enforcement does not justify the proposed rescissions. The commenters
stated that incidents have occurred at more than a thousand facilities,
and EPA has not explained how individualized enforcement measures at
more than a thousand

facilities can plausibly address such widespread risks and harms. The
commenters claim that the agency appears to have accepted--without any
confirming analysis--industry trade association data regarding the
percentage of facilities at which accidents have occurred.
    EPA Response: As discussed in the proposed rule, the RMP accident
data (as analyzed by American Chemistry Council (ACC) in its comments
on the proposed rule) \58\ tend to support the reasonableness of an
approach to strengthening accident prevention that focuses on achieving
compliance at problematic facilities rather than broader regulatory
mandates. ACC's analysis of the RMP accident data for 2004-2013 shows
that 1,517 reportable accidents occurred at 1,008 facilities. EPA
verified ACC's analysis prior to proposing to rely on it, and the
verification analysis was docketed on the date of the proposed
Reconsideration rule.\59\ ACC submitted as part of its public comments
on the proposed Reconsideration, an analysis of the RMP accident data
for 2007-2016 that shows 1,368 accidents occurred at 947
facilities.\60\ Looking at both analyses overall, ACC's analysis showed
that fewer than 10% of the 12,500 facilities subject to the RMP rule
reported any accidental releases, while fewer than 2% of facilities
that reported multiple releases were responsible for nearly half of
reportable accidents from all types of facilities. In the chemical
manufacturing sector only, fewer than 7% of the chemical manufacturers
had multiple reportable accidents that accounted for about two-thirds
of all reportable accidents in this sector.
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    \58\ EPA. March 9, 2017. Notes and Documentation Related to a
March 9, 2017 Meeting between the RMP Coalition and EPA regarding a
Petition for Reconsideration of the RMP Amendments rule (82 FR 4594,
January 13, 2017). EPA-HQ-OEM-2015-0725-0929 and American Chemistry
Council public comments, August 17, 2018. EPA-HQ-OEM-2015-0725-1628.
    \59\ See attachments to EPA-HQ-OEM-2015-0725-0929, EPA
Verification of ACC's RMP Accident Analysis with 2 Tables. March 26,
2018 and RMP Accident Data 2004-2013 EPA Verification of ACC
Analysis.
    \60\ EPA-HQ-OEM-2015-0725-1628. pp. 14-15.
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    EPA disagrees that it is implausible that an approach that focuses
on achieving compliance at poor performing facilities can address
accidental release incidents at RMP facilities. EPA does not claim that
enforcement will be increased, but that when a facility is not
implementing a successful prevention program, the enhanced prevention
program measures reflected in the 2017 RMP Amendments rule (e.g.,
implementing a third-party audit, conducting root cause analysis or
examining safer technologies) can be applied as part of settlement
agreements to the extent appropriate based on the violations alleged.
In addition, it should be noted that EPA inspections and enforcement
actions are not only taken in response to accidents and releases from
facilities. EPA routinely performs inspections of RMP-regulated
facilities throughout the country, and resulting enforcement actions
address non-compliance at facilities, reducing the likelihood of
accidents and releases. EPA has previously employed measures such as
third-party audits and safer technologies in enforcement actions not
only after reported releases but also after other (non-accident-
related) inspections where such measures were appropriate to address
potential weaknesses in a source's prevention program. Additionally,
EPA is currently implementing a National Compliance Initiative under
CAA section 112(r) with the goal of reducing risks to human health and
the environment by decreasing the likelihood of chemical accidents.\61\
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    \61\ More information about the National Compliance Initiative
is available at: https://www.epa.gov/national-compliance-initiative-reducing-accidental-releases-industrial-and-chemical.
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    After considering the burdens and benefits of broadly imposing the
additional prevention program requirements of the RMP Amendments, and
in consideration of new emphasis on reducing unnecessary regulations,
EPA has reexamined more carefully whether the benefits of such
regulatory provisions are out of proportion to their costs. EPA does
not contend that focusing on achieving compliance at poor performing
facilities would replicate the effects of the Amendments rule accident
prevention provisions, but we believe this approach is more reasonable
because it more effectively focuses the burden of additional safety
measures on those facilities where they are most needed instead of
imposing regulatory mandates across the board that may not be needed to
prevent accidents at well-performing facilities. Under a compliance-
driven approach, we can obtain accident prevention benefits similar to
those that we said justified the 2017 RMP Amendments rule at a fraction
of the burden. As further explained in the Response to Comments
document,\62\ the Agency took more than 1,000 enforcement actions under
CAA Section 112(r) between 2014 and 2018. Some of these EPA enforcement
actions have involved settlement and injunctive relief that applies to
multiple facilities. Thus, an EPA action may address not only the
facility that was inspected, but also may require companies to audit
other facilities owned by them and require complying actions at those
additional facilities, as needed. In addition, the literature on the
deterrent effect of enforcement finds that inspections, sanctions or
increased threats of inspections and sanctions result in improved
compliance not only at the evaluated or sanctioned facility, but also
improve performance at other facilities, creating general
deterrence.\63\
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    \62\ See Response to Comments document, section 3.1.
    \63\ Shimshack, J.P. (2014). The Economics of Environmental
Monitoring and Enforcement. Annual Review of Resource Economics, 6,
p. 352. Available in rulemaking docket.
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    Regarding the West Fertilizer explosion and EPA enforcement,
ammonium nitrate is not currently a substance regulated under the RMP
regulations. Therefore, the requirements of the 2017 RMP Amendments
rule would not have applied to the ammonium nitrate (AN) process at
West Fertilizer even if they had been adopted before the incident at
that facility. While some benefits of implementing accident prevention
measures at covered processes can sometimes extend to unregulated
chemicals and equipment at an RMP facility, this would be most likely
to occur for unregulated chemicals contained in a covered process or at
unregulated processes presenting similar hazards. At West Fertilizer,
the covered process was an anhydrous ammonia storage process, which had
distinct prevention measures from AN storage.\64\ Therefore, even
assuming the West Fertilizer incident did not result from criminal
activity,\65\ we do not believe the prevention provisions of the 2017
Amendments would likely have prevented the incident. Nevertheless, EPA
agrees that this incident highlighted the importance of proper
coordination between facility owners and operators and local
responders. While the RMP regulations already required facilities to
coordinate emergency planning and response with

local officials, EPA has retained the enhanced local coordination and
response provisions of the Amendments rule, with minor changes, based
on its experience from inspections and lessons noted from several
incidents including the West Fertilizer explosion.
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    \64\ In simplest terms, anhydrous ammonia storage typically
involves storage of ammonia gas in a pressurized metal container,
with piping and control and safety valves, while AN fertilizer
storage involves storage of a solid in bulk or packages, in a bin or
on pallets. The processes have distinct designs, the process hazards
differ, the mechanical integrity programs for pressurized storage
and piping and storage of material in bins and pallets are
dissimilar, and the related training for employees and operating
procedures have minimal overlap.
    \65\ On May 11, 2016, the BATF announced its conclusion that the
fire at the West Fertilizer facility was intentionally set. See EPA-
HQ-OEM-2015-0725-0641.
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g. Comments Concerning Extreme Weather Events and Climate Change
    Many commenters stated that EPA should retain the Amendments rule
prevention provisions because of increased accident risks from severe
weather, which some commenters indicated were associated with climate
change. One commenter contended that EPA's proposal inexplicably fails
to heed lessons learned from the August 2017 disaster at the Arkema
chemical facility in Crosby, Texas, which was a result of unstable
peroxides decomposing after losing refrigeration due to local flooding
from Hurricane Harvey. The commenter stated that the CSB found that the
facility had not properly assessed the risk posed by increasingly
severe weather and the PHA for the low temperature warehouses did not
document any flooding risk. CSB recommended that chemical
manufacturing, handling or storage facilities perform analyses to
determine their susceptibility to these extreme weather events and
evaluate the adequacy of relevant safeguards. Another commenter stated
that rescinding certain prevention requirements would reduce
opportunities for facilities to learn about their vulnerabilities to
severe weather and improve their resiliency. The commenters stated that
the requirement for program 2 hazard reviews to identify findings from
incident investigations showing vulnerabilities, the root cause
analysis requirement, and the STAA requirement, could help a facility
determine if a release was caused by a vulnerability to severe weather
and determine if there is safer technology that could reduce severe-
weather impacts on a process. A joint comment submission from multiple
advocacy groups and other commenters said that the need for maintaining
the Amendments rule is especially great in communities threatened by a
``double disaster,'' which happens when chemical facilities fail to
prepare to prevent and reduce harm from foreseeable hurricanes, floods,
earthquakes, and severe weather. The commenter provided a detailed case
study related to Hurricane Harvey in support of this argument. This
commenter stated that a number of fires, explosions, and chemical
releases that affected and harmed commenters and their members were
related to Hurricane Harvey, and that many RMP facilities around
Houston reported excess air emissions events in the days preceding and
immediately following Hurricane Harvey's landfall. A report submitted
by one commenter stated that out of 186 total air emissions events
reported to the Texas Commission on Environmental Quality (TCEQ)
between July 31 and September 7, 2017, 91 events (48.9 percent) were
Harvey-related, and 134 events (72.0 percent) were in RMP facilities.
The commenter also stated that a total of 1,473,184 pounds of 37
contaminants subject to the RMP rule were released in Harvey-related
incidents, and an additional 5,481,871 pounds not related to Harvey
were released during reported incidents in the same period. The
commenters also argued that it was arbitrary and capricious for EPA to
fail to consider the many chemical releases, explosions, and fires that
occurred in the wake of Hurricane Harvey and the associated lessons
learned regarding communities near chemical facilities that frequently
face or are more prone to natural disasters.
    EPA Response: EPA disagrees that the Amendments rule provisions
were necessary because of the increased potential for accidents due to
extreme weather. EPA examined the data submitted by commenters to
support a case of increasing RMP facility accidents during extreme
weather events but could find no examples in those data of RMP-
reportable accidental releases from RMP-covered processes caused by
extreme weather events. EPA notes that although the Arkema facility in
Crosby, Texas is an RMP facility, the 2017 accident there did not
involve the release of any RMP-regulated substances. According to the
CSB, Arkema did prepare a PHA to comply with the OSHA PSM standard for
all its processes (including the seven low temperature warehouses
storing organic peroxides) as a best practice, although only one of its
organic peroxide storage buildings met the chemical quantity
requirements for coverage under the OSHA PSM standard. Even though
Arkema's PHA process hazard analysis for the low temperature warehouses
did not document any flooding risk, the facility did take precautions
to protect the organic peroxides that required refrigeration against
the loss of power, (an identified hazard) although those efforts
ultimately failed due to unprecedented flood levels.\66\
---------------------------------------------------------------------------

    \66\ CSB. May 25, 2018. Investigation Report: Organic Peroxide
Decomposition, Release and Fire at Arkema Crosby Following Hurricane
Harvey Flooding. Incident Date: August 31, 2018. U.S. Chemical
Safety and Hazard Investigation Board. pp: 78-82, 86-87, 98-99.
https://www.csb.gov/arkema-inc-chemical-plant-fire-/.
---------------------------------------------------------------------------

