Accidental Release Prevention Requirements: Risk Management
Program Requirements Under Clean Air Act Section 112(r)(7); Amendments
to the Submission Schedule and Data Requirements
[Federal Register: April 9, 2004 (Volume 69, Number 69)]
[Rules and Regulations]
[Page 18819-18832]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap04-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[OAR-2003-0044; FRL-7643-6]
RIN 2050-AF09
Accidental Release Prevention Requirements: Risk Management
Program Requirements Under Clean Air Act Section 112(r)(7); Amendments
to the Submission Schedule and Data Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is making several
changes to the reporting requirements of its chemical accident
prevention regulations under section 112(r) of the Clean Air Act.
Today's final rule requires that, beginning June 21, 2004, chemical
facilities subject to the accident prevention regulations submit
information on any significant chemical accidents and any changes to
emergency contact information on a more timely basis than previously
required. The rule also immediately removes the regulatory requirement
for covered facilities to include in the executive summaries of their
risk management plans (RMPs) a brief description of the off-site
consequence analysis (OCA) for their facilities. In addition, the final
rule also requires that, beginning June 21, 2004, covered facilities
include three new pieces of information in their RMPs: the e-mail
address for the facility emergency contact, the name, address and
telephone number of the contractor who prepared the RMP, and the
purpose of any RMP submission that changes or otherwise affects an
earlier RMP submission. The rule also clarifies that the deadline for
updating RMPs that were submitted before or on June 21, 1999, is June
21, 2004, except for those facilities required to update their RMPs as
a result of changes at the facility. Finally, EPA is making several
related and other revisions to the format for submitting RMPs
(RMP*Submit), including expanding the list of options for possible
accident causes to include uncontrolled chemical reactions. The
modifications promulgated today seek to improve the accident prevention
and reporting programs of covered facilities, and to assist federal,
state, and local RMP implementation in light of new homeland security
concerns.
DATES: This rule is effective on April 9, 2004.
ADDRESSES: See SUPPLEMENTARY INFORMATION section I.B for docket
addresses.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Emergency Planning and Community Right-to-Know Hotline at (800) 424-
9346; in the Washington, D.C. metropolitan area, contact (703) 412-
9810. The Telecommunications Device for the Deaf (TDD) Hotline number
is (800) 535-7672. You may also access general information online at
the Hotline Internet site, http://www.epa.gov/epaoswer/hotline/. For
questions on the contents of this document contact Vanessa Rodriguez,
Chemical Emergency Preparedness and Prevention Office, Mail Code 5104A,
U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20004, (202)
564-7913, Fax (202) 564-8233, rodriguez.vanessa@epa.gov. You may also
wish to visit the Chemical Emergency Preparedness and Prevention Office
(CEPPO) Internet site at http://www.epa.gov/ceppo.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What Are the Affected or Regulated Entities?
Entities potentially affected by this action are those facilities
(referred to as ``stationary sources'' under the CAA) that are subject
to the chemical accident prevention requirements at 40 CFR part 68.
Affected categories and entities include:
Category Examples of Affected Entities
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Chemical Manufacturers............ Basic chemical manufacturing,
petrochemicals, resins,
agricultural chemicals,
pharmaceuticals, paints, cleaning
compounds.
Petroleum......................... Refineries.
Other Manufacturing............... Paper, electronics, semiconductors,
fabricated metals, industrial
machinery, food processors.
Agriculture....................... Agricultural retailers.
Public Sources.................... Drinking water and waste water
treatment systems.
Utilities......................... Electric utilities.
Other............................. Cold storage, warehousing, and
wholesalers.
Federal Sources................... Military and energy installations.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether a
stationary source is affected by this action, carefully examine the
provisions associated with the list of substances and thresholds under
40 CFR 68.130 and the applicability criteria under Sec. 68.10. If you
have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OAR-2003-0044. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the
[[Page 18820]]
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
The information in this final rule is organized as follows:
I. Introduction
A. Statutory Authority
B. Background
II. Discussion of the Final Rule and Public Comments
A. Changes to the RMP Reporting Schedule
1. Five-Year Accident History
2. Emergency Contact Information
B. Changes to Executive Summary
C. New Data Elements
1. Emergency Contact's E-mail address
2. Purpose of Subsequent RMP Submissions
3. Contractor Information
D. Revisions to RMP*Submit Format
Uncontrolled/Runaway Reactions
III. Other Issues
Collection of OSHA Occupational Injury and Illness Data in
Conjunction with the RMP Filing Required under 112(r) of the CAA.
IV. Effective Date, Update Clarification and Compliance Schedule
V. Technical Corrections
VI. Summary of the Final Rule
VII. Judicial Review
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Introduction
A. Statutory Authority
This final rule is being issued under section 112(r) of the Clean
Air Act (CAA or Act) (42 U.S.C. 7412).
B. Background
The 1990 CAA Amendments added, among other things, section 112(r)
to provide for the prevention and mitigation of accidental releases of
extremely hazardous substances. Section 112(r) calls for EPA to list
the most dangerous substances and a threshold quantity for each
substance. It also directs EPA to issue regulations requiring any
stationary source with more than a threshold quantity of a listed
substance to develop and implement a risk management program and to
submit a RMP describing its program. EPA published a final rule
creating the list of regulated substances and establishing thresholds
on January 31, 1994 (59 FR 4478) (the ``List Rule''), and a final rule
establishing the risk management program and plan requirements on June
20, 1996 (61 FR 31668) (the ``RMP Rule''). Together, these two rules
are codified as part 68 of title 40 of the Code of Federal Regulations
(40 CFR part 68).
Sources subject to the RMP rule are required to develop and
implement a risk management program that includes, for covered
processes, a five-year accident history, an offsite consequence
analysis, a prevention program, and an emergency response program.
Sources must also submit to EPA a RMP describing the source's risk
management program. The deadline for submitting RMPs was June 21, 1999,
for sources subject to the rule by that date. Sources must also update
their RMPs at least every five years. Approximately 15,000 sources have
submitted RMPs, and a significant number of those sources have their
five-year anniversary date coming up in June, 2004.
Specifically, the RMP rule requires sources to update and re-submit
their RMPs at least every five years or sooner if any of the changes
specified in Sec. 68.190(b)(2) of the rule occur. Updates and re-
submissions entail the review and revision of all sections of the RMP
as needed to bring the RMP up to date and must be accompanied by a
letter certifying that the entire RMP is true, accurate and complete.
The five-year anniversary date for resubmitting the RMP is reset with
any update and re-submission.
Sources may revise their RMPs for reasons other than those that
trigger an update and re-submission. The Agency distinguishes between
updates and re-submissions and other types of revisions, namely
corrections, de-registrations (revised registrations) and withdrawals.
A correction changes only individual data entries in the RMP (known as
``RMP data elements''). Corrections may include clerical errors, minor
administrative changes, or changes of ownership when covered process
operations do not change. Corrections do not entail the review and
revision of all nine sections of the RMP, nor do they affect the five-
year anniversary date for updating and resubmitting the RMP.
Corrections have entailed submission of the corrected RMP on a diskette
(or in hard copy) accompanied by a letter certifying the change. EPA is
currently working on an alternative, Internet-based, secure system that
would allow corrections of administrative data elements within the RMP
registration to be made more easily.
De-registrations (or revised registrations as these are referred to
in Sec. 68.190(c)) occur when the source is no longer covered by the
program (e.g., the source no longer uses any regulated substances or no
longer holds regulated substances in amounts that exceed the threshold
quantities). The source submits a letter requesting de-registration,
with the RMP being retained in the reporting system database for 15
years. Withdrawals occur when sources that were never subject to the
program submit an RMP in error. A letter requesting a withdrawal is
submitted, and the RMP is taken out of the reporting system database.
II. Discussion of the Final Rule and Public Comments
With this final rule, EPA is taking action to amend several of the
reporting requirements of the chemical accident prevention regulations.
