazard assessments and the implementation of

the risk management program requirements. The proposed rule also

contains a system to audit the RMPs, including criteria for selecting

sources for audits.

II. Discussion of Issues and Approaches

During public hearings on the proposed rule, in comments provided

on the proposed rule, and through additional sources, EPA has learned

that six areas of the proposed rule need clarification and further

comment prior to development of a final rule. In addition to the

regulatory provisions and alternatives in the proposed rule, EPA is

requesting comment on regulatory options under consideration in the

following areas: approaches for tiering the regulatory requirements to

take into consideration differences between various types, classes, and

kinds of sources, devices and systems; the hazard assessment approaches

(including worst-case scenarios); accident information reporting;

public participation in risk management program and plan oversight;

inherently safer approaches for design and operation; and the

implementation of section 112(r) regulations including methods of

integrating these requirements into the title V permitting

requirements. All regulatory provisions and alternatives under the

proposed rule remain as options for the final rule. EPA will consider

carefully comments already submitted. Therefore, commenters on this

notice should not duplicate comments already submitted, but should

focus on the issues in this notice.

A. Approaches for Tiering the Regulatory Requirements

Many commenters asked for a tiered approach (i.e., applying

different requirements to different sources). Commenters have presented

several reasons why a tiered approach is needed:

Commenters stated that, if a source cannot cause offsite

impacts, the source should not have to meet the requirements of the

rule.

Commenters stated that the rule should be streamlined to

ensure that the requirements are appropriate for each type of source

covered and eliminate duplicative coverage where possible. Commenters

argued that CAA section 112(r)(7)(B)(i) allows EPA to take into account

differences in size, operations, processes, class and categories of

sources, and voluntary actions.

Commenters, particularly states, were concerned about

whether the final rule can be implemented effectively. Substantial

requirements imposed on lower risk sources may undermine the program

because implementing agencies and the public will find it more

difficult to identify and focus on the most serious risks. Resources

spent on unproductive regulatory requirements better might be used to

analyze and develop new accident prevention technologies.

Commenters have stated that, based on their experience

implementing similar accident prevention rules in New Jersey,

California, and Delaware, and implementing the OSHA PSM standard, the

rule would impose substantially higher costs on affected sources than

EPA had originally estimated. These commenters argued that the costs of

the rule should reasonably be related to benefits obtained. Commenters

noted that EPA is required under CAA section 112(r)(7)(C) to consider

the effects on small businesses.

In light of data and information supplied by commenters during the

initial comment period and developed by EPA subsequent to publication

of the initial proposed rule, EPA believes that it would be

unreasonable to apply the proposed rule prevention program to all

sources subject to part 68. EPA is considering a tiered approach to

achieve the program objectives of ensuring that the effort is

appropriate to the potential risk and recognizing the prevention steps

that sources are already required to take under other regulatory

programs. EPA believes a tiered implementation framework may be a

reasonable way to reduce the cost without sacrificing accident

prevention benefits.

EPA is proposing the use of three tiers, representing increasing

levels of effort, in defining requirements for sources. The tiers would

apply to different categories and classes of sources based on their

potential risk and steps already being taken. In light of the various

comments summarized above, EPA does not believe that the third tier,

which would be the proposed prevention program and would entail the

greatest level of effort among the alternatives discussed below should

apply to all sources. EPA solicits comments on this position.

Under the Common Sense Initiative (CSI), the Agency is working with

a broad cross section of stakeholders to examine regulations affecting

six industry sectors. These sectors are petroleum refining, metal

finishing, iron and steel, automobile manufacturing, electronics and

computers, and printing. Under CSI, the Agency and stakeholders

together will be looking for approaches that provide more environmental

protection at less cost for these industry sectors. The tiering

approaches discussed in this notice incorporate these CSI principles.

Discussion of Issues and Approaches

The CAA mandates that each source with more than a threshold

quantity of a regulated substance develop and implement a risk

management plan that includes an offsite consequence analysis, a five-

year accident history, a prevention program, and an emergency response

program. Under its proposed rule, EPA would require the submission of

an RMP that summarizes each of the elements listed. The risk management

program specifies the activities required for each of the broad

elements. The original proposal would require every source affected by

the rule to complete all specified activities and submit an RMP. EPA is

proposing today to create the following three tiers of risk management

programs:

Tier 1: A brief RMP would demonstrate and certify that the source's

worst-case release would not reach any public or environmental

receptors of concern.

Tier 2: A streamlined risk management program would require sources to

conduct an offsite consequence analysis, document a five-year accident

history, implement prevention steps, have an emergency response plan,

and submit an RMP. The rule would not require specific steps to comply

with the prevention and emergency response programs.

Tier 3: The full risk management program and plan would be that

described in the proposed rule.

In addition to the approach in the proposed rule, EPA has developed

two alternative approaches to assigning sources to the tiers in a way

that takes into consideration risk as well as differences between

types, classes, and kinds of sources:

Approach 1: Sources that could meet the requirements of Tier 1 would

comply with Tier 1; manufacturers with 100 or more full-time employees

(FTEs) producing pulp (SIC code 2611), chlor-alkalis (2812), industrial

inorganics, not elsewhere classified [[Page 13528]] (nec) (2819),

plastics and resins (2821), industrial organics, nec (2869), nitrogen

fertilizers (2873), agricultural chemicals, nec (2879), and petroleum

refineries (2911) would comply with Tier 3 requirements; all other

sources would comply with Tier 2 requirements. In addition, eight years

after the effective date of the rule, sources in SIC codes 2812, 2819,

2869, 2873, and 2911 with 20 to 99 FTEs would be required to meet Tier

3 requirements.

Approach 2: Sources that could meet the requirements of Tier 1 would

comply with Tier 1; other sources with fewer than 100 full-time

employees (FTEs) would comply with Tier 2 requirements; all other

sources would comply with Tier 3 requirements.

Discussion of Tier Requirements

Tier 1 (No Impact Tier). A source in Tier 1 would be a source that

is subject to part 68 because it has more than a threshold quantity of

a regulated substance, but that does not pose a risk to public or

environmental receptors. A source would be eligible for Tier 1 if the

owner or operator can demonstrate that, in a worst-case release, there

are no public and environmental receptors of concern within the impact

distances specified by rule. Sources would not be eligible for Tier 1

if they have had a significant accidental release (as defined in the

proposed rule) in the previous five years. To ensure that emergency

responders are aware of the hazards at the sites, sources that exceed a

threshold only for flammable or explosive regulated substances (i.e.,

they have no listed toxics above the threshold quantity) would need to

post a sign at all normal access routes that warns the public and

emergency responders about the hazard (fire or explosion) and lists an

emergency contact telephone number. The owner or operator of a source

eligible for Tier 1 that handles a regulated toxic substance would need

to show that the local emergency response plan prepared under the

Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)

section 303, 42 U.S.C. 11003, specifically addresses their source. For

regulated substances that are not extremely hazardous substances (EHSs)

under EPCRA, the owner or operator of the source would need to certify

that source emergency response planning and measures have been

coordinated with local first responders. EPA requests comments on this

approach. Sources meeting these criteria would be required to register,

submit an RMP consisting of the registration and standard one-paragraph

statement (see rule text), and maintain records of compliance with

these requirements.

The provisions described above would satisfy each element of

section 112(r)(7)(B)(ii) while recognizing that it is reasonable for

this class of sources to be addressed in a simple manner. The hazard

assessment element of the program would be satisfied by verifying that

there were no receptors within the potential impact zone of the worst-

case accidental release and by the absence of any significant

accidental release within the previous five years. In addition, EPA

proposes that, in lieu of obtaining a professional survey, an owner or

operator could rely on visual approximations of the distances

surrounding the source to public and environmental receptors for

comparison to the distance generated by the worst-case release. The

prevention program would not require additional prevention activities

because the characteristics of the process are such that there are no

potential public or environmental impacts. A standardized RMP ensures

that local emergency planners and the state know that the source has

been assessed by the owner or operator.

EPA believes that Tier 1 will be most suitable for operations that

handle flammable substances or explosive substances in locations that

are relatively distant from the public. In lieu of presenting a

distance table for explosives in this part, EPA would allow a source to

be eligible for Tier 1 if it maintained a distance to the public and

environmental receptors consistent with 27 CFR part 55 or 30 CFR parts

56, 57, or 77. These regulations, promulgated by the Bureau of Alcohol,

Tobacco and Firearms (BATF) and the Mine Safety and Health

Administration (MSHA) incorporate the American Table of Distances

(ATD). The distances identified in the ATD are more conservative than

the EPA listing criteria and should, therefore, protect the public and

the environment from the effects that caused EPA to list explosives.

Based on the known properties of flammable substances and

explosives, it is possible to use conservative assumptions and

calculate the maximum distance at which an overpressure or heat effect

of concern can be detected. Distances for potential impacts of

accidental releases for flammable substances and processes could be

determined by consulting distance tables or derived using the following

calculation method described in Flammable Gases and Liquids and Their

Hazards:

D = C x (nE)1/3,

where D is the distance in meters to a 1 psi overpressure; C is a

constant for damages associated with 1 psi overpressures or 0.15, n is

a yield factor of the vapor cloud explosion derived from the mechanical

yield of the combustion and is assumed to be 10 percent (or 0.1) and E

is the energy content of the explosive part of the cloud in Joules. E

can be calculated from the mass of substance in kilograms times the

heat of combustion (hc) in Joules per kilogram as follows:

E = mass x hc

Combining these two equations gives:

D = 0.15 x (0.1 x mass x hc)1/3

If distances to receptors are greater than the distance given by the

calculation method, then a source could be eligible for Tier 1.

EPA has received a study addressing the potential consequences of

accidental releases from oil and gas exploration and production (E&P)

sources that may provide a more suitable method for calculating impact

distances from these sources than the general formula presented above.

The study, Hazard Assessment of E&P Facilities Potentially Subject to

the EPA's Risk Management Program Regulations, was submitted by the

American Petroleum Institute in January 1995 and is available in the

docket (see ADDRESSES section of this rule). Generally the study

purports to show that given the composition of produced hydrocarbons at

the source and certain physical characteristics of an E&P source, such

as operating phase and piping size, one may estimate the potential

impact distances for vapor cloud explosions and radiant heat effects of

an accidental release. EPA is announcing the availability of this study

and seeks comment on whether EPA should allow E&P sources to use the

results of the study to determine worst-case release impact distances.

For listed toxic substances, EPA is proposing that sources use the

lookup tables discussed in Section B below. Sources would use the

lookup tables to determine the impact distance for their worst-case

releases. If a source can demonstrate that there are no public or

environmental receptors of concern within the distance, the source

would be eligible for Tier 1.

EPA seeks comment on whether Tier 1 is appropriate for the sources

discussed above. In particular, EPA seeks comment on whether Tier 1 is

appropriate for sources that have toxic regulated substances present in

more than a threshold quantity. Should sources be allowed to determine

that they have no offsite impacts for toxics [[Page 13529]] based on

site-specific analyses rather than the lookup tables? Is the criterion

of no significant accidental release in the previous five years

appropriate as a condition for Tier 1 eligibility? Are additional

response preparedness activities necessary beyond what has been

specified for sources in this tier?

Tier 2 (Streamlined Program). Sources would be required to register

with EPA, conduct a hazard assessment, develop a five-year accident

history, prevention program, and emergency response program, and submit

an RMP summarizing these elements.

The rule would not specify the prevention program in detail, but a

source's program would have to cover the statutory elements of

training, maintenance, safety precaution, and monitoring. The

prevention program section of the RMP would describe the steps the

source takes to train employees and maintain the facility, the safety

precautions used, and monitoring. Sources may be able to meet these

requirements through compliance with other, already existing Federal

regulations. For example, almost all sources are subject to OSHA

regulations. The Hazard Communication Standard (29 CFR 1910.1200)

requires training on hazards and preventive actions. OSHA has numerous

rules related to safety precautions. Certain industries (e.g., handlers

of anhydrous ammonia and LPG) have specific OSHA standards. Propane

handlers are also generally subject to state and local laws based on

NFPA-58, a storage and handling standard for propane. Sources could

cite compliance with these standards as part of their description of

their prevention steps. Sources that are in compliance with the OSHA

process safety management (PSM) standard or with chemical and refinery

industry standards would be able to cite compliance with these because

they parallel EPA's proposed prevention program.

One mandated prevention element not usually addressed in

regulations, except OSHA PSM, is maintenance. Sources would be required

to describe how they maintain a safe facility; EPA would not, however,

specify maintenance steps. EPA emphasizes that, under CAA section

112(r)(1), all sources already are required to identify their hazards

and design and maintain a safe facility and would continue to be

subject to this general duty under today's proposed rule.