    EPA reviewed the data provided on emissions from specific
facilities submitted by commenters indicating information on chemical
releases during adverse weather events (most associated with Hurricane
Harvey) in order to specifically examine whether there is an increase
in RMP facility accidents during extreme weather events. While the
submitted information documented reports of releases, generally the
releases did not involve regulated substances listed in 40 CFR 68.130
or did not involve RMP-regulated processes or did not result in RMP-
reportable impacts.
    A list of these documented reports of releases (mostly air
emissions) from specific facilities cited in comments and reviewed by
EPA are provided in Table 6 of the Technical Background Document
(available in the rulemaking docket). Some incidents or release events
commonly cited in comments or references in comments are not subject to
the RMP regulation. For example, many of the emissions were from
floating roof storage tanks containing petroleum products such as crude
oil or gasoline, which are not covered by the RMP regulation (see 40
CFR 68.115(b)(2)(ii) and (iii)). Thus, emissions of chemicals from
these petroleum products are not covered by the RMP regulation
regardless of whether the facility reports under RMP for other
processes or if the chemicals emitted are RMP substances. Many of the
emissions data quantified were not specific to a particular chemical
and were only noted as pounds of emissions or pounds of volatile
organic compounds (VOCs). Some of the emissions that were specified for
a particular chemical, such as benzene, organic peroxides, glycerin,
methanol, methyl tert-butyl ether, and carbon monoxide, are not listed
RMP substances. Some chemicals that are sent to flares or released from
flaring in refineries, such as sulfur dioxide or nitrogen oxide, may
not be covered by RMP regulations because the chemical may not exceed a
threshold quantity in a process. RMP regulations generally do not cover
off-shore oil and gas drilling, exploration or production
facilities.\67\ EPA also reviewed RMP accident history reports during
previous extreme

weather events, including Hurricanes Katrina and Rita, and found almost
no examples of such events resulting in accidental releases from RMP-
covered processes.\68\
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    \67\ Off-shore oil and gas drilling operations are not generally
covered by the RMP regulations due to either the provision at 40 CFR
68.10(f), which excludes Outer Continental Shelf sources, or the
provision at 40 CFR 68.115(b)(2)(iii), which exempts naturally
occurring hydrocarbon mixtures prior to entry into a natural gas
processing plant or petroleum refinery.
    \68\ Accident history records during the time frames of
Hurricanes Katrina and Rita are available in the docketed RMP
database (EPA-HQ-OEM-2015-0725-0989). EPA reviewed accident history
data for the following periods: August 25-31, 2005 (Hurricane
Katrina) and September 20-25, 2005 (Hurricane Rita). EPA identified
one facility--Mississippi Phosphates, that had an ammonia release
from a flare that was extinguished due to storm surge during
Hurricane Katrina. The same facility also had an ammonia release
from a flare that was extinguished due to high winds during
Hurricane Rita, and from a flare that was shut down in preparation
for Hurricane Cindy (July 2005). However, no accident impacts were
reported for any of these releases. Regarding Hurricane Harvey, EPA
identified one facility--the Chevron Phillips Chemical Company plant
in Sweeny, Texas--that reported an accidental release from an RMP-
covered process on August 27, 2017 which was during the period that
Southeastern Texas was being impacted by Hurricane/Tropical Storm
Harvey. According to the facility's RMP, this incident involved a
release of 65 pounds of ethylene that caused a fire resulting in
onsite property damage, but no deaths, injuries, offsite property or
environmental damage, evacuations, or sheltering-in-place. Based on
information in the facility's RMP, it is unclear whether the release
was directly related to the storm.
---------------------------------------------------------------------------

    Regarding a commenters reference to air emissions events reported
to TCEQ during the timeframe of Hurricane Harvey, while the submitted
information documented reports of chemical releases, generally those
releases did not involve regulated substances listed in 40 CFR 68.130
or did not involve RMP-regulated processes or did not result in RMP-
reportable impacts. For example, some of these incidents involved
National Ambient Air Quality Standards (NAAQS) pollutants specifically
exempted from regulation by 42 U.S.C. 7412(r)(3), hazardous air
pollutants not listed under part 68 such as benzene, and other
unspecified chemicals.
    As these commenters did not submit TCEQ data directly to EPA, EPA
conducted a search using TCEQ's website for emissions events occurring
between August 25, 2017 and September 1, 2017 (i.e., the period
encompassing Hurricane/Tropical Storm Harvey's impact on Southeast
Texas), which yielded 93 emissions reports from facilities in Texas.
EPA did not review all 93 reports but reviewed a sample of 10 emissions
reports from facilities regulated under the RMP rule. These 10
emissions reports can be found in Appendix B of the Technical
Background Document. Of the 10 reports reviewed by EPA, 8 were
submitted for excess emissions (i.e., emissions above permitted limits)
from flare stacks, one was submitted for excess emissions from an
electrostatic precipitator, and one to report volatile compounds
emitted from a small oil release to secondary containment.
    Releases reported to TCEQ's Air Emissions Event Report Database are
provided by facilities regulated under the state's air quality rules to
report releases of certain air pollutants above specified reportable
quantities. Such reports may represent evidence that a facility has
emitted pollutants above allowed limits; however, they do not
necessarily indicate that an RMP-reportable accidental release has
occurred (i.e., the releases do not result in deaths, injuries,
property damage, evacuations, or sheltering-in-place). In fact,
emissions of pollutants from flare stacks of refineries and chemical
plants during process startups, shutdowns, and upsets may occur as the
proper functioning of refinery safety systems to prevent catastrophic
accidental releases. For example, in order to prevent a process upset
from resulting in a fire or explosion in a refinery process unit, a
process may be designed to relieve excess gases to the refinery's flare
system. Such events may cause excess flaring by the refinery, resulting
in an exceedance of the facility's air permit (and for facilities in
Texas, requiring a report to the TCEQ Air Emissions Event Report
Database). However, these reports generally do not indicate that an
RMP-reportable accident has occurred. In fact, the Senate report on the
CAA Amendments indicates that ``Accidental releases would not include
release from vents and releases resulting from process upsets which are
planned and are designed to prevent catastrophic events . . . These
``safety'' releases, while not routine, may be authorized and necessary
and would not cause death, injury or property damage. Releases of this
type are appropriately subject to regulation under section 112 of the
Clean Air Act rather than the new section 129 established here.'' \69\
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    \69\ Clean Air Act Amendments of 1989, Report of the Committee
on Environment and Public Works, U.S. Senate together with
Additional and Minority Views to Accompany S. 1630. S. Report No.
101-228. 101st Congress, 1st Session, December 20, 1989.--``Senate
Report'' EPA-HQ-OEM-2015-0725-0645, pp 210.
---------------------------------------------------------------------------

    Commenters presented no information or analysis of TCEQ emissions
data to demonstrate that the data related to RMP-reportable chemical
accidents, nor did commenters show that the RMP rule or the specific
provisions of the Amendments rule rescinded or modified by the
Reconsideration rule could have prevented these releases. In EPA's
judgement, none of the TCEQ emissions reports reviewed by EPA
represented RMP-reportable accidental releases, and it is unlikely that
the other TCEQ emissions reports discussed by these commenters would
represent RMP-reportable accidental releases.
    EPA notes that under the pre-Amendments RMP rule, RMP-reportable
accidents are declining, not increasing, and this trend is an important
consideration in EPA's decision to rescind Amendments rule
requirements, as it indicates that the pre-Amendments RMP rule was
effective in preventing and minimizing the risk of accidents. The pre-
Amendments RMP regulations already required that facilities investigate
incidents and resolve incident investigation findings, and identify the
hazards associated with their covered processes and regulated
substances and the safeguards used or needed to control or mitigate all
relevant hazards, including among other things, loss of power, flooding
or hurricanes. Thus, rescinding the Amendments prevention requirements
would not relieve facilities of their obligation to address these
hazards, whether or not they arise from the potential for extreme
weather events.
h. Comments Concerning Costs and Benefits of Amendments Rule Prevention
Provisions
    Several commenters stated that the costs of repealing the
Amendments rulemaking greatly exceed the benefits. Some of these
commenters provided specific cost information or estimates to support
their claims. One private citizen stated that EPA's estimate of $88
million per year savings from rescinding Amendments rule provisions was
more than offset by potential losses of Amendments rule benefits of up
to $270 million per year, which did not include additional costs such
as contamination, lost productivity, emergency response, property value
impacts, and health problems from chemical exposures. The commenter
also stated that a single incident at the Exxon Mobil Torrance,
California refinery cost California drivers $2.4 billion--based on
increased gas prices--and caused macroeconomic losses of $6.9 billion,
and that these figures do not include facility and community losses
associated with emergency services, health care, property values, and
local tax revenue. This commenter also cited a Center for Chemical
Process Safety document that states ``major industrial incidents cost
an average of $80 million each'' for property damages alone and losses
from business interruption ``can amount to four times the property
damage.'' This commenter noted that these are among other losses to
life, health, market share,

reputation, litigation, insurance, investigations, and penalties. An
advocacy group contended that EPA's justification for repealing the
root cause and third[hyphen]party audit provisions is inadequate
because the commenter believes that benefits of these provisions are
more than likely to outweigh the compliance costs. The commenter argued
that the [third-party] audit provision would only need to reduce the
risk of accidents by 3.5% for the costs of that provision to break even
with the benefits of the rule and the root cause provision would only
need to reduce the risk of accidents by 0.6% to break even.
    A group of state elected officials maintained that EPA was not able
to quantify what specific reductions in accident harms would occur as a
result of implementation of the RMP Amendments but (citing the proposed
Amendments rule at 81 FR 13642-3) found that they ``would provide
benefits to potentially affected members of society,'' including
reducing the probability and severity of chemical accidents. This
commenter stated that in the RMP Amendments RIA, EPA cited numerous
direct costs avoided including worker, responder, and public fatalities
and injuries, public evacuations, public sheltering-in-place, and
property and environmental damage, and indirect costs avoided, such as
lost productivity due to product damage and business interruption both
on-site and off-site, expenditure of emergency response resources and
attendant transaction costs, and reduced offsite property values. The
commenter argued that EPA may not ignore these benefits just because
they are unquantified.
    An advocacy group and a union stated that in the proposed
Reconsideration rule RIA, EPA states that the agency ``believes the
benefits and averted costs are large enough to justify the foregone
benefits.'' However, the commenters stated that the Agency's conclusion
is unsupported and ignores the significant unquantified benefits of the
Amendments rule. The commenters stated that EPA's only justification is
declining accident rates at chemical facilities, which the commenter
claims is a flawed justification. An advocacy group also stated that
the burden of the incident investigation root cause provisions is less
than the identifiable benefits. The commenter stated that through a
breakeven analysis, EPA can see that the burden provides no
justification for repeal.
    EPA Response: EPA disagrees with these comments. EPA did not
project that the prevention benefits of the Amendments rule would be
$270 million per year. That figure included the average annual
monetized costs of RMP facility accidents occurring from 2004-2013. The
Agency did not claim that the prevention program provisions of the
Amendments rule would prevent all future accidents, and there is no
reason to expect that this would have occurred.
    The Reconsideration rule does not eliminate any pre-Amendments rule
RMP requirements, so facilities that were previously responsible for
implementing the prevention and emergency response program provisions
of that rule will still be required to comply with those requirements,
as well as the additional Amendments rule requirements not rescinded by
the final rule.
    Regarding the cost of the ExxonMobil Torrance, California refinery
accident, EPA mentioned this accident in the final RMP Amendments RIA
as an example of the regional impacts that can occur due to
accidents.\70\ The ExxonMobil Torrance refinery accident occurred in
February 2015 and was after the ten-year period (2004-2013) for the RMP
data that were analyzed for the monetized impacts of RMP accidents.
While EPA did mention avoiding the lost productivity due to such
accidents as an example of potential additional benefits, EPA had not
previously reviewed in depth the RAND study that was the source of this
estimate during development of the Amendments rule, and simply took the
study's conclusions at face value. EPA has now further reviewed that
study in detail and does not believe that it demonstrates that EPA's
estimate of the costs of accidents is too low, or that its conclusions
can be extrapolated to the nationwide universe of RMP facilities (see
Section IV.C of this preamble for a further explanation).
---------------------------------------------------------------------------

    \70\ See EPA, Regulatory Impact Analysis--Accidental Release
Prevention Requirements: Risk Management Programs Under the Clean
Air Act, Section 112(r)(7), December 16, 2016, pp 89-90. This
document is available in the rulemaking docket as item number EPA-
HQ-OEM-0725-0734.
---------------------------------------------------------------------------

    EPA disagrees that the CCPS estimate of major accident damages is
representative of the typical cost of RMP facility accidents. The CCPS
``Business Case for Process Safety'' (p.8) states that ``Property
damage costs are reduced--In the U.S., major industrial incidents cost
an average of $80 million each.'' The Amendments RIA (Exhibit 6-5)
shows that the total costs of property damage for all reportable RMP
accidents over the 2004-2013 time period analyzed were $2.1 billion for
on-site damages, and $11.4 million for off-site damages. This averages
$1.4 million per accident of on-site damages and $0.01 million per
accident for offsite damages. Since the RMP accident data are self-
reported by regulated sources, they likely represent the owner or
operator's best estimate of the costs of the accident. CCPS may have
derived its number from a definition of accident that is different from
what we require to be reported under the RMP rule. For example, the RMP
rule requires reporting of accidents that cause ``significant property
damage on site'' or ``known offsite'' property damage, whereas the CCPS
document purports to describe ``major industrial accidents.''
    It does not appear that the set of accidents considered in the CCPS
document has much overlap with RMP reportable accidents. The CCPS data
on ``major'' industrial accidents are based in part on accidents that
are not subject to the RMP rule, while the portion that are RMP
accidents is a very small subset of the full RMP accident database. As
EPA indicates in the Response to Comments document,\71\ only 4 RMP
reportable accidents that occurred during 2004-2013 and only one that
occurred during 2014-2016 caused $80 million or more in onsite property
damage.
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    \71\ See Response to Comments document, section 9.1.1.
---------------------------------------------------------------------------