EPA is requiring any source at which a significant accident occurs
following the effective date of this rule to add information about that
accident and the resulting incident investigation to the source RMP
within 6 months of the accident. EPA is not, however, requiring that a
source necessarily update and resubmit its RMP following such an
accident. EPA is also requiring sources which change emergency contact
personnel or related information to correct the corresponding
information in their RMP within one month of making the change. EPA is
removing the regulatory requirement to briefly summarize OCA in the
executive summary of the RMP. In addition, EPA is adding three
mandatory data elements to the RMP: (1) The e-mail address for the
facility
[[Page 18821]]
emergency contact, when available, (2) the purpose of any subsequent
RMP submissions (e.g., correction, update, withdrawal), and (3) the
name, address and telephone number of any contractor who helped prepare
the RMP. EPA is also allowing an optional data element for the e-mail
address of the facility person responsible for the RMP. Relatedly, EPA
is making several revisions to the submission format for the RMP
(RMP*Submit), including expanding the list of options for possible
accident causes to include uncontrolled chemical reactions.
These changes were proposed on July 31, 2003 (68 FR 45126). EPA
received 71 comments on the proposal. Summaries of all comments and the
Agency's responses can be found in the Summary and Response to Comments
document in the docket.
A. Changes to the RMP Reporting Schedule
1. Five-Year Accident History
EPA is amending the RMP rule to require that facilities who have an
accident that meets the criteria for the five-year accident history
revise all elements of their RMP accident history (Sec. 68.168) and
the date of investigation and expected date of completion of changes
due to an accident investigation in their Incident Investigation data
elements (Sec. Sec. 68.170(j) and 68.175(l)) within six months of the
date of the accident.
The five-year accident history section of the RMP rule (40 CFR
68.42) requires the owner or operator of a covered source to record
information in their RMP on all accidental releases from covered
processes in the past five years that resulted in deaths, injuries, or
significant property damage on site, or known offsite deaths, injuries,
evacuations, sheltering in place, property damage, or environmental
damage. However, the original RMP rule did not require a source to
update its accident history until it updated and re-submitted its
entire RMP, which could be as infrequently as every five years. One
year ago, the U.S. Chemical Safety and Hazard Investigation Board
(CSB), created under section 112(r)(6) of the CAA, recommended that RMP
accident histories be updated on a more timely basis in view of the
valuable information they provide for chemical accident prevention and
preparedness efforts by government, industry and the public (Joint
Chemical Safety Board, Occupational Safety and Health Administration,
National Institute for Occupational Safety and Health, and EPA
Roundtable on Developing Improved Metrics on Accidental Chemical
Process Releases, November 14, 2002). EPA agreed with that
recommendation and consequently proposed to require that sources update
and re-submit their RMP within six months of an accidental release that
meets the five-year accident history reporting criteria. The Agency
also requested comment on requiring all sources with reportable
accidents to update and resubmit their RMPs by the same date (e.g.,
June 1 of each year).
Thirteen comments supported the proposal for a full update and re-
submission of the RMP after an accident that met the accident history
reporting criteria, while 43 comments opposed all or part of the
proposal. Comments supporting the proposal stated that it would not
pose a substantial burden to the regulated community, and that timely
submission of accident information in RMPs would be beneficial in
assisting Federal, State, and local responders with accident prevention
and response. These comments generally favored requiring an update and
re-submission within some number of months following an accident, as
opposed to requiring every source to update and resubmit their RMPs by
a fixed date.
Other comments opposing the proposal pointed out that many
accidents are subject to other reporting requirements, making timely
RMP reporting arguably unnecessary. Many comments also disagreed with
the need to update and re-submit an entire RMP following any reportable
accident. In proposing the update and re-submission requirement, EPA
explained that it sought not only more recent accident information in
RMPs but also assurance that any lessons learned from an accident
investigation would be applied to the source's risk management program
and reflected in its RMP. A number of comments noted, however, that the
RMP rule already requires the vast majority of RMP facilities to (1)
investigate incidents that result in, or could have resulted in,
catastrophic releases; (2) prepare a summary or report of the
investigation, including a description of the incident, factors that
contributed to the incident and any recommendations resulting from the
investigation; (3) address and resolve all findings and
recommendations; and (4) document all resolutions and corrective
actions taken (see Sec. Sec. 68.60 and 68.81). These comments argued
that these existing requirements already accomplished EPA's goal of
sources incorporating lessons learned into their risk management
programs. The comments also noted that to the extent sources made
changes in light of accidents that triggered the update requirement of
the existing rule, the RMP would be updated and re-submitted in that
event.
Several comments also stated that RMP reporting is not detailed
enough to capture many of the changes a source might make in response
to an accident investigation. In addition, some comments noted that for
a source with more than one RMP-covered process, an accident involving
one process may have no implications for other, different processes at
the source. For such sources, a requirement to update and re-submit the
RMP for all processes would make little sense. There was also concern
that six months is not a sufficient amount of time to update and
resubmit an entire RMP following an accident that may take several
months or more to fully investigate. Finally, a number of comments
expressed concern with a statement in the preamble to the proposed rule
suggesting that reporting would be required for significant releases
from covered processes of any extremely hazardous substance, not just a
substance listed under CAA section 112(r) (``regulated substances''). A
number of comments argued that EPA had overstated the scope of the
existing reporting requirement.
EPA has considered the comments and further studied existing
requirements for accident reporting and follow-up. The Agency continues
to believe that more timely reporting of significant accidents in RMPs
is worthwhile. Although there are a number of other Federal, State and
local requirements for accident reporting, the data collected for
accident reporting in RMPs are uniquely useful and accessible. RMP
accident history reporting provides more than basic information about
an accident; it also covers the cause of the release and measures taken
to reduce the risk or consequences of a reoccurrence. The data
consequently help in understanding the reason(s) for a release and
safety measures that have been taken in response. Moreover, the RMP
accident histories are available by law to Federal, State and local
officials and the public, including other chemical sources.
EPA believes significant benefits will accrue as accident histories
are reported on a more timely basis, as lessons learned are more
promptly shared and acted upon to prevent similar occurrences.
Implementing agencies will be able to better identify the need for
technical assistance, and more timely accident information will help in
identifying trends and providing timely
[[Page 18822]]
outreach to prevent similar incidents. As noted above, more timely
reporting was also recommended by the CSB. Those recommendations were
particularly aimed at improving our understanding of the frequency,
nature, and causes of reactive chemical incidents, and ultimately to
promote safer management of reactive chemicals. EPA believes more
timely reporting of accident history information, along with other
modifications made in today's final rule, will allow the Agency, other
government agencies, members of the public, and other interested
parties to better understand and prevent chemical accidents, including
those resulting from reactive chemicals.
While EPA is establishing a requirement for more timely reporting
of significant accidents, it is not adopting the proposed requirement
that RMPs be fully updated and resubmitted within six months of an
accident. The Agency understands the concern that a full update of an
RMP may not be possible within six months of an accident, as a thorough
investigation of a major accident, implementation of any new safety
measures and updating of the entire RMP could take longer, particularly
for larger sources. EPA also agrees with the comments that existing
requirements for incident investigations already accomplish the
Agency's primary purpose in proposing a full update and re-submission
requirement--assurance that lessons learned are applied. EPA further
recognizes that updating an RMP in full may make little sense where an
accident involves only one process at sources with other, different
processes. The Agency has accordingly decided not to require a full
update and re-submission of an RMP following an accident.
At the same time, EPA is requiring that information about
reportable accidents be added to RMPs within six months of the accident
(unless an RMP update is required sooner). The Agency continues to
believe that facilities will be more likely to recall and report
accurate accident history information if that information is recorded
within six months of an accident. Under the previous reporting
requirement facilities were asked to include in their RMPs detailed
information about an accident that occurred as long as five years ago.
While some comments expressed concern that accident investigations and
implementation of corrective actions could take longer than six months
in some cases, the existing accident history data elements take into
account that a source may not have complete information at the time a
report is made. Section 68.42(b) of the RMP rule requires information
about weather conditions, offsite impacts, initiating event and
contributing factors ``if known'' and only an ``estimate'' of the
quantity of chemical released. To the extent complete information about
these matters is not available six months after a reportable accident
occurs (or by the time an RMP update is due, if earlier), the source
need only provide the information it does have. When the source is next
required to update and resubmit its entire RMP, it can and must provide
any additional or more accurate information at that time.