The response program would document procedures for informing the

public and local entities about accidental releases, procedures to be

used on site to respond to an accidental release, and a description of

employee training measures regarding emergency situations. EPA requests

comment on whether Tier 2 sources should be required to exercise the

emergency response program under proposed Sec. 68.45 or whether a

streamlined response program would be sufficient. EPA notes that, for

both Tier 2 and Tier 3 (described below), compliance with other Federal

contingency and emergency response planning requirements (e.g., RCRA,

OPA-90) would be considered adequate to meet the emergency response

requirements of the rule. EPA asks for comment on what other Federal

emergency response measures would satisfy the requirements of section

112(r)(7)(B)(ii)(III). In particular, does HAZWOPER (29 CFR 1910.120)

fulfill the requirement for ``a response program providing for specific

actions * * * so as to protect human health and the environment''? If a

source is specifically addressed in an emergency plan under EPCRA

section 303, should that satisfy the response program element of the

CAA? Should EPA require that the LEPC meet the membership, planning

process, and public availability requirements of EPCRA sections 301,

303 and 324 for a source to rely on an EPCRA local emergency plan?

The streamlined approaches under Tier 2 fulfill the statutory

provisions of section 112(r)(7)(B)(ii), while exercising the discretion

granted under section 112(r)(7)(B)(i) to recognize ongoing prevention

activities at classes of sources. Requirements for hazard assessments

and response programs for sources would be similar to those in the

original proposal as modified by other portions of today's notice. The

five-year accident history would be based on the proposed rule. The

prevention program would place less burden on sources that are subject

to other governmental or industrial programs or that seem to present a

lesser risk of a significant accidental release than other sources,

based on public data and inferences drawn from such data. The RMP will

fulfill the right-to-know aspects of section 112(r) by requiring a

source to summarize data about its hazard assessment, prevention, and

response program activities and make this information available to the

public. EPA seeks comments on the proposed Tier 2 requirements.

Specifically, EPA seeks comment on whether additional, specific

prevention activities should be required to address safety precautions,

maintenance, monitoring, and training (e.g., any particular

requirements of the proposed rule targeted at these activities) and on

whether there are additional governmental regulations and industry or

third-party standards which fulfill the mandate of a prevention program

under section 112(r).

Tier 3--Full Rule. Tier 3 sources would be required to comply with

the detailed prevention program of the rule, as finalized. The RMP

would address hazard assessment, the prevention program, and the

emergency response program. EPA intends that the final prevention

program will be the OSHA PSM standard plus the requirement for a

management system.

Discussion of Assignment to Tiers

Sources would be eligible for Tier 1 based on a demonstration and

certification of no impact on public or environmental receptors. All

other sources would be allocated to either Tier 2 or Tier 3. Tier 2 is

a default tier for those sources not specifically assigned to Tier 3.

EPA's preferred approach would assign sources in specific four-

digit SIC codes to Tier 3. To identify such SIC codes, EPA analyzed its

ARIP database for the period from 1987 through 1993. EPA believes that

SIC codes in which more than 10 sources with 100 or more full-time

employees reported regulated substance releases (not limited to

accidental releases under part 68) and more than 20 percent of such

sources had releases that had impacts onsite or offsite would be

candidate SIC codes for Tier 3 during the initial implementation of

part 68. EPA also considered the quantities released and the number of

sources in the SIC code as reported in Census data. EPA used some

judgment when looking at SIC codes in Census data because the Census

reports only the one SIC code per source that represents the greatest

financial activity even when many SIC codes apply. Thus, the Census may

be likely to understate the total number of sources in a 4-digit SIC

code, especially in the chemical industry, because sources in certain

industries typically involve many different operations. EPA believes

that chemical releases that are not accidental releases and releases in

which workers were injured should be included in an analysis of

accidental releases for the purposes of section 112(r) because all such

releases may indicate a failure of company safety practices. EPA

requests comments on this conclusion and data indicating that this

assumption is valid (or not) for the groups discussed below.

Based on the analysis described above, EPA identified eight four-

digit SIC codes that have a release history that supports requiring

sources in such codes to implement a Tier 3 program.

[[Page 13530]] These SIC codes are: 2611 (pulp mills), 2812 (chlor-

alkali), 2819 (industrial inorganics nec), 2821 (plastics and resins),

2869 (industrial organics nec), 2873 (nitrogen fertilizer), 2879

(agricultural chemicals nec), and 2911 (refineries). In all of these

industries, the number of facilities reporting releases was more than

20 percent of the number in each SIC code using Census data.

Four industrial categories that EPA does not believe would be

appropriate under the accident history criteria for Tier 3 are 2865

(cyclic crudes), 3312 (steel mills), 2816 (industrial inorganic

pigments), and 4911 (electric utilities). Less than 20 percent of the

releases reported from cyclic crude sources and steel mills had

impacts. In the cyclic crude industrial category, while 16 sources

reported releases (approximately 25 percent of the SIC code), only

three sources had releases with impacts. The largest release at 11 of

the cyclic crude sources exceeded 1,000 pounds, and three of these

sources had largest releases exceeding 10,000 pounds. Given the size of

releases from cyclic crude sources, EPA requests comments on whether

they should be required to meet Tier 3 requirements. In the steel mill

sector, while 18 sources reported releases (approximately 14 percent of

the industry), only 3 had impacts. However, six of these sources

reported releases exceeding 10,000 pounds. The industrial inorganic

pigment industry was just below the candidate SIC code criteria for

facilities reporting releases and percentage of impact releases. While

nearly half the industry reported releases, only two facilities had

releases that were more than 1000 pounds, and none had releases that

exceeded 10,000 pounds. Although there were a high number of releases

reported by electric utilities, only about 2 percent of the industry

accounted for the reported releases.

EPA would initially limit Tier 3 to sources in the eight categories

with 100 or more full-time employees because these sources have the

most significant accident histories. However, certain smaller sources

also have accident histories that would support eventual Tier 3

treatment. EPA conducted an analysis of sources with 20-99 full-time

employees and identified five categories that, based on accident

history, would become Tier 3 sources 8 years after promulgation: 2812,

2819, 2869, 2873, and 2911. The flammable substance accident history

for refineries with 20-99 full-time employees supports eventually

requiring these sources to comply with Tier 3. The four other

industries all had a significant percentage of impact releases relative

to the number of facilities reporting toxic releases. Three groups

(industrial inorganics, industrial organics, and nitrogen fertilizer)

had more than ten facilities reporting toxic releases, while two groups

(chlor-alkali and nitrogen fertilizer) had more than 30 percent of the

SIC code reporting releases. EPA may review this determination based on

data gathered during the eight-year period. The full program would be

phased in to allow these sources to benefit from the expertise gained

by governmental agencies and larger industry during initial

implementation of the full program; the phase in would also ease the

cost burden on these smaller companies by giving them more time to

implement the program. EPA would calculate full-time employees based on

the definition in 40 CFR 372.3. Full-time employees would include

contractors on site.

EPA also requests comment on a second approach to tiering. EPA

would include in Tier 3 all sources with more than 100 FTEs. Larger

sources not eligible for Tier 1 would be subject to Tier 3 because of

the size of their operations and the likelihood that they have larger

quantities of regulated substances on site, as well as because of their

technical capabilities to undertake the program relative to most small

manufacturers and non-manufacturers. EPA does not favor this approach,

however, because many of these large sources do not have a significant

record of accidental releases.

EPA requests comment on the two alternatives or on other criteria

for placing sources in tiers under the risk management program. EPA may

adopt, in whole or in part, any or all of the approaches to eligibility

for Tier 2 in the final rule. The first approach focuses on industry

segments that have a history of releases from a number of sources. This

approach would remove from Tier 3 individual sources that may have had

a history of accidents, but are part of sectors that have not had

numerous accidents. It would also remove from Tier 3 entire sectors

based on an accident history, which in the future may change. Should a

change occur, EPA would revise the rule to include these sectors in

Tier 3. Should such sources and segments be exempt from adopting

process safety management principles until problems in the industry

become pervasive? In addition to placing sources in Tier 3 based on

industry segment, should a source be placed in Tier 3 if it has had one

or more significant accidental releases in a five-year period?

Conversely, should a source in an industry segment in Tier 3 be allowed

to move to Tier 2 if it has not had a significant accidental release in

the past five years? The Agency requests comment on the oversight and

compliance burdens that would be placed on implementing agencies and

sources by a site-specific tiering approach. Should proximity to

significant numbers of people (either residential population, workers,

or other people) be used (alone, or in conjunction with other criteria

discussed above) to qualify a source for potential Tier 3 treatment?

Should EPA structure the audit provisions of proposed Sec. 68.60 to

allow for implementing agencies to require Tier 2 sources to undertake

more specific prevention activities if an audit uncovers inadequate

risk management programs? Are there additional industries (two-digit or

four-digit SIC codes) that should not be eligible for Tier 2 under

either approach? Under approach 2, are there sources with more than 100

FTEs that should be eligible for Tier 2 because of industry-specific

standards or the simplicity and nature of their processes? EPA believes

the preferred approach is the most appropriate level for national

implementation. EPA notes that state implementing agencies have the

authority under the CAA to impose more stringent requirements.

Qualified Third Party. EPA is seeking comments on whether

provisions should be made to employ a ``qualified third party,'' under

implementing agency oversight, to assist certain regulated sources in

achieving and maintaining compliance with the RMP rule. In raising this

issue, EPA is cognizant of the recent National Performance Review

recommendations to OSHA on the use of third parties, and growing

reliance on ``qualified third parties'' to facilitate compliance with

other regulations, to audit the performance of regulated third parties,

and verify compliance status on a periodic basis. Such arrangements,

thereby, assist both the regulated community and the regulating

agencies in ensuring compliance with regulations. EPA requests comments

whether to use qualified third parties for this program as well as

specific suggestions on how appropriately to include qualified third

parties in the present rulemaking.

One way to incorporate ``qualified third party'' review into the

RMP tiering framework might be to assign certain sources that

participate in the Voluntary Protection Program (VPP) to Tier 2. The

VPP is a voluntary program sponsored by OSHA and industry that

recognizes strong safety practices, including process safety

management. Within [[Page 13531]] VPP, a ``Star'' rating indicates the

highest level of worker safety practices in all aspects measured by the

program, while a ``Merit'' rating indicates sound practices with

specific qualifications. One commenter suggested that EPA should

integrate Star and Merit status into the risk management program. It is

not clear whether Star and Merit ratings are relevant to protecting the

public and the environment from accidental releases because the VPP

only directly measures worker safety impacts. EPA invites comment on

whether a source that obtains Star rating or a Merit rating without

qualifications related to process safety management should be eligible

for Tier 2 even when it is part of an industry sector that otherwise is

subject to Tier 3. Should implementing agencies and the public rely on

Star or Merit status as a good indicator that the source poses a lesser

risk of a significant accidental release than other sources in the same

industry sector?

Comments on other types of ``qualified third party'' options to

facilitate responsible self-enforcement of the RMP rule will also be

useful, particularly as they relate to subsectors of regulated sources

which have demonstrated the capacity for establishing and enforcing

voluntary safety procedures, or to subsectors in which the regulated

sources or their associations have indicated an interest in developing

such capacity. Comments from state and local officials, emergency

responders, and the public regarding the use of third party

arrangements are sought.

B. Hazard Assessment

EPA received substantial comments on hazard assessment topics

during the four public hearings, the comment period, and a one-day

forum on worst-case scenarios. Commenters made the following main

points:

Commenters questioned the intended use of the worst case,

arguing that EPA failed to provide a clear description of its purpose.

Commenters questioned whether EPA would require sources to

conduct separate analyses for each hazard for substances that are both

flammable and toxic. Commenters suggested that the number of

assessments could be limited by analyzing only the substance that has

the potential for the most serious offsite impacts.

Commenters stated that, although the proposed definition

of worst case as instantaneous loss of the total contents of a process

may be possible for sources that have simple systems, instantaneous

loss of the total process contents is not technically feasible for

complex systems and, therefore, would provide no useful information to

the public or the source.

Commenters stated that failure to account for at least

well-designed passive mitigation systems reduces the incentive for

installation of such systems.

Commenters argued that EPA should specify in the final

rule certain methodological assumptions that sources would use to

analyze release scenarios.

Several commenters argued that the worst-case

meteorological conditions defined in the proposed rule (F stability and

1.5 meters/second wind speed) were too conservative.

Commenters expressed concern that the results of the

offsite consequence analyses would be difficult to compare between

sources without specification of the assumptions.

Commenters asked for clarification of what EPA expects

sources to do to define offsite populations and environmental impacts.

Clarification of the Purpose of Worst-Case Analyses. Sources and

the public need to assess and understand the extent of the impact

associated with an uncontrolled major accident. EPA does not intend

that worst-case analyses should be used as the sole or primary basis

for emergency planning or accident prevention actions. The results of

the worst-case analyses, in combination with other more likely release

scenario assessments, as contained in the RMP, should be used to build

a dialogue and a working partnership between the source and the public,

response agencies, workers, and various levels of government for

chemical accident prevention, response, and preparedness.