    EPA disagrees with the commenters that the non-monetized benefits
discussed in the Amendments rule were ignored in the Reconsideration
rule. In the Amendments rule RIA, EPA qualitatively described the
benefits of the Amendments rule provisions, including the prevention
and mitigation of future RMP accidents. EPA considered the benefits
associated with preventing serious accidents, avoiding direct costs
such as worker, responder, and public fatalities and injuries, public
evacuations, public sheltering-in-place, and property and environmental
damage. The RIA also considered indirect costs such as lost
productivity due to product damage and business interruption, both on-
site and off-site, expenditure of emergency response resources and
attendant transaction costs, and reduced offsite property values. In
the Reconsideration RIA, EPA acknowledges that the proposed rescission
of some of the Amendments rule provisions would result in a reduction
in the magnitude of prevention and information benefits relative to the
post-Amendments rule baseline. Specifically, Chapter 6 of the
Reconsideration RIA discussed the qualitative benefits associated with
the Amendments rule and how they will change in response to the

Reconsideration rule. However, EPA also notes that the rate and
consequences of RMP-reportable accidents have reached their lowest
levels since EPA began collecting these data. These trends have
occurred under the pre-Amendments rule, and EPA believes that some
benefits of the Amendments rule can be obtained through a compliance-
driven approach without imposing broad regulatory mandates that may
unnecessarily burden many facilities.
    With regard to incident investigation root cause analysis
specifically, EPA did not rely exclusively on a comparison of costs and
benefits to justify the rescission. We have been unable to make a
direct connection between the presence or absence of these provisions
and a number of accidents prevented. However, our decision to rescind
these provisions does not rest exclusively on costs and benefits. As we
have noted, in addition to reducing the burden on the regulatory
community, EPA has decided to rescind the incident investigation root
cause analysis provision to maintain consistency with the OSHA PSM
Standard.
3. Comments on Rescission of Incident Investigation Provisions
    Many commenters supported rescinding the Amendments rule incident
investigation and root cause analysis provisions, for various reasons.
Some commenters claimed that the Amendments rule lacked adequate
justification for adding the provisions. Other commenters stated that
the provisions were too burdensome or would not improve safety. Still
other commenters stated that the requirements caused conflicts with the
OSHA PSM standard and should be rescinded to assure continued unity
with the standard. On the other hand, many other commenters opposed
rescinding the Amendments rule incident investigation and root cause
analysis provisions. These commenters also provided various reasons for
opposing the rescission, which are discussed individually below.
a. Claims That Rescinding Provisions Will Weaken Safety Standards and
Not Avoid Future Accidents
    A State government agency commented that the rescission of the
incident investigation provisions would be harmful, as the details
collected by the incident investigation provisions help facilities to
understand the causes and consequences of incidents, in turn helping to
eliminate future incidents. The State government agency also commented
that specifying that the initiating event, direct and indirect
contributing factors, and root causes must be included in the factors
that contributed to the incident is crucial for a thorough incident
investigation. A joint submission from multiple advocacy groups and
other commenters stated that EPA's own analysis demonstrates that EPA
should keep and strengthen incident investigation and auditing
requirements. The commenters stated that a conditional probability
calculation based on the data in EPA's 2004-2013 accident spreadsheet
confirms that facilities that have had even one accident are
significantly more likely to have a second one, which shows the
importance of retaining all of the improved investigation requirements.
The commenters stated that, under the RMP rule in existence prior to
the Amendments rule, EPA's data show that facilities are not learning
from their mistakes. Additionally, the data show that facilities that
experience one problem are likely to have additional issues without
regulatory intervention. Other commenters, including private citizens,
multiple form letter campaigns joined by approximately 2,275
individuals, and a labor union stated that incident investigations,
including root cause analyses, can prevent accidents and should remain
a part of the RMP program. These commenters stated that a root cause
analysis is common sense and is critical to determining accountability,
that the investigations are not a burden on industry, but are necessary
and obvious solutions to learn how to prevent dangerous mistakes and
enhance business practices. One commenter stated that root cause
analysis has resulted in a strong safety record for nuclear facilities.
Another commenter indicated that the state of California requires root
cause analysis of accidents and that the analysis increases safety and
saves companies money.
    EPA Response: EPA agrees that incident investigation with root
cause analysis is an important method to determine the underlying
causes of an accident, so that they may be addressed to prevent future
accidents. However, as noted earlier, many facilities may already use
root cause analysis for incident investigations. All RMP facilities
with Program 2 or 3 processes were already required to conduct incident
investigations that include identification of ``contributing factors,''
and EPA's RMP guidance document already encouraged owners and operators
to identify ``root'' and ``underlying'' causes of incidents. Several
commenters noted that some facilities already conduct root cause
analyses as part of their incident investigations and that root cause
analysis is the modern, industry accepted approach in incident
investigations. The Center for Chemical Process Safety (CCPS), based
upon a survey of its membership and other processing companies,
observed that companies reported using an average of two or three
different public domain and proprietary tools methodologies for both
major and minor incidents, and the most popular methodologies use
different combinations of investigation tools.\72\
---------------------------------------------------------------------------

    \72\ CCPS. March 2003.Guidelines for Investing Chemical Process
Incidents, Second Edition, Chapter 4, An Overview of Investigation
Methodologies. Pp. 44-45. EPA-HQ-OEM-2015-0725-0251.
---------------------------------------------------------------------------

    EPA did cite some examples in the Amendments rule of accidents
where EPA, OSHA or CSB identified ineffective investigations by the
owner or operator of previous, similar incidents, resulting in a
failure to address the same causes. We presume that had these previous
problems or near misses been identified, action would have been taken
to avoid reoccurrence. However, EPA has not conducted any overall
analysis of data from RMP accident investigations conducted by
regulated facilities to determine how well these investigations have
identified causes and contributing factors.
    EPA acknowledges the commenter's point concerning facilities that
have more than one accident. However, EPA disagrees that in all cases,
subsequent accidents are due to a failure to conduct a root cause
analysis of an earlier accident. In some cases, subsequent accidents
could be due to a failure to implement incident investigation findings.
In others, the causes of a subsequent accident could be completely
unrelated to the causes of an earlier accident. EPA believes that the
commenter's statement ``a conditional probability calculation based on
the data in EPA's 2004-2013 accident spreadsheet confirms that
facilities that have had even one accident are significantly more
likely to have a second one,'' may mischaracterize the RMP accident
data. While this observation is true, it fails to consider the
possibility that subsequent accidents are unrelated to an owner's
failure to identify a root cause.
    Given the relatively small and declining number of facilities that
have RMP-reportable accidents, and the concentration of accidents among
a subset of facilities that have had accidents, EPA believes that
focusing on

including injunctive relief as necessary in appropriate enforcement
actions is a better approach to preventing future accidents than
imposing broad regulatory requirements. Such an approach will also
allow EPA to tailor injunctive relief to best suit the circumstances of
the case. For example, considering that EPA's existing guidance already
encourages owners and operators to identify the root and underlying
causes of accidents, EPA may find that a facility's failure to address
earlier incident investigation findings contributed to a subsequent
accident, rather than failure to conduct a root cause incident
investigation. In light of the language of our pre-Amendments rule, our
guidance and that of CCPS on root cause analysis, and the widespread
practice of conducting root cause analyses mentioned by commenters, a
bare ``root cause'' regulatory requirement is unlikely to significantly
change current practices or reduce accidents as much as a case-by-case
approach that examines individual source behavior.
    Also, based on its record, EPA does not wish to have the RMP
incident investigation requirements diverge from those in OSHA's PSM
standard. EPA does not have a record showing significant benefits of
the added prevention program provisions. Without such benefits, EPA
believes it is better to take its traditional approach of maintaining
consistency with OSHA PSM. The creation of additional complexity and
burden associated with new provisions where EPA has not demonstrated
any benefit is evidence of the new prevention provisions'
impracticability and that the rule divergence is unreasonable. However,
retaining for Program 2 investigation requirements, the words
``report'' and ``reports'' in place of ``summary'' and ``summaries'',
respectively, and the requirement for an incident investigation team
with at least one person knowledgeable in the process and other persons
with appropriate investigation experience, does not create any
inconsistencies with OSHA PSM requirements.
b. Alleged Lack of Justification for Rescission
    An advocacy group stated that there is no cost justification for
the rescission of the root cause analysis provisions. The commenter
stated that a break-even analysis demonstrates that the burden provides
no justification for repeal as the benefits greatly outweigh the costs.
This commenter argued that because the root cause incident
investigation provision costs $1.8 million annually and the annual cost
of facility accidents is $274.5 million, the provision would only need
to reduce the risk of accidents by 0.6% to break even, which seems well
within the range of reasonableness to conclude that these provisions
would be able to provide this level of protection. The group
recommended that EPA conduct their own breakeven analysis. Similarly, a
tribal government and a few other commenters stated that the small cost
associated with root cause investigations are well worth the benefit.
    EPA Response: EPA disagrees that the commenter's break-even
analysis that it is within the range of reasonableness to conclude the
``benefits [of the root cause provision] greatly outweigh the costs.''
The commenter suggests if the provision prevents at least 0.6% of
accidental release damages, then it would be cost-beneficial, but
provides no data to support that assumption about the effectiveness of
the provision. EPA has not been able to quantify how much benefit in
accident reduction would be attributed to this specific provision. EPA
has no data or empirical estimates of the precise impact of each rule
provision on the probability and magnitude of an accident. The
accidents themselves have highly variable impacts that are difficult to
predict. To the extent practicable, EPA's analysis monetizes the costs
of accident damages to partially estimate the baseline costs that
should be affected by the final rule.
    This is also complicated by the fact that many facilities may
already employ root cause analysis techniques and it is difficult to
estimate how much benefit is to be gained from facilities who are not
already conducting root cause analysis. In at least some of the
incidents mentioned in the RMP Amendments proposal, it is arguable that
a contributing factor in the subsequent incident was either the failure
to conduct any investigation, or the failure to implement findings from
an incident investigation, rather than the failure to conduct a root
cause investigation. EPA is also rescinding the root cause analysis
provision because we do not wish to have the incident investigation
requirements diverge from those in OSHA's PSM standard. EPA does not
have a record showing significant benefits of the added prevention
program provisions. Without such benefits, EPA believes it is better to
take its traditional approach of maintaining consistency with OSHA PSM.
The creation of additional complexity and burden associated with new
provisions where EPA has not demonstrated any benefit is evidence of
the new prevention provisions' impracticability and that the rule
divergence is unreasonable.
c. Other Comments Opposing Rescission of Root Cause Analysis Provision
    A state agency and an advocacy group stated that incident
investigations should be conducted ``using a recognized method'' as
standard practice and stated that informal one-on-one interviews with
supervisors or an investigation committee method are flawed approaches.
These commenters stated that companies should use a more structured and
comprehensive team approach to identify root causes with tested data
analysis tools and methodologies. An industry trade association
commented that they believe root cause analyses could help determine
flooding risk for accidents and influence severe weather analyses. The
commenter also stated that EPA should consider CSB's recommendation
regarding the 2017 disaster at the Arkema chemical facility in Texas,
that chemical manufacturing, handling, or storage facilities perform
analyses to determine their susceptibility to these extreme weather
events and evaluate the adequacy of relevant safeguards.
    EPA Response: Although EPA is rescinding the specific regulatory
requirement for root cause analysis, the Agency's existing guidance
already encouraged owners and operators to determine the root and
underlying causes of incidents. EPA's guidance also provides pointers
to recognized investigation methods, such as the CCPS ``Guidelines for
Investigating Chemical Process Incidents'' and the ``National Fire
Protection Association Guide for Fire and Explosion Investigations.''
    Regarding the use of root cause analysis to determine flooding
risk, root cause analysis generally is used to identify underlying
system-related reasons why an incident occurred, and it is therefore
probably of less utility for determination of flooding risk or for
investigating events that are clearly caused by extreme weather and are
not system-related. The issue with extreme weather events is
recognizing the hazard, its likelihood of occurrence and its severity.
The RMP regulations already require that facilities identify the
hazards associated with their processes and regulated substances and
the safeguards used or needed to control or mitigate all relevant
hazards, including among other things, loss of power, flooding or
hurricanes. Thus, rescinding the Amendments prevention requirements and
in particular the root cause analysis provision would not relieve
facilities of their obligation to address these hazards.