The Agency recognizes that Sec. 68.42(b)(11) as originally drafted
required a source to report ``operational or process changes that
resulted from investigation of the release,'' and that a source may not
have made all such changes by the time it must submit information about
the accident. EPA is thus revising that data element to require
reporting of only those changes the source has made by the time it
submits the accident information as part of accident reporting or an
RMP update. EPA recognizes that providing a longer time frame for
accident reporting would make it more likely that complete information
would always be available at the time a report is made. But the Agency
believes it is important to collect accident information as soon as
reasonably practicable, even if that information is not always
complete, in view of the benefit such information may provide to other
entities that could learn from the accident. A six-month deadline for
reporting accident information is a reasonable compromise between the
time facilities generally need to investigate and learn from an
accident and the public interest in obtaining accident information
quickly. Sources that make additional accident-related changes after
submitting accident information can and must report on those changes
when the their next scheduled RMP update is submitted.
Relatedly, the Agency is requiring that the addition of new
accident history information to an RMP be accompanied with corrections
to two other RMP data elements: the date of the source's most recent
incident investigation and the expected date of completion of any
changes resulting from the investigation (Sec. Sec. 68.170(j) and
68.175(l)). As noted above, a number of comments pointed out that
requiring a full update and re-submission of an RMP was not necessary
to ensuring that lessons learned from an accident were applied, given
the existing requirement that sources investigate and learn from any
incident that ``resulted in or could reasonably have resulted in a
catastrophic release.'' EPA agrees with this comment and its premise--
that accidents subject to the reporting requirement of the RMP rule
trigger the incident investigation requirements of the rule. As
described above, those requirements ensure that significant incidents
are thoroughly investigated and documented, and any lessons learned
identified and applied. EPA therefore expects that a source
experiencing a reportable accident will follow-up with an incident
investigation that may in turn lead to changes that address the cause
or consequences of the accident. Six months following the accident, the
source should be able to provide accident history information as well
as the date of its incident investigation and the expected date of
completion of any changes. A source need not be sure of when changes
will be complete or even if particular changes will ultimately be made
to provide a reasonable ``expected'' date for completion of ``any''
changes.
The Agency also agrees with the comment that an incident
investigation may well trigger existing requirements for an update and
re-submission of the RMP under Sec. 68.190 of the rule, and that this
would then be the appropriate route for a facility update in the
aftermath of an accidental release. Other avenues or types of reporting
that were suggested (i.e., 8-hour reporting, accident reports, accident
fact sheets, separate accident databases, attachments to current RMPs)
where all focused on avoiding a full RMP update and re-submission. The
Agency believes that by not requiring a full update and instead
requiring only submission of new accident information, it has addressed
the concern behind those suggestions.
The Agency also agrees with the comments preferring a specified
time frame (such as six months) following an accident over a fixed date
for sources to submit new accident information. A fixed calendar date
could result in sources being required to submit information shortly
after an accidental release, before they have had time to investigate
or make any changes in response to the accident. That approach would
not be advantageous either for the sources or for those interested in
the accident data.
The Agency acknowledges the concerns raised about the preamble
statement that accident history reporting is required for significant
releases from covered processes for all extremely hazardous chemicals,
not just chemicals listed under CAA section 112(r). EPA notes that the
relevant regulatory language can be interpreted to reach
[[Page 18823]]
accidents involving extremely hazardous substances in addition to those
listed. Section 68.42 of the RMP rule requires reporting of
``accidental releases'' meeting certain criteria, and section
112(r)(2)(A) of the CAA and Sec. 68.3 of the rule define an
``accidental release'' as a release of a substance regulated under CAA
section 112(r) ``or any other extremely hazardous substance.'' The
Agency recognizes, however, that its ``General Guidance'' for meeting
RMP rule requirements has specified that reportable accidents are those
involving regulated substances. Interpreting the rule to require
reporting of all releases of extremely hazardous substances from
covered process would allow the Agency and others to look at trends
with respect to chemicals, and provide information that could be useful
in amending the list of regulated substances. An example of how broader
reporting could be useful was highlighted by a comment that concerned
catastrophic reactive/dust explosion accidents, not currently covered
by the RMP rule because the involved substances are not listed.
However, in light of the guidance provided previously and in order to
avoid confusion, the Agency agrees it is best to retain for now the
current interpretation for reporting only accidents involving regulated
substances. EPA, however, may revisit this issue in a future rulemaking.
This final rule establishes a new schedule for any source
experiencing a reportable accident to include in its RMP information
for all the elements of the five-year accident history as set forth in
Sec. 68.42 of the RMP rule, as well as the date of an incident
investigation and the expected date of completion of any changes
triggered by an incident investigation as required by Sec. Sec.
68.170(j) and 68.175(l) of the RMP rule. Because the Agency is no
longer requiring a full update and re-submission of the RMP, these
requirements should not significantly change the associated burden. If
a source had a reportable accident, it would need to revise those
elements of its RMP within six months; the source would not need to
update its entire RMP unless the accident led to a change triggering
the existing update requirement.
2. Emergency Contact Information
EPA is amending the RMP rule to require that facilities correct
their emergency contact information within one month of a change in the
information.
The RMP database has become an important source of information for
Federal, State and local government efforts in the homeland security
area. Many RMP sources are considered part of the nation's critical
infrastructure or are otherwise important to protecting homeland
security. All levels of government use the database to help assess
security needs and to obtain emergency contact information.
Under current requirements, a change may occur in a facility's
emergency contact information (for example, the emergency contact's
phone number is changed or the emergency contact leaves the position),
and the facility may have up to five years to report these changes in
its RMP. Implementing agencies that have audited RMPs report that much
of the information for emergency contacts is outdated or otherwise
inaccurate. In light of the importance of this information, EPA
proposed to require that facilities correct their emergency contact
information within one month of a change in the information.
Seventeen comments indicated support for this proposal, while 12
comments opposed all or part of it. Supporters argued that keeping
emergency contact information current was valuable to ensuring a timely
response to an accidental release, and was particularly critical to
emergency planning and response. Some comments also suggested similar
correction requirements for other administrative information in the
RMP. Comments highlighted how emergency responses are less efficient
without current emergency contact information, how any delay in access
to current facility information can have catastrophic impacts on first
responders, and how this requirement would not pose an undue burden on
reporting facilities.
While some comments opposing this requirement argued that
corrections to contact information were unnecessary, most were focused
on the timing of these corrections, arguing for the most part for a
longer period of time. These comments stated that it can take longer
than 30 days to assign new staff to vacancies, that the proposal would
be unduly burdensome and would subject facilities to possible non-
compliance with every personnel change, and that the facility contact
person can actually change routinely based on employee turnovers,
promotions, and relocations, making the administrative burden and
potential liability of the current proposal outweigh its benefits.
Arguments were made for alternative means of correcting this
information, for example through a secure internet-based site. Some
comments also urged that EPA require reporting of only the emergency
contact position versus the name of the individual filling that position.
The Agency agrees with comments that RMP emergency contact
information is important to emergency planning and response efforts at
the Federal, State and local levels, particularly for facilitating the
work of first responders and safeguarding the community. It is
therefore important that the information be kept as up-to-date as possible.
The Agency appreciates that, currently, even small corrections of
RMPs require sources to send EPA a diskette containing the entire RMP
(with the corrected information) and a certification letter attesting
to the accuracy of the corrected information. To ease the burden of
making such changes, including changes to emergency contact
information, EPA is working to make available a secure means for making
administrative corrections over the Internet. Sources that need to make
such corrections will be allowed secured access to non-sensitive pieces
of RMP information, including much of the information in the
registration part of the RMP (section 1).