Worst-Case Release Definition

EPA is considering alternatives to the definition of worst-case

release in proposed Sec. 68.3. EPA is proposing to redefine a worst-

case release as the release of the largest quantity of a regulated

substance resulting from a vessel or process piping failure. The worst-

case analysis would involve a 10-minute release under worst-case

meteorological conditions (F stability and 1.5 meters per second wind

speed) and would consider passive mitigation measures.

The 10-minute release time is used in the Technical Guidance for

Hazards Analysis. EPA believes that this release duration is reasonable

and accounts for comments arguing that an ``instantaneous'' release is

not realistic. As described in the Technical Guidance, a 10-minute

release is intended to represent modeling of a continuous release

rather than a ``puff'' release. Therefore, for modeling purposes, the

release rate (per minute) to the air for gases would be the quantity

released divided by 10. Liquids would be assumed to form a pool in 10

minutes, with the release rate to the air determined by volatilization

rate. This approach to liquid releases differs from that of the

Technical Guidance, which specifies an instantaneous release.

Alternatively, the Technical Guidance could be used, but no time frame

would be specified; the liquid quantity would be assumed to form a pool

for calculation of the volatilization rate. EPA requests comments on

the appropriate release duration and justification for its basis.

EPA is considering the revision of proposed Sec. 68.15(c) to

incorporate the effects of passive mitigation systems, but not active

mitigation systems, into the worst-case release scenario, if such

systems are capable of withstanding destructive events (e.g., fires,

explosions, floods, hurricanes, and earthquakes). Passive systems would

include dikes, catch basins, and drains for liquids, and enclosures for

both liquids and gases. EPA requests comment on its definition of

``passive mitigation system'' and requests examples of other such

devices. Scenarios involving passive mitigation systems that have

connections to the environment (such as a rainwater drain valve) would

have to assume failure of that connection. The threat of natural

disasters would be specific to certain geographic regions, and sources

could certify that their passive mitigation meets or exceeds local

natural disaster design standards as capable of withstanding

destructive natural events. Underground storage tanks might also be

considered a passive mitigation system for liquids to the degree that

overlying soils would reduce the volatilization rate to the air in the

event of a worst-case accidental release. However, overlying soil is

not likely to contain high pressure gas releases. EPA requests comment

on this issue.

Incorporation of passive mitigation measures into the worst-case

release analysis could be left to implementing agency discretion. Such

discretion would result in an increased administrative burden on that

agency and cross-jurisdictional differences in the methodology used for

worst-case analyses. EPA is considering allowing the incorporation of

active mitigation measures in the hazard assessments for more likely

accidental release scenarios.

EPA seeks comment on several possible ways to define the relevant

quantity of regulated substance in a [[Page 13532]] vessel or process

piping for a worst-case release scenario. One alternative would be to

define the quantity as the maximum possible vessel inventory, without

regard for operational practices and administrative controls. This

quantity would represent a physical maximum, but would exaggerate the

potential worst case for sources that never operate at the physical

maximum inventory of the vessel. The process piping failure scenario

would assume that the inventory contained in vessels or other process

equipment on either side of the piping failure location would be

released through the pipe break at full pipe flow.

A second, preferred alternative would be to require that the

determination of the worst-case release scenario be based on the

maximum possible vessel inventory unless there are internal

administrative controls (written procedural restrictions) that restrict

inventories to less than the maximum. The operational limit would be

described in the worst-case release analysis in the RMP. Exceedance of

any administrative control on vessel inventory would be a violation of

Sec. 68.15 (failure to perform a worst-case analysis) unless the

administrative control was revised and the worst-case analysis updated

to reflect any changes in the analysis. An exceedance would also result

in a violation of Sec. 68.50 unless the RMP was updated within the

timeframes set out in that section. Acknowledgement of such

administrative controls would reflect the efforts of sources that have

intentionally reduced inventories of regulated substances for process

safety reasons. EPA seeks comment on whether administrative controls

are sufficiently reliable or whether a mechanical control should be

required in addition to the administrative control.

A third alternative for defining the relevant quantity would be to

base the quantity on historic or projected maximum operating

inventories without regard for administrative controls. The maximum

operating inventory would be specified in the RMP. Exceedance of the

maximum operating inventory also would be a violation of Secs. 68.15

and 68.50 as described above. EPA does not favor this third alternative

because it does not believe that historic or projected operating

practices represent the maximum possible amount of a chemical that

could be stored in a vessel unless there is a specific management

operational restriction at the source.

EPA is also considering providing the implementing agency with the

discretion to determine the appropriate quantity for the worst-case

release scenario on a site-specific or industry-specific basis.

Implementing agency discretion would result in an increased

administrative burden on the implementing agency and cross-

jurisdictional differences in the methodology used for the worst case

analyses. EPA also requests comment on whether the scenario should

consider the additional amount of substance that could potentially

drain or flow from process equipment interconnected with the failed

vessel or pipeline.

Applicability of the Hazard Assessment Requirements

A number of commenters stated that multiple analyses of similar

substances would not improve the information provided to the public.

EPA is proposing the following requirements for substances and

processes affected by the rule:

A single worst-case release scenario would be analyzed for

all flammables on site; only one flammable substance would be analyzed

for other more likely scenarios as well;

A single worst-case release scenario would be analyzed for

all explosives on site; only one explosive substance would be analyzed

for other more likely scenarios as well; and

A single worst-case release scenario would be analyzed for

all toxic substances at the source; other more likely release scenarios

would be analyzed for each toxic substance covered by the rule.

The appropriate hazard category would be the hazard for which the

regulated substance was listed. This proposal would reduce to a maximum

of three the number of worst-case analyses required of each source in

the RMP. Additional screening analyses to determine the appropriate

worst-case scenario may be necessary, but only one worst-case release

scenario would be reported for each hazard category. Sources would,

within the constraints of the worst-case release definition, describe

the greatest offsite impacts presented by potential catastrophic

accidents involving regulated toxic, flammable, and explosive

substances. The potential worst-case impacts of substances and

processes not described in the RMP would be less than those described.

As an alternative, EPA could require analysis of only one worst-case

scenario by each stationary source. This approach would require the

analysis of the one scenario that presents the worst offsite

consequences. A significant drawback to a one-scenario analysis is that

the different types of worst-case hazards (for toxics, flammables and

explosives) would not all be described.

EPA would require more likely release scenarios per hazard category

for flammables and explosives, but per substance for listed toxics.

Toxic substances each have different exposure concentrations of

concern, but flammables and explosives can be treated uniformly within

hazard categories. EPA seeks comment on whether a single toxic

substance could be considered representative of all toxic substances at

a source or in a process.

Hazard Assessment Methodology and Calculations

EPA intends to develop ``lookup'' tables for all listed substances

to assist sources in determining the impact distances for their release

scenarios. The tables will specify potential impact distances for

releases of substances under conditions that are relevant to

dispersion. Sources will only have to define their release scenarios

and develop the information, such as release rate, needed to use the

tables. The tables will provide impact distances that sources can then

map. For explosives, the American Table of Distances will serve as the

lookup table. For toxics and flammables, the lookup tables will be

developed and made available for public review and comment prior to the

publication of the final rule. The tables, and accompanying guidance,

will represent a revision of the Technical Guidance for Hazards

Analysis. The tables will provide distances under varying conditions,

including worst-case. In developing the tables, EPA will select one

level of concern value for each toxic substance. EPA seeks further

comment on whether it should use a single endpoint to the extent

possible to develop the tables (e.g., the 1/10 IDLH unless one does not

exist for a substance), or a hierarchy of endpoints (e.g., ERPG-3; if

one does not exist, then the 1/10 IDLH; and finally toxicity data if no

other value is available). For flammables, should EPA use overpressure

or both overpressure and radiant heat effects as endpoints? EPA

requests comment on the lookup table approach. The tables and the

methodology used to develop them will be made available for public

review and comment.

The purpose of providing lookup tables is three-fold. First, if

each source conducts its own dispersion modeling, the results will be

extremely difficult to compare among sources; different models and

different assumptions can produce widely varying results. Second,

because of the differences in models and the impact of changing

assumptions [[Page 13533]] (e.g., a different wind speed), the results

of dispersion modeling are best used to provide a general idea of

impact; models do not have a level of predictive accuracy that can

reliably differentiate between, for example, a release with a four-mile

zone and one with a five-mile zone. Third, dispersion modeling is

expensive, especially for sources that are outside of the chemical

industry. Given that the results of sophisticated modeling may not be

more accurate than results derived from simple tables, EPA decided that

a simpler approach that would provide comparable data among sources was

preferable. Sources that wish to conduct more sophisticated modeling

may, but would not be required to do so, under the rule. For sources

that want to do modeling, a number of models available in the public

domain exist; EPA has published guidance on the use of these models. An

alternative approach would be to limit use of the lookup tables to Tier

2 sources and require Tier 3 sources to conduct air dispersion

modeling. EPA requests comments on this alternative.

Offsite Consequence Analysis

EPA agrees with commenters that further direction is necessary with

respect to assessments of potentially affected populations and the

environment. Section 68.15(e)(3) of the proposed rule requires an

analysis of populations within distances of potential exposure. The

preamble to the proposed rule specified that sensitive populations

potentially affected by a release should be identified. Although much

of this information is readily available, identification of some

sensitive populations, such as day care centers and nursing homes,

could require considerable effort, especially where the vulnerable zone

crosses several jurisdictions. In addition, sources in the same area

would be required to duplicate each other's efforts.

To limit the effort required to define offsite populations, EPA is

proposing that offsite populations be defined using available Census

data. Information on the number of children and people over 65 may be

considered a proxy for sensitive populations. With the assistance of

the Bureau of the Census and NOAA, EPA is developing a geographic

information system, LandView, that will facilitate analysis of resident

populations. In addition, EPA may require sources to identify public

arenas or institutions that are potentially affected. These arenas or

institutions would be limited to those identified on available street

maps or Census TIGER files.

EPA has proposed that sources analyze both potential human health

impacts and environmental impacts in hazard assessments and consider

such impacts in designing prevention and response programs. ``The

environment'' is specifically mentioned twice in section 112(r)(7)(B)

as a receptor to be protected by emergency response measures. First,

section 112(r)(7)(B)(i) states that regulations under subparagraph B

``shall include procedures and measures for emergency response after an

accidental release of a regulated substance in order to protect human

health and the environment.'' Second, under the response program

provisions of the risk management plan, the plan must address

``specific actions to be taken in response to an accidental release of

a regulated substance so as to protect human health and the

environment.'' Also, a third reference to ``the environment'' is

ambiguous and may refer not only to response measures, but also to

other aspects of risk management plans (CAA 112(r)(7)(B)(ii)).

The structure of the CAA's accidental release provisions integrates

the assessment of potential hazards and the prevention of accidents

with response planning to prevent potentially hazardous conditions from

resulting in accidents and ensure that the response measures are

adequate in the event of an accidental release. EPA supports this

integrated approach to planning with respect to accidents. EPA believes

it is reasonable for sources to address not only human health impacts,

but also environmental impacts in the hazard assessment. In light of

the mandatory CAA language requiring that the environment be addressed

as a receptor for purposes of emergency response, EPA invites comments

on this approach.

EPA recognizes that one of the concerns of commenters about

addressing the environment in a hazard assessment was that the proposed

rule discussion of environmental impacts was not specific enough.

Consequently, EPA would revise Sec. 68.15(e)(4) of the proposed rule to

require identification of sensitive environments (rather than analysis

of potential environmental damage) within the radius determined by the

worst-case and more likely accidental release scenario analyses. In

addition, EPA would revise Sec. 68.15(h)(3)(v) to require sources to

list the sensitive environments within the accidental release scenario

radii in the RMP. To identify receptors, the source could call the

appropriate state or Federal agencies to determine if any sensitive

environments were within the impact distances.

EPA requests comments on the use of all or part of Appendix I of

the NOAA Guidance for Facility and Vessel Response Plans: Fish and

Wildlife and Sensitive Environments (59 FR 14714, March 29, 1994) for

determination of sensitive environments. Appendix I lists the following

sensitive environments and identifies responsible Federal agencies:

wetlands (as defined in 40 CFR part 230.3); critical habitat for

designated or proposed endangered/threatened species; habitat used by

designated or proposed endangered/threatened species or marine mammals;

national marine sanctuaries; national parks; Federal wilderness areas;

national estuary program areas; near coastal waters program areas;

clean lakes program critical areas; national monuments; national

recreational areas; national preserves; national wildlife refuges;

coastal barrier resource system; national river reach designated as

recreational; Federal or state designated wild and scenic rivers;

national conservation areas; hatcheries; waterfowl management areas;

cultural resources; areas of critical environmental concern; and the

national forest system. Accidental releases of volatile substances may

not represent a major threat to certain of the sensitive environments

listed above. For example, wetlands, national marine sanctuaries,

national monuments, national estuary program areas, near coastal waters

program areas, and clean lakes program critical areas may not be

threatened by accidental releases to the air. They could, however, be

threatened by volatile liquid releases. In addition, deposition of

listed substances from accidental releases of toxics to the air could

also represent a threat to these sensitive environments. EPA requests

comment on whether these, and other, specific sensitive environments

should be removed from consideration for identification of sensitive

environments.