d. Rescind ``near miss'' Clarifying Text
    Several commenters stated that the term near miss was confusing and
supported the proposal to rescind the term. These commenters
recommended allowing firms the flexibility to determine what
constitutes an incident that could reasonably have resulted in a
catastrophic release. Several other commenters stated that in the
Amendments rule EPA failed to define a near miss and its illustrations
of near misses created confusion. Other commenters also supported the
rescission, providing various reasons, including that EPA's earlier
expansive view of the term was at odds with industry's understanding,
or that the term could cause facilities to unfairly be subject to
enforcement, or that EPA's description of the term would intrude on
OSHA's jurisdiction. An industry trade association stated that, in
addition to rescinding the near miss text, EPA also needs to clarify
inaccuracies that were included in the near miss discussion in the
Amendments rule preamble. Specifically, the commenter argued that EPA
needed to clarify that some examples EPA included in the Amendments
rule preamble were not near misses or incidents that could reasonably
have resulted in a catastrophic release.
    Other commenters opposed the rescission of the near miss text. A
Federal government agency stated that investigating near misses can
help prevent more serious and catastrophic incidents from occurring.
The commenter also stated that because major process accidents are
generally categorized as ``low probability, high consequence''
occurrences, near-miss incident investigations can provide a higher
number of learning opportunities, providing a more complete data set
for lessons learned and major process safety enhancements locally,
within the company, and potentially industry-wide. A State government
agency stated that to have an effective risk management program,
facilities must investigate all incidents involving a regulated
substance, including catastrophic releases, smaller accidental releases
that are not catastrophic, and near misses. The commenter stated that
the proposed revision is vague and subjective in that it leaves the
owner or operator to decide what they will investigate outside of the
``catastrophic'' incidents, therefore weakening the provision. A State
agency provided recommended draft text for Sec.  68.81 that would
require investigation of all accidental releases and near-misses
(instead of incidents that resulted in or could reasonably have
resulted in a catastrophic release) and included new definitions of
``accidental release'' and ``near miss.''
    EPA Response: EPA is deleting the term ``near miss'' that was added
in the Amendments rule. The term was added in order to further clarify
those incidents which could reasonably have resulted in a catastrophic
release and are also subject to investigation. However, EPA's lack of
specificity about what it meant by ``near miss'' contributed to
confusion about the incident investigation requirement rather than
clarity. EPA does not have a record showing significant benefits of the
added prevention program provisions. Without such benefits, EPA
believes it is better to take its traditional approach of maintaining
consistency with OSHA PSM. The creation of additional complexity and
burden associated with new provisions where EPA has not demonstrated
any benefit is evidence of their impracticability and unreasonableness.
EPA does not wish to have the incident investigation requirements
diverge from those in OSHA's PSM standard. Removing the language will
prevent undue burden in complying with process safety requirements that
would result from introducing a duplicative requirement for
investigations. Contrary to some commenters' concerns, the addition of
the term ``near miss'' in the Amendments rule was not intended to be an
expansion of the type of incidents that were required to be
investigated, but a clarification of the incidents which could
reasonably have resulted in a catastrophic release that must be
investigated. However, even without the term, incidents which could
reasonably have resulted in a catastrophic release continue to require
incident investigations.
    While EPA did provide examples in the Amendments rule of incidents
which may be considered near misses (82 FR 4606-7, January 13, 2017),
EPA did not intend to imply that these examples were always events that
would require investigation. EPA noted that ``facility owners or
operators will need to decide which incidents could reasonably have
resulted in a catastrophic release'' and that ``this will require
subjective judgement.'' EPA also acknowledged ``that not all excursions
of process parameters outside control levels or all instances of
protective device activation should necessarily be considered to be
near misses'' and ``that activation of protective devices should be
investigated when the failure of such devices could have reasonably
resulted in a catastrophic release.'' These situations would have to be
evaluated to determine if imminent and substantial endangerment to the
public health and environment could have plausibly resulted if the
circumstances and been slightly different.
    Regarding making any changes in the definition of a release subject
to the investigation requirements, EPA had already proposed in the
Amendments rule to change the definition of ``catastrophic release'' to
be identical to the description of accidental releases required to be
reported under the accident history reporting requirements. In the
final Amendments rule, EPA decided not to make this change after
reviewing many comments opposing the change and because the proposed
revision may have inadvertently expanded the definition of incidents
subject to investigation (see 82 FR at 4603, January 13, 2017). EPA did
not propose a definition of near-miss in the proposed Amendments rule
but did consider it. In the final Amendments rule, EPA chose not to
provide a definition of near-miss because it was too difficult to
address in a single definition the variety of incidents that may occur
at RMP facilities that could be near-misses that should be
investigated. The term near-miss had been added in the proposed rule as
a term to help clarify and highlight those incidents that could
reasonably have resulted in a catastrophic release. The difficulty in
devising a single regulatory definition supports removing the term as
it did not accomplish the intended clarification. Based on the
reasoning given in the Amendments rule, EPA does not agree that any
changes should be made regarding the catastrophic release definition
for incident investigation nor should a definition of near-miss be
added.
e. Requiring Program 2 Investigation Teams To Have at Least One Person
Knowledgeable in the Process and Other Persons With Investigation
Experience
    An industry trade association expressed support for EPA's proposal
to rescind the requirement for program 2 incident investigation teams
to have at least one person knowledgeable in the process and other
persons with investigation experience, stating that the team
requirements are ambiguous and not appropriate for all incident
investigations. The commenter stated that the team should be tailored
to the level of incident and given that Program 2 facilities are lower
risk, the team requirements should not be necessary. Two other
commenters provided general support for the proposed rescission. On the
other hand, a Federal agency

strongly recommended that EPA retain the staffing requirements for
Program 2 investigation teams. Similarly, a State elected official
questioned what kind of safety improvements could result from an
investigation conducted by individuals with no experience with the
failed process. Another commenter provided general opposition to the
proposed rescission.
    EPA Response: EPA is retaining the Program 2 requirement in Sec.
68.60(c) for an incident investigation team to be established and
consist of at least one person knowledgeable in the process involved
and other persons with appropriate knowledge and experience to
thoroughly investigate and analyze the incident. While EPA is
rescinding other incident investigation requirements so that they do
not diverge from those in OSHA's PSM standard, retaining the
investigation team requirements for Program 2 does not create any
inconsistencies with OSHA PSM requirements. The pre-Amendments rule for
Program 3 already required an incident investigation team to be
established and consist of at least one person knowledgeable in the
process involved and other persons with appropriate knowledge and
experience to thoroughly investigate and analyze the incident. This
provision is the same as that required by the OSHA PSM standard.
Retaining this provision for Program 2 does not make the provision more
rigorous than Program 3, and EPA agrees with commenters who stated that
incident investigation teams should always include at least one person
who is knowledgeable in the process and other persons with
investigation experience.
f. Other Comments on Incident Investigation Provisions
    Commenters provided other comments relating to the incident
investigation provisions. A State elected official opposed the
rescission of the incident report elements added under the Amendments
rule. A State government agency commented that the rescission of the
added incident report elements will be detrimental to public safety
because they would help the company understand the causes and
consequences of the incident when the incidents are reviewed in the
future, such as during process hazard analyses. Several commenters
opposed EPA's proposed rescission of schedules for addressing
investigation recommendations. A State government agency stated that a
schedule for addressing recommendations from the incident investigation
is an important requirement to ensure that recommendations are resolved
in a timely manner and is necessary as part of the management system
for all prevention program elements. Similarly, a Federal agency stated
that EPA should continue to require that investigation reports include
a schedule to address recommendations by taking appropriate corrective
action(s) with a 12-month completion deadline. On the other hand, an
industry trade association expressed support for the rescission of the
added elements emphasizing that the additional items are not designed
to meaningfully enhance incident investigations. Another trade
association supported EPA's proposed rescission of additional report
requirements, including schedules for addressing investigation
recommendations, as unnecessary.
    A few commenters supported EPA's proposal to rescind the 12-month
incident investigation deadline requirement. Two industry trade
associations supported EPA's proposal, reasoning that mandating a
completion deadline is detrimental to the focus of the investigative
team, which should be on completeness. Two industry trade associations
also commented that the timeframe to complete a thorough incident
investigation will vary depending on several external factors,
including the consequences of the release, the complexity of the
incident, the process or processes involved, the substance released,
and the investigation team's experience, knowledge, and composition. In
opposition to EPA's proposal, an industry trade association and a union
disagreed with rescinding the 12-month deadline, stating that the
deadline is reasonable to ensure the owner/operator does not let the
investigation lag indefinitely. In addition, a Federal agency stated
that EPA should continue to require that investigation reports include
a schedule to address recommendations by taking appropriate corrective
action(s) with a 12-month completion deadline.
    A few commenters supported the rescission of the requirement to
investigate catastrophic releases that result in a decommissioned or
destroyed process. Alternatively, a few commenters opposed rescinding
the provision. A joint submission from multiple advocacy groups and
other commenters stated that without investigations of releases that
resulted in a decommissioned or destroyed process, it would create a
significant gap in current RMP accident reporting data and would be a
missed opportunity to improve safety.
    EPA Response: EPA is rescinding all the incident investigation
report elements added by the Amendments rule, except that EPA will
retain the words ``report'' and ``reports'' in place of the words
``summary'' and ``summaries'' in 68.60(d) and (g), respectively, and
the requirement in 68.60(c) for an incident investigation team to be
established and consist of at least one person knowledgeable in the
process involved and other persons with appropriate knowledge and
experience to thoroughly investigate and analyze the incident. This
includes rescinding, among others, the requirement to complete an
incident investigation within 12 months, the requirement to provide a
schedule for addressing recommendations in the investigation report,
and the requirement to investigate catastrophic releases that result in
a decommissioned or destroyed process. EPA does not wish to have the
incident investigation requirements diverge from those in OSHA's PSM
standard. EPA does not have a record showing significant benefits of
the added prevention program provisions. Without such benefits, EPA
believes it is better to take its traditional approach of maintaining
consistency with OSHA PSM. The creation of additional complexity and
burden associated with new provisions where EPA has not demonstrated
any benefit is evidence of their impracticability and unreasonableness.
Retaining the previously mentioned Program 2 investigation requirements
above does not create any inconsistencies with OSHA PSM requirements.
The pre-Amendments rule already had a requirement for the owner or
operator to establish a system to promptly address and resolve the
incident report findings and recommendations, with resolutions and
corrections to be documented. These requirements remain and the
rescission of the provision for a schedule for addressing
recommendations in the investigation report does not negate the
requirement to promptly address the investigation findings and
recommendations.
    Regarding investigation of accidents that result in a
decommissioned or destroyed process, commenters did not identify a
significant number of release incidents at RMP facilities that had
resulted in a destroyed or decommissioned process without any RMP
accident report.\73\ We believe these