As this electronic system for making corrections to emergency
contact information is made available, the time and resources needed to
make a correction should not be significant. Although timely updates to
all basic registration information would be beneficial as well, the
need for updates is most urgent in the case of emergency contact
information. EPA encourages sources to update all of the information in
their RMPs as changes are made, but the Agency does not want to add
unduly to the reporting burden of the program. Sources' efforts are
best focused on maintaining the accuracy of key information in their
RMPs, so EPA is not adding other data elements to the requirement to
correct emergency contact information.
The Agency disagrees with the comment that some emergency contact
information, including the name of the emergency contact person, need
not be reported at all. The Agency believes that action at the local
level is most important in preparing for, preventing, and responding to
accidents, and that the name of the emergency contact person, as
opposed to the name of the position or more general corporate
information, is a key piece of information for such local efforts.
Common sense suggests that it is easier to reach a named individual
than an unknown person filling a particular position. Unless whoever
answers the phone or e-mail at a source knows who
[[Page 18824]]
fills the emergency contact position, it could take several more phone
calls to reach the emergency contact person himself. In the event of an
accidental release or other emergency, the extra time required to reach
the emergency contact person could be costly. EPA is thus retaining the
requirement that sources supply the name of the emergency contact
person and is requiring the correction of that name within one month of
a change. The Agency recognizes that personnel changes may sometimes
take longer than a month, but in that event it expects the source to
have assigned the responsibility to someone in the interim. Given the
electronic means of correcting such information expected to be
available, EPA believes it is reasonable to require facilities to keep
this information relatively current, even if that means supplying the
name of an interim emergency contact person until a permanent person is
in place.
Even with a requirement to correct emergency contact information
within one month of a change, that still leaves RMP emergency contact
information potentially outdated for as much as a month. EPA is
concerned that the 24-hour emergency phone number provided in the RMP
is a key element of emergency contact information that should be
corrected as soon as possible after it changes. The Agency strongly
encourages sources to ensure that their 24-hour emergency number
continues to reach someone able to address emergencies even after an
emergency contact person leaves that position. Ideally, the 24-hour
emergency number would remain the same indefinitely, regardless of who
fills the emergency contact position or any other position at the
facility.
This final rule establishes a new requirement to correct the
emergency contact information within one month of a change in the
information. The Agency expects that while changes are ongoing at the
facility, the basic phone number information provided should continue
to be available, routed as appropriate, so that facilities always have
a current 24-hours-a-day, 7-days-a-week means for emergency contact.
B. Changes to Executive Summary
EPA is amending the RMP rule to remove the requirement for sources
to briefly describe the off-site consequence analysis (i.e., worst-case
accidental release scenario(s) and the alternative accidental release
scenario(s)) within the executive summary of the RMP.
CAA section 112(r)(7) and the chemical accident prevention
regulations require sources subject to the RMP rule to conduct an off-
site consequence analysis (OCA) for one or more hypothetical accidental
worst case and alternative release scenarios and report the results of
the analysis in the RMP. The Chemical Safety Information, Site Security
and Fuels Regulatory Relief Act (CSISSFRRA) of 1999 governs the
distribution of ``off-site consequence [OCA]
information,'' defined as
those portions of an RMP, excluding the executive summary, that contain
the results of the OCA for the source submitting the RMP. Under
CSISSFRRA, EPA and the Department of Justice jointly issued regulations
at 40 CFR part 1400 restricting public access to OCA information and
certain related information to government reading rooms.
Section 68.155(c) of the RMP rule as originally drafted required
sources to briefly describe in their RMP executive summary ``the worst-
case release scenario(s) and the alternative release scenario(s),
including administrative controls and mitigation measures to limit the
distances for each reported scenario.'' EPA, along with federal law
enforcement agencies, now believes that due to its sensitive nature,
this information should no longer be included in executive summaries,
which are not subject to the access restrictions of the CSISSFRRA
regulations. Consequently, EPA proposed to remove the requirement to
summarize OCA results in the executive summary.
Forty comments supported removing this requirement, several noting
national and facility security concerns. Several comments opined that
the information is too sensitive to be easily accessible to the public.
Four comments opposed the proposal as written, noting that more ready
public access to OCA information would help stimulate greater safety
efforts on the part of facilities and the communities in which they are
located. Eight comments presented recommendations, requested
clarification, or had other comments about the proposed changes.
The Agency continues to believe that the requirement for briefly
describing OCA in executive summaries should be removed in the face of
ongoing concerns about the potential misuse of such information by
terrorists, particularly if the information can be easily and
anonymously accessed. Removing this requirement will not affect the
controlled public access currently available to OCA information under
the CSISSFRRA regulations. Sources must continue to provide details of
their OCA in sections 2 through 5 of the RMP, and the public will
continue to have the access to OCA information afforded by the
regulations at 40 CFR part 1400. The Agency also agrees with the
comment that removing OCA data from executive summaries would reduce or
eliminate any risk that Internet posting of executive summaries might pose.
The Agency agrees that OCA information provides a context for each
RMP submission by providing a rough estimate of the risk the facility
could pose to the community in the event of an accidental release. But
EPA disagrees that this information would be lost over the years if it
is removed from executive summaries. Complete OCA results are reported
in sections 2 through 5 of facilities' RMPs, and the Agency maintains a
database including all RMPs submitted since 1999 (except for RMPs
submitted and then withdrawn by facilities that were never subject to
the program). As noted above, the public will continue to have access
to OCA information in RMPs in the manner provided by the CSISSFRRA
regulations.
The Agency disagrees with the comment that executive summaries are
not available to the public. CSISSFRRA and its implementing regulations
impose restrictions on sections 2 through 5 of the RMP only, and
expressly exclude executive summaries from the portions of RMPs that
can be restricted. CSISSFRRA was enacted several years after EPA issued
the RMP regulations requiring a brief description of OCA in executive
summaries, so Congress was presumably aware that executive summaries
would contain some OCA data when it excluded executive summaries from
the information that CSISSFRRA regulations could restrict. At the same
time, EPA disagrees that Congress' decision to exclude executive
summaries from coverage by CSISSFRRA precludes EPA from removing the
regulatory requirement to include a brief description of OCA in
executive summaries. Congress' exclusion of executive summaries from
CSISSFRRA restrictions does not amount to a congressional directive for
EPA to continue requiring OCA descriptions in executive summaries.
CSISSFRRA was enacted prior to the September 11, 2001, terrorist
attacks, which heightened concerns about the potential misuse of
detailed OCA data found in some executive summaries. The Departments of
Justice and Homeland Security have advised against the continued
inclusion of OCA data in executive summaries, and EPA agrees that
recent events make it imperative to remove the requirement for
including this information.
[[Page 18825]]
One comment suggested that instead of removing the requirement
altogether, EPA provide guidance on how to briefly describe OCA in
executive summaries without including sensitive information. EPA agrees
that such guidance could help, but believes that removing the
requirement altogether will be more effective in removing sensitive
information from the summaries. Any guidance EPA could issue would not
necessarily come to the attention of, or be followed by, every RMP
facility, thus risking the continued inclusion of OCA data in executive
summaries. Another comment suggested including a summary of OCA results
in the restricted OCA sections of the RMP, but EPA believes little
would be accomplished by including a summary there. The OCA sections of
the RMP are designed to be easily understood and reviewed, so providing
a summary within those sections would serve little purpose. EPA
intended executive summaries to provide an overview of the entire RMP,
including the OCA sections. Since EPA has judged OCA descriptions in
executive summaries to be unwise, there is no point in including a
summary of OCA results in any other part of the RMP.
EPA is not forbidding sources from including OCA data in executive
summaries, as some comments suggested. The Agency expects, however,
that in view of the concerns cited, sources will not include any OCA
data in their executive summaries.
The Agency agrees with comments that the OCA information should
continue to be made readily available to covered persons, an important
group of which are state and local emergency responders. This
information will continue to assist in developing effective plans for
accident prevention and emergency response. The Agency continues to
work closely with the Department of Justice and with the Department of
Homeland Security to ensure the best balance between providing public
information and protecting national security.
This final rule removes the requirement for sources to briefly
describe the OCA conducted for their facilities in the executive
summary of the RMP.