C. Accident Information Reporting

The proposed rule addresses emergency notification (Sec. 68.45(b))

and self-investigation of accidental releases (Sec. 68.40). However,

other than the five-year accident history in the RMP and emergency

reporting under the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA) and EPCRA, sources are not required to

report any accident data or results of accident investigations. Certain

accidental release information that otherwise is not available could be

useful to states and EPA to learn which types of sources are having

problems, understand more about accident causes, track trends in

chemical accidents and [[Page 13534]] prevention activities, monitor

the progress of the risk management program, focus future prevention

activities, and avoid overregulation of industry sectors or substances.

EPA is evaluating how such accidental release information needs

might be met so as to impose a minimal burden on sources and avoid

redundancy. One approach would be to require submission of information

on any accidental release of a regulated substance if the release

results in death, injury, evacuation, property damage, or offsite

environmental impacts. If the source experiencing such an accident is

subject to the OSHA PSM requirements or Tier 3 requirements described

above, then the owner or operator could submit to EPA and the state a

copy of the accident investigation report generated under 29 CFR

1910.119(m)(4) or 40 CFR 68.40. For sources not subject to these

requirements, or alternatively all sources, owners or operators could

submit an accidental release information survey form to collect a

brief, but accurate description of the event and its consequences, the

substance and amount released, root causes, initiating events and

contributing factors causing the release, and changes or potential

changes at the source to prevent a recurrence. EPA requests specific

information on the types of questions that should be included. EPA also

seeks comments on which accidents should be reported (e.g., should any

investigated deviation be reported?), reporting triggers (e.g.,

threshold quantities or reportable quantities released), whether

reporting formats can be used to streamline or eliminate duplicative

reporting, and if the submission of these data raises liability

concerns.

Another approach EPA is considering would be to have EPA request

information developed under existing regulations, such as OSHA PSM

accident investigation requirements or EPCRA section 304 follow-up

notices. Under this approach, sources would not need to develop any new

information for EPA, but could provide EPA with documents prepared

under other regulations. EPA could supplement such information as

necessary by undertaking surveys to acquire specific data on accidents

based on these existing documents. EPA requests comment on this

approach. Specifically, EPA seeks information on what the appropriate

mechanism for obtaining data on accidents would be.

The approach outlined above would not affect a source's current

obligations to report releases of certain regulated substances under

CERCLA section 103 or EPCRA section 304. For purposes of CERCLA section

101(10)(H), part 68 is not a control regulation, and the RMP is not a

permit allowing the accidental release of any specific quantity of a

regulated substance.

D. Public Participation

A number of commenters have asked that EPA require sources to

involve the public in development and review of the risk management

program. Several commenters have identified key points at which public

involvement is appropriate, including at the outset of the planning

process, upon completion of the process hazard analysis (PHA), prior to

submittal of the RMP, prior to RMP revisions, after an accident, after

an accident investigation, and during response drills involving action

outside the plant.

EPA believes that the public is a key stakeholder in preventing

chemical accidents and that sources have the responsibility to make the

public aware of the hazards associated with potential accidental

releases. EPA is committed to encouraging public involvement. EPA's

favored approach would encourage sources to use existing groups,

primarily the local emergency planning committees (LEPCs), as a conduit

for communications between the source and the public. Many sources

covered under part 68 are already obligated to participate on, and

perform emergency preparedness and planning activities with their LEPCs

under EPCRA. In areas where there is no functioning LEPC or its

equivalent, sources, local first responders, citizens, and others need

to develop and support the LEPC or its equivalent. EPA expects sources

to work with the LEPC during the development of the RMP as well as

after its submission. Similarly, EPA expects the public to contact the

LEPC for information from the source whenever it has questions or

concerns. EPA notes that the RMP is not a one-time document; the RMP

reflects the risk management program at the source and will change as

activities at the source change. Sources, therefore, should be involved

in a continuing dialogue with the LEPC about the prevention and

emergency response programs as they evolve to address changes at the

source. EPA prefers this approach because, just as one size of risk

management program is not appropriate for all sources, a rigid set of

public participation requirements would not be reasonable for all

sources.

A second approach would require a source to take steps to involve

the public in discussions concerning the content of its RMP and

describe those steps in the RMP. EPA would not specify the steps, but

would provide guidance on ways a demonstration could be made. The

source could describe its community outreach efforts during the

planning process in on-site records that would be available to the

public or could summarize these activities in the RMP. Similarly, a

source could maintain a record on site of community outreach actions

taken after submittal of the RMP. EPA would provide guidance on ways

such a demonstration could be made. For example, sources could choose

to notify the public through a general circulation newspaper that the

RMP was available and make copies available; the source could publish

the RMP in a newspaper or on electronic bulletin boards; or the source

could hold a public meeting on the RMP or use local TV public service

channels to target a local audience or to broadcast logistics for

upcoming meetings. EPA requests comment on whether public participation

activities should be limited to Tier 3 sources. Another suggested

approach for public participation was to allow the public, by petition,

to trigger audits of completed RMPs by the implementing agency. EPA

does not favor this approach because it could generate an excessive

burden for implementing agencies.

E. Inherently Safer Approaches

The manufacture, processing, and use of chemicals is inherently

risky. EPA believes that fulfillment of the risk management program

requirements entails ongoing attention to hazard identification, hazard

analysis, risk management (assessment, reduction and control, or

elimination), and public outreach. This process should lead to

continuous improvement and the evolution of safer sources through a

wide range of actions involving reduction of the inherent risk and

control or mitigation of the hazards. During the proposed rule

hearings, several presenters argued that, like pollution prevention,

accident prevention could be more successful if the program were to

focus on the elimination of hazards to make processes inherently safer

rather than on an attempt to control or mitigate existing hazards. It

was suggested that sources be required to examine different approaches

or technologies through a process of technology options analysis (TOA),

or a ``state-of-the-art'' search and analysis of safety alternatives as

required by New Jersey in its Toxic Catastrophe Prevention Act

regulations, to find, and adopt, inherently safer chemical pathways and

processing techniques. In addition to TOA and state-of-the-art

searches, the Center for [[Page 13535]] Chemical Process Safety has

published a guideline containing a checklist for evaluating the

inherent safety of processes (Guidelines for Engineering Design for

Process Safety, CCPS, 1993). Commenters suggested that EPA formalize

the search for alternative technologies by making TOA or similar

reviews a required part of PHAs and by requiring sources to document

and share the results in the RMP.

Such costly analyses are probably best conducted during the design

of new processes, when, according to industry commenters, they often

are already part of the design process to identify cost-effective

approaches to improving safety. In addition, if alternative

technologies are discovered, whether for new or existing processes,

further analysis is necessary to determine whether risks are

inadvertently being transferred by the new technology from one location

to another. Adoption of new technologies without such analyses may

inadvertently impose greater individual or societal risk. EPA

recognizes, however, that there are many opportunities to make

processes inherently safer without large-scale adoption of new

technologies. These opportunities may become apparent through the PHA.

Some sources have already performed such analyses and have successfully

taken action to make their processes inherently safer. Consequently,

EPA does not favor inclusion of a specific requirement in the initial

program for an analysis of the inherent safety of processes or for

adoption of new technologies. EPA, however, strongly encourages

industry to consider implementing inherently safer approaches when

appropriate and include a discussion of any such studies and actions it

takes in RMP updates. EPA is considering further study of this issue

with all stakeholders and requests comment on this issue.

F. Implementation and Integration of Section 112(r) With State Programs

Section 112(r) places responsibility on sources to prevent

accidents and share information about their accident prevention

efforts. However, EPA believes, and Congress intended, that successful

chemical emergency prevention, preparedness, and response efforts

require active state and local involvement. The legislative history and

CAA section 112(r) requirements support and build on the existing state

and local infrastructure by requiring that RMPs be submitted to states

and local planning entities. [See, e.g., S. Rep. No. 228, 101st

Congress, 1st session, at 193 and 225.] EPA encourages and supports any

state or local efforts to develop comprehensive plans for coordination

and integration of section 112(r) with state and local programs

mandated under the CAA, EPCRA, and other environmental statutes and

planning and safety programs under OSHA and other agencies.

The ways in which state and local organizations are, or could

become, involved in the implementation and integration of section

112(r) are described in more detail below. About 15 percent of the

sources subject to the section 112(r) requirements will already have or

will need to get operating permits from state air permitting

authorities under part 70 by the time the RMPs are due. In the final

part 68 rule, EPA intends to clarify the responsibilities of sources

subject to part 70 permitting requirements and section 112(r), the air

permitting authority with respect to section 112(r), and state or local

agencies who elect to implement section 112(r) for all other sources.

EPA worked closely with and directly involved several state and local

air program officials and state emergency response and prevention

representatives in the development of the preamble and regulatory

language to prepare approaches detailed in the following sections.

These approaches best reflect the concerns of the states about air

permit program implementation and the needs for comprehensive

participation in chemical accident prevention, preparedness, and

response at the state and local level.

Applicable Requirements and Permitting Authority Responsibilities for

Section 112(r)

Under CAA section 504(a) and EPA's implementing regulations

(Sec. 70.6(a)(1)), part 70 permits must contain conditions sufficient

to assure compliance with all CAA applicable requirements. Part 70

defines ``applicable requirement'' to include any standard or

requirement of section 112, and includes any requirement concerning

accident prevention under section 112(r)(7).

In the preamble to part 70 (57 FR 32275, July 21, 1992), EPA stated

its belief that section 112(r) was not intended to be implemented or

enforced primarily through part 70 permits. EPA cited the provisions of

section 112(r)(7)(F), which provides that, notwithstanding title V, no

source must obtain a permit solely because it is subject to the

requirements of section 112(r). The part 70 preamble stated that it was

sufficient for a part 70 source subject to 112(r) to ``indicate in its

permit [application] that it has complied with any requirement to

register an RMP, or alternatively to indicate in its compliance plan

and schedule of compliance its intent to comply with such

requirement.'' Thus the preamble set forth the view that all that was

required of a part 70 source with respect to 112(r) was a statement in

its permit application that it has registered the RMP or has submitted

a schedule to do so. By stating explicitly that section 112(r)

requirements were not to be implemented or enforced primarily through

the permit, the preamble defined a narrow role for the permit: one of

ensuring submittal of the RMP, but not ensuring the quality of the RMP

or the implementation or enforcement of section 112(r) regulations in

any particular way. The preamble also did not say what conditions must

be in the permit to assure compliance with applicable 112(r)

requirements (even though the preamble went on to provide that the RMP

itself need not be included in a title V permit). Finally, the preamble

was silent on the issue of responsibilities the permitting authority

might have in assisting the implementing agency in assuring compliance

with section 112(r) requirements.

This view was necessarily preliminary, since it was developed

before any part 68 rulemaking that could clarify how the permit must

assure compliance with ``applicable requirements'' relative to section

112(r). The part 70 preamble does not preclude part 68 rulemaking from

clarifying and even expanding the responsibilities of permitting

authorities (e.g., a completeness review of the RMP) with respect to

implementation of section 112(r) requirements through part 70 permits.

Today's proposal would go beyond the part 70 preamble, principally

by setting forth the part 70 measures necessary to ``assure compliance

with'' applicable section 112(r) requirements. In addition, today's

proposal would establish limits on the responsibilities of the air

permitting authority for assuring compliance with section 112(r) within

the part 70 program as opposed to the greater responsibilities

envisioned for an implementing agency.

``Applicable Requirements'' for Part 70 Sources

One principal objective of the regulations proposed today is to

clarify the minimum content of part 70 permits with respect to section

112(r) ``applicable requirements.'' EPA also intends to revise the

definition in part 70 of ``applicable requirement'' relative to section

112(r). This definition will include the requirements of part 68,

[[Page 13536]] when promulgated, to which part 70 sources are subject.

EPA expects to define this term to mean Secs. 68.10 to 68.58 or

specific provisions within those sections. The part 70 rulemaking would

be done as part of the phase II rulemaking addressing remaining issues

raised by the part 70 litigants. This rulemaking is expected to be

proposed this fall and finalized in early 1996.

EPA does not believe that each permit must restate every

requirement in section 112(r) or part 68 as a permit condition to

comply with the part 70 applicable requirement definition. The permit

could instead meet this requirement by containing a set of standard

conditions that require compliance by the source with applicable

section 112(r) requirements.