events would tend to be higher profile, with job losses and visibility
to news organizations and to the communities. EPA is aware of a few
such incidents (e.g., the June 24, 2005 fire at a Praxair facility in
St. Louis, Missouri); however the Agency is not aware of a significant
number of such incidents. The absence of additional examples would lead
us to conclude that the gap we were addressing in the Amendments exists
but is not a significant one.
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    \73\ In the list of incidents provided by Earthjustice attached
to comment EPA-HQ-OEM-2015-0725-1969 and subsequently updated, EPA
noted two incidents that resulted in the facility deregistering from
the RMP database due to damage from the incident. See EPA. July 18,
2019, Technical Background Document for Final RMP Reconsideration
Rule Risk Management Programs Under the Clean Air Act, Section
112(r)(7).
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4. Comments on Rescission of Third-Party Audit Provisions
    Many commenters representing industry supported EPA's proposed
rescission of the third-party audit provisions. Some of these
commenters stated that requiring a third-party audit after every
reportable accident is unwarranted, would result in a misallocation of
resources, and in cases where EPA believes a third-party audit is
warranted, the agency already can require a facility to conduct a
third-party audit as a corrective action under an enforcement
settlement. Several trade associations stated that the third-party
audit provisions are duplicative given that facilities are already
required to be audited every three years. Other commenters stated that
the Amendments rule provided insufficient evidence that third-party
audits are more robust and effective than internal compliance audits.
Many commenters stated that the Amendments rule's requirements for
auditor competency and independence would make it difficult for
companies to find and afford qualified auditors, and that EPA provided
no evidence that internal auditors were insufficiently objective or
competent to perform audits. Several industry trade associations
commented that it is false to assume that third parties are more
capable, credible, and objective than a facility's own audit staff. Two
industry trade associations stated that EPA lacks authority to impose a
regulatory requirement for third-party audits.
    In contrast, many other commenters, including multiple form letter
campaigns joined by approximately 2,275 individuals, opposed EPA's
proposed rescission of the third-party audit provisions. Many of these
commenters stated that third-party audits increase accountability. Some
commenters supported retaining the third-party audit provisions because
the CSB has found that a company's own internal corporate PSM audits
can fail to identify systemic process safety deficiencies. An advocacy
group stated that third-party audits should be maintained because post-
incident audits help facilities pinpoint and eliminate the cause of
such incidents to prevent future accidental releases. A joint
submission from multiple advocacy groups and other commenters stated
that EPA previously supported and provided a rationale for third-party
audits in the Amendments rule. A labor union also cited EPA's
Amendments rule arguments in support of third-party audits and EPA's
conclusion that ``independent compliance audits will assist stationary
sources to come fully into compliance with the applicable prevention
program requirements.'' The commenter stated that they fully believe
that third-party audits would reduce the frequency and severity of
accidents at RMP facilities. Another advocacy group stated that third-
party audits are an essential part of the Contra Costa County (CCC),
California Industrial Safety Ordinance (ISO), which the commenter
described as a nationally-acclaimed chemical release prevention program
that has reduced both the number and severity of incidents since its
implementation of the third-party audit program. Other commenters
stated that the costs of the third-party audit provisions do not
justify their repeal, and that there is no problem if EPA requires
third-party audits when OSHA does not.
    EPA Response: EPA believes there can be benefits to third-party
audits in some instances and has previously described the benefits in
the Amendments rule. EPA will continue to include third-party audits as
part of enforcement actions, when appropriate. The Agency's decision to
rescind the third-party audit requirements is not based on a
determination that third-party audits are not beneficial or justified
in certain cases, but to allow for coordination of process safety
requirements with OSHA before proposing future regulatory changes, and
to reduce unnecessary regulatory costs and burdens of a broad rule-
based approach to third-party audits rather than a case-by-case
approach. As discussed in the proposed rule, one area of potential
divergence between the OSHA PSM standard and the RMP rule under the
Amendments is in the requirement for third-party audits. EPA noted that
the August 2016 OSHA SBAR panel report \74\ did not fully support
third-party audits. Instead the SBAR panel recommended further review
of the need and benefits of a third-party audit provision in the PSM
standard. EPA therefore believes that we should not retain and put into
effect changes to the prevention aspects of the Risk Management Program
until we have a better understanding of OSHA's plans for changes to the
PSM standard so that we may move forward in a more coordinated fashion.
---------------------------------------------------------------------------

    \74\ OSHA, OMB and SBA. August 1, 2016. Report of the Small
Business Advocacy Review Panel on OSHA's Potential Revisions to the
Process Safety Management Standard. Pp. 32-33. U.S. Dept. of Labor
(DOL), Occupational Safety and Health Administration (OSHA); U.S.
DOL Office of the Solicitor (SOL); Office of Management and Budget
(OMB), and U.S. Small Business Administration (SBA). EPA-HQ-OEM-
2015-0725-0923.
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    Regarding commenters' claims that the Amendments rule's auditor
competency and independence provisions will make it difficult for
facilities to locate and afford auditors, and that EPA lacks authority
to impose third-party audit regulatory requirements, these comments
reiterate similar comments made on the Amendments rule, to which EPA
already responded in the preamble and Response to Comments document for
that rule. EPA notes that the rescission of the third-party audit
requirements is not due to unavailability of auditors, or EPA's lack of
authority to impose the requirement.
    EPA disagrees that the CCC ISO provides evidence that third-party
audits are justified on a cost-benefit basis. The CCC ISO includes many
provisions that are not duplicated in the RMP regulation, and it is
impossible to disaggregate the effects of individual provisions to
determine their efficacy. However, the CCC audit program is not a
third-party audit program comparable to the Amendments rule provision,
but rather is comprised of inspections and audits that are conducted by
the regulator (i.e., county inspectors). The CCC Hazardous Materials
Programs staff was required to audit and inspect all stationary sources
regulated under the Industrial Safety Ordinance within one year after
the initial submittal of their Safety Plans. In other words, these were
enforcement audits, not independent third-party audits comparable to
those in the Amendments.
5. Comments on Rescission of STAA Provision
    Many commenters representing industry supported EPA's proposed
rescission of the STAA provision. Some of these commenters argued that
STAA has limited or no benefit or will even decrease safety. Some
commenters indicated that the frequency of accidents in New Jersey
since enactment of the NJ Toxic Catastrophe Prevention Act (TCPA) IST
provision has not

declined, and that this indicates that the Amendments rule STAA
provision will cause facilities to incur costs without any accident
reduction benefits. An industry trade association commented that the
STAA provision would not reduce accidents, and that the RMP rule's
existing requirements for management of change and PHAs already provide
for analysis of alternatives and continuous risk mitigation. Two other
industry trade associations stated that, in the course of PHAs, plants
identify risks and address them according to recognized and generally
accepted good engineering practice. One of these commenters also stated
that companies implement risk-based analyses in order to reduce risks
to an acceptable level. Another association argued that the Amendment
rule's STAA provisions would provide no benefit because industries
already utilize IST analysis where they determine it feasible. Other
industry trade associations agreed, stating that IST analyses have been
adopted as a matter of industry best-practice for years. They argued
that imposing a regulatory requirement to do so will only result in
waste. An industry trade association argued that STAA should not be
generally required of existing facilities, and that a broad STAA
requirement could only be appropriate when designing new plants, but
that companies already perform STAA in these circumstances. Many
associations commented that, at most, STAA should only apply to the
design of a process and not be part of the PHA. An industry trade
association representing specialty chemical manufacturers stated that
its members manufacture specialty chemicals under designs specified in
Federal regulations, and the tight specifications required by these
programs limit the beneficial potential of STAA.
    Some industry associations argued that STAA would increase risks.
An industry trade association commented that STAA requirements, by
departing from OSHA's PSM requirements, would create an overlapping,
inconsistent regulatory framework and thereby decrease process safety.
Another industry trade association predicted that risk shifting and a
potential increase in overall risk would be a likely result of
requiring STAA. An association of government agencies commented that
the efficacy of the STAA requirement would be undermined if there were
no required analysis for transfer of risk. An industry trade
association commented that STAA requirements would stifle innovation by
adding documentation costs to companies already innovating. Another
commenter agreed, stating that STAA requirements, triggered by minor
safety changes, could disincentivize the same changes.
    On the other hand, many commenters representing environmental
advocacy groups, state and tribal governments, and others opposed
rescission of the Amendments rule STAA requirements. EPA also received
comments from multiple form letter campaigns joined by approximately
2,275 individuals expressing opposition to the proposed rescission of
STAA requirements. These commenters reasoned that if implemented, the
STAA requirements would help prevent or decrease the impacts of future
accidents. An advocacy group stated that STAA is the best mechanism
available for improving plant safety. Another commenter agreed,
elaborating that IST provides the most robust mechanism for preventing
accidents by removing, rather than protecting against, hazards. Many
other commenters wrote similar comments. A tribal government commented
that numerous recent accidents may have been avoidable with STAA
regulations. Specifically, the commenter cited the April 2, 2010
explosion at the Tesoro Refinery in Anacortes, Washington, an August 6,
2012 accident at the Chevron Refinery in Richmond, CA and CSB's similar
findings for both incidents that process safety programs at both
facilities failed to effectively control the hazards before these
incidents occurred. This commenter noted that the CSB recommended that
EPA require the documented use of inherently safer systems analysis and
the hierarchy of controls to the greatest extent feasible in
establishing safeguards for identified process hazards. The commenter
also referred to other incidents that EPA had cited in support of the
Amendments rule, stated that they all appear to have been caused by
management's failure to implement adequate safety management programs,
and concluded that process safety regulations were unsuccessful at
preventing these major incidents. Another tribal government also argued
that STAA provisions should be retained, describing the potential harm
threatened by a nearby refinery's use of hydrogen fluoride. A private
citizen commented that recent years have exhibited higher rates of
reported incidents. The commenter argued that STAA provisions should be
implemented to help reduce these occurrences. Another commenter stated
that an expansion of RMP is necessary given the numbers of accidents
under the RMP requirements in place prior to the Amendments rule. An
anonymous commenter urged that the STAA provisions be retained, stating
that nearly 135,000,000 people live in areas potentially impacted by
3,400 of the highest-risk RMP facilities' worst-case chemical releases.
The New Jersey Department of Environmental Protection recommended that
the Amendment rule's STAA provisions not only be retained but expanded.
It commented that New Jersey's broad STAA approach, which includes
safety measures short of redesigning a plant, made ongoing STAA
requirements beneficial. It cited a study in support of its contention
that STAA provision can improve safety in older and operational
facilities.
    EPA Response: When promulgating the Amendments rule, EPA
anticipated that the STAA provision could be beneficial if facilities
voluntarily implemented safer technologies in response to their
analysis. However, EPA had no estimate of how many facilities would
implement such measures and what the effects of these measures might be
on the accident rate. EPA has since reviewed the nationwide RMP
facility accident rate trend through 2016, which shows a continual
decrease under the pre-Amendments RMP rule. This downward trend is
evidence that the prevention elements of the pre-Amendments RMP rule
are working and that the cost of additional prevention requirements may
not be necessary. In addition, the accident data from RMP facilities in
New Jersey indicate little or no discernible reduction in accident
frequency or severity that can be associated with the NJ IST
requirement to date. While comparing RMP accident data from New Jersey
facilities to the full RMP database, EPA found that nationwide, the RMP
accident rate has declined by an average of 4.1% per year from 2008-
2016 (3.5% per year per facility), without the added prevention
provisions whereas the RMP accident rate in New Jersey declined by only
approximately 1.7% per year (or 2% per year per facility), with the
state's IST provision in effect. The downward trend in accident rate
nationwide could reflect industry efforts in this area that have been
achieved without prescriptive regulatory provisions. In any case, the
lack of an apparent additional accident reduction effect of the IST
provision at the state level over the pre-Amendments EPA program casts
doubt on whether the STAA provision is reasonable because the added
costs of the measure are disproportionate to the environmental benefits
that are likely to be gained beyond those provided by the

pre-Amendments requirements. Therefore, EPA is rescinding the STAA
requirement based on the lack of apparent benefits of the provision
when applied to existing sources across broad sectors, based on EPA's
review of available data, the apparent effectiveness of pre-Amendments
accident prevention regulations in reducing accidents over time and a
desire to keep the Program 3 accident requirements aligned with the
OSHA PSM standard at this time.
    Regarding commenter's arguments that STAA is only appropriate for
new processes, should not be incorporated into the PHA, and is
inappropriate for specialty chemical (i.e., batch toll) manufacturing
facilities, while EPA's rescission of the Amendments rule requirement
makes these comments moot, we note that we already addressed these
comments in the Response to Comments for the Amendments rule,\75\ and
the Agency continues to disagree with them.
---------------------------------------------------------------------------

    \75\ RMP Amendments Response to Comments, pgs. 105, 107-109.
EPA-HQ-OEM-2015-0725-0729.
---------------------------------------------------------------------------