C. New Data Elements
1. Emergency Contact's E-mail Address
EPA is amending the RMP rule by adding a mandatory data element to
the RMP for sources to provide the e-mail address (if any) for the
emergency contact.
Under Sec. 68.160(b)(6) of the RMP rule as originally drafted,
sources were required to provide the name, title, telephone number, and
a 24-hour telephone number of the person who serves as the source's
emergency contact, with no provision, optional or otherwise, for
sources to provide an e-mail address for that person. Having an e-mail
address for the emergency contact would allow the Agency to quickly and
directly communicate hazard information, improving sources' access to
critical process safety information. Additionally, it might become
necessary for an RMP implementing agency to communicate directly and on
short notice with sources subject to the RMP program, or with a portion
of that universe, as RMPs have become a critical source of information
for the federal government's homeland security efforts. For these
reasons EPA proposed that sources provide the e-mail address for the
source's emergency contact when available, and that any change to the
e-mail address be followed by a correction to the source's RMP within a
month of the address change.
Twenty-two comments supported adding a mandatory data element for
emergency contact e-mail addresses. A number of comments noted that
this requirement would enhance communication between implementing
agencies and reporting facilities and facilitate coordination and
training with first responders without posing an undue burden on the
reporting facilities. Comments suggested that similar access to the e-
mail address of the person at the source with overall risk management
program responsibility would also be helpful to agencies. Ten comments
opposed adding this as a mandatory data element. Arguments included the
fact that not all facilities have e-mail; that e-mail may not be the
most reliable means of communicating with a facility, particularly in
emergency situations; and that this field would be very cumbersome to
maintain as an updated distribution list.
The Agency believes that access to emergency contact e-mail
information will provide an advantage to the regulated community,
implementing agencies, and emergency planners and responders alike.
Improved communications, and a variety of avenues to facilitate them,
will allow for improved exchange of critical emergency planning and
accident prevention and hazard information of benefit to all. E-mail is
an excellent tool for distributing information to a large audience
quickly. Although keeping e-mail address information up-to-date will
require some effort from all parties involved, the benefits of having
that information will outweigh the effort. The Agency agrees with
comments that e-mail should not be the only vehicle that the Agency
relies upon, particularly in cases of emergencies. However, it is
certainly one of the most immediate and common means of communications
used today, and will serve as an important component for information
dissemination, along with mail and telephone communications. Since not
every source has e-mail, the Agency is requiring only those sources
with existing e-mails to submit this information. It is not the intent
of this requirement to allow for unnecessary use of the e-mail address.
To guard against the use of the address for distribution of spam or
junk mail, the Agency does not plan to issue a list of facilities' e-mails.
The Agency agrees that e-mail to a single emergency contact may not
be appropriate for all communications; other forms of communications,
such as mail, phone, or through trade groups, will continue to be used
by the Agency and other implementing agencies. The current RMP rule
also requires the e-mail address for the source or parent company. This
address, in conjunction with the emergency contact e-mail address and
the optional RMP responsible person e-mail address, will provide
additional means to quickly contact RMP facilities. In response to
suggestions that EPA obtain the e-mail address for the person
responsible for the source's RMP as a better choice for receiving e-
mailed information, the Agency will provide a field in RMP*Submit for
facilities that have such an e-mail address to provide that information
at their option.
This final rule, therefore, requires that RMP facilities provide
the e-mail address for the facility emergency contact, and that this
information is corrected within one month of a change. The e-mail
address for the person responsible for the facility RMP will be an
optional field in RMP*Submit. As with the other emergency contact
information correction requirements, the Agency intends to implement a
system that would allow facilities to correct this and other
administrative information via a secure web site, and is working to
implement such a system as soon as practicable.
2. Purpose of Subsequent RMP Submissions
EPA is amending the RMP rule to add a mandatory data element for
sources to identify the purpose of submissions that
[[Page 18826]]
revise or otherwise affect their previously filed RMPs.
As noted above, sources are required to submit, update and resubmit
their RMP by the schedule specified in Sec. 68.190 of the RMP rule.
Since the initial June 1999 reporting deadline, EPA has received
thousands of submissions containing corrections, re-submissions, de-
registrations (revised registrations) or withdrawals of previously
submitted RMPs. However, the RMP electronic submission program has not
had an entry that provides the reason for the submission. To assist EPA
and other implementing agencies in understanding the reason for a
submission, EPA proposed a new data element in the RMP for sources to
indicate what they are submitting and why. The Agency also requested
comment on whether to replace the term revised registrations with de-
registration, which more clearly conveys the action being taken and is
the term used in the implementation materials for the RMP rule.
Twenty-five comments indicated support for the proposal, and four
comments raised objections to it. Comments in support argued this data
element would streamline the submission process by expediting the
review and evaluation of the RMP by both EPA and state and local
implementing agencies. Comments in support argued this requirement
would enable all users of RMP data to understand and track information
in the system for trends while posing little in the way of additional
costs to registered parties. Comments also supported the idea of menu
options provided as part of RMP*Submit, to ease data entry and ensure
consistency of reporting, and were generally in support of changing the
term revised registration to de-registration. Comments questioning the
proposed data element argued that the proposal fell short of explaining
how it would enable EPA to know if facilities had adopted inherently
safer or alternative technologies because it failed to distinguish
between facilities that actually reduce hazards and facilities that
merely recalculate vulnerabilities using different methodologies.
The Agency has decided to adopt the proposed data element because
it will result in expedited review and evaluation of submitted RMP
data, as well as better understanding and tracking of industry trends
in the area of accident prevention and process safety, at very little
cost to RMP sources. Certainly sources submitting a change to their RMP
know the reason for the change; the new data element only requires them
to specify that reason so implementing agencies need not review all the
changes themselves to infer the reason. EPA also plans to develop a
pop-up menu listing the typical reasons for RMP changes (e.g., new
submission; correction of the emergency contact or facility ownership
data elements; update triggered by revised process hazards analysis;
de-registration as a result of no longer using regulated substances at
all or above threshold quantities) so that sources can easily indicate
the reason for their change. To the extent the pop-up menu does not
include a source's particular reason for a change, the source need only
briefly state the reason for the change. In developing the pop-up menu,
EPA plans to incorporate some of the specific suggested elements to
better reflect the reasons behind RMP submissions and changes. In
addition, EPA is changing the term revised registration to de-
registration as comments agreed that this would be a useful clarification.
Although the Agency believes information about the reasons for
changes will help identify and track industry trends, it does not
intend to pressure industries to adopt particular changes. Facilities
are in the best position to assess their hazards and how to address
them. The Agency may choose to provide industry with analyses of the
data so that it can be taken into account as individual facilities
determine their best approach to process safety.
3. Contractor Information
EPA is amending the RMP rule by adding a mandatory data element for
sources that use a contractor to prepare their RMPs to so indicate.
Through RMP audits, implementing agencies have learned that many
RMPs have been prepared in large part by contractors. Use of
contractors for this purpose is allowed under the RMP rule. However,
some implementing agencies have noted potential systemic errors in the
way some contractors prepare RMPs. Concern has also been raised that,
in some cases, sources whose RMPs are largely prepared by contractors
have not properly implemented accident prevention program elements at
the source and are not sufficiently familiar with the contents of their
RMPs. EPA proposed to require an additional data element in the RMP for
sources who use a contractor to prepare their RMP to provide the name,
address and phone number of that contractor, so that implementing
agencies can more easily identify potential issues and provide
appropriate follow-up.
Twelve comments indicated support for the proposal, while 16
opposed it. Supportive comments stated that this element would provide
additional information that may help identify systematic or recurring
errors in risk management programs and plans. A few state and local
implementing agencies commented that they were aware of some
contractors completing RMPs and supplying information to the facility
without fully explaining the accident prevention program requirements
or failing to even provide the facility with all of the required plan
information. These agencies argued that knowing whether a contractor
had assisted in RMP preparation and the name of that contractor would
assist auditors in prioritizing inspections.
Other comments urged that enforcement actions related to RMP errors
should be directed to the facility and not the contractor since
facilities are responsible for the content of their RMPs whether the
program is developed ``in-house'' or through use of a contractor.