These permit conditions are proposed in Sec. 68.58 and would

require that each permit contain, at a minimum, conditions that require

source action consistent with the following:

(1) Registration with the implementing agency (EPA or the appropriate

state or local agencies) and submittal of an RMP, or a revised plan, to

the part 70 permitting authority or other state or local agency

designated by the state for this purpose, by the deadline under this

part and certification upon submission that the plan is complete and

accurate;

(2) Submittal of any additional information required for completeness;

(3) Annual certification of implementation of the risk management

program as described by the RMP; and

(4) If the permit is issued prior to the RMP submittal date, a

compliance schedule for submittal of the RMP.

In addition, the RMP would be a reporting and recordkeeping requirement

under part 70. There is no requirement to include the RMP in the

permit.

EPA proposes that a ``complete'' RMP would be one certified by the

source to contain all necessary elements in sufficient detail to meet

part 68. The necessary elements of an RMP are contained in proposed

Sec. 68.50, and new Secs. 68.13 and 68.14. As general criteria for

completeness, an RMP would need to address all aspects of the three

main elements of the risk management program, i.e., hazard assessment,

prevention program, and emergency response program. EPA intends to

issue guidance to assist sources and permitting authorities in

determining completeness of RMPs, including a checklist addressing the

required elements of an RMP.

The completeness review of the RMP would be independent of the

completeness determination for the permit application. While the RMP

may be submitted with the permit application, in most situations the

RMP will be submitted separately on its own deadline, since almost all

permit applications will have been submitted well in advance of the RMP

deadline. Accordingly, if another state or local agency has received

112(l) delegation as the implementing agency for section 112(r), EPA

presumes that agency, under a cooperative agreement with the permitting

authority, could determine completeness of the RMP. In this situation,

the state should establish appropriate procedures to ensure review of

the plan for completeness. For example, the agreement could specify

that the permit authority would not be obligated to review the RMP for

completeness and could write the permit to require submittal of the RMP

only to the state or local implementing agency, rather than to the

permitting authority. Or, the state might decide that the permitting

authority should retain the responsibility to review the RMP for

completeness, even if another state or local agency has been designated

as the implementing agency. EPA requests comment on this approach and

whether a designated agency should also include EPA, provided that EPA

and the permitting agency agree that EPA should take on the

completeness review responsibility as the implementing agency.

The proposed permit conditions should ensure a complete RMP

submittal, because failure to comply with these conditions would be

enforceable as a permit violation. Other permit conditions would call

for the source to submit a compliance schedule if it has not yet

completed its RMP, to provide any information requested to determine

the RMP's completeness, and to revise, update, and resubmit existing

RMPs according to part 68 criteria. For example, when a source covered

by section 112(r) and part 70 revises its process to add or eliminate a

regulated substance, the source would need to prepare a revised RMP

according to Sec. 68.50(h) and submit it to the air permitting agency

within 6 months. Failure to do so would potentially be a violation of

both parts 68 and 70. Further, the permit would require a certification

of the source's implementation of its risk management program, as

described by the RMP. With the possible exception of the compliance

schedule, EPA believes these permit conditions will be standard terms

applicable to all part 70 sources subject to 112(r). EPA believes these

standard terms would live on in the permit after submittal of the RMP,

and there would be no reason to change them after an RMP is submitted

or revised.

EPA is not proposing any specific requirements for part 70 permit

applications beyond those already required in Sec. 70.5, particularly

the requirements that sources must cite and describe all applicable

requirements, certify compliance with those requirements, or submit

compliance schedules as necessary. Sources that submit applications

after promulgation of part 68 would cite and describe part 68 as the

applicable requirement, certify compliance (or that the source will

comply in the future), and submit a compliance schedule for meeting

section 112(r) deadlines. Sources that handle greater than threshold

quantities of section 112(r) regulated substances should be able to

identify themselves as potentially subject to section 112(r) in their

initial part 70 applications. EPA is not requiring that the RMP be

submitted with the permit application. Given the expected promulgation

date of part 68 and the three-year compliance date for submittal of the

RMP, EPA expects submittal of permit applications and issuance of most

permits will occur long before the submittal deadline for RMPs (with

the possible exception of part 70 programs with source-category limited

interim approvals where it could take five years from interim approval

to issue all permits).

EPA also believes it is not necessary to require submittal of the

RMP as a permit revision at the submittal deadline for the RMP. EPA is

concerned that permitting authorities may be required by state law or

regulation to process the application and to incorporate RMP

information in the permit if the RMP were included as part of the

formal permit application. This result obviously would not be desired.

The purpose of reviewing the RMP for completeness is to obtain a

complete RMP, not to initiate any form of permit action. EPA seeks

comment, however, on whether it should require the RMP as part of the

permit application, or as an addendum to the application or to allow

the permitting authority the option to ask for the RMP in either form

for permit applications after the date plans must be submitted.

Role of Part 70 Permitting Authority

Under today's proposal the part 70 permitting authority or the

designated agency (for completeness review) would be responsible for:

[[Page 13537]] (1) Verifying that an RMP was submitted when required

and that it is complete, i.e., it contains the elements required under

Secs. 68.50, 68.13, or 68.14;

(2) Verifying that the source has submitted an annual certification

that it is properly implementing a risk management program as required

by part 68 and as described by the RMP;

(3) Taking enforcement action (including penalties) for failure to

submit a complete RMP revised plan, or the annual certification; and

(4) Incorporating and enforcing permit conditions specifying a

compliance schedule for submittal of a complete RMP.

These four tasks are the extent of the responsibilities of the

permitting authority, unless it is granted delegation under section

112(l) as the implementing agency. Tasks (1) and (2) could be

transferred to another state or local agency designated by the state

under a cooperative agreement.

The first task of the permitting authority or designated agency

would be to determine if the RMP is complete. The permit would require

the source to submit the RMP by the part 68 deadline; part 68 would

require the source to certify as to the RMP's completeness. If the RMP

or any revisions were determined to be incomplete, the permitting

authority or designated agency would notify the source that the

submittal was incomplete, state the deficiencies, and give the source a

deadline to submit the requested information and/or revise the RMP. EPA

requests comment on the definition of a complete RMP.

The obligation to submit an RMP to the permitting authority or

designated agency is a reporting requirement of a permit, but the

contents of the RMP are not permit terms or conditions. Under today's

rule, the completeness determination required under proposed

Sec. 68.58(b)(1) is independent of the completeness determination

required by CAA section 502(b)(6). It is not necessary for the

permitting authority to provide public notice of completeness findings.

The permitting authority may, however, wish to document and provide the

public with a notice of completeness findings using electronic bulletin

boards or other mechanisms. EPA seeks comments on this approach. EPA

also seeks comment on whether it should establish deadlines for the

determination of completeness by the permitting authority. EPA could

select the 60-day deadline used for part 70 application completeness;

however, EPA is aware that some states may find this deadline too short

if a high number of part 70 sources are subject to 112(r). EPA solicits

comments on other possible deadlines: six months, one year, or by

permit renewal.

The permitting authority or designated agency must be able to

determine if a source is subject to the requirement to submit an RMP.

EPA believes that this capability is already required under part 70

since, under that regulation, a permitting authority must be able to

ask for any specific information that may be necessary to implement and

enforce other applicable requirements or to determine the applicability

of such requirements [Sec. 70.5(c)(5)]. Thus, if a source fails to

mention whether it is subject to 112(r) in its permit application, the

permitting authority must have the authority to ask for information on

the application to determine section 112(r) applicability. This

information must be included in permit applications due before the

promulgation of part 68, since the permitting authority or designated

agency must determine which permits will require reopening after part

68 is promulgated if standard permit conditions reflecting part 68 are

not added. EPA believes this approach is sufficient and is prepared to

rely on the resourcefulness of permitting authorities in identifying

sources subject to 112(r), but solicits comment on whether EPA should

make more specific demands of permitting authorities in determining

applicability with respect to section 112(r) requirements.

The implementing agency will have the authority under Sec. 68.60 to

require revisions to the RMP. Permitting authorities may find, as a

result of the completeness review or during regular part 70

inspections, that revisions are necessary. The permitting authority

should share this information with the implementing agency for

appropriate action. The implementing agency should also share findings

from RMP reviews and source audits with the permitting authority. EPA

requests comment on whether the permitting authority should be able to

require sources to make revisions to an RMP whenever the permitting

authority determines revisions are necessary.

In light of the possibility that at least some permitting

authorities may need to expand their capabilities to meet these new

responsibilities, states should reexamine several aspects of their

current part 70 program. First, states should assess whether they have

adequate legal authority to review RMPs for completeness, or to require

their submission if not part of a permit application. Second, states

should determine if they have adequate statutory and regulatory

authority to determine whether a source is subject to part 68. This

authority may be vested in an emergency response agency. Third, many

permitting authorities may face resource or budget constraints if

additional workload were taken on to implement section 112(r)

requirements. This might require an adjustment in fee schedules,

because there is no reason to assume a decrease in other workload

costs. States may wish to consider raising title V fees for all

sources, raising permit fees only for sources subject to both parts 70

and 68, or imposing a fee on all sources subject to part 68 to provide

resources for state and local program implementation. Permitting

authorities may be limited on the amount of fees collectable for permit

activities. EPA requests comment on alternative funding mechanisms or

the resource reductions in other programs that may be necessary to

complete the responsibilities described in this notice. Fourth, some

permitting agencies may need to obtain technical training in the

implementation of section 112(r) requirements. EPA intends to provide

training and technical assistance to implementing agencies and

permitting authorities.

Given these expectations, EPA is prepared to presume that approved

part 70 permit programs are adequate to carry out the additional

section 112(r) requirements proposed today, unless the Agency receives

specific information to the contrary. EPA also assumes that if

modifications to state part 70 permit programs are necessary, they can

be made with minimal burden.

Finally, under the CAA provisions, permitting authority liability

would generally be determined by state law. Congress's intent in

enacting section 112(r) was not to expand liability for any government

entity. Liability associated with implementation of section 112(r) is

addressed below.

Incorporation of Part 68 Requirements Into Part 70 Permits

According to the CAA, once part 68 requirements are promulgated,

existing sources have three years to comply with these requirements.

New sources constructed after promulgation of part 68 must comply by

three years after promulgation except that sources constructed later

than 3 years after promulgation must comply upon startup. However,

until the risk management program rule is promulgated, the only

applicable requirement for sources is the List of Regulated Substances

and their Thresholds rule under section 112(r)(3)-(5). Thus, EPA

expects that when a [[Page 13538]] source submits a part 70 application

before part 68 is final, it would identify to the permitting authority

those activities at the source that are subject to the part 68

requirements according to the list rule criteria, but state that the

risk management program requirements are not yet applicable to it. This

identification is consistent with the requirement in Sec. 70.5(c)(5)

for the permit application to include specific information necessary to

determine whether the source is subject to applicable requirements.

Permits issued before promulgation of part 68 will presumptively

need to be reopened at the time of promulgation of part 68 and revised

within 18 months to include the part 68 permit requirements.

Alternatively, the permitting authority could place the standard part

68 permit conditions in a permit issued before promulgation of part 68

and make the conditions effective upon promulgation of part 68. Unlike

most MACT standards, EPA believes the part 68 permit requirements will

be essentially standard conditions with little source-to-source

variation. Consequently, incorporating part 68 requirements (unless

they were included during initial permit issuance) should require only

the part 70 administrative amendment process. As proposed in the part

70 revisions for MACT standards, the permitting authority or designated

agency should provide to the public a list of sources whose permits are

proposed to be reopened. Public comment on the list of sources could

help the permitting authority identify other sources subject to section

112(r).

Reopened and reissued permits would include all permit requirements

of Sec. 68.58, including a compliance schedule for submittal of the RMP

according to part 68 deadlines. After part 68 is promulgated, part 70

permits and applications will be required to contain compliance

schedules which, in part, require the submittal of a complete RMP.

Solicitation of Comment on Alternatives

Although no specific alternatives are proposed, EPA seeks comment

on two other approaches for the definition of applicable requirements,

permitting authority responsibilities, and permit content with respect

to section 112(r). EPA will consider various alternatives offered by

commenters between these two approaches as alternatives to the approach

described above.

The first option places no additional responsibilities on the

permitting authority beyond those set forth in EPA's guidance contained

in an April 13, 1993, policy memorandum from John Seitz, Director of

the Office of Air Quality Planning and Standards (OAQPS), to EPA

Regional Air Division Directors (available in the docket). In that

memorandum, EPA required part 70 permitting authorities to obtain legal

authority sufficient to: (1) Determine whether a source is obligated to

register and submit an RMP; (2) secure verification from part 70

sources that any required submittal was prepared and submitted; (3)

obtain annual certifications from sources that the plan is being

implemented; and (4) include as a permit condition a compliance

schedule for submitting a plan if the source fails to submit the plan

when originally due. Unlike today's proposal, this option does not

require the permitting authority to determine completeness of the plan.

It does not make specific requirements with respect to the content of

part 70 permits. This option would not rely significantly on part 68 to

expand or clarify the April 13 guidance.