    Concerning commenters' discussion of the potential usefulness of
STAA in preventing specific incidents, while EPA cited factors in
specific accidents as support for regulatory changes in the Amendments,
the Reconsideration rule doesn't contradict those points. Rather, the
proposed Reconsideration rule noted certain problems with respect to
the new requirements that on further consideration, we believe can be
addressed through rescission of the Amendments rule requirements while
still improving chemical accident prevention and response, and using
less costly means (e.g., a compliance-driven approach instead of a
broad regulatory requirement). EPA's objective in making regulatory
revisions is to make only those changes that are likely to improve
accident prevention and response while not imposing unreasonable costs.
    EPA agrees that these accidents resulted from the failure by
management to implement safety management programs, but the Agency does
not agree with the commenter's conclusion that process safety
regulations were unsuccessful at preventing them. Rather EPA believes
it was the failure of these facilities to fully implement the existing
process safety regulations that led to these incidents. Although CSB
found that failure to use a more corrosion resistant high-chromium
steel was a factor in the Tesoro Anacortes and Chevron Richmond
accidents, and cited it as an example of an inherently safer strategy,
the mechanical integrity provisions of the RMP regulation already
required process equipment to be fabricated from the proper materials
of construction and be properly installed, maintained, and replaced to
prevent failures and accidental releases (see 40 CFR part 68.3). If a
regulated facility fails to properly implement existing regulatory
provisions, rather than imposing additional regulatory requirements,
the appropriate response is for EPA to undertake regulatory
enforcement, and EPA regularly does so under CAA section 112(r).
    Regarding refineries' use of hydrogen fluoride, EPA notes that the
Amendments rule STAA provision would not have required any facility to
implement safer technologies. Thus, while some refineries still use
hydrogen fluoride, the STAA requirement would not have required them to
eliminate its use. EPA disagrees with commenters assertions that the
accident rate is increasing. EPA's analysis of the trend in RMP
accidents from 2003 through 2016 indicates that RMP facility accidents
have declined in frequency by approximately 3.5% per year.
a. Costs and Benefits of STAA Provision
    Many commenters provided input on the subject of STAA's potential
costs and benefits. Comments in support of the rescission often
emphasized the indirect costs of STAA, while those in opposition often
addressed environmental, human health, and other unquantifiable
benefits. Several commenters characterized the Amendments rule's STAA
provisions as ``open-ended,'' with the potential of causing massive
costs without justification. One industry trade association stated that
changing extant processes or plants can have unforeseen costs and
trigger additional safety evaluations. Another industry trade
association, citing a 2010 study, commented that STAA during PHA
revalidation is an inefficient, costly use of resources. A tribal
government supported the rescission of STAA requirements, stating that
they may be both cost-prohibitive and detrimental to the environment.
Another added that STAA would cost more than EPA predicted, as it would
require hiring and training personnel. An industry trade association
stated that EPA recognizes STAA could cause indirect costs up to $1
billion through voluntary company action. Another commenter added that
STAA requirements would become a paper formality which would especially
harm small operations, because of the costs of compliance. An industry
trade organization stated that rescinding the STAA requirement would
advance the goals of E.O. 13771, 13777, and 13783. A trade association
indicated that the frequency of accidents in New Jersey since enactment
of the NJ TCPA IST provision has not declined, and that this indicates
that the Amendments rule STAA provision will cause facilities to incur
costs without any accident reduction benefits.
    Other commenters indicated that the costs of the provision were
reasonable and justified. A State elected official acknowledged other
comments that argued that the adoption of alternative technologies may
result in unforeseen consequences and costs. The official, however,
commented that this element of uncertainty should be explored and
considered within the context of STAA decision-making. Another State
elected official cited EPA's conclusion in the Amendments rule that
``facilities will only incur additional costs beyond the analysis when
the benefits of the change make adoption of the change reasonable for
the facility.'' (82 FR at 4644).
    State elected officials argued that experience of the State of New
Jersey shows that IST regulations are effective, that New Jersey found
that performing an IST review would not be financially burdensome, and
that the cost was further justified by the potential to identify
additional risk reduction measures to protect the public and the
environment. This commenter argues that even if the number of
reportable incidents in New Jersey has not decreased after adoption of
the IST rule, IST could still yield benefits by reducing the impact of
releases that do occur.
    Other comments in favor of STAA argued that it could be
economically beneficial in ways other than preventing the direct costs
of accidents. A private citizen stated that STAA provisions would have
benefits in terms of reducing cancer rates and other human costs. An
anonymous commenter added that EPA failed to consider the benefits of
STAA in its proposed rescission. An anonymous commenter stated that,
from their experience, environmental regulations resulted in plants
implementing safer technology on generating units, improving
operational efficiency and profitability. A private citizen commented
that STAA provisions may result in economic benefits both by improving
industry efficiency and by improving the market for safer technology.
Several commenters cited a publication stating that a single
significant refinery disaster causes an average of $220 million in

economic harm,\76\ and one commenter stated that the Chevron Richmond
accident caused $1.7 billion in damage to California's economy.
---------------------------------------------------------------------------

    \76\ Gonzales, D., Gulden, T., Strong, A. and Hoyle, W. 2016.
Cost-Benefit Analysis of Proposed California Oil and Gas Refinery
Regulations. RR-1421-DIR. RAND Corporation, Santa Monica, CA.
www.rand.org/t/RR1421. EPA-HQ-OEM-2015-0725-0643.
---------------------------------------------------------------------------

    EPA Response: In the RIA for the Amendments rule, EPA acknowledged
that considering only the monetized impacts of RMP accidents would mean
that the rule's costs may outweigh the portion of avoided impacts from
improved prevention and mitigation that were monetized. The STAA
provision was estimated to be the costliest provision of the Amendments
rule, by itself accounting for more than 50% of estimated compliance
costs. Therefore, in order for the rule's costs to be reasonable (not
disproportionate to its benefits), this provision must result in
substantial benefits. In monetizing the costs of RMP-reportable
accidents, EPA suggested that a substantial portion of those accidents
would need to be prevented by the Amendments rule provisions in order
to be justified on a cost-benefit basis. However, in the Amendments
rule, EPA had not attempted examine the effects of existing state
(i.e., New Jersey) level IST regulations. For this rulemaking,
commenters have submitted data and studies that argue on both sides of
this issue with regard to STAA.\77\ Some commenters have indicated that
the lack of decline in the frequency of accidents in New Jersey since
enactment of the NJ TCPA IST provision indicates that there is no
evidence that the provision has resulted in any reduction in accidents.
EPA agrees that the NJ accident rate trend does not support the
effectiveness of its IST provision. EPA notes that RMP facility
accident data from RMP facilities in New Jersey, which has required RMP
facilities to evaluate inherently safer technology options since 2008,
do not show any decline in accidents beyond that occurring in RMP
facilities nationwide, suggesting that evaluation of safer technologies
has either already occurred without the rule change, or does not result
in significant accident reduction. While comparing RMP accident rates
from New Jersey facilities to the nationwide rate of RMP facility
accidents, EPA found that the nationwide RMP accident rate has been
reduced by an average of 4.1% per year from 2008-2016, without the
added prevention provisions. Regarding the comment that IST could still
yield benefits by reducing the impact of releases that do occur, EPA
considered the trend of accident impacts in New Jersey. Since the
beginning of 2004, RMP-reportable accidents in New Jersey have resulted
in nine injuries, $23,102,000 in property damage, three offsite
hospitalizations, and 80 offsite evacuations. Except for one injury,
all impacts occurred in 2008 or later, after the NJ TCPA IST provision
became effective. EPA can discern no declining trend in accident
severity at RMP facilities in New Jersey.
---------------------------------------------------------------------------

    \77\ See Comments EPA-HQ-OEM-2015-0725-(1481), -(0973), -(1870),
-(1896), -(1925) and -(1969).
---------------------------------------------------------------------------

    While EPA did state in the Amendments rule that ``facilities will
only incur additional costs beyond the analysis when the benefits of
the change make adoption of the change reasonable for the facility,''
(82 FR at 4644) and we also stated, ``there is value in requiring
facilities with extremely hazardous substances to evaluate whether they
can improve risk management of current hazards through potential
implementation of ISTs,'' we recognized this value only ``for those
facilities who have not considered adopting any IST or have only done
so in limited fashion.'' (82 FR at 4645). EPA also notes that
facilities would incur costs for doing the analysis whether or not they
are able to implement IST or other safer technology alternatives that
would yield benefits. As we have reconsidered the Amendments rule,
while EPA acknowledges we are not able to quantify how many facilities
would implement safer technologies and what the effectiveness of
particular measures might be on reducing the number of accidents, the
data available from the longest-standing state-level IST regulatory
provision suggest that such provisions do not have the significant
impact on accident reduction that would be necessary to justify the
high costs of these provisions.
    Regarding the potential economic benefits of the STAA provision
other than accident prevention benefits, most commenters asserted such
benefits (e.g., reduced cancer risk) without supplying any supporting
data. Some commenters referred to a RAND Corporation study to support a
conclusion that EPA had significantly underestimated the costs of
accidents, and therefore the potential benefits of the STAA provision.
EPA disagrees that the RAND study can be used to predict the costs of
accidents at RMP facilities nationwide--see below for EPA's
explanation.
b. Increased Vulnerability to Terrorism
    Two private citizens reasoned that rescission of STAA provisions
would result in more facilities remaining vulnerable to terrorist
attack than if STAA were adopted as-is. Advocacy groups and multiple
State elected officials pointed to the New Jersey IST requirements as
explicitly furthering security and anti-terrorism efforts. A joint
submission from multiple advocacy groups and other commenters added
that STAA would help prevent terrorism and mitigate any possible
attacks.
    EPA Response: These comments are similar to comments EPA addressed
in section IV.C.2--``Comments on Rescission of Prevention Program
Provisions in General.'' In short, while some commenters assert that
the STAA provisions will reduce the risk of terrorism, others argued
that STAA could increase security risks. EPA received no data to judge
the relative significance of different security concerns associated
with this provision. The intent of the STAA provision in the RMP
Amendments rule was to potentially reduce accidental releases--it was
not undertaken to reduce the risk of releases from intentional criminal
acts. For example, the STAA provision applied only to facilities in
complex manufacturing sectors with high accident rates, and the water
treatment sector was not required to complete a STAA. While EPA
acknowledges that implementation of some inherently safer technologies
could reduce risks of release from criminal acts, EPA does not believe
that rescinding the STAA provisions increases security risks beyond
those already present. EPA also notes that the regulatory and legal
framework outside of CAA section 112(r) (e.g., DHS CFATS regulations)
minimizes the risk of criminal and terrorist threats against chemical
facilities.
c. Data on Accident Rates Related to State and County Programs With IST
or Toxic Use Reduction Requirements
    Several commenters provided input discussing STAA-analogous
programs in New Jersey and CCC, California. An industry trade
association stated it discerned no appreciable difference between the
accident rates in New Jersey and those in other states since New
Jersey's implementation of the NJ TCPA IST provision. Another industry
trade association expressed concern for the reliability of evidence
supporting the efficacy of New Jersey and CCC IST regulations.
Commenting on the Amendments rule, an industry trade association argued
that requiring STAA would be arbitrary and capricious because of the
lack of reliable data. The commenter cast doubt especially on evidence
on the New Jersey and CCC