Concerns were also raised that EPA would assess and advertise the
Agency's judgement of specific technical consultants, or that somehow
facility information or business relationships would be compromised if
the Agency came between a client facility and its contractor.
The Agency agrees that adding the contractor information data
element will provide valuable information to implementing agencies in
identifying possible systemic errors without imposing significant
burden on the reporting facility. The Agency also agrees with the
comments that the facility owner or operator is ultimately responsible
for the RMP, whether or not it has been prepared by a contractor.
However, implementing agencies have seen cases where contractors have
been used to develop RMPs where no accident prevention program actually
existed at the facility, or was not understood by personnel responsible
for its implementation. Implementing agencies have also seen systemic
errors in RMP submissions that can be linked to the same contractor.
EPA believes it is important to require this piece of information to
facilitate the review of RMPs by the implementing agencies, as well as
to provide another measure of accountability on the part of the
facility. The Agency is therefore adopting its proposal to require
sources that use a contractor prepare their RMP to provide the name,
address and phone number of that contractor. EPA recognizes that some
sources utilize contract services to assist in developing portions of
their risk management program, such as the process hazards analysis.
The requirement to supply contractor
[[Page 18827]]
information does not apply to such services; it applies only to
contractors that prepare RMP submissions.
Contractor information will be used by implementing agencies to
conduct further outreach and compliance assistance efforts. To the
extent EPA identifies systemic errors or other problems potentially
associated with a contractor, the Agency plans to contact the affected
sources to alert them to the problem. EPA may also contact the
contractor to discuss systemic problems and how to correct them; such
discussions would focus not on particular RMP facilities but on the
contractor's understanding and implementation of RMP requirements
generally. The Agency would not enforce RMP requirements against a
contractor, since those requirements apply only to owners and operators
of covered sources. Also, EPA has no intention of listing or rating
contractors in any way. The Agency considered the suggestion of making
contractor information an optional element, but it believes that a
mandatory requirement will ensure the availability of useful
information for program implementation, data quality, outreach and
compliance assistance.
D. Revisions to RMP*Submit Format
Uncontrolled/Runaway Reactions
EPA is revising the RMP submission format (RMP*Submit) to expand
the list of possible causes of accidental releases reported as part of
a source's five-year accident history so an owner or operator can
indicate whether an accident involved an uncontrolled/runaway reaction.
In its report, Improving Reactive Hazard Management (December
2002), the U.S. Chemical Safety and Hazard Investigation Board (CSB)
recommended that EPA
``[m]odify the accident reporting requirements * * * to define and
record reactive incidents. Consider adding the term ``reactive
incident'' to the four existing ``release events'' in EPA's current
5-year accident reporting requirements (Gas Release, Liquid Spill/
Evaporation, Fire, and Explosion). Structure this information
collection to allow EPA and its stakeholders to identify and focus
resources on industry sectors that experienced the incidents;
chemicals and processes involved; and impact on the public, the
workforce, and the environment'' (CSB recommendation 2001-01-H-R4).
EPA, in agreement with the Board's recommendation, proposed to
revise RMP reporting of the five-year accident history (40 CFR 68.42)
to allow the owner or operator to indicate whether the accident
involved an uncontrolled/runaway reaction.
A total of 16 comments indicated support for expanding the list of
possible causes of accidental releases included in a source's five-year
accident history so an owner or operator could indicate whether an
accident involved an uncontrolled/runaway reaction. Comments suggested
that the proposed change would allow sources to more accurately
characterize an accident and would allow for a more detailed analysis
of accident data. Comments supporting this data collection argued that
not enough attention is being given to reactive chemical hazards and
that the additional element would be an important, low-cost step
towards accident prevention.
Twenty-three comments supported expanding the list of possible
causes but recommended that EPA use a term other than uncontrolled/
runaway reaction because the term could be subjectively interpreted,
leading to inconsistent reporting and irrelevant data. Comments also
recommended that the term be added to the drop-down menu already
available under RMP*Submit. Two comments opposed the proposed change,
arguing that the proposed term is not consistent with the current list.
Overall, the comments confirm EPA's view that adding a new term for
uncontrolled reactions will provide sources with an additional choice
to more accurately report information about accidents and that this new
information will provide a better understanding of the types of
accidents occurring at regulated sources. This information will help
the Agency identify incidents involving reactive chemicals and offer
insights on how best to address that hazard category.
The Agency disagrees with comments that the new term is
inconsistent with the current ones (gas release, liquid spill/
evaporation, fire, and explosion), but does acknowledge that more than
one term may describe a particular incident. In an effort to capture
more specific accident cause information, the Agency will modify
RMP*Submit to allow sources reporting accident information to select
more than one of the categories from the list of accident causes.
The Agency recognizes the concern that the term uncontrolled/
runaway reaction may perhaps be open to subjective interpretations. In
response to this comment, the Agency will include a help function for
this menu, with examples of the types of incidents that the Agency
expects to be reported as uncontrolled/runaway chemical reactions. This
revision to the RMP*Submit format will provide the opportunity to
gather more data on reactive incidents, in that way informing any
future actions the Agency may take.
III. Other Issues
Collection of OSHA Occupational Injury and Illness Data in Conjunction
With the RMP Filing Required Under 112(r) of the CAA
EPA and others use the information reported in RMP accident
histories in combination with other data to better understand accident
risks and to gauge the trends with respect to risk and accident
prevention across various industry sectors. Health and safety
indicators could also provide information to industry, government, and
other researchers in understanding the factors that affect chemical
accident prevention. Under 29 CFR part 1904, the Occupational Safety
and Health Administration (OSHA) requires employers to maintain logs of
employee reportable injury and illness statistics (OII) for every
calendar year. EPA considered of special interest three of these
records: (1) Total Incidence Rate, (2) Workdays Lost to Injuries, and
(3) Illness and Workdays Under Restricted Duties. EPA requested
comments on the practicability and burden of future RMP submissions if
including data for these three records, aggregated for five most recent
calendar years should be required. EPA did not propose this element.
Four comments indicated that they would support such a proposal,
while 48 comments indicated that they would oppose it. Those in support
of the additional elements argued that this information would enable
EPA to better understand accident risks and to gauge the trends with
respect to risk and accident prevention across various industry
sectors, and that the ability to link employee illness with risks at
the facility can lead to better prevention programs as well as
providing data on safety standards. The comments opposing the
collection of this data in conjunction with the RMP questioned both
EPA's need for, and use of, the data. Comments argued that these OSHA
reportable injuries are not necessarily or typically related to RMP
chemicals or processes, and that because of this, misrepresentations
and errors would result when trying to apply this data to EPA risk
factors. The comments explained that injury and illness rates at a
facility mostly involve ergonomic conditions, slips, trips and falls,
hand lacerations, and automobile work-related accidents, which have no
[[Page 18828]]
relation to RMP-listed chemicals. In short, OSHA data covers all
accidents and illnesses, not just those related or located near an RMP-
covered chemical process. Comments argued that the OSHA data would thus
not aid in identifying safety trends or in statistical analyses of use
to EPA. The argument was also made that OII data is already reported to
the Federal government and available to EPA and further, that the
collection of OSHA data does not fall within EPA's jurisdiction or
authority under CAA section 112(r). Issues regarding the implementation
of the proposed changes were also raised, including concerns that OII
data may not be readily available for all facilities, that it would be
time-consuming and that it would impose an undue burden on facilities.
The Agency recognizes the multiple issues that are associated with
the collection of OSHA injury and illness data in conjunction with the
RMP and appreciates the very detailed comments received. As this was
not a proposed element, the Agency will reserve judgement on whether
and how to gather additional data, and will consider all comments if at
a later time, it decides to propose additional RMP data elements for
such information.
IV. Effective Date, Update Clarification and Compliance Schedule
Today's rule is being made effective immediately in order to
relieve sources of the requirement to include an OCA description in the
executive summaries of their RMPs. As explained previously, homeland
security and law enforcement concerns have been raised about continuing
to include OCA data in RMP executive summaries, which are not subject
to the public access restrictions under CSISSFRRA. Some sources may be
in the process of updating or otherwise revising their RMPs, and EPA
wants every source to be able to remove the OCA data in their executive
summaries as soon as possible. The Agency finds good cause to make the
rule effective upon promulgation because the rule relieves regulated
entities from a requirement that has become problematic--describing OCA
results in RMP executive summaries.