An advantage of this approach is that it imposes no additional

expectation on part 70 agencies or sources subject to both part 68 and

part 70 beyond the April 13, 1993, policy memorandum. Therefore,

permitting authorities would not be expected to reassess current legal

authority, resources or fee structure for adequacy in implementing

section 112(r).

However, the April 13 policy guidance was prepared before the risk

management program rule was proposed and before public comments were

received indicating that the relationship between part 70 and part 68

was not clear. Further, the April 13 criteria do not account for

implementation of the risk management program by the source (as opposed

to implementation of the plan) and there is no review of the RMP by the

permitting authority to ensure that the plan contains the elements

required by part 68. Consequently, in a June 24, 1994, memorandum

(available in the docket) from John Seitz and Jim Makris, Director of

the Chemical Emergency Preparedness and Prevention Office (CEPPO), to

EPA Regional Division Directors, EPA indicated that the ``approval

criteria in the April 13 memorandum * * * may not be sufficient to

ensure compliance with all `applicable requirements' established in the

risk management program rule.'' By not requiring a review of the RMP

for completeness or setting forth standard permit conditions that would

assure compliance with part 68, the permitting authority's role in

implementing section 112(r) relies mainly on the certification of

submittal of the RMP by the source. Air permitting authorities would be

unable to assure compliance with the requirements of part 68 as

required unless another state or Federal implementing agency agrees to

become the designated agency for that state and is willing to certify

for the air permitting authority that the RMP is complete. Such a

program may fall short of minimal title V statutory requirements of

assuring compliance with all applicable requirements. The Agency

requests comment on whether the permitting agency may be able to

satisfy title V by certification by the implementing agency.

A second approach at the opposite end of the spectrum would require

permits to address all the hazard assessment, prevention program, and

emergency response program activities under part 68, in addition to the

registration, RMP submission, program implementation and plan revision

requirements. Each requirement in part 68 would be specified as a

permit condition. For example, the permit would include a requirement

for pre-startup safety reviews of all process changes or that

accidental release mitigation equipment at the source (e.g., spray

curtains) be tested monthly. Upon part 68 promulgation, all existing

permits at part 70 sources would need to be reopened to add permit

conditions relative to section 112(r). The permitting authority would

need to examine carefully each RMP and risk management program at each

permitted source to make sure it is complete and to craft the permit

conditions specific to each source and then issue a new permit.

Permitting authorities would be expected to perform periodic

inspections of each permitted source to verify whether the risk

management program was being implemented as described by the RMP, to

examine program implementation to verify compliance with permit

conditions, and to determine whether the RMP needed to be revised as a

result of permit conditions or changes at the source.

This approach would be consistent with approaches for

implementation of emission standards or other air toxics provisions

under titles III and V of the Clean Air Act because it would

consolidate the essential elements of the source's compliance

requirements in the permit and would ensure the full involvement of the

permitting authority in chemical accident prevention. It also would

provide significant enforcement leverage through the permit and through

inspections to ensure compliance with the source's risk management

program and with the part 68 requirements.

This approach still does not call for the permitting authority to

perform [[Page 13539]] audits or to examine the quality of the RMP or

program, which EPA believes is the responsibility of the implementing

agency. It does, however, impose considerable resource and expertise

burden on the permitting authority. EPA does not believe it is

appropriate to include risk management program elements as permit

conditions since these elements will be highly source-specific and

subject to change as the source develops and implements its program.

The permit would need to be changed every time the program or plan

changed. This approach appears to go well beyond the need for part 70

permits to assure compliance with applicable section 112(r)

requirements and duplicates other local, state, and Federal efforts.

There may be alternatives to the two extremes described in this

section and to the proposed approach. EPA requests comment on other

alternatives. EPA also requests that if other approaches are offered,

commenters address the advantages and disadvantages of the approach

with respect to the parts 68 and 70 programs and to the overall

chemical emergency prevention, preparedness, and response effort.

Implementation of Section 112(r) for All Sources

Congress intended a Federal-state partnership in implementing all

of section 112, including section 112(r). The implementation envisioned

by Congress for accident prevention focuses on coordination and sharing

of accident prevention information among various state and local

agencies within the same state. Implementation of section 112(r) means

that the implementing agency takes responsibility for the compliance

and enforcement of section 112(r) requirements. Further, section

112(r)(7)(B)(iii) indicates that EPA shall establish, by rule, an

auditing system to review regularly and, if necessary, require revision

in RMPs. Although permitting authorities are responsible for assuring

part 70 source compliance with part 68 requirements, EPA believes that

the implementing agency should take responsibility for RMP reviews and

audits. Consequently, EPA believes the implementing agency must: (1)

Receive part 68 registrations; (2) inspect sources for compliance,

regulatory development, and enforcement; (3) receive, review, and

periodically audit RMPs according to Sec. 68.60; and (4) require

revision of plans when necessary to ensure compliance with the

requirements of part 68.

In the proposed rule, ``implementing agency'' was not defined. EPA

is proposing to define implementing agency as the state or local agency

that obtains delegation for an accidental release prevention program

under subpart B of part 63 under section 112(l). The implementing

agency could, but is not required to be the state or local air

permitting authority. EPA encourages the permitting authority to assess

its capabilities with respect to carrying out the duties of the

implementing agency and, if appropriate, seek delegation for part 70

sources. If a state or local agency does not take delegation, EPA would

assume the responsibility for implementation of section 112(r).

EPA is also proposing that implementing agencies develop their own

scheme to prioritize RMP reviews, audits, and source inspections using

criteria as proposed in Sec. 68.60. EPA would not specify the number of

inspections, reviews, or audits to be completed. Alternatively, EPA

could require that an implementing agency review all RMPs within five

years of submission, or that no less than all Tier 3 submissions be

reviewed and audited within five years of submission, or that a certain

percentage (for example, 1.5 percent of all plans or only those in

certain tiers), be reviewed and audited within five years of

submission. In addition, while paper reviews of the RMPs are important,

it is critical that implementing agencies perform audits at facilities

to examine and compare actual prevention practices at the source with

information contained in the RMP. EPA recognizes that this effort can

consume considerable resources and require particular expertise for

implementing agencies. EPA plans to issue guidance for implementing

agencies on review and audit criteria and to develop training for

inspections, reviews, and audits. In addition, EPA would propose that

implementing agencies make use of safety audits performed by sources,

as required by OSHA PSM (29 CFR part 1910.119(o)) and proposed

Sec. 68.38, as part of this inspection process. The implementing agency

can use this information not only to determine whether the source is

making progress toward accident prevention, but also to offer

assistance to sources. EPA requests comment on whether a minimum number

of reviews and audits should be established and, if so, the minimum

number, Tier and the basis for the minimum number and Tier, and the

tools and training that should be developed to assist implementing

agencies with audits at sources.

State and local involvement in the implementation of the section

112(r) requirements for all sources is critical to the success of the

accident prevention program. In addition, air pollution control, worker

safety, pollution prevention, and public safety goals can be achieved

most effectively only through the direct involvement of state and local

officials. EPA expects that SERCs, LEPCs, and other state and local

emergency preparedness and response organizations will make full use of

the chemical emergency prevention, preparedness, and response

information in the RMP, regardless of which agency is implementing the

section 112(r) requirements.

A streamlined and cohesive section 112(r) program will be best

achieved if a state or local agency takes delegation to be the

implementing agency for all section 112(r) sources. The use of tiered

approaches to implement the 112(r) program would assist states by

enabling them to focus their greatest accident prevention efforts on

those sources that pose the greatest potential risk to the community.

These approaches attempt to minimize the additional effort needed by

states to cover all section 112(r) sources. Table 1 below shows the

kinds of effort and expertise necessary for review and audit of RMPs.

If a state or local organization has the resources and expertise and is

willing to become an implementing agency for part 70 sources, EPA

encourages it to consider becoming an implementing agency for all

112(r) sources, since the organization would have had the experience of

dealing with the most complex RMPs, reviews, and audits of part 70

sources. EPA believes that divided implementation of 112(r) for part 70

sources and non-part 70 sources, between EPA and state and local

agencies, could cause considerable confusion for the regulated

community and lead to ineffective and uncoordinated chemical accident

prevention. Implementation for all sources by one state organization

could serve to bring the state and local coordination needed to achieve

broad environmental, worker, and public safety goals.

[[Page 13540]]

Table 1.--Costs to Implementing Agency

----------------------------------------------------------------------------------------------------------------

National annualized implementation costs ($mm)

Risk management -----------------------------------------------------------------------------------------------

program and plan Until 1999 1999 to 2004 Yearly after 2004

activity -----------------------------------------------------------------------------------------------

Approach 1 Proposed rule Approach 1 Proposed rule Approach 1 Proposed rule

----------------------------------------------------------------------------------------------------------------

Program

management..... 1.3 1.3 1.8 1.8 1.8 1.8

Auditor training 0.3 0.3

Technical help

for sources.... 0.5 0.5 0.3 0.3 0.08 0.08

Workshops/

training....... 0.4 0.4 0.15 0.15

RMP filing...... 0.06 0.06 0.05 0.05

Initial review

of plan........ 0.5 1.1 0.5 1

Audits.......... 0.6 1.9 0.5 1.6

Totals.... 2.6 2.6 3.5 5.4 2.6 4.2

----------------------------------------------------------------------------------------------------------------

[Note that the columns do not add to the total because EPA-only activities including registration and regional

oversight are not included in the table. All costs are annualized and discounted at a 4 percent rate. Approach

1 refers to the Tiering section. It assumes accident history is used to segregate sources into tiers. The

initial review and audits of Tier 2 sources should take 1 hour and 2 hours, respectively and that all Tier 2

manufacturers would be audited every 10 years. Non-manufacturers would be audited every 10 or 20 years. These

figures are likely to be upper-bound estimates; actual costs will vary based on the degree of selective

program oversight necessary and cost savings as experience is gained.]

State or local organizations that want to become an implementing

agency for section 112(r) can seek delegation under section 112(l).

Section 112(l) contains the processes for (1) formally transferring

implementation and enforcement responsibility from EPA to a state or

local agency; (2) transferring responsibility for ensuring source

compliance with section 112 requirements to an agency other than the

permitting authority; and (3) allowing states to implement and enforce

their own toxics requirements in lieu of Federally promulgated section

112 requirements. EPA's implementing regulations for section 112(l)

outline several mechanisms for approval of state and local air toxics

programs and for delegation of federal authorities to state or local

agencies (58 FR 62262; November 26, 1993). Permitting authorities with

approved part 70 programs are well equipped to seek delegation as the

implementing agency for part 70 sources, since the state's permit

program contains adequate authorities, adequate resources for

implementation, and an expeditious compliance schedule as required

under section 112(l)(5).

Each state has the flexibility to place the program in an

appropriate agency, including with the air permitting agency if it so

desires. A state may want to consolidate both its occupational safety

and process safety management programs in its worker safety agency.

Some states may wish to have an agency that is currently a member of

the SERC, but not the air permitting authority, serve as the

implementing agency, provided it can meet the approval criteria of

section 112(l) and coordinate its activities with other affected state/

local programs. In states where the SERC itself is a state agency, the

state may want the SERC to be the implementing agency. EPA is

requesting that states that provide comments on this notice indicate if

they plan to implement the program, and if so, whether an agency that

currently is a member of the SERC, or if the SERC itself will take

responsibility.

EPA recognizes that states have concerns about resources,

availability of expertise, and possible liability associated with

accidental release prevention. EPA plans to develop guidance and

training and provide assistance to states to help build expertise and

to illustrate how effective programs can be developed and implemented.

EPA seeks input on the types of training and technical assistance

states and local agencies will need to promote efficient and effective

implementation of section 112(r) regulations for all sources. The model

RMPs being developed for specific industry sectors and technical

guidance to help sources comply with the accidental release prevention

requirements also are designed to minimize the burden on state and

local programs. EPA seeks input on the types of guidance in support of

program implementation that would be most useful to states.

EPA agrees that Congress did not provide funding for implementation

of non-part 70 sources. EPA is exploring the possible expansion of CAA

section 105 grants to fund state programs that will cover non-part 70

112(r) sources. State and local organizations may also wish to consider

opportunities for collecting fees specifically for section 112(r)

activities, similar to fee-based systems used for funding EPCRA

activities. Some states have established ``polluter-pays'' type fee

systems that are based on multiples of the threshold quantity of

extremely hazardous substances or section 112(r)(3) regulated

substances handled at the source. Sources could be required to submit a

fee to the implementing agency with their registration or with their

RMP. EPA seeks comment on these approaches, particularly with respect

to the experience of states that have tried or are developing user fee

systems.

Finally, states have raised concerns about possible liability

associated with the section 112(r) program. Section 112(r), unlike

other CAA requirements that deal primarily with chronic hazards,

involves acute hazards with the potential for catastrophic accidents

resulting in immediate deaths and injuries. Generally, the liability of

state and local entities for their actions in handling section 112(r)

information would be controlled by state law concerning governmental

immunity. As the CAA and the legislative history of section 112(r) make

clear, Congress did not intend to create new liability for governmental

entities when it enacted the accident prevention provisions.