schemes. Another industry trade association argued against the adoption
of STAA, stating that EPA considered the issue in 1996 and that no new
data has emerged to justify a departure from its decision from that
time.
    An advocacy group examined an industry trade association's comment
that accident rates in New Jersey had increased since IST practices
were mandated. The advocacy group stated that it was unable to find an
empirical study of IST's efficacy in New Jersey. The commenter then
analyzed publicly available accident data, stating that companies which
refused to implement safer practices accounted for 25% of accidents.
The commenter described those accidents and their circumstances. A
State government agency commented that, in the first 85 STAA-analogous
reports submitted in New Jersey, 45 facilities implemented 205
measures. These included two water treatment facilities using different
chemicals. Several State elected officials commented that data on New
Jersey accidents may be misleading; the number of accidents may have
remained constant, with their severity reduced by IST. A joint
submission from multiple advocacy groups and other commenters provided
a lengthy exploration of New Jersey's IST regulations and results. It
examined data and, citing an EPA statement, commented that data cannot
fully capture efficacy of IST.
    An advocacy group stated that STAA is an accepted industry best
practice and that the CCC ISO has implemented similar requirements
without excessive financial burden. A joint submission from multiple
advocacy groups and other commenters provided a history of safer
alternative regulation in CCC. It cited a reduction in accident number
and severity over the last 20 years. The commenters specially addressed
an accident at a refinery that made CCC adopt ``greatest extent
feasible language.'' The commenters stated that, since that time, none
of the most severe classification of accidents occurred and few of any
classification took place.
    A State government agency cited extensive data on the results of
Massachusetts' Toxic Use Reduction Act (TURA) program to argue that
STAA provisions could lead to improvements in plant safety,
environmental risks, efficiency, and access to international markets. A
joint submission from multiple advocacy groups and other commenters
provided extensive data on the TURA program, specifically citing that
toxic waste generation was 66% below 1987 levels and that businesses
reported improved safety, cost savings, and marketing, as a result of
the regulation. The commenter included additional data and specific
examples.
    A State government agency commented that EPA failed to evaluate
STAA efficacy against recent accidents. A union cited several of its
own studies to assert the safety benefits of STAA. A joint submission
from multiple advocacy groups and other commenters asserted that IST
regulations resulted in net savings for industry, citing a study by the
RAND Corporation which found that a refinery saves, on average, $220
million, in quantifiable terms alone, for an accident avoidance, and
that a single accident at a California refinery caused $1.7 billion in
damage to California's economy.
    EPA Response: EPA reviewed information submitted by commenters
relating to IST regulatory provisions in New Jersey and CCC,
California, and the information relating to the Massachusetts TURA
program. Regarding the New Jersey TCPA IST provision, EPA discussed
some comments concerning New Jersey's program earlier in this section.
EPA found no evidence that the provision has resulted in a reduction in
either accident frequency or severity at RMP-regulated facilities
subject to the provision. Using the accident data provided by EPA in
the rulemaking docket, EPA calculated the average accident rate for RMP
facilities in New Jersey, plotted the accident data for New Jersey RMP
facilities from 2008 through 2016, calculated the accident trend using
a linear regression analysis, and compared these results to the same
measures for the national set of RMP facilities.\78\ The results show
that New Jersey RMP facilities were more likely to have RMP-reportable
accidents than RMP facilities nationally over the period studied. Also,
while the rate of RMP facility accidents in New Jersey has declined
since adoption of the TCPA IST provision, that decline is less than
half as large as the decline in accidents for RMP facilities nationally
over the same period. New Jersey exhibited a 1.7% annual decline in
accident frequency, whereas nationally, RMP facilities experienced a
4.1% decline in accident frequency over the same period. Some
commenters suggested that the lack of a significant decline in accident
frequency in New Jersey could be due to a change in the number of RMP
facilities. However, this is not the case. When the accident frequency
is normalized by the number of RMP facilities present in each year, the
results are similar: The normalized accident rate in New Jersey
declined by approximately 2% per year, whereas the normalized accident
rate at RMP facilities nationwide declined by 3.3% per year. Regarding
accident severity, as indicated previously, EPA examined the impacts of
RMP-reportable accidents in New Jersey over the same period and can
discern no declining trend in accident severity in New Jersey.
---------------------------------------------------------------------------

    \78\ EPA. July 18, 2019, Technical Background Document for Final
RMP Reconsideration Rule Risk Management Programs Under the Clean
Air Act, Section 112(r)(7). Available in the rulemaking docket.
---------------------------------------------------------------------------

    EPA also disagrees that the CCC ISO provides strong evidence that
IST regulations result in marked decreases in accident rates. While the
accident trend in CCC is downward since implementation of the ISO,
there are several reasons to be cautious in interpreting and
extrapolating the results observed under the CCC ISO to the nationwide
universe of RMP facilities. The CCC IST provision was adopted in 1998
and is applicable to a total of six RMP facilities. The City of
Richmond, California, adopted a similar safety ordinance in 2002, which
is applicable to two additional RMP facilities. Contra Costa Hazardous
Materials Programs, a division of Contra Costa Health Services, the
county health department, oversees both programs. Therefore, the CCC
and Richmond programs combined apply to a total of only eight RMP
facilities.
    In addition to the very small number of facilities from which to
draw such conclusions, EPA notes that the CCC ordinance contained other
regulatory provisions. Most of these provisions are not features of
either the Amendments rule or the NJ TCPA and their effects are
impossible to disaggregate from the inherently safer systems analysis
(ISSA) provision of the ISO. For example, in addition to requiring
ISSA, the CCC and Richmond programs require submission of a Safety
Plan, implementation of a human factors program, implementation of
expanded management of change provisions (to include management of
organizational change), root cause analysis investigations for major
chemical accidents, safety culture assessments, process safety
performance indicators, safeguard protection analyses, and other
requirements. Another important difference between the CCC ISO ISSA
provisions and both the NJ IST provision and the Amendments rule STAA
provision is that since 2014, the CCC ISO provision has required
facilities to implement inherently safer systems ``to the greatest
extent feasible and as soon as

administratively practicable.'' \79\ Neither the NJ IST nor Amendments
rule STAA provisions require implementation of IST/STAA measures.
---------------------------------------------------------------------------

    \79\ CCC Industrial Safety Ordinance, Chapter 450-8--RISK
MANAGEMENT, paragraph (i)(3), available at: https://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf. EPA-HQ-OEM-2015-
0725-0638.
---------------------------------------------------------------------------

    The CCC ISO program is also unique among U.S. chemical safety
regulatory programs in another important respect. CCC employs several
full-time engineers to oversee implementation of the ISO at the six
regulated facilities in the County and the two facilities in Richmond.
According to reporting by CCC, these engineers have spent thousands of
hours conducting such oversight each year. In its 2017 Annual Report,
CCC reported that from 2000 to 2015, it completed five audits/
inspections at each facility subject to the CCC ISO and had initiated a
sixth round of audit/inspections. CCC also reported that it performed
seven facility audits from the Fall of 2014 through 2016, and that each
audit required ``four to five engineers four weeks to perform the on-
site portion of an ISO/CalARP Program audit. The audit process
encompasses off-site time that includes a quality assurance process,
working with the facility to address any questions, posting public
notices, attending a public forum to share audit findings, addressing
any questions from the public and issuing the final report. The total
time taken to perform these audits each year was 3,600 hours.
Approximately one-third of the time was dedicated to the Industrial
Safety Ordinance, for a total of 1,200 hours.'' \80\
---------------------------------------------------------------------------

    \80\ CCC Industrial Safety Ordinance RISO Report, Annual
Performance Review and Evaluation, 2017, pp 10, 18-20. Available in
the Docket EPA-HQ-OEM-2015-0725.
---------------------------------------------------------------------------

    As far as the Agency is aware, this level of regulated chemical
facility oversight is unmatched by any other jurisdiction in the United
States. It approaches the very high levels of government oversight
provided by the Nuclear Regulatory Commission's resident inspector
program,\81\ and the Department of Energy's facility representative
program,\82\ both of which involve full time inspectors devoted to
providing continuous oversight at a small number of, or even a single,
hazardous facility. The experience of these programs demonstrates that
such levels of government oversight, in conjunction with a rigorous
safety management program, can prevent serious accidents. But this
level of oversight is very expensive, and not feasible at facilities
regulated by the RMP rule on a national basis. Such extensive staffing
commitments also greatly exceed the per facility level of staffing for
the operating permits program under CAA title V, and, in contrast to
CAA 112(r), the operating permits program has a specific funding
mechanism authorized and required by CAA 502(b)(3).
---------------------------------------------------------------------------

    \81\ https://www.nrc.gov/docs/ML1819/ML18197A116.pdf
    \82\ https://www.standards.doe.gov/standards-documents/1000/1063-astd-2017
---------------------------------------------------------------------------

    Whether it is due to the differing regulatory requirements,
different levels of government oversight at regulated facilities or the
small number of regulated facilities subject to the CCC/Richmond ISO
provisions, the contrast between the accident trends at RMP facilities
in New Jersey and CCC suggest that the reduction in accident frequency
in CCC may be due to some factor other than the portion of the ISSA
provision in the Industrial Safety Ordinance that is analogous to the
Amendments rule's STAA provision. The NJ TCPA regulates approximately
ten times the number of RMP facilities that are regulated under the CCC
ISO. Further, the NJ regulations do not require implementation of
alternatives considered, contain the other regulatory provisions or
involve as high a level of oversight as are present in the CCC ISO
program. Therefore, from the standpoint of comparing the two programs
to the STAA provision of the Amendments rule, The New Jersey program
serves as a more valid experiment to predict the results of the STAA
provision of the Amendments rule (note, however, that the NJ TCPA IST
provision is still more rigorous than the Amendments rule in that it
requires facilities to submit the IST review to the State, whereas the
Amendments rule's STAA provision contains no such requirement). The
results in New Jersey suggest that such provisions, by themselves, do
not have the significant effect on accident rates that proponents
predict. Rather, the accident data from RMP facilities in New Jersey
indicate little or no discernible reduction in accident frequency or
severity associated with the NJ IST requirement to date. Therefore,
whatever beneficial effects such provisions may have, they seem
unlikely to result in anything close to the reduction in accident
frequency or severity that would be required to find the benefits of
STAA in terms of accident prevention and mitigation are not
disproportionate to the burdens associated with the provision.
    Regarding the Massachusetts TURA program, EPA found no evidence
that this program has resulted in a reduction in the frequency of RMP
facility accidents in Massachusetts and disagrees that other results of
the program (e.g., less use of toxic chemicals) can be extrapolated to
predict the results of the STAA provision of the Amendments rule. The
Massachusetts TURA program is not directly analogous to the Amendments
rule because it is explicitly a toxic chemical use reduction program,
rather than a program for preventing accidental air releases of RMP-
regulated substances. Under the TURA program, large quantity toxic
substance users must develop a toxic use reduction plan that examines
opportunities to reduce toxic chemical use by adopting safer processes
or inputs, update the plan bi-annually, and submit both an annual toxic
use report and a summary of the bi-annual toxic use reduction plan to
the Massachusetts Department of Environmental Protection.\83\ The STAA
provision of the Amendments rule required facilities covered by the
provision to consider, as part of their process hazard analysis, safer
technology and alternative risk management measures applicable to
eliminating or reducing risk from process hazards, and to determine the
practicability of the inherently safer technologies and designs
considered. While one option for inherently safer risk management
measures under the Amendments rule was to minimize the use of regulated
substances,\84\ the Amendments rule did not explicitly require
facilities to plan to minimize the use of regulated substances or to
submit reports to EPA about reductions in their use of regulated
substances.
---------------------------------------------------------------------------

    \83\ See: https://www.mass.gov/guides/massdep-toxics-use-reduction-program#-company-requirements-. Available in the
rulemaking docket.
    \84\ See 82 FR 4629, January 13, 2017.
---------------------------------------------------------------------------

    Although the Massachusetts TURA program is not aimed specifically
at RMP-regulated facilities, because its list of covered chemicals \85\
includes some common industrial chemicals that are also on the RMP-
regulated substance list (e.g., ammonia, chlorine), some RMP facilities
in Massachusetts are covered under both regulatory programs. EPA
therefore examined the frequency and trend in accidents at RMP
facilities in Massachusetts over the period covered by the accident
record used for the Amendments and Reconsideration rules (2004-2016).
The TURA program \86\ started in 1989, so presumably any downward
pressure on accident frequency at RMP facilities due to the TURA
program would be observable in the accident record for RMP facilities
in Massachusetts. However, on a per-

facility basis, Massachusetts RMP facilities were more likely to have
had an RMP-reportable accident than RMP facilities nationally. EPA
found little difference between the accident trend at RMP facilities in
Massachusetts and nationally during the 2004-2016 period.\87\
---------------------------------------------------------------------------

    \85\ See https://www.mass.gov/files/documents/2018/06/13/chemlist.xls.
    \86\ https://www.mass.gov/guides/massdep-toxics-use-reduction-program.
    \87\ EPA. July 18, 2019. Technical Background Document for Final
RMP Reconsideration Rule Risk Management Programs Under the Clean
Air Act, Section 112(r)(7). Available in the rulemaking docket.
---------------------------------------------------------------------------