The rule's new reporting requirements apply as of June 21, 2004,
the five-year anniversary for RMPs initially submitted by June 21,
1999. As an initial matter, EPA wants to make clear that sources that
submitted their initial RMPs before the original June 21, 1999 deadline
are required to submit the 5-year update of their RMPs by June 21,
2004, not before. (Sources that previously updated their RMPs as a
result of a change at the facility will not be required to update their
RMPs again until five years from the last update.) The 5-year update
requirement in the RMP rule was written with the expectation that
sources would submit their initial RMPs on or shortly before June 21,
2004. In reality, hundreds of sources submitted their initial RMPs
months early, and may now be proceeding to update their RMPs by the
five-year anniversary of their original submission. EPA applauds early
compliance with its requirements. However, in this instance, sources
that complied early would be put at a disadvantage if their five-year
update requirement were based on the date of their initial submission.
Such sources could be faced with submitting an updated RMP that still
includes OCA data and that lacks some of the newly required data
elements. If these sources submitted such an RMP, they would have to
submit revised RMPs that removed the OCA data (unless they chose to
retain it) and included the new data under the today's rule. Any OCA
data that had been submitted as part of the update, moreover, would
remain part of EPA's official records. The Agency is therefore
clarifying that the rule's 5-year update provision requires that RMPs
initially due on June 21, 1999 be updated by June 21, 2004, not before.
Early filers that received an EPA letter acknowledging receipt and
indicating an update deadline prior to June 21, 2004, should disregard
that date, which was calculated without consideration of potential
early filings, and instead submit their 5-year update by June 21, 2004.\1\
---------------------------------------------------------------------------
\1\ Any source that has submitted an update prior to issuance of
today's rule may request to have its update returned and may use the
June 21, 2004, date as the deadline for its update. An update that
is returned upon such a request would not be retained as part of
EPA's official records.
---------------------------------------------------------------------------
In light of the clarification above, EPA anticipates that the vast
majority of RMPs initially submitted by June 21, 1999 will be updated
and submitted to the Agency on or close to June 21, 2004. EPA has
therefore selected June 21, 2004, as the start date for complying with
the new reporting requirements established by today's rule.
Accordingly, as of June 21, 2004, all current RMPs on file with EPA
must include the new emergency contact, contractor, and RMP submission
information required by today's rule. EPA therefore recommends that RMP
updates now being prepared include this information by the time they
are submitted on or before June 21, 2004. RMP updates submitted prior
to June 21, 2004, without this information will have to be corrected to
include this information by June 21, 2004. RMPs not being updated by
June 21, 2004, will also have to be corrected to include this
information by the June 21, 2004, deadline. As discussed above, EPA
plans to have in place an Internet-based system for adding this
information that should reduce the burden of having to supply the
information separate from any RMP update.
The June 21, 2004, start date also applies to the new requirement
to include in RMP accident histories information about reportable
accidents within six months of the accident. Any accidental release
meeting accident history reporting criteria and occurring after
promulgation of this rule will need to be added to the source's RMP
accident history within six months of the accident or by the time the
source is required to update its RMP (which requires an update of the
source's accident history), whichever is earlier.
V. Technical Corrections
The original RMP rule published in January of 1994 contains a
provision, Sec. 68.2, effectively staying the rule for several years
for certain types of sources. EPA later amended the rule to exclude
these types of sources from the rule's coverage altogether. See 61 FR
31731 (June 20, 1996), and 64 FR 29170 (May 28, 1999). The time period
of the stay lapsed in 1997 and 1999 (depending on the type of source
affected). Moreover, the need for a stay was eliminated with the rule
changes. EPA is therefore rescinding Sec. 68.2, since its presence in
the regulations continues to cause confusion about their applicability.
Several provisions of the original RMP rule refer to June 21, 1999
for purposes of identifying the correct method and format for
submitting RMPs to EPA (see Sec. Sec. 68.150(a) and 68.190(a)). That
date was appropriate for initial RMPs that were due on June 21, 1999,
but with today's rule it no longer makes sense. EPA is thus changing
those provisions to reflect that sources should use the method and
format for submitting RMPs that EPA has specified by the date of
submission.
VI. Summary of the Final Rule
EPA is amending several sections of part 68 of title 40 of the Code
of Federal Regulations.
Section 68.2 is deleted as the period for these stayed provisions
has expired and final actions on these were taken at 61 FR 31731 on
June 20, 1996, and at 64 FR 29170 on May 28, 1999.
[[Page 18829]]
Section 68.150, Submission, is amended to reflect the new reporting
schedule requirements.
Section 68.155, Executive Summary, is amended to remove the
requirement for sources to briefly describe the off-site consequence
analysis (i.e., worst-case accidental release scenario(s) and the
alternative accidental release scenario(s)) within the executive
summary of the RMP.
Section 68.160, Registration, is amended to require reporting of
(1) the e-mail address for the emergency contact, if such an address
exists, (2) the name, address and phone number of any contractor who
helped in preparing the source's RMP; and (3) the type of and reason
for any RMP submission changing or otherwise affecting the previously
submitted RMP. The section is also amended to allow for optional
reporting of the e-mail address of the person responsible for the RMP
elements and implementation.
Section 68.190 is amended to clarify that sources that submitted
their RMPs prior to June 21, 1999 (the initial deadline for submitting
RMPs) are not required to submit a five-year update of their RMPs
before June 21, 2004; to reflect the periodic nature of the five-year
update requirement; and to change the revised registration reference to
de-registration.
Section 68.195, Corrections, is added. This new section requires
sources to submit revised RMP accident history and incident
investigation elements within six months of an accidental release that
meets the five-year accident history reporting criteria. Sources are
also required to submit a correction to the RMP emergency contact
information within one month of any changes.
VII. Judicial Review
Under section 307(b)(1) of the Clean Air Act, judicial review of
the actions taken by this final rule is available only on the filing of
a petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit within 60 days of today's publication of this action.
Under section 307(b)(2) of the CAA, the requirements that are the
subject of today's action may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)), the
Agency 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 governments 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.
Pursuant to the terms of Executive Order 12866, OMB notified EPA
that it considered this a ``significant regulatory action'' within the
meaning of the Executive Order. EPA submitted this action to OMB for
review. Changes made in response to OMB suggestions or recommendations
are documented in the public record.
B. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them. The Information Collection Request (ICR) document has
been assigned EPA ICR number 1656.11.
EPA is modifying the re-submission schedule under the risk
management program for sources who have significant accidents and for
those who change the information for the emergency contacts. EPA is
adding three mandatory data elements and an optional data element to
the RMP. EPA is removing the regulatory requirement to discuss the off-
site consequence analysis (OCA) data in the executive summary of the RMP.
Two commenters opposed Agency's estimates in the ICR (1656.10)
developed for the proposed rule (68 FR 45124). Commenters argued that
EPA underestimated the burden associated with one of the elements
proposed, the re-submission of the RMP within six months of the date of
the accident. Based on the data included in the 1999 RMP submissions
from 15,000 facilities, only 55 facilities have reported multiple
accidents in the five-year accident history section of their RMPs. EPA
assumed that only these facilities will be affected by the re-
submission schedule due to frequent accidents. Most of these 55 are
facilities with Program 3 processes, which are already covered by the
OSHA Process Safety Management (OSHA PSM) Program. OSHA already
requires facilities under the PSM program to conduct accident
investigation. There is no additional burden under the risk management
program for conducting accident investigations for these facilities,
except for reporting the accident history elements specified in the
risk management plan. The recent ICR renewal approved by OMB (ICR No.
1656.09) already accounted burden estimates for resubmitting RMP in
June 2004. The estimates in the ICR developed for this final rule is
only for the changes made to the regulations.