Specific language in section 112(r)(1) was included to provide

liability protection to governments and to avoid arguments from

industry that the filing of plans with emergency planners somehow

immunized a company from liability. Section 112(r)(1) states that,

``Nothing in [section 112(r)] shall be interpreted, construed, implied,

or applied to create any liability or basis for compensation for bodily

injury or any other injury or property damages to any person which may

result from accidental release of such substances.'' The Environment

and Public Works Committee inserted the above-quoted provision into the

Senate's version of the CAA Amendments explicitly because of EPA's

concern that the general duty clause and other portions of the accident

prevention provisions would create some governmental

[[Page 13541]] liability in the event of an accidental release. (S.

Rep. No. 228, 101st Cong., 1st sess., at 210 (1989).) EPA expressed

concern that liability in the event of an accident would shift to the

government if a source identified a potential event in a hazard

assessment, and the Agency failed to require the source to remove or

reduce the hazard. (Id.) Another fear was that an owner or operator

would argue that the Agency's failure to require a hazard to be

addressed would be a defense for a source in a liability suit for

injuries or damages caused to a third party. (Id.) To prevent either

result, the Environment and Public Works Committee included in the

precursor of section 112(r)(1) virtually identical language to that

quoted above. (Id.)

State and local agencies are encouraged to work with their

attorneys general to determine the extent of their sovereign immunity

under state law. Under common law or statute, nearly all states have

retained some immunity from tort suit. One common law theory of

sovereign immunity that may apply in several states would be the

immunity that extends to purely governmental activities, as

distinguished from proprietary activities. Emergency prevention and

response activities would be examples of traditional governmental

activities under this theory. Another immunity theory that may apply

provides immunity for discretionary activities (activities that involve

judgment). Other states may have enacted specific legislation that

prevents governments from being sued for activities connected to

emergency response. If a state, in the judgment of its attorney

general, lacks sufficient sovereign immunity to ensure state and local

agencies will not be subject to liability for bodily injury or property

damage in the event of an accidental release, then EPA encourages the

state to enact legislation specifically providing immunity for state

and local agencies carrying out functions under section 112(r). Of

course, even with sovereign immunity from tort suits, EPA, states, and

local entities may remain subject to FOIA suits, penalties for

violation of trade secret protections under section 114(c), or

mandatory duty suits (such as EPA's failure to promulgate regulations

or act on listing petitions) that may allow for attorney's fees.

III. Required Analyses

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735; October 4, 1993), EPA

must determine whether the regulatory action is ``significant,'' and

therefore subject to OMB review and the requirements of the Executive

Order. The Order defines ``significant regulatory action'' as one that

is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or state, local, or tribal government or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Under the terms of the Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action.''

EPA prepared a draft regulatory impact analysis for the proposed

list rule and an addendum to the analysis for the proposed risk

management program rule. EPA has prepared a revised economic impact

analysis (EIA) for the risk management program rule to reflect the

final list rule, the impacts of the options being considered in this

notice, and comments on the draft regulatory impact analysis. The

revised EIA is available in the docket.

In developing its supplemental notice, EPA considered creating

three tiers for risk management program requirements described above.

EPA analyzed the three options for assigning sources to the tiers,

approaches 1 and 2 described in Section IIA above and the application

of the proposed rule to all sources as approach 3. Total annual costs

and benefits for each approach are presented in Table 2. This table

does not include projected costs or benefits associated with three

issues upon which EPA is taking comment in this notice: public

participation, accident reporting, and inherently safer approaches

because EPA's preferred approaches on these issues would impose no

additional requirements on sources.

Table 2.--Total Annualized Costs and Benefits

------------------------------------------------------------------------

Annual cost of Annual benefits

Approach Number of sources program of programs

------------------------------------------------------------------------

1................ 49,200 (Tier 1).. $104 million.... $121.5 million.

72,100 (Tier 2)..

1,300 (Tier 3)...

2................ 49,200 (Tier 1).. $339 million.... $175 million.

57,100 (Tier 2)..

16,300 (Tier 3)..

3................ 122,600 (Tier 3). $696 million.... $299 million

------------------------------------------------------------------------

Based on the final list and thresholds, EPA estimates that

approximately 122,600 sources would be affected by the proposed rule.

The primary cost for Tier 2 was assumed to be the RMP. Tier 3 costs are

strongly influenced by the tiering assumptions and by whether sources

are expected to be covered by the OSHA PSM standard. The analysis

assumed that a source in compliance with the OSHA PSM standard for a

process would incur no additional costs to comply with many elements of

EPA's prevention program. In addition, for some prevention program

elements (e.g., training), some sources were assumed to be in

compliance because of current activities; the only additional cost for

these sources was documentation for the element. Large chemical

companies and all refineries were assumed to be complying with industry

standards that are the equivalent of the prevention program. These

sources were assumed to bear no additional costs for some elements of

the prevention program (for processes not covered by OSHA). Because EPA

will require sources to submit, in the RMP, information on their

hazards and steps being taken to reduce risks, EPA expects that sources

and processes currently implementing PSM under OSHA or industry

standards will take additional steps to ensure that their PSM programs

are effective. Specifically, the EIA assumed that

[[Page 13542]] sources covered by other programs would provide more

program oversight, would conduct more training and refresher training,

and carry out more maintenance activities; sources were also assumed to

implement more capital improvements. EPA notes that because of a lack

of data, the EIA made a number of assumptions on which the cost

estimates are based. For example, the analysis assumed the number of

listed toxic substances at large chemical companies ranged from 4 to

12; the analysis also assumed that the number of covered processes was

equal to the number of substances. EPA seeks comments and any data

commenters may be able to provide on whether these assumptions are

reasonable.

The draft RIA prepared for the proposed list rule based its

benefits calculations on the assumption that manufacturers and certain

other sources would have two significant releases per year. Many

commenters stated that this assumption was not justified, based on

existing accident data. Consequently, the benefits analysis has been

revised to reflect actual accident data and is based on EPA databases,

other accident databases, and searches of newspaper reports. Based on

these data, the annualized cost of all U.S. accidents involving listed

toxic substances was estimated at $245 million; the annualized cost of

all accidents involving listed flammables was estimated at $767

million. The costs of accidents includes deaths, injuries, evacuations,

property damage, lost business, environmental damage, and litigation.

Benefits attributable to the risk management program rule are

affected by two factors: The extent to which other, similar rules

already provide the benefit and the expected effectiveness of these

rules when fully implemented. Most of the processes covered by EPA's

rule are also covered by the OSHA PSM rule. When OSHA adopted the PSM

standard, it estimated, based on anecdotal evidence, that by 1997 the

standard would prevent 80 percent of the accidents at OSHA-covered

sources. EPA believes that the risk management program rule will

increase compliance with the OSHA standard and cause many OSHA- and

EPA-affected sources to achieve a higher level of safety because of the

public availability of the RMP and the reviews and audits that will be

conducted by implementing agencies. The RMP submission will provide

implementing agency officials with a better basis for identifying and

targeting problem sources; EPA expects that the RMP information will

also benefit state and Federal OSHA inspectors.

Based on an industry study, the analysis estimated that the

effectiveness of the EPA standard in accident reduction would be 50

percent. Accident reduction from the EPA standard applies to processes

not covered by the OSHA standard and to the 20 percent of accidents not

prevented by the OSHA standard. EPA estimates that the annual,

quantifiable benefits of the rule will range from $121.5 million to

$299 million, depending on the approach.

The quantifiable benefits are probably understated. Although the

EIA assigns a value to the likelihood of a Bhopal-scale accident

occurring in the U.S. in any single year, the analysis did not attempt

to assign values to other catastrophic accidents that have occurred

elsewhere in the world, but have not as yet occurred in the U.S. For

example, the 1984 explosion at a LPG gas terminal in Mexico City killed

more than 400 people offsite; an explosion in Flixborough, England,

damaged more than 1,000 buildings offsite. Similar sources exist in the

U.S. and have the potential to have catastrophic accidents with offsite

impacts. Because of the difficulty of assigning probabilities and

values to such incidents, the EIA does not include them among the

quantifiable benefits, but these sources are covered by the proposed

rule, and compliance with the rule will reduce the likelihood of such

catastrophic accidents.

Other, intangible benefits are also attributable to the rule. For

example, the definition of offsite populations, using Census data, will

assist both sources and the public to identify areas where

environmental justice concerns need to be addressed. The process hazard

analysis is likely to identify areas where pollution prevention steps

can be implemented, which may produce cost savings and reduce potential

health effects offsite.

Most importantly, the information available in the RMP will have an

intrinsic value to the public. EPA has not attempted to measure the

value of this information, but experience with EPCRA Toxic Release

Inventory (TRI) data indicates that such information creates many

benefits. The simple requirement to make information public under TRI

has stimulated industry to take steps to reduce emissions to avoid

public concern and assure the local community that the source is a good

neighbor. The public benefits from the reduced risk; the source

benefits from better relations with the community. The latter can have

direct, economic benefits to the source. Industry commenters on the

rule noted that when the public distrusts a source, the public has

resisted permit changes or zoning variances that the source needs to

improve operations. Better information and the public-industry dialogue

that follows can make it easier for sources to gain public support for

needed changes. Government agencies and public interest groups can

target their efforts at those sources that pose the greatest potential

risk, rather than assuming that all sources pose a high level of risk

or misdirecting their efforts toward sources that have effective safety

programs.

B. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act of 1980, Federal

agencies must evaluate the effects of the rule on small entities and

examine alternatives that may reduce the effects. EPA has prepared an

analysis of the effects on small entities, available as Chapter 8 of

the EIA. EPA believes that the rule as proposed in 1993 would create a

severe, adverse effect on small manufacturers. For the smallest

chemical manufacturers, the initial costs of the initial proposed rule

could equal their annual net income; for chemical companies with 20 to

99 employees, the initial cost of the proposed rule would approach

their annual net incomes. The initial proposed rule imposes lower costs

on non-manufacturers and, therefore, is less likely to create an

adverse impact on them. The tiering approach considered in this notice

would reduce the impact on small businesses significantly. Under the

tiering approach, the impact on small business would be small. The

tiering approach would also substantially reduce the impact on small

communities.

C. Enhancing the Intergovernmental Partnership

The Clean Air Act requires EPA to develop chemical accident

prevention regulations under section 112(r)(7) that include release

prevention and response provisions, including RMPs. As discussed above,

Congress intended the states to play a key role in implementing the

rule. Both state and local agencies are mandated to receive the RMPs.

This interrelationship of Federal, state, and local agencies is a

continuation of the philosophy developed under EPCRA, where each level

of government is seen as a stakeholder with important roles to play. To

consult in a regular and meaningful way with state, local, and tribal

officials in the development of the risk management program rule, EPA

has met with state and local officials. Before [[Page 13543]] the

proposed rule was drafted, EPA conducted focus groups with state and

local officials in three states that had risk management program laws.

EPA invited these states and several others to attend a two-day seminar

to elicit further information. EPA has held meetings with states

several times during the rule-making process, working through its

Regions and through associations of state officials likely to be

involved in implementing the rule. In addition, a large number of state

and local agencies attended the four public hearings and submitted

comments on the proposed rule. During the development of the

implementation and integration provisions (Sec. 68.58), EPA consulted

with state and local air and emergency planning agencies. EPA will seek

further input from states during development of the final rule.

D. Paperwork Reduction Act

The information collection requirements in this notice have been

submitted for approval to the Office of Management and Budget (OMB)

under the Paperwork Reduction Act, 44 U.S.C. 3501 et sec. An

Information Collection Request document has been prepared by EPA (EPA

No. 1656.02) and a copy may be obtained from Sandy Farmer, Information

Policy Branch; EPA, 401 M Street, SW (Mail Code 2136), Washington, DC

20460 or by calling (202) 260-2740.

This collection of information has an estimated reporting burden

averaging 3 to 4 hours per response for Tier 1, 16 to 30 hours per

response for Tier 2, and for Tier 3 10 to 88 hours per response for

non-chemical manufacturers and 392 to 3720 hours per response for

chemical manufacturers. There is no annual recordkeeping burden for

Tiers 1 and 2; in Tier 3 there is an estimated annual recordkeeping

burden per respondent averaging 11 hours (for the non-chemical

industry) to 1000 hours (for the chemical industry). These estimates

include time for reviewing instructions, searching existing data

sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information.

Send comments regarding the burden estimate or any other aspect of

this collection of information, including suggestions for reducing this

burden to Chief, Information Policy Branch; EPA, 401 M Street, SW (Mail

Code 2136), Washington, DC 20460; and to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, DC

20503, marked ``Attention: Desk Officer for EPA.'' The final Rule will

respond to any OMB or public comments on the information collection

requirements contained in this proposal.

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals, Hazardous substances,

Intergovernmental relations.