    It is reasonable to expect a difference in the trends for TURA's
overall effectiveness in waste reduction and other efficiencies versus
its effectiveness as an accident reduction program for RMP-listed
substances. The chemicals listed under the RMP program are among the
most dangerous in terms of acute impacts upon accidental release.
Therefore, users are likely to carefully manage these chemicals for
their own safety as well as for PSM and RMP compliance. In contrast,
TURA is much less focused on such chemicals. Therefore, it is likely
that facilities were less aggressively minimizing release of TURA
chemicals in general in the absence of TURA than they were in managing
RMP-listed substances. There likely would be more opportunities for
reductions in releases of non-RMP-regulated TURA chemicals, including
chemical substitution, than there would be for RMP substances at the
same facilities.
    While EPA agrees that reduction in the use of toxic chemicals is a
laudable goal and minimizing the use of regulated substances remains an
option for the owner or operator of any RMP facility to consider,
analysis of state-level RMP accident data from Massachusetts does not
appear to support the proposition that such regulatory provisions will
result in significant accident reduction at RMP facilities. Also, the
Pollution Prevention Act of 1990 already establishes a method for
evaluating chemical use reduction at facilities. The Agency does not
want to replicate these programs under CAA section 112(r).
    Regarding commenters' claims that a study conducted by the RAND
Corporation \88\ proves that EPA's estimate of the benefits of accident
prevention is too low, EPA disagrees with these comments. The RAND
study is not suitable for nationwide extrapolation for several reasons.
First, virtually all the monetized accident prevention benefits claimed
in the RAND study are associated with avoiding higher gasoline prices
in California following refinery accidents, such as the 2015 accident
at ExxonMobil's Torrance, CA refinery and the 2012 accident at
Chevron's Richmond refinery. Regarding the ExxonMobil accident, the
RAND study estimated that this accident cost California consumers more
than $2.4 billion in higher gasoline prices.
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    \88\ Gonzales, D., Gulden, T., Strong, A. and Hoyle, W. 2016.
Cost-Benefit Analysis of Proposed California Oil and Gas Refinery
Regulations. RR-1421-DIR. RAND Corporation, Santa Monica, CA.
www.rand.org/t/RR1421. EPA-HQ-OEM-2015-0725-0643.
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    A consequence of California's unique gasoline rules is that
gasoline sold in the state is also produced within the state. According
to RAND, ``California requires a unique reformulated gasoline blend to
meet the state's pollution-control requirements. Gasoline made in other
states to meet other state and federal pollution-control requirements
does not meet California standards. Consequently, all gasoline consumed
in California is typically made in the state.'' This greatly increases
the impact of a California refinery accident on California gasoline
prices because of the inability to substitute to out-of-state gasoline
supplies, as gasoline produced out-of-state does not meet California
regulatory requirements. According to RAND, ExxonMobil was forced to
import special blends of gasoline from other countries to meet demand
in California following the accident. In fact, the RAND analysis itself
shows that the gasoline price effects seen in California following the
ExxonMobil accident did not extend to areas outside California.
    The RAND study used the IMPLAN input-output model \89\ to estimate
the price effects of California refinery accidents. IMPLAN utilized
several simplifying assumptions that are unsuitable for national-scale
analysis. While input-output models such as IMPLAN will readily yield
impact estimates, their underlying structure rests on strong
assumptions that preclude key economic responses that would be expected
in the case of national level regulation. Input-output models do not
allow prices, production processes, or technologies to adjust in
response to a regulatory change. Instead, at best they represent the
short-term regional response to regulation better than an intermediate
or longer-term national response. This does not align well with the
objective of understanding responses to federal regulation. A major
limitation of using input-output models for policy simulations occurs
when the policy under consideration must be translated into changes in
final demand. The models assume that input supplies are unlimited, and
prices are fixed, suggesting that they are better at representing the
response of a single region to a small regulatory change not expected
to affect prices. Input-output models are of limited use for analyzing
large regulatory changes or the national economy. EPA guidance on
economic impact analysis cautions against using such models for
specific quantitative estimates.\90\ The RAND study acknowledges some
of the drawbacks of using IMPLAN, including that ``it tends to capture
maximum effects.'' The study also clearly states that IMPLAN is a tool
used to capture ``the regional macroeconomic impacts of policy
decisions.'' (Emphasis added.) EPA has additional concerns with the
RAND study that are explained in the Response to Comments document.
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    \89\ See RAND study, pp. 24-26.
    \90\ EPA. Handbook on the Benefits, Costs, and Impacts of Land
Cleanup and Reuse, EPA-240-R-11-001, October 2011, p. 81.
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    In sum, retaining the STAA provision and other new prevention
provisions of the Amendments rule will not result in the magnitude of
savings estimated in the RAND study. The unique nature of the
California gasoline market (discussed above) does not exist elsewhere
in the United States. Under California law, refineries already are
required to implement regulatory requirements exceeding Amendments rule
provisions, so additional benefits of the Amendments rule provisions
would not be expected to occur as a result of the rule's implementation
at refineries in California. (See prior discussion of CalARP refinery
safety regulations in section IV.C)
d. Claims That STAA is Required by CAA
    A joint submission from multiple advocacy groups and other
commenters stated that EPA is statutorily required to use STAA or an
alternative because of the Agency's prior determination that such
requirements are necessary to ``ensure continued public safety
concerning the operation of chemical facilities in and near
communities'' \91\ and to satisfy requirements in Sec.  7412(r)(7)(B).
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    \91\ Amendments rule Response to Comments, pp. 219, 247. EPA-HQ-
OEM-2015-0725-0729
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    EPA Response: EPA disagrees with the commenter's assertion that EPA
is statutorily required to use STAA or an alternative because of the
Agency's prior statements determining that such requirements are
necessary to ensure continued public safety. In the Amendments rule,
EPA adopted a requirement for safer technology and alternatives
analysis for selected industry sectors subject to Program 3

requirements. Now EPA is rescinding the STAA provision after
reconsideration based on the lack of apparent benefits of the provision
when applied to existing sources across broad sectors, based on our
review of available data, the effectiveness of pre-Amendments accident
prevention regulations in reducing accidents over time and a desire to
keep the Program 3 accident requirements aligned with the OSHA PSM
standard to better fulfill the EPA's coordination requirements pursuant
to CAA 112(r)(7)(D). Under 42 U.S.C. 7412(r)(7)(B), the accident
prevention provisions have an overriding requirement to be reasonable.
``Reasonable regulation ordinarily requires paying attention to the
advantages and disadvantages of agency decisions.'' Michigan v. EPA,
135 S. Ct. at 2707 (original emphasis). The legislative history of the
CAA 112(r) accident prevention program indicates that EPA was to ensure
the regulations would not be ``unduly burdensome'' (See section III.B--
Discussions of Comments on EPA's Substantive Authority under CAA
Section 112(r)). Our accident rate analysis shows that costs associated
with the STAA provision (nearly $70 million annualized) are
disproportionate to the accident prevention and mitigation benefit
shown in the state-level data (a benefit that we cannot discern from
the available data). Therefore, we believe that EPA can consider cost
issues and other burdens of compliance among the factors considered in
deciding what is a reasonable regulation to prevent accidents.
e. Claims That Rescission of STAA Provision is Arbitrary and Capricious
    A joint submission from multiple advocacy groups and other
commenters claimed that EPA's decision to rescind STAA is arbitrary and
capricious. Citing EPA's proposed Reconsideration rule language about
the indirect costs of STAA (83 FR at 24872, May 30, 2018--stating that
such costs could be incurred if facilities take actions based on
external pressures to implement STAA recommendations regardless of
whether they are necessary or practical), the commenter argued that EPA
is proposing to rescind the STAA provision based on speculation that
third-parties may pressure plants to adopt alternative technologies
even when adoption is unfeasible or otherwise unwarranted. The
commenter stated no evidence was available to corroborate this
consideration and asserted that EPA only discussed these indirect costs
at the prompting of OMB.
    EPA Response: EPA disagrees that rescinding the requirement is
arbitrary or capricious. The Agency is not rescinding the STAA
provision because third-parties may pressure plants to adopt
alternative technologies even when adoption is unfeasible or otherwise
unwarranted. The commenter may have drawn this inaccurate conclusion by
mistakenly assuming that EPA believes the costs of the STAA provision
as described in the Amendments rule included indirect costs of
implementing safer technologies and alternatives. However, while EPA
discussed such indirect costs in the Amendments rule, EPA was clear
that the STAA provision did not mandate adoption of any technology, and
the only cost that could be directly attributed to the requirement were
the cost of the assessment itself. The cost of the assessment included
the $70 million annualized cost for performing an STAA and did not
include any costs of implementation of any safer technology
alternatives or IST.
    EPA is rescinding the STAA provision after reconsideration based on
the lack of apparent benefits of the provision when applied to existing
sources across broad sectors, based on our review of available data, as
compared to its cost for compliance (i.e., performing an STAA, but not
implementing any IST), the effectiveness of pre-Amendment accident
prevention regulations in reducing accidents over time and a desire to
keep the Program 3 accident requirements aligned with the OSHA PSM
standard. EPA does not have a record showing significant benefits of
the added prevention program provisions. Without such benefits, EPA
believes it is better to take its traditional approach of maintaining
consistency with OSHA PSM. The creation of additional complexity and
burden associated with new provisions where EPA has not demonstrated
any benefit is evidence of their impracticability and unreasonableness.
6. Comments on Other Prevention Program Provisions
a. Remove ``For Each Covered Process'' Language From Compliance Audit
Provisions
    Multiple commenters supported EPA's proposal to remove the language
``for each covered process'' from the compliance audit provisions of
Sec.  68.58(a) and Sec.  68.79(a), stating that reviewing each covered
process is inefficient and inconsistent with industry auditing
practice. An industry trade association commented that when using a
sampling approach, the identification and corrections of concerns in
one process unit will address those concerns in all other covered
process units; therefore, an audit of each covered process would be a
waste of resources and create operational disruptions. A similar
comment was made by another industry association who recommended EPA
adopt a regulation allowing for representative sampling of covered
processes for compliance audits.
    An industry trade association also expressed support for EPA's
proposal, stating that the requirement was a procedurally defective
amendment that was made without an opportunity for the regulated
community to comment on EPA's departure from auditing practice based on
statistically significant representative sampling. Similarly, an
industry association stated that EPA failed to conduct a proper cost-
benefit analysis in the Amendments rulemaking when choosing to require
audits of all covered processes rather than allow for representative
sampling which is contrary to long-standing accepted auditing practice.
The commenter stated that maintaining the provision would result in
significant cost burdens on the regulated community. Several industry
trade associations also commented that EPA, in the Amendments rule, did
not justify how the provision would increase facility safety.
    In contrast, other commenters disagreed with removing the language.
A private citizen indicated that it is necessary to audit every covered
process. Similarly, a State government agency stated that even though
EPA is proposing to delete the phrase ``for each covered process,'' all
covered processes still must be evaluated in the compliance audit as
the phrase in question is merely a clarification.
    EPA Response: The final rule removes the phrase ``for each covered
process'' from the compliance audit requirements because it was not
necessary to add the phrase and removing it will maintain consistency
with the OSHA PSM standard.\92\ For those facilities with more than one
covered process, EPA's view that compliance audits must evaluate every
process every three years does not foreclose the use of
``representative sampling'' during audits.\93\ At complex facilities
with multiple processes, audits do not typically involve reviewing 100
percent

of records relating to a topic--rather, an auditor should review a
sample of records sufficient to draw valid conclusions about a source's
compliance with a particular regulatory provision. At such facilities,
to audit each process, an auditor may review a process directly, or may
gain confidence in the compliance of the process through representative
review of compliance of other processes at the source. CCPS
``Guidelines for Auditing Process Safety Management Systems, Second
Edition'' (Wiley, 2011), provides two methods for representative
sampling that are designed to ensure a compliance audit at a medium to
large multi-process facility represents all covered processes at the
facility without sampling records or personnel for every prevention
program provision at every covered process. The two methods offered by
CCPS are to either (1) Audit some elements of the prevention program in
all covered processes and units (CCPS provides an example indicating
that different subsets of prevention elements are selected for
different units, such that every element is ultimately audited under
this approach), or (2) Audit all elements of the prevention program in
some of the processes and units.
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    \92\ EPA. Response to Comments on the 2016 Proposed Rule
Amending EPA's Risk Management Program Regulations, December 19,
2016, pp. 54-55. Docket ID: EPA-HQ-OEM-2015-0725-0729.
    \93\ Representative sampling would not apply to the majority of
regulated facilities because most have only one covered process.
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