EPA has made reasonable estimates for the changes made in this
final rule. To become familiar with this rule, it is estimated that it
will take only 2.0 hours for each facility. To report new data
elements, EPA estimates that it will take 0.25 hours for each facility.
To report accident history elements within six months of the accident,
the burden is estimated to range from 3.0 hours for wholesale to 9.0
hours for large chemical manufacturers. For those facilities that may
have changes in their emergency contact information, the reporting
burden is estimated to be 0.10 hours for each facility. For 14,930
facilities that are currently subject to part 68, this rule change will
increase a burden of 33,943 hours annually (101,829 hours for three
years) at a cost of $992,400 annually ($2,997,200 for three years).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB
[[Page 18830]]
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9. When this ICR is approved by OMB, the
Agency will publish a technical amendment to 40 CFR part 9 in the
Federal Register to display the OMB control number for the approved
information collection requirements contained in this final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et. seq, generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, a small entity is defined as: (1) A small business that is
defined by the Small Business Administration by category of business
using North American Industrial Classification System (NAICS) and
codified at 13 CFR 121.201; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
Since today's rule only revises several reporting requirements of
the RMP rule, its economic impact on regulated entities is addressed by
the Paperwork Reduction Act section of this document. After considering
the relatively minor economic impacts of the final rule on small
entities, we have concluded that this action would not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
EPA has determined that this final rule would not contain a Federal
mandate that may result in expenditures of $100 million or more for
state, local, and tribal governments, in the aggregate, or the private
sector in any one year. The nationwide capital cost for these rule
amendments is estimated to be zero and the annual nationwide costs for
these amendments are estimated to be less than $1 million. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the Unfunded Mandates Act. EPA has determined that this final rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. The new data elements and submission
requirements would impose only minimal burden on these entities.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under Executive Order 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
regulation.
This final rule does not have federalism implications. It would not
have substantial direct effects on the States, on the relationship
between the National government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The final rule focuses on
requirements for regulated facilities without affecting the
relationships between governments in its implementation. Thus,
Executive Order 13132 does not apply to this rule. Although section 6
of Executive Order 13132 does not apply to this rule, EPA did consult
with State and local officials and implementing agencies in developing
this rule. EPA held a RMP Implementing Agency meeting in Atlanta,
October 21 and 22, 2002. State and local implementing agencies in
attendance included representatives from Alabama, California, Colorado,
Delaware, Florida, Georgia, Hawaii, Iowa, Kentucky, Louisiana,
Mississippi, New Jersey, North Carolina, Ohio, Pennsylvania, and South
Carolina. Participants were invited to provide feedback regarding the
program and related software, as well as suggestions for improvements.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. The final
rule focuses on requirements for all regulated sources without
affecting the relationships between tribal governments in its
implementation, and applies to all regulated sources, without
distinction of the surrounding
[[Page 18831]]
populations affected. Thus, Executive Order 13175 does not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
The Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) Is determined to be economically
significant under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to Executive
Order 13045 because it does not involve regulatory decisions that are
based on public health or safety risks, nor would it establish
environmental standards intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
final rule does not involve technical standards. Therefore, EPA is not
considering the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 9, 2004.
Lists of Subjects in 40 CFR Part 68
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.
Authority: Sec. 112(r) of the Clean Air Act.
Dated: March 31, 2004.
Michael O. Leavitt,
Administrator.
? For the reasons set out in the preamble, title 40, chapter I, part 68
of the Code of Federal Regulations is amended as follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
? 1. The authority citation for part 68 is revised to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
Subpart A--[Amended]
? 2. Section 68.2 is removed.
Subpart B--[Amended]
? 3. Section 68.42 is amended to revise paragraph (b)(11) to read as
follows:
Sec. 68.42 Five-year accident history.
* * * * *
(b) * * *
(11) Operational or process changes that resulted from
investigation of the release and that have been made by the time this
information is submitted in accordance with Sec. 68.168.
* * * * *
Subpart G--[Amended]
? 4. Section 68.150 is amended to redesignate paragraphs (c) through (e)
as paragraphs (d) through (f), to add a new paragraph (c), and to
revise paragraph (a) and newly designated paragraph (d) to read as follows:
Sec. 68.150 Submission.
(a) The owner or operator shall submit a single RMP that includes
the information required by Sec. Sec. 68.155 through 68.185 for all
covered processes. The RMP shall be submitted in the method and format
to the central point specified by EPA as of the date of submission.
* * * * *
(c) The owner or operator of any stationary source for which an RMP
was submitted before June 21, 2004, shall revise the RMP to include the
information required by Sec. 68.160(b)(6) and (14) by June 21, 2004 in
the manner specified by EPA prior to that date. Any such submission
shall also include the information required by Sec. 68.160(b)(20)
(indicating that the submission is a correction to include the
information required by Sec. 68.160(b)(6) and (14) or an update under
Sec. 68.190).
(d) RMPs submitted under this section shall be updated and
corrected in accordance with Sec. Sec. 68.190 and 68.195.
* * * * *
Sec. 68.155 [Amended]
? 5. Section 68.155 is amended to remove paragraph (c) and redesignate
paragraphs (d) through (g) as paragraphs (c) through (f).
? 6. Section 68.160 is amended to revise paragraphs (b)(5) and (b)(6),
redesignate paragraphs (b)(14) through (b)(18) as paragraphs (b)(15)
through (b)(19), and to add new paragraphs (b)(14) and (b)(20) to read
as follows:
Sec. 68.160 Registration.
* * * * *
(b) * * *
(5) The name and title of the person or position with overall
responsibility for RMP elements and implementation, and (optional) the
e-mail address for that person or position;
(6) The name, title, telephone number, 24-hour telephone number,
and, as of June 21, 2004, the e-mail address (if an e-mail address
exists) of the emergency contact;
* * * * *
(14) As of June 21, 2004, the name, the mailing address, and the
telephone
[[Page 18832]]
number of the contractor who prepared the RMP (if any);
* * * * *
(20) As of June 21, 2004, the type of and reason for any changes
being made to a previously submitted RMP; the types of changes to RMP
are categorized as follows:
(i) Updates and re-submissions required under Sec. 68.190(b);
(ii) Corrections under Sec. 68.195 or for purposes of correcting
minor clerical errors, updating administrative information, providing
missing data elements or reflecting facility ownership changes, and
which do not require an update and re-submission as specified in Sec.
68.190(b);
(iii) De-registrations required under Sec. 68.190(c); and
(iv) Withdrawals of an RMP for any facility that was erroneously
considered subject to this part 68.
? 7. Section 68.190 is amended to revise paragraphs (a), (b)(1) and (c)
to read as follows:
Sec. 68.190 Updates.
(a) The owner or operator shall review and update the RMP as
specified in paragraph (b) of this section and submit it in the method
and format to the central point specified by EPA as of the date of
submission.
(b) * * *
(1) At least once every five years from the date of its initial
submission or most recent update required by paragraphs (b)(2) through
(b)(7) of this section, whichever is later. For purposes of determining
the date of initial submissions, RMPs submitted before June 21, 1999
are considered to have been submitted on that date.
* * * * *
(c) If a stationary source is no longer subject to this part, the
owner or operator shall submit a de-registration to EPA within six
months indicating that the stationary source is no longer covered.
? 8. Section 68.195 is added to subpart G to read as follows:
Sec. 68.195 Required corrections.
The owner or operator of a stationary source for which a RMP was
submitted shall correct the RMP as follows:
(a) New accident history information--For any accidental release
meeting the five-year accident history reporting criteria of Sec.
68.42 and occurring after April 9, 2004, the owner or operator shall
submit the data required under Sec. Sec. 68.168, 68.170(j), and
68.175(l) with respect to that accident within six months of the
release or by the time the RMP is updated under Sec. 68.190, whichever
is earlier.
(b) Emergency contact information--Beginning June 21, 2004, within
one month of any change in the emergency contact information required
under Sec. 68.160(b)(6), the owner or operator shall submit a
correction of that information.
[FR Doc. 04-7777 Filed 4-8-04; 8:45 am]
BILLING CODE 6560-50-P