Dated: February 28, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, the proposal published on

October 20, 1993 (58 FR 54190) is amended as set forth below.

PART 68--[AMENDED]

1. The authority citation for part 68 continues to read as follows:

Authority: 42 U.S.C. 7412(r), 7601.

2. Section 68.3 as proposed is now amended by revising the

introductory text, adding five definitions and revising one proposed

definition ``Worst case release'' to read as follows:

Sec. 68.3 Definitions.

As used in this part, all terms not defined shall have the meaning

given to them by the Clean Air Act (42 U.S.C. 7401 et seq.). For

purposes of Sec. 68.58 of this part, terms such as ``permitting

authority,'' ``applicable requirement'' and ``source'' have the same

meaning given to them in part 70 of this chapter unless otherwise

defined in this section.

* * * * *

Covered process means a process that has a regulated substance

present in more than a threshold quantity as determined under

Sec. 68.115.

* * * * *

Designated agency means the state or local agency designated by the

air permitting authority as the agency responsible for the review of an

RMP for completeness.

Full-time employee means 2,000 hours per year of full-time

equivalent employment. A source would calculate the number of full-time

employees by totaling the hours worked during the calendar year by all

employees, including contract employees, and dividing that total by

2,000 hours.

Implementing agency means the state or local agency that obtains

delegation for an accidental release prevention program under section

112(l) of CAA which is subpart E of part 63. The implementing agency

may, but is not required to be, the state or local air permitting

agency. If a state or local agency does not take delegation, EPA will

be the implementing agency for that state.

Mitigation means activities, technologies or equipment that are

designed to capture or control substances after they are released to

the environment or upon loss of containment. Passive mitigation means

equipment, devices or technologies that function without human,

mechanical or other energy input.

* * * * *

Worst case release means the release of the largest quantity of a

regulated substance resulting from a vessel or process line failure.

3. Section 68.10 as proposed is revised to read as follows:

Sec. 68.10 Applicability.

(a) Tier 1. The owner or operator of a stationary source with a

covered process that meets the eligibility criteria of Sec. 68.13 shall

comply with Secs. 68.12--68.13 no later than [three years from the date

of final rule publication].

Alternative 1 for paragraphs (b), (c) and (d):

(b) Tier 2. Except as provided in paragraphs (a), (c), and (d) of

this section, the owner or operator of a stationary source with a

covered process shall comply with Secs. 68.12 and 68.14 no later than

[three years after the date of final rule publication].

(c) Tier 3. Except as provided in paragraph (a) of this section,

the owner or operator of a stationary source with 100 or more full-time

employees shall comply with Secs. 68.12 and 68.15 through 68.55 no

later than [three years from the date of final rule publication] for

any covered process in Standard Industrial Classification Code 2611,

2812, 2819, 2821, 2869, 2873, 2879, or 2911. For all other covered

processes at the stationary source, the owner or operator shall comply

with Secs. 68.12 and 68.14.

(d) Deferred Tier 3. Except as provided in paragraph (a) of this

section, the owner or operator of a stationary source that has 20 or

more full-time employees and a covered process in Standard Industrial

Classification Code 2812, 2819, 2869, 2873, or 2911 shall:

(1) Comply with Secs. 68.12 and 68.14 no later than [three years

from the date of final rule publication]; and

(2) Comply with Secs. 68.12 and 68.15 through 68.55 no later than

[eight years from the date of final rule publication]. Alternative 2

for paragraphs (b) and (c):

(b) Tier 2. Except as provided in paragraphs (a) and (c) of this

section, the owner or operator of a stationary source with a covered

process shall comply with Secs. 68.12 and 68.14 no later than [three

years after the date of final rule publication].

(c) Tier 3. Except as provided in paragraph (a) of this section,

the owner or operator of a stationary source with [[Page 13544]] a

covered process shall comply with Secs. 68.12 and 68.15 through 68.55

no later than [three years from the date of final rule publication] if

the stationary source has 100 or more full-time employees.

4. Section 68.13 is proposed to be added to subpart B to read as

follows:

Sec. 68.13 No impact sources (Tier 1).

(a) Sources that exceed a threshold quantity only for flammable or

explosive regulated substances.

(1) Eligibility. The owner or operator of a stationary source that

is subject to this part and that does not exceed the threshold quantity

for a toxic substance shall comply with paragraph (a)(2) of this

section if the source has not had significant accidental release for 5

years and:

(i) For a source that exceeds the threshold for an explosive

regulated substance, the source is subject to 27 CFR part 55 or 30 CFR

parts 56, 57, or 77 and the distance from the process to a public or

environmental impact is no closer than the distance to inhabited

buildings provided in the American Table of Distances (27 CFR 55.218)

for the quantity of explosives in the process; or

(ii) For a source that exceeds the threshold for a flammable

regulated substance, the distance from the point of release under the

worst case release scenario to a public or environmental impact is

greater than the distance as calculated using the following formula for

the maximum quantity present in the process:

Distance (meters) = 0.15 x (0.1 x mass x hc)1/3

where mass is the quantity of flammable substance in kilograms, and hc

is the heat of combustion in Joules per kilogram.

(2) Program and plan requirements. (i) The owner or operator shall

place a sign at all normal access routes that warns the public and

emergency responders concerning the hazard presented by the regulated

substance at the site and provides an emergency contact telephone

number. Such sign shall be in English and any other language commonly

spoken as a primary language in the area.

(ii) The owner or operator shall submit the following as a risk

management plan to the implementing agency, the State Emergency

Response Commission (if the implementing agency is not a member of such

Commission), the Local Emergency Planning Committee with jurisdiction

for the area where the source is located:

(A) A copy of the registration required by Sec. 68.12 (this copy

may be before the certification required by Sec. 68.12(b)(6));

(B) The following statement:

Based on the criteria in 40 CFR 68.13(a)(1), the worst case

accidental release for the source described on the attached form

(registration) presents no potential for public or environmental

impact given the nature of the process and the chemicals stored at

the source. For the past 5 years, this source has not had a

significant accidental release, as defined in 40 CFR 68.3. No

additional measures are necessary to prevent public and

environmental impacts from accidental releases. In the event of a

fire or a release of the regulated substance indicated on the

registration, entry within [distance for given quantity of regulated

substance under American Table of Distances or paragraph (a)(1)(ii)

of this section] of the source may pose a danger to public emergency

responders. Therefore, public emergency responders should not enter

this area except as arranged with the contact person indicated on

the registration. The undersigned certifies that, to the best of my

knowledge, information, and belief formed after reasonable inquiry,

the information submitted is true, accurate, and complete.

[Signature].

(iii) The owner or operator shall maintain for five years

documentation of the determination of eligibility under paragraph

(a)(1) of this section and a copy of the risk management plan under

paragraph (a)(2)(ii) of this section.

(b) Sources that exceed a threshold quantity for toxic regulated

substances.

(1) Eligibility. The owner or operator of a stationary source that

exceeds the threshold quantity for a toxic substance shall comply with

paragraph (b)(2) of this section if:

(i) The stationary source has not had a significant accidental

release in the last five years,

(ii) The stationary source can demonstrate the lookup table

distance for a worst-case release is less than the distance to a public

or environmental receptor; and

(iii) The emergency response plan under 42 U.S.C. 11003 addresses

appropriate response to an accidental release at the source.

(2) Plan and program requirements. (i) The owner or operator of a

stationary source that meets the eligibility criteria of paragraph

(b)(1) of this section shall submit the following as a risk management

plan to the implementing agency, the State Emergency Response

Commission (if the implementing agency is not a member of such

Commission), and the Local Emergency Planning Committee with

jurisdiction for the area where the source is located:

(A) A copy of the registration required by Sec. 68.12 (this copy

may be before the certification required by Sec. 68.12(b)(6));

(B) The following statement:

Based on the criteria in 40 CFR 68.13(b)(1), the worst case

accidental release for the source described on the attached form

(registration) presents no potential for public or environmental

impact within ______ kilometers of the source given the nature of

the process and the chemicals stored at the source. For the past 5

years, this source has not had a significant accidental release, as

defined in 40 CFR 68.3. No additional measures are necessary to

prevent public and environmental impacts from accidental releases.

In the event of an accidental release of the regulated substance

indicated on the registration, emergency response should be

conducted according to the emergency response plan under 42 U.S.C.

11003, which is available at [location]. Therefore, public emergency

responders should not enter this area except as provided under that

plan. The undersigned certifies that, to the best of my knowledge,

information, and belief formed after reasonable inquiry, the

information submitted is true, accurate, and complete. [Signature].

and

(ii) The owner or operator shall maintain for five years

documentation of the determination of eligibility under paragraph

(b)(1) of this section and a copy of the risk management plan under

paragraph (b)(2)(i) of this section.

5. Section 68.14 is proposed to be added to subpart B to read as

follows:

Sec. 68.14 Streamlined risk management program (Tier 2).

(a) The owner or operator of a stationary source eligible for this

part shall comply with Sec. 68.15.

(b) The owner or operator of a stationary source shall establish a

prevention program which includes safety precautions and maintenance,

monitoring and employee training measures to be used at the source to

prevent accidental releases. The prevention program shall identify

other federal accident prevention requirements to which the source is

subject, including national voluntary standards and measures required

by 42 U.S.C. 7412(r)(1).

(c) The owner or operator of a stationary source shall prepare an

emergency response program which documents specific actions to be taken

in an emergency response to an accidental release, including:

(1) Procedures for informing the public and local entities about

accidental releases;

(2) Procedures to be used on site to respond to an accidental release;

and

(3) A description of the employee training measures used to educate

employees regarding emergency situations.

[[Page 13545]] (d) The owner or operator of a stationary source

shall submit a risk management plan summarizing paragraphs (a) through

(c) of this section to the implementing agency, the State Emergency

Response Commission (if the implementing agency is not a member of such

Commission), and the Local Emergency Planning Committee with

jurisdiction for the area where the source is located. The owner or

operator shall retain a copy of the risk management plan for 5 years.

6. Section 68.58 is proposed to be added to subpart B to read as

follows:

Sec. 68.58 Permit content and air permitting authority requirements.

(a) The requirements in this section apply to sources subject to

both part 68 and part 70 of this Chapter. Each part 70 permit shall

contain conditions requiring the following provisions, for any activity

and/or emission unit subject to this part:

(1) By the deadlines set out in this part, the source shall

register and submit an RMP or revised plan and shall certify upon

submission that such plan is accurate and complete. Submission of the

plan by deadlines required under this part shall satisfy the reporting

requirements of 40 CFR 70.6(a)(3)(ii)(A).

(2) The source shall submit any additional information requested by

the permitting authority or other designated state or local agency

necessary to determine completeness of the RMP.

(3) The source shall annually certify compliance with, and

implementation of, risk management program requirements described in

this part and as described by the submitted RMP or revised plan.

(4) For part 70 permits that are issued prior to the deadline

required for registering and submitting the RMP and do not contain

permit conditions meeting the provisions of paragraphs (a) (1) through

(3) of this section, the source no later than [3 years from the

effective date of the final rule] shall submit an application for a

permit revision consistent with Sec. 70.7 of this chapter to establish

conditions consistent with these required in paragraphs (a)(1) through

(3) of this section.

(5) For part 70 permits issued on or after the deadline required

for registering and submitting the RMP, the source shall register and

submit any plan required by this part no later than [3 years from the

effective date of the final rule].

(6) For new emissions units or activities at previously permitted

part 70 sources which become subject to this part after [the effective

date of the final rule], the source shall submit an application for

permit revision consistent with the provisions of Sec. 70.7 of this

chapter upon startup of such units and/or activities or no later than

[3 years from the effective date of the final rule], whichever is

later.

(7) If a previously permitted part 70 source has not submitted an

RMP as required, then the source shall provide:

(i) A compliance plan, including a compliance schedule for the

submittal of the required plan; and

(ii) An application for a permit revision to establish permit

conditions meeting paragraphs (a) (1) through (7) of this section

unless such conditions are already contained within the part 70 permit.

(b) The permitting authority must, at a minimum, perform the

following tasks to meet Sec. 70.4(b)(3)(i) of this chapter with respect

to part 70 sources subject to section 112(r) of CAA and this part.

(1) Verify that an RMP or a revised plan is submitted when required

by this part, and that it is complete, i.e., it contains the elements

required under Secs. 68.50, 68.13, or 68.14;

(2) Verify that the source has submitted an annual certification

that it is properly implementing a risk management program as required

by this part and as described by the applicable RMP;

(3) Take enforcement action (including penalties) on sources that

fail to submit a complete plan or a revised plan, an annual

certification, or accidental release report as required by this part;

(4) Incorporate and enforce permit conditions that specify a

compliance schedule for submittal of a complete RMP, for permits issued

prior to reporting deadlines of this part or if a part 70 source

subject to this part fails to submit a complete plan as required.

[FR Doc. 95-5656 Filed 3-10-95; 8:45 am]

BILLING CODE 6560-50-P